COVID-19 Guidance

Walsh’s Bankruptcy, Restructuring and Creditors’ Rights team, comprised of Stephen V. Falanga, Christopher M. Hemrick, and Sydney J. Darling, is available to provide guidance on all aspects of bankruptcy, insolvency and credit-risk-related challenges triggered by the pandemic, including:

• Cash and liquidity crises
• Credit-risk management
• Financing defaults
• Debt restructuring
• Loan forbearance and workouts
• Legal compliance issues and best practices
• Representation throughout all aspects of bankruptcy liquidations, restructurings and other insolvency proceedings and foreclosure litigation.

Among other specific concerns:

• Supply chain disruptions are likely to impact the ability of companies to meet sales projections and otherwise support financial obligations, leading to the immediate need to consider strategic restructuring alternatives.
• The abrupt drop in consumer demand caused by the pandemic will have obvious implications for a myriad of face-to-face consumer-focused businesses.
• Strained sources of capital and liquidity could interfere with a business’s cash-flow and resulting ability to timely satisfy vendor obligations and other operating expenses.
• Loan covenants will require analysis to determine borrower compliance and guarantor obligations.
• Corporate insolvency situations implicate rights and duties of company directors, officers and equity holders that should be understood and appropriately navigated.
• Companies facing insolvency as a result of this crisis will have to weigh WARN Act and severance considerations prior to taking any action.
• Here are some helpful sources of information which we will add to in the future:
  • https://www.sba.gov/about-sba/sba-newsroom/press-releases-media-advisories/sba-provide-disaster-assistance-loans-small-businesses-impacted-coronavirus-covid-19
  • https://www.irs.gov/coronavirus
  • https://www.usa.gov/coronavirus#item-214586
  • https://www1.nyc.gov/site/sbs/businesses/covid19-business-outreach.page

View the Most Recent COVID-19 Alerts ›

Walsh’s Business and Commercial Litigation team, overseen by Liza M. Walsh, is prepared to address the myriad of commercial agreement challenges created by the pandemic, including:

• The dislocations triggered by the coronavirus will have dramatic ramifications for commercial agreements worldwide. For example, we are likely to see a number of contract parties asserting that the outbreak constitutes a force majeure event or gives rise to another legal basis excusing nonperformance.
• The impact of the virus on a particular business and under a particular contract will be fact-specific and depend on the contract’s specific provisions.
• New York law suggests that for force majeure to apply, the unforeseen event must be one of those events enumerated in the parties’ contract as excusing or adjusting each parties’ performance.
• New Jersey courts have followed Chapter 11 of the Restatement (Second) of Contracts §§ 261–72, which recognizes that an obligor may contract for a lesser obligation than full and complete performance through clauses limiting that performance, such as a clause, a force majeure clause or other language reserving a right to cancel. In the absence of such a clause, if “[a]n extraordinary circumstance [makes] performance so vitally different from what was reasonably to be expected as to alter the essential nature of that performance,” justice may require “departure from the general rule that the obligor bear the risk that the contract may become more burdensome or less desirable.” The outcome in each case is fact-specific.

Businesses, non-profits and other organizations should be prepared to review contracts which may be affected by COVID-19 and identify relevant clauses, such as representations/warranties, covenants, conditions precedent, force majeure clauses or “material adverse event” clauses, clauses relating to a “change in law,” notice requirements, termination rights and conditions, and dispute resolution provisions.

View the Most Recent COVID-19 Alerts ›

Walsh’s Construction Law team, led by Thomas J. O’Leary, can provide guidance regarding the following efforts to mitigate financial losses due to the COVID-19 emergency:

• Reviewing contracts to determine if they permit adjustments to schedule milestone dates or delivery schedules due to causes beyond a contractor’s control.
• Submitting a request for a time extension and inquiring about obtaining approval for a material substitution if specialty materials required by project specifications are not available in light of COVID-19 shutdowns.
• Analyzing loss recovery options, including insurance and other sources of indemnification.

For more information regarding contractor rights and remedies during this unprecedented time, please contact Thomas J. O’Leary, at [email protected] or (973) 757-1045.

View the Most Recent COVID-19 Alerts ›

Walsh’s Cyber Security and Data Privacy team, led by Peter J. Pizzi CIPP/US, can offer guidance regarding information security and other risks heightened by the pandemic, including:

• Companies will face increased risk of network penetration due to a greater percentage of staff working remotely.
• Employees should be reminded of the need to use firm-issued equipment and systems for business-related purposes and to use personal devices to meet other needs.
• Employees working remotely should check the security of home Wi-Fi routers, use strong passwords, and refrain from public Wi-Fi.
• The pandemic is likely to spark an increase in phishing exploits, requiring greater precaution and communication with firm personnel in assessing whether an unexpected message is legitimate.
• For the same reason, employers should make sure all staff have ready access to the company’s Incident Response Plan and, in particular, have handy internal and external emergency contacts in hard copy.

View the Most Recent COVID-19 Alerts ›

Our Employment Law team, led by Tricia B. O’Reilly, M. Trevor Lyons and Caitlin Cascino, can answer your inquiries regarding:

• The need to inquire of employees regarding COVID-19 symptoms and/or to take employees’ temperatures in the workplace.
• An employer’s ability to send an employee home even if asymptomatic and without risk indicators.
• The impact of the pandemic on the ability of employers to provide a safe workplace.
• The obligations of an employer to continue compensation while employees are unable to come to the workplace.
• Whether employees working remotely must be reimbursed for equipment needed to facilitate work-from-home.
• Job protections applicable to employees throughout the pandemic.

Employers of all sizes and industries are encouraged to address these questions – and others – to implement effective plans for the short- and long-term operations of their businesses. Walsh has crafted information guides and notices that address questions across an array of subject areas, and is able to respond promptly to inquiries. Please contact Walsh to help your company be in the best position possible to prepare for this pandemic.

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Walsh’s Insurance and Regulatory & Public Policy group, led by Richard J. Badolato and Marc. D. Haefner, is ready to address insurance challenges including:

• Applicability of business interruption and other coverages to losses caused by the pandemic.
• Regulatory changes made in response to the pandemic, including, as an example, the New Jersey Department of Banking & Insurance’s Bulletin No. 20-03 which is addressed to health insurance companies, health maintenance organizations, health service corporations, and other entities issuing health benefit plans in New Jersey and provides guidance on how to respond effectively to the global coronavirus outbreak.

View the Most Recent COVID-19 Alerts ›

Walsh’s Special Education team, led by Thomas J. O’Leary, offers current guidance regarding the impact of remotely learning directives, issued following the COVID-19 pandemic, on students with disabilities or special needs.

View the Most Recent COVID-19 Alerts ›