The Kelley Drye Brief - Fall 2020
Message From Kelley Drye’s Chair “,” A Look Ahead “,” Podcast Playlist “,” Back To School “,” Photo Gallery “,” Stay Connected
Message from Kelley Drye’s Chair
Dear Clients and Friends,As the summer comes to a close, we find ourselves under dramatically different circumstances relative to how we began the year. In light of all that has occurred, this message offers several predictions for legal issues that are likely to transpire in the coming months and highlights the many steps we have taken at Kelley Drye to continue delivering the good counsel and responsiveness you have come to expect. I am proud of how we have been able to stay connected with one another and with you during these unprecedented times. It has further highlighted our strong relationships, dedication and commitment to working together.
Throughout the pandemic, Kelley Drye’s number one priority has been the health, safety and wellness of all of our attorneys and staff, their families and our clients. At the same time, we have been focused on ensuring that the important services we provide to our clients would continue seamlessly.
Kelley Drye’s attorneys and professionals have been working hard to help clients conduct their normal business operations, while also providing guidance on how to navigate the uncharted territory related to the legal issues that have arisen due to the coronavirus pandemic. We produced the highly-visited COVID-19 Response Resource Center, numerous webinars, podcasts and more than 200 advisories, newsletters and bylined articles to keep you informed. We have also made sure to connect regularly with you through Zoom meetings, virtual lunches, other social activities, emails and/or phone calls. We are grateful for your trust and confidence in our firm and we thank you for your continued support.
While we have adapted to the realities of working remotely, we are planning for our eventual return to work in the office and are looking forward to seeing our clients in-person, once again. Until then, we hope you join us for upcoming virtual programs highlighted in this communication, enjoy the photos of how the Kelley Drye team has been working together while apart and take a look at our legal and regulatory predictions for the next several months.
All my best,
Jim Carr, Chair of Kelley Drye
A Look Ahead
Kelley Drye lawyers and industry experts stay on top of the issues impacting your business. From continued impacts of COVID-19, to the upcoming election, to the increase of privacy laws, see what legal issues and industry trends some of our practice group leaders and partners predict for the next few months.Advertising and Marketing Law
“We expect the FTC to continue to emphasize claim substantiation and disclosures, including claims regarding COVID-19, general health and wellness, and financial services. We will also watch ongoing enforcement involving “Made in USA” claims and the use of endorsers, perhaps with new regulatory action or other guidance.” – Christie Grymes Thompson, Chair, Advertising and Marketing Law Practice GroupBankruptcy and Restructuring
“Chapter 11 filings are at a 10 year high due to COVID-19. While many industries have been impacted, retail has been hit the hardest. We expect chapter 11 filings will continue to increase and that we will see more activity in other industries as government bail-out funds are reallocated or discontinued.” – Eric Wilson, Chair, Bankruptcy & Restructuring Practice GroupCommunications
“Bridging the Digital Divide and Enabling Connected Life. This will continue to be the hottest topic in communications law and it has already surfaced in presidential politics with the President promising to build a national 5G network and the Biden campaign poised to raise the profile of students and others unable to afford broadband connectivity necessary for remote learning and telehealth. Connected Life enabled by modern fiber, wireless networks, “smart” IoT devices, machine learning and artificial intelligence will continue to capture the attention of politicians, investors and the public as new means of communicating, manufacturing, driving, working and living will continue to raise novel issues in communications, privacy and cyber security law, with “digital inclusion” and “digital equity” issues sure to play a major part in how we help our clients to navigate this new frontier successfully.” – Communications Practice GroupCorporate
“We believe M&A will likely rebound as the economy starts to recover with a focus on value creation and strategic investing opportunities. The current crisis has created attractive acquisition opportunities. Renewed economic growth, an intense focus on innovation and new technology, and the need to adapt to new ways of working and consuming will likely spur M&A across multiple sectors, including cross-sector investing.” – Tim Lavender, Chair, Corporate Practice Group“COVID-19 is sending many companies on a race for near-term liquidity. As a result, sponsor-backed PIPEs (private investments in public equity) are currently a key focus for many of our clients. We expect that will continue into 2021. PIPEs are especially attractive in a time of financial distress given the unavailability of traditional financing markets to many companies, and the speed with which these transactions can be executed.” – Mike Adelstein, Partner
Environmental
“Recently there has been an increase in EPA taking aggressive enforcement actions against the online retailers and suppliers of defeat devices that result in greater emissions from engines than their certified configurations. We can expect more of these enforcement actions in the coming months.” – Bill Guerry, Co-Chair, Environmental Practice GroupGovernment Contracts
“Supply Chain Security and Management will remain a major compliance issue for government contractors and subcontractors as the Federal Government implements statutory mandates including Section 889 of the 2019 National Defense Authorization Act banning the use of telecommunications and video surveillance equipment and services produced by five Chinese companies.” – David Hickey, Chair, Government Contracts Practice GroupInternational Trade
“We expect the Trump Administration to continue its “tough on China” policies in the run up to the 2020 election. This includes additional tariffs and other import restrictions; increased sanctions on Chinese companies over human rights issues; sanctions on Chinese technology companies considered to pose a risk to either U.S. national security or foreign policy; and the emerging dispute over areas in the South China Sea. We also expect ongoing debate about the need for additional sanctions on Russia in response to allegations of interference in the U.S. electoral process.” – Alan Luberda, Chair, International Trade Practice GroupLabor and Employment
“Employment litigation trends include wage and hour class actions, workplace safety, discrimination, and leave claims. Specifically, an increase in age discrimination lawsuits is expected from COVID-19 and the economic downturn.” – Barbara Hoey, Co-Chair, Labor and Employment Practice Group“Additionally, the outcome of the November election and the Justice Ginsburg’s imminent Supreme Court replacement will have a massive and lasting impact on existing business-friendly rulings on joint employment, labor rights and other red-hot issues.” – Mark Konkel, Co-Chair, Labor and Employment Practice Group
Litigation
“Federal, state and local governments presumably will continue to protect against tenant evictions and foreclosures. When they act, these governmental bodies will (at least arguably) overstep their bounds and authority. For example, President Trump’s most recent Executive Order relying on CDC regulations to temporarily halt evictions through the end of 2020, likely will be challenged in court as legally unsupportable and beyond the scope of his authority. To the extent that governors and mayors attempt to utilize their executive powers in similar fashion on behalf of tenants, the expectation is that their actions also will be tested in litigation.” – Ira Kasdan, Partner“Fights over whether one can compel a live deposition is likely to be hot litigation topic as we move forward.” – Mike Lynch, Chair, Litigation Practice Group
“Class action claims against consumer-facing businesses asserting privacy and cybersecurity claims are likely to increase. With more work and transactions occurring remotely, there are increased risk factors and exposure points. That, plus the increase in state legislation creating new private rights of action, will support the consistent growth of consumer claims.”
Privacy and Information Security
“2021 will see new privacy laws in California and beyond, and California is likely to create a powerful new privacy regulator. Privacy self-regulatory frameworks and large platform decisions around identifiers will also affect spending, revenue, and data and advertising strategy in all parts of the advertising ecosystem. There’s a good chance we’ll see advancing federal legislation that affects privacy obligations, including in bills addressing data portability, access rights to data, and antitrust bills that affect data flows. The changing legal and industry landscapes will underscore the need to understand these developments and how they apply to each business, and to plan ahead for future changes.” – Alysa Hutnik, Chair, Privacy and Information Security Practice GroupReal Estate
“In general, we are anticipating a significant uptick in deal activity due to, among other things, market participants taking a fresh look at pricing and valuations as businesses and tenants have failed or renegotiated rents.” – Paul Keenan, Co-Chair, Real Estate Practice Group“One hot button issue to watch is whether there is a change in Presidential Administration and control of the Senate, which may have a significant impact on the real estate industry as a result of the potential elimination or change to 1031 exchanges, changes in estate and gift tax provisions (including, reductions in estate tax exemption), increase in capital gains taxes and/or rollback of the most recent tax cuts.” – Dean Loventhal, Co-Chair, Real Estate Practice Group
Podcast Playlist
It’s time to retire that “Summer Playlist” and download our “What We Did This Summer” podcast playlist.Kelley Drye has three podcasts – Ad Law Access, Full Spectrum, and Legal Download. Listen to some of our top episodes from the past few months. Episode topics include the myriad impacts of COVID-19, the California Consumer Privacy Act, green marketing, and more.
Listen to What We Did This Summer.
Back To School
September isn’t just back to school time for the kids. Join Kelley Drye for CLE programs on a variety of topics including, the upcoming election, FCPA and sanctions violations as a result of supply chain disruptions, employment law developments, post-election regulatory and policy impacts for manufactueres and more. And in case you missed it, check out Kelley Drye webinars that are available on demand.Upcoming Programs
2020 Election Outlook: An In-Depth Analysis of the Race for the White House and CongressOctober 21, 2020, 10 AM EST
Kelley Drye’s Government Relations and Public Policy Group presents a bipartisan assessment of the upcoming 2020 elections. Election analysts Greg Speed and Jim Ellis will provide a detailed and data-packed assessment of the current state of play in the race for the White House.
In addition, they will cover key Senate and House races and the prospects for control of both chambers in the upcoming 117th Congress.
To register, click here.
Rise of FCPA & Sanctions Violations as a Result of Supply Chain Disruptions
October 21, 2020, 10 AM EST
Join Kelley Drye and Withum for this webinar to discuss how restrictions imposed by the latest U.S. economic sanctions can affect supply chains, especially in China and Russia; the importance of OFAC sanctions screening and the latest updates to the OFAC list; and the rise of FCPA violations due to supply chain disruptions and how the DOJ/SEC are increasing enforcement actions on U.S. companies.
CLE is available. To register, click here.
Labor and Employment WORKing Lunch Webinar Series
Multiple Dates
Following last year’s success and starting in November, the L&E team will host the 2020/2021 WORKing Lunch, a webinar series focused on bringing in-house counsel, management, and HR professionals the latest trends and developments in workplace law. Topics will include: Survey Of In Vogue Lawsuits: COVID EDITION; Wage & Hour 101; Employee Leave Laws: Managing the Intersection of FMLA, ADA, and FFCRA; Employment Law in the New Administration, and more.
CLE, SHRM and HRCI available. Visit our website in the forthcoming weeks for more information or email erochefort@kelleydrye.com if you’d like to be added to our invite list.
2021 Post-Election Regulatory and Policy Outlook for Manufacturers
Date TBD
This year, Americans will head to the polls to decide which party controls state capitals, the U.S. House of Representatives, the U.S. Senate, and the White House. The outcome of the 2020 election will likely have a significant impact on manufacturers and the U.S. economy for years to come. Join us for a webinar to take a close look at the likely impact of the election on the laws, regulations, and policies that matter most to the manufacturing industry. We will discuss what the election means for trade, infrastructure, environmental and energy regulation, tax policy, and more.
Visit our website in the forthcoming weeks for more info or email tbusby@kelleydrye.com to be placed on our invite list.
Recent Kelley Drye Webinars Available On Demand
Rural Digital Opportunity Fund UpdateCleaning Up From 2020: Guidance for Disinfectant, Germ and Virus Killing Claims
Selling Online: How to Avoid Flattening the Curve of an Uptick in Website Traffic
Not Normal: the Challenges of a Changed Workplace
Trade Association Antitrust 101
Product and Earnings Claims in the Time of COVID-19
Photo Gallery
Take a look at how the Kelley Drye team has been working these last six months remotely. See our home offices, our new “co-workers,” and how some of us have been spending time with our families.
Stay Connected
Our thought leaders keep you updated through advisories and articles, blogs, newsletters, podcasts and resource centers. Sign up here to receive our email communications tailored to your interests.Follow us on LinkedIn, Twitter and Instagram for the latest updates.
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