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A Guide to Navigating COVID-19 Price-Gouging Litigation Against Manufacturers, Suppliers, and Retailers of Food and Consumer Goods in the U.S.

The COVID-19 pandemic has led to sharp spikes in demand for basic necessities, alcohol-based disinfecting products, and essential food staples. Consumers have been willing to pay a premium to stock up on these items from both brick-and-mortar and online marketplaces.  While there is no federal law establishing clear guidelines regarding price gouging, many states have laws that limit or prohibit sellers from charging excessive prices for certain consumer products, which are triggered by the declaration of an emergency by federal, state, and/or local officials. Plaintiffs’ lawyers and states’ attorneys general have begun bringing state and nationwide class actions for price gouging against suppliers, distributors, and retailers of essential products, and we expect this litigation to increase in coming months.

In this three part series, we provide the statutory landscape and analyze the newly filed litigation, outline some key litigation strategies, and advise on best practices for manufacturers and retailers to

Paycheck Protection Program Loan Forgiveness Application Answers Many Questions—But Not All

The Small Business Administration’s (“SBA”) release of its official loan forgiveness application under the Paycheck Protection Program (“PPP,” Section 1102 of the CARES Act) answered a number of questions that borrowers and their legal and accounting advisers had regarding the program. But the application also leaves some questions unanswered, and borrowers, their lawyers, and their accountants are eagerly awaiting the release of promised loan forgiveness regulations that are expected to be posted online in coming days or weeks on Treasury’s website.

Borrowers should consult all existing regulations and guidance as they prepare to apply for PPP loans and as they prepare to apply for loan forgiveness. What follows is a high-level discussion of what we have observed in the latest guidance, but borrowers should be aware that the official federal guidance is changing weekly if not daily, and, depending on the complexity of a borrower’s application, consultation with a lawyer or accountant may

COVID-19 in 19 Teleconference: UK Coronavirus Job Retention Scheme – what next for employers?

We are holding a regular series of bite-sized 19-minute teleconferences on the key COVID-19 employment law issues employers need to think about.

Our second teleconference looks at the UK government’s furlough scheme. The UK government recently announced that the scheme will extend until 31 October 2020, albeit in a different format from 1 August 2020.

This session will cover:

  • Key aspects of the current furlough scheme.
  • Some of the practical issues that employers are currently experiencing under the furlough scheme.
  • An overview of the proposed changes to the furlough scheme.
  • Issues to consider after 1 August 2020.
  • The next “cliff-edge”.

Event details Date Wednesday 20 May 2020 Time 11.30-11.49am (BST) Dial-In Instructions Provided to registrants in advance of the teleconference.

 

Register to attend >

Back to Business: Re-opening Guidance for California Retailers

As states continue to wrestle with when to reopen, California has unveiled a phased-in plan that gives counties control over how quickly to reopen, and provides guidelines specific to each industry. What does this mean for your business? What procedures should you consider implementing? Joined by Rachel Michelin, president of California Retailers Association, presenters will offer a number of best practices and model guidelines to help retailers, not only in California, but across the U.S., protect against the spread of COVID-19 to keep workers and customers safe.

As part of our continuing series of teleconferences on the impacts of COVID-19, presenters will cover the following topics:

  • Creating a worksite specific plan
  • Employee Training
  • Individual control measures and screening
  • Cleaning and disinfecting protocols
  • Physical distancing guidelines

Date Wednesday, May 20, 2020 Time 10:30 a.m. to 11 a.m. PDT 11:30 a.m. to 12 p.m. MDT 12:30 p.m. to 1 p.m. CDT

U.S. COVID-19: New FFCRA Q&A – Key Takeaways Regarding the “Need” for Leave, Joint Employers and Domestic Workers

The federal Department of Labor (“DOL”) is closing in on 100 informal “questions and answers” (the “Q&A”) relating to the Families First Coronavirus Response Act (“FFCRA”), having issued Q&A #s 89-93.  The new Q&A address steps employers may take when determining whether employees truly “need” FFCRA leave; issues relating to domestic workers; and a reminder for joint employers that prohibitions on adverse action, interference and retaliation may apply even to employers who are not covered by the FFCRA.

Determining Whether Employees Have A Qualifying Reason For Leave

Three of the five new Q&A provide critical guidance for employers on permissible questions and documentation requirements to ensure that leave is being taken in appropriate circumstances.

In the first Q&A (# 91), the DOL posits a factual scenario in which an employee with children has been teleworking productively for several weeks despite school closings, but then requests FFCRA leave.  The

U.S. COVID-19: Biometrics and Business Re-Opening

Now that wearing gloves has become the new normal because of the COVID-19 pandemic, biometric privacy litigation, which in recent years has centered on employers’ use of finger-scan timekeeping technology, may ultimately shift in focus to the measures that businesses implement as employees return to the workplace and customers begin to frequent their favorite establishments.  Body temperature checks, used to screen employees and visitors for a fever, are one such measure being considered as a first line of defense for public health.

To mount a defense against, or avoid altogether, biometric privacy class action litigation, businesses open to the public and employers must have a comprehensive understanding of the thermometer or thermal imaging technology selected—and the data it captures—before rolling out temperature screenings on a widespread basis.  Among the technologies available are:

  • Non-contact infrared thermometers that use lasers to measure temperature from a distance;
  • Thermal imaging cameras that detect

Managing Counter-Party Risk in the Pandemic

Part I: Getting on the Same Page

Globally, boards and management teams are taking stock of current operations and finances to identity vulnerabilities to the unprecedented distress that markets are anticipating from the pandemic for the next 12-18 months.  As part of those discussions, many retail businesses (and those with operations related to retail, like landlords, logistic companies, shipping interests, etc.) are focusing on receivables and risk weighting as to the collectability and the follow-on impact of doubtful accounts.

These conversations will inevitably lead to the age-old conflict that pins finance and legal functions – that are largely focused on risk – against business/sales functions, which are generally focused on sales and keeping customers happy.  Pre-pandemic, sales teams historically had a leg up as revenue generation inevitably trumped risk mitigation in the context of strategic decisions.  However, the same behavior and cultures that have been allowed to prevail when there

A Checklist for the U.S. Food Retail Industry in Light of COVID-19 Re-openings

May 8, 2020

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On April 24, 2020, Alaska became the first state to allow restaurants to reopen to dine-in customers (subject to certain precautions) since the COVID-19 pandemic began.  On April 27, 2020, Georgia and Tennessee followed suit.  Several other states have announced similar plans to reopen restaurants to dine-in customers throughout May.

Each state has its own requirements for re-opening, and many include some combination of the following restrictions: 1) workers must wear masks; 2) restaurants can only allow outdoor dining; 3) establishments can only be filled to a certain capacity (typically 25% or 50%); 4) reservation-only dining; and 5) hand sanitizer must be available at each table or at the restaurant’s entrance.

In light of these re-openings, we suggest that companies in the food retail industry consider the following, if they have not done so already:

  • Determine whether it is financially feasible to reopen if required to comply with the

U.S. COVID-19: California Governor Newsom Announces Guidelines for Some Non-Essential Retailers to Reopen

One day before allowing “low-risk” retailers to reopen on a limited basis, California Governor Gavin Newsom on Thursday announced guidelines for certain retailers, manufacturers and other businesses to reopen fully during Stage 2 of the state’s reopening plan.

Even prior to full implementation of these guidelines, retailers perceived as presenting a lower risk of spreading COVID-19 can reopen on a limited basis, such as by offering curbside pickup, as early as today.  As we previously reported, Newsom has stated that such retailers include shops that sell items such as clothing, books, music, toys, sporting goods, and flowers.

At the press conference on Thursday, it was recommended that retailers offering curbside pickup take precautions such as having employees wear masks and gloves, bringing merchandise to a designated pickup location at the entrance or curbside, and encouraging use of payment methods and devices that reduce contact between employees and customers.

Redefining Extraordinary Circumstances in the Wake of COVID-19: Finding Consistency in Difficult Times

Humanity has largely embraced the “we are in this together” mentality from a health crisis perspective. Yet, even as world leaders scramble to contain the COVID-19 pandemic, we have yet to fully grasp the follow-on impact from the pandemic and particularly, how it will affect world economies. For this “second phase” of the world’s response to the pandemic, the ultimate question is whether business and financial counter-parties will equally share the risk of loss. Bankruptcy judges have jurisdiction to fashion remedies for parties in their courtroom, but Congress and COVID-19 have left them no choice but to rule on issues immediately in front of them without the ability to limit the impact of their decisions on other market players. With a goal of tempering the COVID-19 related damage, recent difficult decisions in U.S. Bankruptcy Courts have invoked unprecedented results, but employing U.S. Bankruptcy Courts as our method of policing the

U.S. COVID-19: California Announces Phased-In Reopening, Starting With Curbside Pickup

California Gov. Gavin Newsom announced on Monday that certain low-risk retail businesses will be allowed to reopen on a limited basis if they meet state guidelines and conditions to be announced on Thursday, including by allowing curbside pickup as early as this Friday.

Newsom said shops that sell items such as clothing, books, music, toys and sporting goods, as well as florists, are as among those who will be allowed to reopen on a limited basis if they meet the state guidelines.  Associated manufacturers that support the retail industry would also be allowed to begin production.

Whether a particular retail location can reopen, and under what conditions, also depends on the county and city where it’s located.  Six Bay Area counties announced last week that their shutdown orders will continue through the end of May: These include Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and the City

COVID-19 in 19: Workplace Temperature Screening: Who, Where and How

The notion that U.S. employers would engage in broad-scale temperature screening of employees and visitors would have once been unthinkable. But the realities of COVID-19 are changing the workplace, as least for the time-being. With the encouragement of the CDC and certain state and local governments, and a green light from the EEOC, many employers are implementing daily temperature screening as one means of keeping their employees healthy. As part of our continuing series of 19-minute teleconferences on the impacts of COVID-19, join us as we discuss best practices for temperature screening and highlight potential issues employers should keep in mind.

Event Details

Date Tuesday, May 5, 2020 Time 1 p.m. to 1:19 p.m. PDT 2 p.m. to 2:19 p.m. MDT 3 p.m. to 3:19 p.m. CDT 4 p.m. to 4:19 p.m. EDT

Register to attend >

U.S. COVID-19: Illinois Employers Take Note: Key Employment Provisions of the Illinois COVID-19 Executive Order Effective May 1, 2020

On April 30, 2020, Governor Pritzker issued Executive Order 2020-32, effective May 1, extending social distancing requirements and, among other things, issuing new guidelines for Illinois employers.

The key employment-related aspects of the Executive Order are as follows:

  • All employers are required to evaluate which employees are able to work from home, and are encouraged to facilitate remote working when possible.
  • All employers that have employees who are physically reporting to a work site must post this guidance from the Illinois Department of Public Health and the Office of the Illinois Attorney General regarding workplace safety during the pandemic.
  • When working, all individuals who are able to medically tolerate a face covering (which includes “a mask or cloth face-covering”) are required to cover their nose and mouth with a face covering when in a public place and unable to maintain a six-foot social distance. This includes public

Motions to Dismiss Granted in ADA Gift Card Cases

A New York federal court has granted motions to dismiss in four separate cases alleging that the failure to offer gift cards in Braille violates the ADA. The rulings by U.S. District Court Judge Gregory H. Woods (Southern District of New York) all hold that the plaintiffs in those cases failed to state a claim for violation of the ADA, and also lack standing.  The rulings allow plaintiffs to file an amended complaint within 15 days.

As we previously reported, the lawsuits were among more than 100 such complaints alleging that failure to offer gift cards in Braille violates Title III of the Americans with Disabilities Act.

ADA Does Not Require Offering Braille Gift Cards

Judge Woods issued the first opinion last Thursday, and the following day issued rulings in the other three cases referencing that opinion. Judge Woods concluded that the complaints failed to state a claim because

COVID-19 in 19: U.S. Employer Guidance for Reopening the Workplace

Increased discussion of reopening the U.S. economy has raised numerous questions as employers prepare to return their employees to the workplace. In just the last week, President Trump’s White House issued its Opening Up America Again three-phased approach for re-opening the economy, the Equal Employment Opportunity Commission issued guidance about returning to work, and the states of Texas, Georgia, South Carolina and Vermont have issued plans to rescind their shelter in place orders in phases – all while other states have extended their shelter in place orders. While there is no single roadmap to reopening in these continuing uncertain times, employers should begin to consider what measures will help ensure a safe, orderly return to business.

Join us for this 19-minute discussion on these and other rapidly changing guidelines.

Event Details

Date Tuesday, April 28, 2020 Time 1 p.m. to 1:19 p.m. PDT 2 p.m. to 2:19 p.m. MDT 3

Proposed House Bill Could Save Cannabis Businesses Suffering During the COVID-19 Crisis

April 24, 2020

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The Emergency Cannabis Small Business Health and Safety Act (the “Act”), introduced by House Reps. Earl Blumenauer (D-OR) and Ed Perlmutter (D-CO), could help an industry which employs at least 250,000 Americans amid the coronavirus pandemic. Despite being designated an “essential service,” cannabis businesses, and those businesses serving the cannabis industry, are largely shut out from receiving financial assistance under the recently passed CARES Act. The lack of equal access leaves an industry already suffering disproportionate financial burdens under normal conditions, especially vulnerable. The Act as proposed clears the way for cannabis businesses to apply for and receive access to federal programs such as the Paycheck Protection Program and the U.S. Small Business Administration Economic Injury Disaster Loan Program, which offer forgivable federal loans for business expenses, including, payroll, rent, debt obligations and utility payments. Given that cannabis remains federally illegal as a Schedule I drug, it remains to be

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