By Rebekkah Emerson and Allison Handy

On June 23, 2020, the Securities and Exchange Commission’s Division of Corporation Finance (Corp Fin) published CF Disclosure Topic No. 9A (Topic 9A) to provide further disclosure-related guidance to public companies whose operations and/or financial condition have been impacted by COVID-19. Specifically, Topic 9A provides guidance in the form of illustrative questions for assessing the impact of COVID-19 on disclosures relating to financial condition, results of operations, liquidity, and capital resources. This guidance supplements CF Disclosure Guidance: Topic No. 9 released by Corp Fin in March, which we covered in a prior blog post, and also refers companies to SEC Chief Accountant Sagar Teotia’s related statement on accounting and auditing matters, also released on June 23.
Continue Reading Corp Fin Provides Supplemental Disclosure Guidance for COVID-19

By Matthew Koerner and Thomas Ryerson

As this blog has previously noted, the Coronavirus pandemic, like other crises before it, is likely to increase prosecutions for fraud, particularly under the Payment Protection Program (“PPP”) created by the federal government’s Coronavirus stimulus packages.  Two new prosecutions announced by the Department of Justice mark some of the first prosecutions under the PPP, and signal where and how the government will be looking for wrongdoing.
Continue Reading Prosecutions Related to Coronavirus Stimulus Begin

By Matthew Goldberg and Heather Sager

On April 29, 2020, seven Bay Area jurisdictions—Alameda, Contra Costa, Marin, San Mateo, Santa Clara and San Francisco Counties, as well as the City of Berkeley—issued revised Shelter-in-Place Orders that will take effect May 4, 2020 and remain active through May 31, 2020. The Orders relax some prior restrictions, but unless specifically noted, non-essential businesses must remain closed. The updated Orders allow the following:

  • “Outdoor businesses” (see below) to reopen, provided they have the ability to maintain social distancing of at least six feet between all persons—note that this expressly excludes restaurants with outdoor seating;
  • Commercial and residential construction projects to resume as essential businesses, provided they are in compliance with specific health protocols—attached as appendices to the Orders;
  • Real estate transactions (including residential moves) to resume, but with continued restrictions on in-person viewings and appointments;
  • Expanded outdoor recreational activities as long as social distancing can be maintained; and
  • The definition of childcare establishments classified as essential businesses has been expanded to include educational recreational programs, such as summer camps, although these programs may not have more than 12 children in one group.

Continue Reading SF Bay Area Issues Updated Shelter-in-Place Orders

By Sarah Flotte, Heather Sager, Sara Whaley, and Molly Mitchell

On April 3, 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued an updated recommendation that all workers and members of the general public should consider using non-medical face masks or face coverings to prevent the spread of COVID-19 transmission and infection. The CDC does not require individuals to wear face masks; however, businesses should be aware of increased local legislation that may affect their workforce. Many states now mandate the use of face masks and may even require businesses to bear the cost in providing them.

Continue Reading Essential Businesses in Several States Now Must Provide Face Masks to Employees

By Perkins Coie Remote Deposition Team: Elizabeth Anastasia, Charles Campbell, Heather Schultz, Geof Vance, and Bill Weissmeier

Courts are closed. Law firm offices are empty. Clients, like most people in the United States, are working from—and stuck in—their homes. Yet, litigation, including the discovery process in which depositions play a central part, continues. Fortunately, there is technology that has been accepted by the courts and is used by litigators to effectively take, defend, and prepare witnesses for virtual depositions, even though the participants, including the deponent, court reporter, videographer, and attorneys, are in different jurisdictions and time zones around the world.

Acceptance of Remote Depositions

Remote depositions have been allowed by state and federal court procedural rules for a long time, either by party stipulation or court order. This has allowed lawyers to take and defend depositions over the phone or online, but with the court reporter and videographer, if hired, usually in the same room as the deponent. Fast forward to today, in the midst of the COVID-19 crisis, and we find that most states have very recently enacted rules that allow a notary public (the court reporter) to swear in a witness remotely, with the notary and deponent in different places. Parties can agree on remote oaths in states that don’t yet allow them. Consequently, litigants throughout the country are not only allowed, but in some jurisdictions encouraged, to move forward with depositions during this crisis while the physical courts and law firm offices are closed.

Continue Reading Using Deposition Technology While Sheltered in Place

By Meredith Jones-McKeown and Torryn Rodgers

On April 6, 2020, California’s Judicial Council enacted 11 emergency rule changes in response to the quickly evolving coronavirus (COVID-19) pandemic. The changes follow Governor Gavin Newsom’s March 27 executive order granting the Council extended leeway in setting statewide trial court orders addressing COVID-19 and demonstrate efforts by the Council to balance protection of the public health with basic operations of the judicial system.

Key rule changes include the following:

  • Tolling the statutes of limitation for civil causes of action. Notwithstanding other laws, the Council moved to toll all civil causes of action as of April 6, 2020 to 90 days after the Governor declares California’s COVID-19 state of emergency lifted. (Emergency Rule 9.)
  • Allowing video or other remote court proceedings. Courts may require judicial proceedings and other court operations to be conducted remotely. For civil actions, the rule defines remote proceedings to include
    • the use of video, audio, and telephonic means for remote appearances;
    • the electronic exchange and authentication of documentary evidence;
    • e-filing and e-service;
    • the use of remote interpreting; and
    • the use of remote reporting and electronic recording to make the official record of an action or proceeding.

(Emergency Rule 3.)

Continue Reading Judicial Council Issues Emergency COVID-19 Rules Regarding Civil Deadlines and Bail

Yesterday’s emergency is not today’s. Take a deep breath, and then think hard about whether your client’s issues truly—like, for real—require immediate judicial attention in today’s circumstances.

Judges are asking those questions, and here’s how some have described the current litigation environment:

“The entire world is in the midst of a pandemic. Thousands of people worldwide have contracted the Corona virus and there have been hundreds of virus-caused deaths in the United States. Millions of Americans have been ordered to remain in their homes. Millions more have lost their jobs in the past two weeks. The stock market has taken a brutal beating in the last two to three weeks. Many people are scared. Others are panicked. Everyone is unsure about the future. Cruises have been canceled and all the major airlines have severely curtailed their flights.”[1]

Continue Reading Perspective, Please

In these “business as unusual” times, your messaging with clients and employees needs to be its most effective. At Perkins Coie, our crisis communications team has designed a four-part “messaging structure” called EASE to convey your company’s action items with empathy. The following update shares recommendations for helping clients craft their communications.

Read More

Authored by Andrew Cross

This post is the second in a series that we are preparing in response to questions from clients, colleagues, and contacts.  Yesterday’s post, which addressed interest rate swaps in a zero or negative interest rate environment, is available here.

In today’s post, we address considerations related to Decline in Net Asset Value (NAV) provisions in agreements that govern the trading of over-the-counter (OTC) derivatives and other financial contracts. 

As we explore in greater detail, the recent volatility across financial markets makes it more important than ever for investment managers and their clients to understand – and focus on – these fairly common contractual provisions.

Continue Reading Master Agreements and Volatile Markets: Decline in Net Asset Value Provisions