BLT: June 2020

Featured Articles

Business & Corporate

Distressed Company M&A in the Time of COVID-19: Benefits and Risks of Section 363 Sales

Andrew Lucano, James B. Sowka, Leslie E. Kersey

In the new economic reality brought on by the COVID-19 pandemic, businesses are facing unprecedented challenges, and many will seek bankruptcy protection. For capital-rich purchasers, Section 363 sales inevitably will present interesting...

Business & Corporate

Delaware Corporations Can Keep Federal Securities Law Claims Out of State Courts: Delaware Supreme Court Overrules Sciabacucchi

James G. McMillan

A recent Delaware Supreme Court decision clears the way for Delaware corporations to adopt federal-forum provisions in their certificates of incorporation. Delaware corporations can and should now adopt both Delaware forum provisions and federal...

Business & Corporate

The Coming Tsunami: Anticipated Regulatory and Enforcement Trends in the Wake of COVID-19 and the Unique Role of State Attorneys General

Miranda Hooker, Ashley L. Taylor, Jr., Ryan J. Strasser, Katherine E. Stark

Governmental investigations and enforcement actions have followed a familiar pattern when arising out of a public crisis. The forthcoming investigation and enforcement actions by the federal, state, and local governments relating to the...

Business & Corporate

The Return of Employees, Business Partners, and Vendors to the Office: Five Steps to Protect Trade Secrets

Rajiv Dharnidharka, Paul Steadman, Andrew Day

As shuttered offices reopen, companies must seek to understand how employees, business partners, and vendors stored, transmitted, and otherwise used or misused trade secret information while working remotely.

Business & Corporate

To Offset or Not to Offset: The Interaction between CARES Act Payments/PPP Loans and Insurance Recoveries Due to COVID-19

Syed Ahmad, Cary D. Steklof

Though insurance companies may seek to deduct any CARES Act recoveries from their insurance payouts, the inquiry is more nuanced than simple arithmetic. Policyholders must be prepared to show that a setoff is not warranted.

Business & Corporate

Coronavirus, Physical Damage, and the Need for a Positive Presumption

Evan W. Bolla

In the aftermath of the COVID-19 pandemic, the survival of many businesses will turn on whether they have private insurance coverage to cover all or a portion of their losses.

Business & Corporate

Rise in Employment Law Claims: Knowing the Risks and the Long-Term Legal Implications Anticipated from the COVID-19 Pandemic

Eric W. Iskra, Ellen J. Vance

The COVID-19 pandemic hit employers hard and fast—it caused employers to deal with loss of revenue, tough decisions about workforce and pay issues, and new laws and other guidelines that had to be analyzed and implemented quickly, with little...

Business & Corporate

Expert Analysis: Data Collection, Personal Privacy, and COVID-19 Contact Tracing How the Virus and New Tech Triggered Thorough Review and Clarification Surrounding Privacy Laws

John Neocleous

Contact tracing and testing technology will very much play a role in forming a sound recovery strategy from the COVID-19 pandemic. However, understanding what our privacy laws require is crucial to that recovery strategy.

Business & Corporate

InsideOut: The Ninth Circuit Holds the Moodsters are No Batman

James Kachmar

Certain literary or graphic characters may, in some cases, enjoy copyright protection. Think James Bond—or Batman, and even his Batmobile. Recently, the Ninth Circuit was called upon to determine whether the Moodsters, “anthropomorphized...

Business & Corporate

The Need to Be “Information Lean” After COVID-19

Randolph A. Kahn

Hackers and cyberwarriors began attacking the soft underbelly of corporate security right after COVID-19 hit. This new environment is also accelerating digitalization, which is building better business processes through strategic use of technologies.

Business & Corporate

Lawyering in the Time of Pandemic

Lisa R. Lifshitz

Regardless of whether there is a mandatory legal duty of technological competence required of lawyers by our law societies, arguably lawyers practicing law during this time of pandemic now have an even greater duty to understand and deploy the...

Business & Corporate

Contradictory Responses by Privacy Regulators Post- COVID-19: Balancing the Economy with Cybersecurity in a Changed World

Mary J. Hildebrand, Edgar R. Hidalgo, Carly S. Penner

The CCPA is set to become enforceable on July 1. It is imperative that you understand the data privacy and cybersecurity regulations applicable to your business and develop creative compliance programs that respect the integrity and security of...

Business & Corporate

Mostly Dead but Slightly Alive: M&A Deals of 2020

Yelena Dunaevsky

Although several M&A deals have fallen through due to the COVID-19 pandemic, many pending U.S. deals are proceeding as planned. MAE carveouts will now come sharply into focus for M&A parties, and deals signed in April and March of 2020 have...

Business & Corporate

Distressed Company M&A in the Time of COVID-19: Benefits and Risks of Section 363 Sales

Andrew Lucano, James B. Sowka, Leslie E. Kersey

The COVID-19 pandemic and the drastic measures taken in an effort to mitigate its adverse impact have sent shock waves throughout the US and global financial systems. COVID-19 and related measures including travel bans, shelter-in-place orders and widespread business closures have caused precipitous changes in customer spending and demand, supply chain disruptions, sharp declines in revenue, and other operational issues across a wide range of economic sectors. Businesses worldwide now confront unprecedented and mounting challenges and distress.

Business & Corporate

Clawbacks: Creating a Fair Post-Sale Deal for Former Owners

Michael A. Ellis

By recognizing the value of clawbacks and drafting provisions that fit the unique facts of the situation, attorneys can ensure that fair value has been provided to the departed equity owner and that no additional funds will be expended by the...

Business & Corporate

Material Regulatory Risks in Healthcare Services Acquisitions

Ari J. Markenson, Cynthia Suarez

As transactions involving healthcare services providers increase, an understanding of the major areas of material risk discussed in this article will be an important tool for any business lawyer involved in such a transaction.

Business & Corporate

The Primacy of Deal Price in Recent Delaware M&A Appraisal Litigation

Chauncey Lane, George Khoukaz

Recent cases from the Delaware Supreme Court signal that it is not backtracking on its embrace of the primacy of deal price. Could this explain the multiyear decline in appraisal litigation in Delaware since 2016?

Business & Corporate

SEC Encourages Disclosure of COVID-19 Impacts by Municipal Securities Issuers

Katherine Thursby Ortega

On May 4, 2020, U.S. Securities and Exchange Commission (“SEC”) recommended that municipal securities issuers and obligors provide robust, timely, and accurate disclosures regarding the impact of and uncertainties caused by the COVID-19 health...

Month-In-Brief

Business & Corporate

MONTH-IN-BRIEF: Business Regulation & Regulated Industries

Lynette Hotchkiss

June 2020

Business & Corporate

MONTH-IN-BRIEF: Internet Law & Cyber-Security

Juliet Moringiello, Sara Beth A.R. Kohut

June 2020

Business & Corporate

MONTH-IN-BRIEF: Mergers & Acquisitions

Chauncey Lane

June 2020

Business & Corporate

MONTH-IN-BRIEF: Securities Law

Alan J. Wilson, Rani Doyle

June 2020

American Bar Association TM American Bar Association

BLT: June 2020

Featured Articles

Distressed Company M&A in the Time of COVID-19: Benefits and Risks of Section 363 Sales

Delaware Corporations Can Keep Federal Securities Law Claims Out of State Courts: Delaware Supreme Court Overrules Sciabacucchi

The Coming Tsunami: Anticipated Regulatory and Enforcement Trends in the Wake of COVID-19 and the Unique Role of State Attorneys General

The Return of Employees, Business Partners, and Vendors to the Office: Five Steps to Protect Trade Secrets

To Offset or Not to Offset: The Interaction between CARES Act Payments/PPP Loans and Insurance Recoveries Due to COVID-19

Coronavirus, Physical Damage, and the Need for a Positive Presumption

Rise in Employment Law Claims: Knowing the Risks and the Long-Term Legal Implications Anticipated from the COVID-19 Pandemic

Expert Analysis: Data Collection, Personal Privacy, and COVID-19 Contact Tracing How the Virus and New Tech Triggered Thorough Review and Clarification Surrounding Privacy Laws

InsideOut: The Ninth Circuit Holds the Moodsters are No Batman

The Need to Be “Information Lean” After COVID-19

Lawyering in the Time of Pandemic

Contradictory Responses by Privacy Regulators Post- COVID-19: Balancing the Economy with Cybersecurity in a Changed World

Mostly Dead but Slightly Alive: M&A Deals of 2020

Distressed Company M&A in the Time of COVID-19: Benefits and Risks of Section 363 Sales

Clawbacks: Creating a Fair Post-Sale Deal for Former Owners

Material Regulatory Risks in Healthcare Services Acquisitions

The Primacy of Deal Price in Recent Delaware M&A Appraisal Litigation

SEC Encourages Disclosure of COVID-19 Impacts by Municipal Securities Issuers

Month-In-Brief

MONTH-IN-BRIEF: Business Regulation & Regulated Industries

MONTH-IN-BRIEF: Internet Law & Cyber-Security

MONTH-IN-BRIEF: Mergers & Acquisitions

MONTH-IN-BRIEF: Securities Law