Jurisdiction May Determine Fate of COVID-19 Business Interruption Coverage Litigation
Oakland, CA – Since March 2020, hundreds of businesses across the United States have filed lawsuits against their insurance carriers for coverage related to COVID-19 under their business interruption insurance policies. The scope of coverage under all-risk policies depends on each insurance contract’s specific terms and conditions and exclusions that limit coverage, including the requirement that the insured suffer a direct physical loss. However, it now appears that the outcomes of these lawsuits may also depend on how the respective jurisdiction defines “physical loss.”... Read more.
Returning to work after COVID-19: DOL's new Rule on Fluctuating Workweek Method Provides Needed Clarity on Incentive- Based Pay
Houston, TX - On June 8, 2020, the U.S. Department of Labor promulgated a new rule that lets employers provide flexible-hour workers with incentive-based pay on top of their fixed salaries without sacrificing the reduced overtime rate for fluctuating workweeks. It takes effect on August 7. While many employers rely on the Fair Labor Standards Act’s (FLSA) fluctuating-workweek method of computing overtime for salaried employees, its exact parameters have not always been clear.... Read more.
COVID-19 and Employment Law Issues
Houston, TX - Although most coverage of COVID-19 litigation has centered on business interruption policies and force majeure clauses in commercial contracts, an avalanche of employment-related claims against employers is sure to follow. And as businesses lay-off workers, cut hours and salaries, but nevertheless begin to open up their doors, many new avenues for liability arise... Read more.
The Department of Labor has Issued Guidance and Relief for ERISA-Governed Employee Benefit Plans Due to the COVID-19 Outbreak
Oakland, CA - Recognizing that the COVID-19 outbreak may impede plan and plan participants’ efforts to comply with various requirements and deadlines under the Employee Retirement Income Security Act of 1974 (ERISA), the U.S. Department of Labor’s Employee Benefits Security Administration recently released... Read more.
CARES Act: Significant Changes to FCRA Credit Reporting Obligations
On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) was signed into law in response to the COVID-19 pandemic. The CARES Act includes significant changes for credit reporting agencies or any institutions that furnish information to credit reporting agencies regarding accounts receiving relief due to the COVID-19 crisis... Read more.
Travelers, the Plaintiff-insurer in California Business Interruption Coverage Litigation
Oakland, CA - Much time and attention has been focused on the seemingly ever-increasing number of business interruption insurance coverage lawsuits policyholders have filed across the country in the last few weeks. However, insurance coverage battles related to losses from the COVID-19 pandemic have recently taken a unique turn... Read more.
Pre-denial Business Interruption Coverage Suits in California
Oakland, CA – We previously highlighted that many businesses are not first waiting for coverage determinations before suing their insurers. Now, in a single day, five lawsuits were filed seeking business interruption coverage for losses related to COVID-19, this time in Los Angeles County Superior Court... Read more.
California OSHA Issues COVID-19 Guidance to Employers
Oakland, CA - For employers continuing their business operations during the health crisis, the California Division of Occupational Safety and Health (Cal/OSHA) has issued Interim Guidance to ensure the health and safety of working employees... Read more.
California Relaxes Rules for Mass Layoffs in Wake of COVID-19 Crisis
Oakland, CA - On March 17, 2020, Governor Newsom issued Executive Order N-31-2020, temporarily suspending some of the notice requirements employers must follow prior to planned workforce reductions. Ordinarily, the California Worker Adjustment and Retraining Notification (WARN) Act, which applies to commercial or industrial facilities employing 75 or more employees, requires an employer to provide 60 days’ notice of mass layoffs... Read more.
California Authorities Issue Guidance Regarding How to Address COVID-19 Concerns in the Workplace
Oakland, CA - In light of the global pandemic and increasing cases of COVID-19 in California, the California Department of Fair Employment and Housing (DFEH), the agency tasked with enforcement of the state’s Fair Employment and Housing Act (FEHA), recently issued guidance regarding how employers should handle COVID-19 related workplace concerns... Read more.
California Judicial Council Adopts New Rules to Adapt Judicial Proceedings to Statewide Social Distancing Directives
Oakland, CA - Knowing that courts cannot operate as usual in light of the escalating COVID-19 pandemic, the California Judicial Council amended its Rules of Court to accommodate statewide court closures and restrictions. The sweeping changes come on the heels of Governor Gavin Newsom’s March 27 Executive Order, which granted courts with special authority to promptly address the coronavirus threat in their counties... Read more.
Texas Supreme Court Issues Emergency Order Regarding COVID-19, Extending All Civil Statutes of Limitation
Houston, TX - On Wednesday, April 1, 2020, the Texas Supreme Court issued another “Emergency Order Regarding the COVID-19 State of Disaster” mandating that Texas trial courts toll all deadlines for the filing or service of any civil causes of action from March 13 through June 1 (Misc. Docket No. 20-9051). The April 1 Order specifically excepts appellate deadlines, although the Order mandates... Read more.
Business Interruption Coverage Suit in California
Oakland, CA - We previously offered an initial analysis of business interruption insurance because, as anticipated, it would become the forefront of COVID-19 related litigation. Unsurprisingly, business interruption coverage suits for coronavirus-related losses are already being filed, now in California... Read more.
California Insurance Regulator Calls for 60-day Insurance Premium Grace Period Due to COVID-19 Outbreak
Oakland, CA - Citing widespread interruptions and loss of income for many California consumers and business caused by the COVID-19 outbreak, California Insurance Commissioner Ricardo Lara has issued a Notice requesting that all insurers doing business in California grant policyholders a "grace period"... Read more.
Texas COVID-19 Insurance Update: Certain Deadlines Extended
Houston, TX - On March 20, Governor Abbott suspended certain claim-handling deadlines under the Texas Insurance Code. Yesterday, the Commissioner of Insurance determined that the COVID-19 pandemic is a disaster under Texas Insurance Code Section 542.059(b). The Commissioner's Bulletin can be found... Read more.
The Impossibility Doctrine in Texas & COVID-19
Houston, TX - Regardless of whether a contract contains a force majeure provision, a party’s non-performance may still be excused by the common law doctrine of impossibility.
1. The impossibility doctrine in Texas.
The impossibility defense is an excuse to performance that Texas courts will refer to as impossibility of performance, commercial... Read more.
Legal Update: States Restrict Telemarketing in Wake of COVID-19 Pandemic
Houston, TX - New York’s emergency COVID-19 declaration triggered a recently enacted New York law prohibiting unsolicited telemarketing calls during an emergency. See N.Y. Gen. Bus. Law §§ 399-pp(7)(f), 399-z(5-a) (2019). Louisiana’s emergency order triggered a similar ban. See La. Stat. Ann. § 844.31 (2018). Critically, any calls in those jurisdictions must be placed with the recipient’s express consent. Unlike the Telephone Consumer Protection Act, the New York and Louisiana bans apply to all landline and cell phone numbers, telephone numbers not on a Do-Not-Call list, and... Read more.
Force Majeure Provisions in Texas: A Creature of Contract
Houston, - TX The threat of COVID-19 has quickly changed—and in some cases halted—America’s day-to-day routines. Businesses and consumers wonder how the economic slowdown may impact their obligation to continue making payments or perform on the contracts they already entered. Two common avenues allow a party to avoid its contractual obligations. The article covers the first: force majeure provisions... Read more.
COVID-19, Economic Turmoil, and Financial Services Litigation
Houston, TX - At the nadir of the Great Recession, a small group of attorneys dedicated to the principle of client-first service decided to leave the relative comforts of Big Law and present our clients with a simple proposition: we would provide the same high-quality representation and financial service industry expertise but without the Big Law overhead. Thanks to the trust ensured to us by our loyal clients over the last decade, we have been able to deliver exceptional results both for our clients and the financial services industry at large. While our depth (now over 50 attorneys)... Read more.
Many California Courts Reducing Operations in Response to COVID-19 Spread
Oakland, CA - On March 12, 2020, Governor Gavin Newsom issued an Executive Order in further response to the spread of the Novel Coronavirus 2019 (COVID-2019). Among other things, this Order mandates compliance with state and local public health officials to control the spread of COVID-19. As local health officials work to contain the spreading virus, California courts have adapted their judicial procedures to accommodate active cases and ensure public safety... Read more.
Business Interruption Insurance in the COVID-19 Era: Specific Policy Language Will Matter
Oakland, CA - In our continuing examination of legal issues surrounding COVID-19, we offer this analysis of business interruption insurance, which will undoubtedly be at the forefront of COVID-19-related litigation. Businesses are reviewing their insurance contracts for coverage to limit their financial exposure to the impacts of COVID-19. While policyholders may have several coverages triggered by COVID-19-related losses, the scope of coverage will depend on each insurance contract’s specific terms and conditions... Read more.
Texas Supreme Court Issues Emergency Order Regarding COVID-19, Potentially Extending All Applicable Statutes of Limitation:
On Friday, March 13, 2020, the Texas Supreme Court issued its “First Emergency Order Regarding the COVID-19 State of Disaster.” (Misc. Docket Nos. 20-9042 & 20-007. The Order can be accessed here: https://www.txcourts.gov/media/1446056/209042.pdf). The Order gives Texas courts the authority to modify or suspend “any and all deadlines and procedures” for a period ending no later than 30 days after the Governor’s disaster order is lifted—even “without a participant’s consent”—in order to “avoid risk to court staff, parties, attorneys, jurors, and the public.” It also grants... Read more.