Friday, March 13, 2020

COVID-19 and Legal Services

As a seasoned lawyer (some would say old geezer) who recently left the large law firm world, but who still practices a little and tries to stay in touch, I have watched "Big Law's" reaction to the COVID-19 situation with interest. Many law firms have put out alerts and bulletins. Some have put on webinars. Many of these resources are excellent and most are free. I commend them to your attention, with the gentle admonition that if your company needs specific and tailored advice, it should be prepared to pay its own lawyer for it.

I'm writing this post to add my two cents as to what law practice areas are likely to be most affected by the outbreak. Of course, the situation is fluid and may (and probably will) change. But here are my educated guesses.

  1. Employment law. Virtually every aspect of employment law is potentially implicated, including OSHA, labor law (management/union relations), leave policies, and employment discrimination. My former firm, Thompson Hine LLP, held an informative webinar on these issues on March 10, which as of this writing can still be accessed on that firm's website. 
  2. Employee Benefits. Health care plans and other employee benefit plans (disability, etc.) are regulated and implicated in the outbreak. Benefits lawyers should be very busy, particularly in the next few months.
  3. Insurance. As events are cancelled and business is disrupted, companies will look to their insurers for coverage. I anticipate a lot of claims, but also expect a lot of denials. To the extent companies have business interruption insurance (and many do not), it typically requires a direct physical loss to property. Will there be coverage for bodily injury claims allegedly resulting from exposing someone to COVID-19? Maybe, but I expect insurers to rely on specific exclusions and, in some states, even the pollution exclusion. Policies are different and courts in different states interpret policies differently. Check with your insurance broker or agent and, if necessary, a coverage attorney.
  4. Litigation. In our litigious society, it is not surprising that COVID-19 cases have already been filed. I would expect companies in the travel industry to be the initial targets, but the creativity of the plaintiffs' bar never ceases to amaze me. There will be claims for personal injury ("bodily injury" in the insurance world). There will also claims relating to cancellations of events. I expect a lot of contract litigation resulting from impaired and delayed performance. Expect a lot of litigation about what constitutes "force majeure" sufficient to excuse delays.
  5. Bankruptcy. Expect a significant increase in bankruptcy filings. Many businesses will suffer because of the outbreak. Companies in the travel, hospitality and oil businesses have already been seriously affected. Many companies will postpone capital expenditures. Expect many companies to "slow pay" on their obligations, which will have a negative impact on vendors. All of these factors will cause some companies to seek protection in bankruptcy court.
Other areas will be affected, and this list is by no means exclusive.