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COVID-19 and Force Majeure: What’s In Your Contract?

At the beginning of April, Legal Bytes highlighted some of the pros and cons of attempting to use a Force Majeure (Excusable Delay) clause in contracts as the basis for delaying or even failing to perform under a contract. See COVID-19: May the Force (Majeure) Be With You.   Now in early June, a bankruptcy judge in Illinois has opined on at least one instance where a party to a real estate lease agreement can take advantage of such a clause. For those of you inclined to read the entire decision you can check out In re Hitz Restaurant Group, No. 20-B-05012, 2020 WL 2924523 (Bankr. N.D. Ill., Eastern Division, June 3, 2020).

The specific language in the lease agreement is critical to this analysis, so this is the relevant language in the contract the court cites in the opinion:  “Landlord and Tenant shall each be excused from performing its obligations or undertakings provided in this Lease, in the event, but only so long as the performance of any of its obligations are prevented or delayed, retarded or hindered by … laws, governmental action or inaction, orders of government…. Lack of money shall not be grounds for Force Majeure.” (emphasis is mine).  The Bankruptcy Court held Executive Order 2020-7, the Stay-at-Home Order, issued by Illinois Governor Pritzker on March 16, 2020, “unambiguously” triggered the force majeure clause, holding the order constituted both “governmental action” and an “order of government.”

In its motion, the landlord claimed banks were still open, the tenant was still able to write checks and mail them to the landlord, that the tenant could still operate it’s take out and delivery service, that in order to obtain funds the tenant could have applied for and received an SBA loan, but more importantly that lack of money was specifically and explicitly stated in the clause as “not grounds for Force Majeure. ”  In dealing with the landlord’s motion, the Bankruptcy Court first noted neither the bank’s being open or closed or the tenant’s ability to write checks and mail them were relevant or responsive to the tenant’s arguments or for that matter the specific language of the force majeure clause.  More significantly, the Court rejected the landlord’s argument that the failure to perform was due to a lack of money – something specifically noted in the clause. To this the Court stated that not only was the tenant under no legal obligation (either in the lease or at law) to apply for an SBA loan to pay the rent, but the Illinois Governor’s Executive Order was the proximate cause of the tenant’s inability to pay rent and that the Executive Order clearly impaired the tenant’s ability to operate fully and generate the same amount of revenue as it might under normal circumstances.

That said, the Bankruptcy Court did take into account the fact that the restaurant (tenant) was not completely shut down and could still provide take-out and delivery services and decided that the tenant should still pay some rent, but in an amount “in proportion to its reduced ability to generate revenue due” as a result of the imposition of the Executive Order.  Neither landlord or tenant had suggested a way to determine a reasonable proportion so the Court essentially decided that since the tenant estimated the kitchen (the facilities within the premises still available for use in fulfilling a take-out and delivery service) represented about 25% of the total square footage, the Court partially excused the tenant from paying the full rent while the Executive Order remained in effect.

It is important to note this is a proceeding in bankruptcy court and even in that context is technically not binding on other jurisdictions.  It is also important to note that even though the contract clause carved out “lack of money” as a basis for invoking the clause, the specific reference to “governmental action” and “orders of government” gave the court a foothold to decide that these facts, although perhaps causing a lack of revenue, where the basis for invoking the clause and awarding the tenant partial relief from it’s full payment obligation.  As with all decisions of the courts, they are very fact-specific, although it may be interesting to see if other courts begin to use the reasoning as having some precedent value in these unprecedented times.

If you need more information or have any questions, don’t hesitate to contact Angela Gonzalez or me, Joe Rosenbaum, or the Rimon Law lawyer with whom you regularly work.

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Congress Provides Additional PPP Flexibility

H.R. 7010, the Paycheck Protection Program Flexibility Act of 2020, passed by Congress on June 3rd, was signed by the President and became effective on June 5. 2020. The legislation makes some significant changes to the Payroll Protection Program (PPP). For our previous posts on the subject go to our most recent post on the subject PPP Loan Forgiveness Application which has links to all our prior postings.

If you want to read the entire text of the new law, you can read or download a personal copy Paycheck Protection Program Flexibility Act of 2020 , but in short (OK, it’s actually not that short) here goes:

Loan Maturity:  PPP loans made on or after June 5th will have a maturity of at least five years up to a maximum of ten years from the date  the borrower applies for forgiveness.  Although the new law only applies to loans made after June 5th, it does allow borrowers who received loans prior to that date to mutually agree to modify the maturity dates and conform to the extended time periods;

Covered Period Extended:  Under the new amendment, for both existing and new loans, in order to determine the amount to be forgiven, the period will now start on the origination date of the loan (i.e., the date the funds are disbursed per the SBA) and ending either 24 weeks (168 days) after the loan origination date, or December 31, 2020, whichever is earlier.  If you received a PPP loan before June 5, you can decide to use the 8 week period under the original CARES Act if you prefer;

Reduction of FTE/Salaries Safe Harbor Deadline Extended:  The new deadline for restoring FTE and salary/wage levels to their February 15th status, originally required by June 30th has now been extended to December 31, 2020.  In addition, the recently enacted amendment to the CARES Act provides that the amount of the loan that will be forgiven will be determine without regard to any reductions as a result of: (a) an inability to rehire individuals who were employees on February 15th and to hire similarly qualified employees for unfilled positions on or before December 31, 2020; or (b) the inability to come back to the level of business that existed before February 15th in order to comply with requirements or guidance from the Secretary of Health and Human Services, the CDC, or OSHA, from March 1st until December 31, which inability is related to requirements needed to maintaining standards applicable to COVID-19 for health, sanitation, social distancing or other worker or customer safety.  PPP borrowers should be prepared to substantiate (document) their good faith inability to hire/re-hire or return to pre-February 15th business levels and it is likely that information will be requested with any applications for forgiveness.

Using Loan Proceeds:  For both existing and new PPP loans, the new legislation provides that at least 60% must be used for covered payroll costs and up to 40% can be used to pay covered non-payroll costs (e.g., timely payment of interest on covered mortgage loans, covered lease, rent and utility payments.

Payment Deferral Period Extended:  Payments of principal and interest on PPP loans will be deferred until SBA determines the amount of the loan that will be forgiven and pays that amount to the lender.

If a Borrower Doesn’t Apply for Forgiveness: If a borrower does not apply for PPP loan forgiveness within 10 months after the end of that borrower’s “covered period,” payments of principal and interest will begin at the end of that 10-month period.  If a borrower has a pre-June 5th PPP loan who choose to continue to use the 8 week covered period under the original CARES Act, if the borrower hasn’t applied for forgiveness, those payments will begin 10 months after the end of that 8 week period.

Employer Payroll Taxes:  Under the new law, even if a Borrower receives forgiveness of the PPP loan, they can still defer paying employer payroll taxes as permitted by the original CARES Act.

While it is likely there will be additional clarifications and updated or revised guidelines as new questions arise, the new law provides welcome relief by extending deadlines, especially how forgiveness rules will be interpreted and applied.  We will keep you posted, but as always, if you have questions or need more information you can contact me, Joe Rosenbaum, or any of the legal professionals with whom you regularly work at Rimon Law.

 

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PPP Loan Forgiveness Application

Following up on our previous posts (Paycheck Protection Program & Disaster Relief Loan Information Released (Updated) and Paycheck Protection Program (Updated FAQs)) this past Friday (May 15th), in consultation with the Department of the Treasury, the Small Business Administration (SBA) released the Paycheck Protection Program (PPP) Loan Forgiveness Application with detailed instructions explaining how to apply for forgiveness of PPP loans, consistent with the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).  The announcement also states the SBA will also issue regulations and guidance to further assist borrowers as they complete their applications, and provide lenders with guidance on their responsibilities. Here are copies of the Press Release, as well as the PPP Loan Forgiveness Application with detailed instructions, you can read and download directly.

We will post further information as it becomes available.

As always, if you need more information or assistance you can contact me, Joe Rosenbaum, or any of the lawyers at Rimon with whom you regularly work. Stay safe!

 

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Federal Reserve Expands Main Street Lending Program

On April 30th, the Federal Reserve Board announced an expansion of its Main Street Lending Program to help small and medium-sized businesses. The expansion adds additional loan options for businesses and increases the maximum size of businesses eligible for support under the program.  Although no start date for the expanded program has been announced yet, highlights of the expansion are:

  • Creating a new loan option, with increased risk sharing for borrowers with greater leverage;
  • Lowering certain loan minimums to $500,000; and
  • Expanding the pool of eligible businesses.

The Federal Reserve Board has published FAQs related to the program and you can read and download a copy at Main Street Lending Program – Frequently Asked Questions.

The US Chamber of Commerce has also published a guide to the program and you can read and download a copy at USCC Guide to Main Street Lending Program.

Once these expanded options are launched, there will be a total of three loan options—referred to as new, priority, and expanded and you can read more information about each of these loan options here:

Main Street New Loan Facility (MSNLF)

Main Street Priority Loan Facility (MSPLF)

Main Street Expanded Loan Facility (MSELF)

While there are different criteria and parameters for each of these loan options, lenders will be able to apply industry-specific expertise and underwriting standards to measure a borrower’s income and under the new program,  businesses with up to 15,000 employees or up to $5 billion in annual revenue are now eligible.

As always, if you want more information or need assistance feel free to contact me Joe Rosenbaum, or any of the Rimon Law lawyers with whom you regularly work.  Stay well. Stay safe!

 

 

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Cinco de Mayo

Today is May 5th – Cinco de Mayo!
Many people mistakenly believe Cinco de Mayo is Mexican Independence Day, but Día de la Independencia in Mexico is commemorated on September 16th.
In fact, Cinco de Mayo commemorates the Battle of Puebla de Los Angeles which took place on May 5, 1862, in which defending Mexican forces, led by General Ignacio Zaragoza, defeated the invading French army of Napoleon III. Puebla de Los Angeles was subsequently renamed for General Zaragoza who died of typhoid fever months after his victory.
Cinco de Mayo is a relatively minor holiday in Mexico, but is celebrated with much more fanfare in the United States and has evolved into a commemoration of Mexican culture and heritage, particularly in areas with large Mexican-American populations.

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Warning Against COVID-19 Claims and more . . .

On April 24, 2020, the Federal Trade Commission (FTC) announced it had sent warning letters to 10 multi-level marketing companies regarding claims they or their participants (distributors) were making in social media posts and online related to COVID-19.
The claims included supposed health benefits, as well as pitching business opportunities related to the pandemic. You can read the announcement and obtain more detailed information at FTC Sends Warning Letters to Multi-Level Marketers Regarding Health and Earnings Claims They or Their Participants are Making Related to Coronavirus. These new letters come on the heels of letters previously sent to companies about unsupported claims concerning products that can treat or prevent coronavirus (FTC, FDA Send Warning Letters to Seven Companies about Unsupported Claims that Products Can Treat or Prevent Coronavirus).

The FTC and the FDA (Food and Drug Administration) have sent scores of warning letters to companies that may be violating federal law by making deceptive or scientifically unsupported claims about the ability of these products to treat or cure coronavirus. Warning letters have also been sent to voice over Internet protocol (VoIP) service providers and other companies warning against “assisting and facilitating” illegal coronavirus-related telemarketing calls.

You can visit the FTC Coronavirus Warning Letters to Companies web page to see a list of warning letters related to the COVID-19 pandemic.  The FTC also keeps track of consumer complaints related the pandemic and updates the data regularly.  As of yesterday, there were almost 30,000 COVID-19 related consumer complaints, and although less than 50% of all these complaints report a loss, the estimated fraud losses based on those that do is now well over $20,000,000.  For the latest statistics, visit Coronavirus (COVID-19) Consumer Complaint Data, which the FTC updates regularly.

The FTC and the Department of Justice have also issued a joint statement expressing their views on unfair competition and antitrust laws and regulations to make it clear, especially in these extraordinary times of crisis, how firms (including competitors) are permitted to engage in pro-competitive collaboration that does not violate the antitrust laws.  You can read the statement at Joint Antitrust Statement Regarding COVID-19.

Rimon lawyers continue to follow these and related developments applicable to the Paycheck Protection Program and other government initiatives available through the SBA and related to the COVID-19 pandemic. For more information or assistance you can contact me, Joe Rosenbaum or any of the Rimon lawyers with whom you regularly work.  Stay safe!!

 

 

 

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Paycheck Protection Program (Updated FAQs)

We previously posted information regarding the initial release of information about the Paycheck Protection Program being implemented by the U. S. Small Business Administration (US Chamber of Commerce Issues Coronavirus Small Business Guide and Paycheck Protection Program & Disaster Relief Loan Information Released (Updated)).

If you have been following those developments, yesterday (28 April 2020) the SBA updated the FAQs and you can read and download a copy of the update directly from the SBA’s website Paycheck Protection Program Loans Frequently Asked Questions.

While the FAQ document does not have the force or effect of law or regulation, the guidance is based on the SBA’s interpretation of the CARES Act and of the Paycheck Protection Program Interim Final Rules and notes the U.S. government will not challenge any action taken by a lender in reliance upon and conforming to the guidance and any subsequent rulemaking in effect at the time.

 

 

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Crisis Management at the Intersection of Marketing, Privacy, Security and Reputation

For those of you interested and available, on Thursday, April 23rd at 1 PM ET, Joe Rosenbaum, NY Partner at Rimon Law and chair of Rimon’s Global Alliance will be conducting a one hour seminar entitled Crisis Management at the Intersection of Marketing, Privacy, Security and Reputation touching on some of the current issues in marketing, privacy, public relations, cybersecurity & reputation management arising from the COVID-19 pandemic.

While the issues raised may well apply in many crisis situations, now, more than ever, as increased numbers of people are working, schooling and playing at home or at other remote locations, the value of online and mobile advertising and promotions has increased substantially. At the same time, the amounts of information being made available by people scrambling for information, trying to keep up with breaking news, and signing up for online, digital services and information, present legal challenges for compliance with both old and newly enacted privacy and data protection regulation. Not coincidentally, online and mobile scammers are seeking to capitalize on the growing number of inexperienced web surfing consumers and cyber criminals are using the opportunity to capture valuable personally identifiable as a result of lax or relaxed security measures. The inaccurate perception that strong security may be an obstacle to utility or speed and simply the increased number of inexperienced users accessing the Internet, provide fertile ground for exploitation. What you should know? What you can do? What you should be telling your clients and employees? What can we all do to help?

To register simply go to REGISTER: Crisis Management at the Intersection of Marketing, Privacy, Security and Reputation

The course is open to lawyers and non-lawyers, is approved for New York bar members who are eligible for 1 CLE credit per course through NY’s Approved Jurisdiction Policy and approved by the California State Bar for 1 hour of CLE credit.  Most other states recognize CA accredited courses and if you would like credit in any other state, please check your local state bar’s regulations.