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What General Counsel Need to Think About as Businesses Reopen

May 26, 2020, 11:02 AM

The Covid-19 pandemic is forcing in-house counsel to ask themselves questions that seemed unfathomable months ago as they oversee employees returning to the workplace. Should they take employees’ temperatures? What’s the legal risk? How much immunity could the business face from liability suits?

New Guidebook: Bloomberg Law has put together the General Counsel’s Guide to Reopening to help in-house lawyers think about these sorts of questions as they consider how best to resume operations.

Expert Advice: The guide includes tips from top-notch law firms and Bloomberg Law’s own in-house experts on issues related to reconfigured workspaces, employee benefits, liability, litigation, insurance, and corporate governance.

CORONAVIRUS -- WHAT YOU SHOULD KNOW

Employers Can Expect Leniency, Not Freedom From U.S. Regulators
Employers can expect leniency from federal regulators as they ramp up operations after virus-induced shutdowns, as long as they are able to demonstrate substantial good-faith efforts to adhere to recent updates to agency rules and guidance.

Chief Risk Officers Get C-Suite Boost Due to Coronavirus
The chief risk officer is likely becoming a hot commodity in the wake of the coronavirus pandemic as many businesses face a wide range of threats to their operations and their workforces.

M&A Pioneer Martin Lipton Warns of Wave of Virus Lawsuits
A push by Republicans in Congress to create stronger liability protections for businesses hammered by the coronavirus won’t completely curb lawsuits over injuries and losses caused by the pandemic, famed M&A litigator Martin Lipton said.

Warren Wants CEOs Held Criminally Liable for Bailout Violations
Senator Elizabeth Warren is calling on the Federal Reserve to hold corporate executives personally liable if they take bailout money intended to bolster credit markets and fail to meet all the certification requirements.

Judges Weigh Bigger Rooms, Cleaner Mics as Jury Trials Restart
Federal courts in some parts of the country have prepared for a cautious reboot of jury trials in civil lawsuits—equipped with disinfectant, measuring tapes, and extra jurors.

OSHA Requires Most Employers to Find if Virus Work-Related
The Occupational Safety and Health Administration has changed its policy for when employers need to record coronavirus cases as being work-related, the agency announced.

NLRB Gets Covid-Related Unfair Labor Practice Charges
Workers at two U.S. companies have filed cases with the National Labor Relations Board challenging changes to their working conditions spurred by the Covid-19 pandemic.

U.S. Employers Scramble to Address Mental Health Epidemic
As the global death toll from the ongoing Covid-19 pandemic climbs, employers are scrambling to address the explosive rates of anxiety, depression, substance abuse and potential waves of suicides that have emerged along with it.

Disinfecting May Thwart Virus but Raise Chemical Risks at Work
Employers will need to create or revise training programs and guides to take into account the use of harsher cleaning chemicals to destroy the coronavirus as businesses reopen, workplace safety consultants and attorneys warn.

ANALYSIS: Elon Musk—Corporate Governance Meets Performance Art
It is not unusual for a CEO to comment on the company’s current stock price. It is, however, unusual for a CEO to do so on Twitter in a series of tweets, in which he talks about selling off his possessions, paraphrases Dylan Thomas and mentions that his girlfriend is mad at him. Musk also recently took to Twitter to protest a county government placing operating restrictions on Tesla related to the Covid-19 pandemic.

ANALYSIS: Flurry of DOJ Business Review Letters Breaks Trend
Since the Covid-19 crisis began, the Department of Justice’s antitrust division has issued more business review letters than it had previously issued during the entire Trump administration.

INSIGHT: Inoculating Against Covid-19 Related Wage and Hour Class Litigation
The Covid-19 pandemic may allow businesses to invoke force majeure clauses to be relieved of certain contractual obligations, but it does not allow employers to avoid obligations for wage and hour compliance, which are non-waivable. Epstein Becker Green attorneys explain work scenarios risks employers need to understand to avoid litigation.

INSIGHT: Virtual Business Contacts Can Create Virtual Personal Jurisdiction
During the pandemic, businesses are using technology to reach customers in other states, but that can result in personal jurisdiction arising in other states, Cozen O’Connor attorneys say. They review case law on the issue and predict courts will continue to assess whether it is foreseeable and fair to be sued in a state for doing remote business there.

INSIGHT: Ransomware Attacks Compound Covid-19 Business Worries
Cybercriminals are using the Covid-19 pandemic to full advantage, increasing the frequency of attacks and using ransomware, causing more damage. Former DOJ Principal Deputy Assistant Attorney General Marshall L. Miller, now a partner at Kaplan Hecker & Fink LLP, says organizations need effective incident response plans and suggests steps to help prevent attacks.

Minimizing Litigation Risks From Valuation Disputes During Covid-19
Valuation disputes may be just one face of an impending wave of litigation this year due to Covid-19 volatility, but they will be an important area, attorneys from Kobre & Kim write. Rather than take a “wait and see” approach, parties facing valuation disputes should move early, deliberatively, and creatively and conduct litigation analysis to be in a better position should litigation ensue.

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COMPLIANCE

Fluctuating Overtime Rule Shields Employers From Litigation
The Labor Department has finalized a regulation to give employers more flexibility and legal clarity by allowing them to incorporate bonuses when using an alternate method to calculate overtime pay for workers with irregular schedules.

SEC Urged by Advisory Panel to Tackle ESG Disclosures
The SEC’s Investor Advisory Committee says the “time has come” for the agency to consider requirements for certain environmental, social, and governance factors in pubic company disclosures.

BUSINESS & PRACTICE

Wall Street’s New Watchdog Is Ex-Fannie Lawyer With Mnuchin Ties
A former Fannie Mae lawyer and business associate of Treasury Secretary Steven Mnuchin is ascending to the top of one of Wall Street banks’ main regulators.

World Series-Winning Nationals Name New General Counsel
The Washington Nationals, winners of the 2019 World Series, have a new top lawyer as they prepare to defend their title sometime this summer should baseball resume play following a coronavirus-related delay.

Boeing Elevates New General Counsel, Compliance Chief
The Boeing Co. has a new general counsel and chief compliance officer as the Chicago-based aerospace giant consolidates those functions into one unit led by legal chief Brett Gerry.

FirstEnergy Names New Chief Legal Officer, Elevates Two More
FirstEnergy Corp., one of the largest U.S. electric utilities, has announced a new legal chief and roles for two other top in-house lawyers.

Libra Association Hires Treasury, HSBC Vet as First Legal Chief
The Libra Association, a digital currency group that includes Facebook Inc., Uber Technologies Inc., Lyft Inc., and 24 other members, shored up its executive team Tuesday by hiring Robert Werner as its first-ever general counsel.

The RealReal Shakes Up Legal Group Nearly Year After Big IPO
The RealReal Inc., an online reseller of high-end goods, has a new top in-house lawyer almost a year after raising $300 million in its stock market debut.

Trade Desk’s Top Lawyer Stepping Down After Post-IPO High
The Trade Desk Inc.’s first in-house legal chief, Vivian Yang, will step down after a successor has been found to “ensure a smooth transition,” the company said Tuesday.

LEGAL NEWS

Busted-Deals Docket Grows With Forescout Suit Against Advent
Private equity group Advent International Corp. can’t rely on fallout from the pandemic to cancel a $1.9 billion acquisition of Forescout Technologies Inc., the cybersecurity company said in a lawsuit, adding to the pile of broken deals in Delaware Chancery Court.

Name, Logo Enough Evidence in California Asbestos Case
A logo and company name on an invoice is sufficient circumstantial evidence from a witness about the source of asbestos-containing pipes, a unanimous California Supreme Court ruled.

Apple, Cisco Get $4.2 Million in Attorneys’ Fees in Patent Case
Apple Inc. was awarded over $2.3 million and Cisco Systems Inc. over $1.9 million in attorneys’ fees in California federal court for defending against a patent infringement suit that the court said should “never have been brought.”

Vale Loses Bid to Shut Down Investors’ 2019 Dam Collapse Suit
Vale SA must face a would-be class suit accusing it of lying to investors about its commitment to safety before one of its dams collapsed in 2019 and killed around 270 people, a New York federal judge said.

CORPORATE GOVERNANCE

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To contact the reporter on this story: John Nancarrow in Washington at jnancarrow@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com

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