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Lawyering Through Covid-19: What We’ve Heard From the Practices

May 28, 2020, 9:40 AM

Welcome back to the Big Law Business column on the changing legal marketplace written by me, Roy Strom. Today, we hear from Bloomberg Law reporters about how the pandemic is impacting a cross-section of practice groups and industries. Sign up to receive this column in your Inbox every Thursday morning.

The Covid-19 pandemic has caused volatile swings across the U.S. economy. Depending on the industry, it can feel like an all-or-nothing crisis.

That is one way I’ve tried to cover the impact of the virus crisis on law firms.

Way back in April, when worldwide lock downs meant oil was in extreme oversupply, I wrote about how law firms with strong oil and gas practices might pivot from closing deals to filing bankruptcies. And as corporate America binges on record levels of debt to plug revenue holes, I covered the capital markets practices that have provided crucial work for some Wall Street firms. More of those reports are on tap. (Send me your ideas!)

Because of its industry-specific nature, the coronavirus recession is likely to have a wide range of outcomes for law firms, largely depending on what damage the crisis has caused for its clientele.

For a wider view of how the crisis has reached different practice areas and industries, we asked reporters across the Bloomberg Law newsroom to tell us how the Big Law attorneys and in-house counsel they deal with every day are feeling the effects.

Here’s what they told us...

Chris Opfer, Labor:

I’ve been talking with a wide range of labor and employment attorneys who say they’re still working around the clock to advise companies on many of the same workplace issues—layoffs, furloughs, pay cuts, paid leave, health and safety—that their own firms are facing internally. I’ve noticed lately their focus is shifting as clients start to think about reopening businesses.

“I’ve never been busier,” Jason Schwartz, the co-chair of Gibson Dunn’s labor and employment practice group, told me this week. “The volume of advice questions remains high, but the types of questions have evolved as clients transition to return to work,” he said.

I reached Schwartz by phone while he watched his daughter’s “socially distanced” basketball practice outside of Washington.

The pandemic has forced Schwartz and others in L&E to quickly get up to speed on two issues that typically are not in their wheelhouse: unemployment insurance and workers’ compensation. That’s because, they tell me, the companies they represent want to know what sort of benefits will be available for employees if they’re laid off or get sick on the job.

“Unemployment and workers’ comp are not exactly bread and butter for employment defense lawyers used to representing major companies in huge class actions,” Schwartz said.

Although court closures have slowed the pace of litigation during the pandemic, Elena Baca, global chair of the Paul Hastings employment law department, explained to me on a recent call that the firm is preparing for an eventual wave of coronavirus-related litigation. That includes virus-inspired whistleblower claims.

“We’ll see a whole new raft of creativity, where what would be a considered a generic complaint is then tied into some sort of safety issue and reconstructed as a whistleblower claim,” Baca said.

Valerie Bauman, Healthcare/Pharmaceuticals:

Lawyers in the pharmaceutical space tell me they’re spending more time chatting with the Food and Drug Administration during the pandemic. They’re also hitting the refresh button on various government-run Frequently Asked Questions and other guidance websites.

The FDA has been uncharacteristically quick to respond to requests for Emergency Use Authorization for diagnostics and other Covid-related products, according to Bethany Hills, a partner in Morrison Foerster’s New York office.

“When we have general questions they get answered within 24 hours,” Hills told me on a recent call. “In the non-Covid world, that is not our experience. It can be a really long time to get on the FDA’s calendar—sometimes meetings take weeks to months to get scheduled. This has been a breath of fresh air to interacting with the FDA.”

While there’s been more responsiveness from the FDA, I’ve also heard about new challenges there. Hills and others are scrambling to keep up with a steady stream of FDA policy changes for companies developing virus-related diagnostics, treatments, and vaccines.

Lawyers have “frustrations with how this is rolling out, there are just so many FDA policies and there’s so much activity, we have a whole team of people trying to stay up to date,” Hills said. “It literally changes on a day-to-day basis.”

The FDA, for example, announced May 11 that companies developing Covid-19 virus and antibody tests must obtain an Emergency Use Authorization from the agency. The FDA scrapped an earlier policy allowing tests to be launched without an authorization.

The best advice for dealing with these challenges is to “work with the FDA,” Blake Coblentz, co-chair of Hatch-Waxman and Biologics Litigation at Cozen O’Connor, told me recently.

Brian Baxter, In-House Counsel:

From compensation cuts to changes in staffing levels, law department leaders across the country have told me in recent weeks that they are grappling with a range of issues as the pandemic upends financial markets and bottom lines.

Amid the fray, I’ve seen a constant emerge: GCs are stressing the need to develop strong processes, procedures, and systems to efficiently address new challenges.

Leaders like Todd Goffman, the new general counsel at Boston-based human resources startup Globalization Partners Inc., say they are particularly concerned with “issues of first impression” and other matters arising from the novel coronavirus, such as legal questions around taking the body temperature of office employees.

Some lawyers have told me, however, that aspects of their day-to-day work still look similar.

“We’ve managed the transition a lot better than many could’ve hoped, which I think is mainly a credit to the incredible work of the IT folks and has very little to do with the lawyers,” said Jeremy Kutner, general counsel at ProPublica. “A lot of what I do has stayed the same, although I’m wearing button-down shirts a lot less than I used to.”

I also heard from Charles Berkman, general counsel at Ligand Pharmaceuticals Inc., a San Diego-based company that makes a critical delivery agent for remdesivir, an antiviral drug being used to treat Covid-19. He said the only major change for him in the pandemic has been the elimination of his commute.

“As the only attorney in the company, I have always been on call 24-7,” Berkman wrote in an email.

Worth Your Time

On Scaling Legal Advice: Last month I wrote about labor and employment firms scaling legal advice to respond to a surge in demand for their services. This week, Littler Mendelson furthered that trend by rolling out a new technology product designed to conduct in minutes or hours reviews of reductions in force that Scott Forman said used to take days. Forman, a Littler shareholder who founded Littler OnDemand, said the Restructuring Assessment Solution was developed to more quickly conduct data analysis that can help companies avoid discriminating against groups of employees while making layoff decisions.

On Litigation Finance: Parabellum Capital has raised more than $450 million in a new fund to invest in lawsuits. The private litigation fund run by industry pioneers is expecting a surge in litigation following the pandemic. The subjects of virus-related suits could run the gamut from insurance coverage, to unfulfilled contracts, to claims arising from bankruptcies.

On In-House Counsel: Companies who are seeing increases in demand from the coronavirus are bulking up their legal departments, telling my colleague Brian Baxter that regulatory and legal advice is crucial in a fast-changing economic and regulatory landscape.

On New Law Firms: Silicon Valley lawyers Zohra Tejani and Joyce Tong Oelrich are leveraging their experience in the government contracting and compliance field to launch a minority-owned law firm, Elizabeth Olson reports. The new law firm leaders have worked at major companies such as Facebook, Microsoft and VMware, and at law firms.

That’s it for this week. Thanks for reading and please send me your thoughts, critiques, and tips.

Chris Opfer, Valerie Bauman, and Brian Baxter contributed to this report.

To contact the reporter on this story: Roy Strom in Chicago at rstrom@bloomberglaw.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Tom P. Taylor at ttaylor@bloomberglaw.com

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