Publications
The Pandemic Brought Some Welcome Innovations to the Justice Process, but Also Many New Challenges
2022 Insights
Some of the court system’s workarounds during the pandemic, such as remote hearings and testimony, will likely be incorporated into discovery and court proceedings going forward.
The Impact of Vaccination Status on Jury Pools
Insights – September 2021
As a “return to normal” for in-person jury trials remains elusive and courts move forward with various forms of in-person, remote and hybrid jury trials, litigants may find themselves faced with the new challenge of how juror vaccination status may directly or indirectly impact jury pools and their overall case strategies.
One Year of COVID-19: The Government’s Efforts To Address CARES Act Fraud
April 26, 2021
In 2021, the U.S. government announced the first civil settlement with a company regarding CARES Act fraud. The government’s novel use of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 in that case bears watching, as the act provides significantly wider enforcement capabilities than does the traditionally used False Claims Act, including a lower burden of proof for violations, longer statutes of limitation and higher potential fines for companies found to commit fraud.
WEX Win Interpreting COVID-19 Material Adverse Effect Shows M&A Drafting Traps
October 15, 2020
On October 12, 2020, in Travelport Ltd & Ors v WEX Inc, the English High Court handed down a rare judgment on material adverse effect (MAE) clauses, which WEX invoked in an attempt to pull out of a $1.7 billion acquisition. In ruling on a preliminary issue, the court upheld the MAE clause's natural, broad meaning, thus providing WEX with a foundation upon which to cancel the deal and highlighting the need for careful drafting of such clauses.
Shareholder Derivative Suits Likely To Extend to COVID-19, Racial Equality
September 30, 2020 - Quarterly Insights
Companies can expect to see shareholder derivative litigation related to allegations surrounding COVID-19 and structural racism filed over the next year. Boards are well advised to actively monitor the company’s response to and disclosures on those issues to minimize their risk of exposure to such suits.
Liability Protections in Coronavirus Relief Legislation
July 27, 2020
The SAFE TO WORK Act, introduced on July 27, 2020, would provide relief to American businesses, educational institutions, nonprofit organizations and health care providers impacted by the COVID-19 pandemic. By moving coronavirus-related lawsuits into federal court and codifying what are viewed as common sense liability protections, the proposed legislation would limit the prospect of litigation while preserving the rights of injured individuals to pursue legitimate claims against grossly negligent defendants. This is the long-awaited Senate leadership liability protection proposal that Congress is expected to consider as part of the overall Phase 4 pandemic relief package.
Q&A: Directors’ Delaware Law Questions During the Pandemic
May 8, 2020
Skadden partner Edward Micheletti, who heads the litigation practice of the firm’s Wilmington office, answers common Delaware law questions facing boards of directors during the COVID-19 crisis.
Checking In With Delaware Courts Amid the COVID-19 Crisis
May 8, 2020
While Delaware’s “stay at home” order remains in place amid the COVID-19 pandemic, the Delaware Supreme Court and Court of Chancery are still operational and legal services providers may continue to conduct business. Corporate litigation pending in Delaware continues with relatively minimal interruptions.
Update on Labor and Employment-Related Measures Aiming To Combat the COVID-19 Epidemic and Its Effects
April 28, 2020
On April 13, 2020, the French government announced that the lockdown measures in force since March 16, 2020, will remain in effect until at least May 11, 2020. Correspondingly, the government expanded the budget for the state of emergency; specified further employer options to manage temporary layoffs and related tax, social security and sick leave provisions; and, despite recent trial delays, issued emergency order enforcement actions to protect the health and safety of warehouse employees.
Sidestep COVID-19 Judicial Logjams by Converting Litigation to Arbitration
April 16, 2020
As a consequence of the COVID-19 pandemic, civil litigation in many U.S. commercial centers has been disrupted, potentially creating a future backlog of matters, and new disputes are arising between commercial parties. In the circumstances, parties may want to consider entering into an arbitration submission agreement, which can be used after a dispute arises to have it resolved through arbitration — even if the parties had not previously contemplated arbitrating their disputes.
COVID-19: How To Prepare for Potential Future Disputes
April 15, 2020
As the COVID-19 pandemic continues to develop, guiding a business through this time of crisis means making decisions that gravely impact the company and its employees. With this in mind, companies should be aware of the methods and levels of record-keeping they will need in advance of a potential future litigation or arbitration dispute.
Coronavirus/COVID-19: Implications of Event Postponement and Cancellation
April 3, 2020
The outbreak of coronavirus/COVID-19 has caused numerous companies and event organizers to postpone, reschedule or even cancel public events, including sporting events, concerts and conferences. We provide a summary of key principles and possible considerations in evaluating the host of commercial concerns raised by these postponements and cancellations, including whether performance may be excused under a force majeure provision or a common law doctrine, the extent of each party’s insurance coverage and whether the event organizer must provide refunds to ticket purchasers.
President Trump Uses the Defense Production Act To Compel Production of Ventilators, Prohibit Hoarding in Response to COVID-19
April 1, 2020
After initially invoking the Defense Production Act in response to the COVID-19 outbreak on March 18, 2020, President Donald Trump has now begun to formally deploy its authorities, including by ordering General Motors Co. to prioritize certain contracts for the production of ventilators. As the extent to which the government uses the DPA continues to evolve, so will the legal questions posed by those uses.
Coronavirus/COVID-19: French Ordinance Enacts Moratorium on Statutes of Limitations, Procedural and Contractual Deadlines
March 31, 2020
The COVID-19 pandemic may make complying with certain statutory or contractual deadlines materially or physically impossible. To address this situation, Ordinance No. 2020-306, which was passed by the French government on March 25, 2020, enacts a “moratorium” on such deadlines that would have otherwise expired between March 12, 2020, and one month after the end of the state of health emergency declared by the government.
Critical Thinking in the Time of COVID-19: What To Consider Next From a European Tax Litigation and Enforcement Perspective
March 31, 2020
In this series, “Critical Thinking in the Time of COVID-19,” Skadden’s European tax practice examines the next stage of analysis for corporates that have begun digesting the economic and legal impact of COVID-19 on their businesses. In this edition, our London-based tax team covers the area of UK tax litigation and enforcement.
Impact of COVID-19 on White Collar Enforcement
March 31, 2020
The COVID-19 crisis will likely create disruptions in enforcement activity for the time being. However, there may be a post-crisis uptick in activity focused on how companies reacted to the market displacement caused by the virus. Companies should continue to focus on their compliance and governance processes, particularly in areas where COVID-19 may increase risk.
Coronavirus/COVID-19: French Courts Close, Save for Emergency Proceedings; Hearings Conducted Remotely
March 30, 2020
French courts are closed for the unknown duration of the COVID-19 lockdown. Businesses facing immediate difficulties may still file for emergency or restructuring proceedings. Filings must be made electronically and hearings will be conducted remotely.
President Trump Invokes the Defense Production Act in Response to COVID-19
March 20, 2020
On March 18, 2020, President Trump announced his intention to invoke the Defense Production Act of 1950 in response to the coronavirus pandemic. The DPA grants the executive branch of the federal government broad authorities to enlist private companies to assist with meeting the demands of a national emergency, including by ordering companies to prioritize contracts and by incentivizing private production through loans and loan guarantees. It is not yet certain which of the statute’s authorities the president intends to use and how broadly he intends to use them amid the evolving uncertainties created by the outbreak.
Coronavirus/COVID-19 Update
March 18, 2020
The question is no longer whether the volatility created by the COVID-19 pandemic will deepen the difficulties businesses and other institutions face in the coming months, but by how much and in what ways. In the past few weeks, we have offered client mailings and webinars on COVID-19-related topics, and we will work to keep you informed of important developments as these issues evolve. Included below are updates to our recent commentary, with answers to questions we have been receiving.
Coronavirus/COVID-19 Update — Potential Securities Litigation Issues
March 18, 2020
Coronavirus/COVID-19 Update — Potential Securities Litigation Issues
March 4, 2020