Coronavirus Flash Update May 11, 2020

Coronavirus Flash Update: May 11, 2020

Alston & Bird’s Coronavirus Flash provides updates on policy and regulatory actions under consideration across many important industries being monitored by our teams. Links to key government and legal resources are provided throughout the report.

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UPDATED 9:00 AM ET ON MONDAY, MAY 11, 2020

The Latest News

  • U.S. COVID-19 cases exceed 1,329,225 and 79,525 U.S. deaths. (Source: CDC) (Updated 5/11/20)
  • U.S. stock market: On Friday the major U.S. benchmarks all posted gains, with the Dow rising 455 points, the S&P 500 up 48 points, and the Nasdaq gaining 141 points. Weekend trading in stock futures were effectively flat as of Sunday night.(New)
  • The Department of Labor’s employment report last Friday showed that the health care industry lost more than 1.4 million jobs. While no sector has been immune from significant job losses, the health care sector impact is especially complex since hospitals and other providers were required to ramp up emergency, ICU, and testing capabilities in preparation for the surge in coronavirus cases which was predicted, but elective procedures were suspended resulting in layoffs in nearly all types of outpatient and clinic settings. (New)
  • Data from the Epic Health Research Network shows that preventive cancer screenings have dropped 86-94% due to suspension of elective procedures and access disruptions during the emergency response to COVID-19. The data was collected from 2.7 million patient records in 23 states. (New)
  • The challenges of reopening were felt at the government’s highest levels late last week when two senior officials in the White House were confirmed to have COVID-19 resulting in the self-quarantine by the NIH Institute of Allergy and Infectious Disease Director Anthony Fauci, White House Coordinator of Coronavirus Response Deborah Birx, and CDC Director Robert Redfield. In separate incidents FDA Commissioner Stephen Hahn announced he was in self-quarantine due to exposure to an unnamed individual and Tennessee Senator Lamar Alexander was in self-quarantine following the confirmation that his chief of staff had COVID-19. (New)

COVID-19 Federal Legislation   

  • Bill 4.0: House Democrats had planned to release their proposals for the 4.0 relief package today but debate within the caucus has delayed their hope for a quick consensus package. House Democratic moderates, especially those in swing districts, have concerns about the expansive size of the leadership’s list of priorities and the dollars attached. The challenges for next emergency spending bill also include concerns voiced by some Republicans that the growing deficit needs to be acknowledged – the cost of previous four relief bills is a little under $3 trillion. (New)
  • The Congressional Budget Office released is monthly review with data showing that Medicare spending has nearly tripled. The report also noted that normally April is a month when federal revenues are up, but its data shows U.S. budget revenues down by 55%. (New)
  • Bill 3.5: Paycheck Protection Program and Health Care Enhancement Act, (R. 266) enacted on April 24. Also available are a section-by-section summary and an overview of the health care provisions.
  • A&B detailed summaries are below:
    • A&B Summary5 Small Business Provisions
    • A&B Summary5 Health Care Enhancement Provisions
  • Bill 3.0: Coronavirus Aid, Relief, and Economic Security (CARES) Act, (R. 748) passed on March 27. A congressional section by section summary is available here.
  • A&B detailed summaries are below:
  • Congress has passed three coronavirus emergency response bills and the first two are below:
  • Bill 1.0: Coronavirus Preparedness and Response Supplemental (CPPRS) (R. 6074) passed on March 5.
  • Bill 2.0: Families First Coronavirus Response Act (FFCRA) (R. 6201) passed on March 18

COVID-19 State Legislation   

  • New legislative resource to track how states and localities are responding to the COVID-19 pandemic with emergency relief programs for small and medium-sized businesses. Follow our tracker here. (Updated 5/5/20)

Transition to “Reopening”   

  • State/Other Actions
    • For the latest information on state reopening decisions, see A&B 50-State Openings tracker – updated in each A&B Coronavirus Flash Update. (Updated 5/8/20)
    • A&B’s Labor & Employment Group identifies issues likely to arise as workers are invited to return to their jobs and that employers may confront in developing return-to-work action plans in this advisory. (4/22/20)
  • Administration Actions
  • The CDC has updated their webpage on travel in the United States reflecting the changing timeline of state reopening polices. (5/8/20) (New)
    • A Health Card has been posted by the CDC to provide information to passengers arriving from international locations. (5/8/20) (New)
  • The USDA announced the reopening of meatpacking facilities. (5/8/20) (New)
  • The CDC updated or issued new guidance regarding reopening and continued mitigation efforts for individuals, businesses, schools, health departments, and community settings. These individual guidance can be found here.
    • The CDC has updated its re-opening guidance for reopening after a prolonged shutdown to insure safety of water systems and devices. (5/7/20) (New)
  • FEMA released a new fact sheet on federal support for expanded national testing capabilities to support the reopening and testing plans of businesses and other entities. (5/5/20)
  • The HHS Administration for Community Living has released guidance on the phased reopening of senior nutrition programs. (5/5/20)
  • The Department of Labor is seeking ideas from the public about the challenges facing businesses in the process of reopening. A dialogue page has been created to facilitate this input. (5/1/20)
  • The President stated that his social distancing guidance, which expired on April 30, will not be extended allowing the guidance to “be fad[ed] out, because now the governors will be doing it.” The President added that the governors would be making the reopening decisions and other guidance about social distancing. (4/30/20)
  • FEMA released guidance for ‘Planning Considerations for Organizations in Reconstituting Operations’ as states begin to unveil reopening plans. (4/30/20)

Federal Communications Commission   

  • The Federal Communication Commission (FCC) issued an order waiving its requirement that certain broadcast stations engage in broad recruitment outreach for full-time job vacancies if they re-hire employees released due to COVID-19. (5/5/20)

Department of Health and Human Services   

  • The Department of Health and Human Services (HHS) Coronavirus toolkit page has been updated. (Updated 5/8/20)
  • Despite enforcement delays final interoperability rules will have significant impact on health care participants. To learn more about these complex rules read this A&B advisory. (5/8/20) (New)
  • The HHS Substance Abuse and Mental Health Services Administration (SAMHSA) has updated the Interim considerations for State Psychiatric Hospitals information on its webpage. (5/8/20) (New)
  • HHS announced it was partnering with pharmacy and retailers to provide community-based testing sites. (5/8/20) (New)
  • The HHS Office of Inspector General has updated it FAQs on enforcement activities related to COVID-19. (5/8/20) (New)
  • HHS announced through HRSA it had awarded $583 million in grants to community health centers in all 50 states. (5/7/20)
  • The US Surgeon General released a new video on telehealth that shares basic information with consumers about telehealth including the privacy protections and Medicare allowance of payments for visits. (5/7/20)
  • HHS announced the creation of a new website on community-based testing. (5/7/20)
  • The HHS Office for Civil Rights announced that it was issuing guidance reminding covered health care providers that the HIPAA Privacy Rule requires that they obtain patient consent before media is given access to PHI. (5/5/20)
  • HHS has a tracking feature that allows public viewing of all COVID-19 HHS grant and cooperative agreement awards on its website. The grants were distributed through programs in the ACF, ACL, ASPR, CDC, DHHS/OS, HRSA, IHS, NIH, and SAMHSA. (Updated 5/7/20)

Assistant Secretary for Preparedness and Response  

  • The Assistant Secretary of Preparedness and Response (ASPR) has announced the allocation plan for the drug Remdesivir, which had previously received emergency use authorization. The states included on the allocation list to date are: Connecticut, Illinois, Indiana, Iowa, Maryland, Massachusetts, Michigan, New Jersey, New York, Rhode Island, Tennessee and Virginia. (5/9/20) (New)
  • ASPR has posted a new telehealth tipsheet that outlines what it is, who is using it, ongoing challenges for telehealth, and trends to watch post-COVID-19. (5/7/20)

Centers for Disease Control and Prevention  

  • The Centers for Disease Control and Prevention (CDC) COVIDView Weekly Summary is available. (Updated 5/8/20)
  • The CDC weekly COVID forecast. (Updated 5/6/20)
  • The CDC has released guidance on what workers and employers can do to manage workplace fatigue. (5/8/20) (New)
  • The CDC has released an early report on the Effects of the COVID-19 Pandemic on Routine Pediatric Vaccine Ordering and Administration – United States, 2020. (5/8/20) (New)
  • The CDC has released an early report on The Public Health Response to COVID-19 Cases in Correctional and Detention Facilities – Louisiana, March-April 2020. (5/8/20) (New)
  • The CDC updated or issued new guidance regarding reopening and continued mitigation efforts for individuals, businesses, schools, health departments, and community settings. These individual guidances can be found here. (Updated 5/7/20)
  • CDC guidance on COVID-19 Infrastructure Sector Response planning and infrastructure worker preparedness. (5/7/20)
  • The CDC provided updated COVID-19 laboratory reporting data for hospitals. (5/6/20)
  • CDC guidance on pets and other animals, and quarantine and isolation. (5/6/20)
  • The CDC has updated its FAQs on clinical questions about COVID-19. (5/6/20)
  • The CDC updated their interim guidelines for specimen collection, handling, and testing from persons for coronavirus disease. (5/5/20)
  • The CDC updated its FAQ for businesses and employers, including information on suspected or confirmed cases of COVID-19, reducing the spread of COVID-19, cleaning and disinfecting, and critical infrastructure. (5/3/20)
  • The CDC updated its interim guidance on discontinuation of isolations for persons with COVID-19 outside the healthcare setting. The CDC also updated its decision memo on symptom-based strategy to discontinue isolation for persons with COVID-19 (5/3/20)
  • The CDC has updated its webpage on contact tracing, including resources from the CDC and other federal agencies and private sector organizations. (5/2/20)
  • The CDC also updated its guidance on contract tracing and evaluating and testing persons for COVID-19 (Updated 5/4/20).

Centers for Medicare & Medicaid Services  

  • The Centers for Medicare and Medicaid Services (CMS) latest news alerts. (Updated 5/7/20)
  • And for the latest COVID-19 related CMS guidance visit the CMS Current Emergencies webpage. (Updated 5/11/20)
  • CMS has posted a video to review the most common questions regarding telehealth visit benefits under the 1135 waiver authority during the public health emergency. (5/8/20) (New)
  • CMS has updated its list of blanket waivers. (5/8/20) (New)
  • CMS issued a memo and FAQs on the new requirements for notification of confirmed and suspected COVID-19 cases among nursing home residents and staff. (5/7/20)
  • CMS released their Final Payment Notice for 2021 Coverage Year. CMS also announced a one week extension of the Qualified Health Plans certification and rate review timelines. (5/7/20)
  • A&B Health Care Public Policy Practice provides a detailed summary of the CMS interim final rule. The interim final rule is intended to provide additional flexibilities for individuals and entities that provide health care services to Medicare, Medicaid, Basic Health Program, and Exchange beneficiaries to assist in the response to threats associated with COVID-19. Comments are due July 7, 2020. (5/6/20)
  • CMS updated its COVID-19 FAQs for Medicare Fee-for-Service billing. (5/6/20)
  • CMS updated its FAQ for state Medicaid and Children’s Health Insurance Program (CHIP) agencies. CMS also issued a separate document only listing the new FAQs. (Updated 5/5/20)
  • A&B’s Health Care and Litigation Groups explore how to take advantage of remote health care now and prepare for continued telehealth operations after the pandemic ends in this advisory. (4/29/20)

HHS/CMS/HRSA CARES Act Provider Relief Funds   

  • CMS has released data on providers and suppliers who have received payments through the Accelerated and Advance Payment Program. (5/10/20) (New)
  • State by state data and information organized by provider type is posted here. (Updated 5/10/20)
  • Specific provider and supplier data, organized by state, is posted here (Zip file). (New)
  • HHS announced it was disbursing another $22 billion in CARES Act Provider Relief Funds last Friday for hospitals in “hot spots” or COVID-19 high impact areas ($12 billion) and for rural providers ($10 billion). The CMS Provider Relief Fund webpage has been updated and additional portals opened: (5/2/20)
  • HHS has updated its rural payment methodology. (5/8/20) (New)
  • HHS announced an extension of the deadline for attestation and acceptance of the terms and conditions for Provider Relief Fund payments for 45 days. (5/7/20)
  • HHS released the terms and conditions for high impact and rural provider The distributions to rural providers began on May 6 and to high impact providers on May 7. (5/7/20)
  • HHS released provider level data for the general distribution of the Provider Relief Fund. This provider specific data is based on providers who attested as of May 4 and includes 142,419 providers and their cumulative payments. (5/6/20)
  • Provider Relief Funds general distribution FAQs (5/8/20) (New)
  • The state-by-state congressional district distribution totals for the initial $30 billion which began on April 10 has been posted. (5/1/20)
  • The CARES Provider Relief hotline is (866) 569-3522.
  • HHS through the Health Resources and Services Administration began distribution of another $20 billion from the CARES Act Provider Relief Fund for the care of the uninsured, which augments the $30 billion which was released in the first tranche from the fund. (4/28/20)
    • HRSA launched the COVID Uninsured Portal allowing health care providers who have conducted COVID-19 testing or provided treatment for uninsured COVID-19 individuals on or after February 4, 2020 to request claims reimbursement.
    • HRSA released FAQs with clarifying questions related to eligibility for patients and providers, eligible claims and coding, program administration, and reimbursement/payment. (5/7/20)
    • HRSA posted the FAQs from their webinars on the uninsured program. (5/7/20)
  • HHS Provider Relief Fund first disbursements of $30 billion began on April 10 and the initial information outlined five allocation categories for the remaining $70 billion (the CARES Act authorized $100 billion – bill 3.5 has authorized an additional $75 billion).

Food and Drug Administration (Drugs and Devices)  

  • FDA provides a daily roundup on COVID-19 related actions. The latest update is here, (updated 5/8/20), and here is a listing of all announcements.
    • FDA maintains its COVID-19 FAQs for the general public. (Updated 5/6/20)
    • The agency also maintains a public database of drug shortages. (Updated 5/8/20)
  • The FDA has approved emergency use authorization for the first at-home diagnostic test with the option of home-collected saliva samples for COVID-19. (5/8/20) (New)
  • The FDA has reissued the emergency use authorization for non-NIOSH-approved respirators manufactured in China. (5/6/20) (New)
  • The FDA is increasing is surveillance and sampling of all respirators imported from China and issued a letter to providers to clarify that not all filtering facepiece respirators provide adequate protection. (5/7/20) (New)
  • The FDA has issued, jointly with the FTC, warning letters to Alive By Nature, Inc. and to GlutaGenic for selling fraudulent COVID-19 treatment products. (5/7/20) (New)
  • The FDA has posted a letter to providers on the risk of misinterpreting hydrogen peroxide indicator colors for vapor sterilization. (5/7/20) (New)
  • The FDA has posted FAQs for consumers on Remdesivir and COVID-19. (5/7/20)
  • The FDA provided an update on the agency’s efforts to combat fraudulent actions by companies and individuals. (5/7/20)
  • The FDA released new guidance on reporting and mitigating animal drug shortages during the COVID-19 public health emergency. (5/7/20)
  • The FDA issued final guidance on manufacturer notifications to the FDA Center of Devices and Radiological Health of a permanent discontinuance or interruption of manufacturing of a device during the COVID-19 public health emergency. (5/6/20)
  • The FDA announced a new webpage on EUA authorized serology test performance. (5/5/20)
  • The FDA announced that it was updating its guidance to improve antibody testing quality. The document explains FDA’s policy for laboratories and commercial manufacturers to help accelerate the use of tests they develop in order to achieve more rapid and widespread testing capacity in the United States. The FDA also updated its fact sheet on antibody tests and provided insight on its revised policy (Updated 5/4/20)
  • FDA issued guidance to clarify the scope of the public health emergency exemption and exclusion under the Drug Supply Chain Security Act to help ensure adequate distribution of finished prescription drug products throughout the supply chain to combat COVID-19. (4/30/20)
    • Review this A&B advisory for more information about the FDA’s new guidance. (5/5/20)

Food and Drug Administration and United States Department of Agriculture (Food-Related)   

  • USDA announced a partnership with national and regional food suppliers a program to purchase up to $3 billion in produce and products and to assist nonprofit food organizations. (5/8/20) (New)
  • USDA issued letters to Governors directing meat processing plants to follow CDC and OSHA guidance on worker safety. (5/6/20)

National Institutes of Health  

  • The National Institutes of Health (NIH) announced it was beginning a clinical trial testing of antiviral Remdesivir plus anti-inflammatory drug Baricitinib for COVID-19. (5/8/20) (New)
  • NIH announced a new research survey to examine the impact of COVID-19 on individuals with rare diseases. (5/7/20)

Health Resources and Services Administration   

  • The Health Resources and Services Administration (HRSA) announced nearly $583 million in awards to 1,385 HRSA-funded health centers. (5/7/20)
  • HRSA provides COVID-19-related information, resources, and FAQs here. (Updated 5/8/20)

Department of Homeland Security/FEMA   

  • The Department of Homeland Security (DHS) issues a weekly roundup of its response to COVID-19. (Updated 5/4/20).
  • The DHS Cybersecurity and Infrastructure Security Agency (CISA) has released a fact sheet to warn of disinformation related to COVID-19. (5/8/20) (New)
  • The Cybersecurity and Infrastructure Security Agency (CISA) and its counterpart in the United Kingdom warned that they had exposed malicious cyber campaigns targeting organizations involved in the COVID-19 response. CISA issued an advisory for health care and medical research organizations recommending staff to change passwords and implement two-factor authentication. (5/5/20)
  • The DHS Transportation Security Administration announced new security measures which include requiring its employees to wear masks while at screening checkpoints. Passengers are already encouraged to wear facial protection but may be asked to pull down the mask for identification purposes. (5/7/20)
  • FEMA and HHS jointly released a video on how the agencies collect critical data, analyze the data, and communicate the findings to appropriately distribute supplies. (5/7/20)
  • FEMA issued a fact sheet describing the federal support being provided to expand national testing capabilities. (5/5/20)
  • FEMA announced $200 million in supplemental funding under the CARES Act for local jurisdictions to help service organizations that provide critical resources. (5/4/20)
  • President Trump signed an executive order temporarily “pausing,” for period of 60 days, certain U.S. immigration processes. The President noted he would revisit the issue after 60 days and depending on the economy may choose to extend the suspension. (4/22/20)
  • Review this A&B advisory for more information on the order, who it applies to, who is exempted, and what employment-based visas are affected. (4/28/20)

Department of Justice/Federal Trade Commission/Litigation   Consumer Protection/Anti-fraud   

  • The Federal Trade Commission (FTC) sent 45 letters warning marketers nationwide to stop making unsubstantiated claims that their products and therapies can treat or prevent COVID-19. This fourth round of letters targeted “treatments” including Chinese herbal medications, music therapy, homeopathic treatments, and even shields claimed to boost the immune system by protecting the wearer from electromagnetic field. There is currently no scientific evidence that these or any services can treat or cure COVID-19. The letters warn that if marketers refuse to stop making false claims, the FTC may seek an injunction and an order requiring money be refunded to consumers. (5/7/20)
  • The FTC provided guidance for businesses to avoid scams while applying for loans through the SBA’s Paycheck Protection Program (PPP) or Economic Injury Disaster Loans (EIDL) program. FTC advises businesses to get information directly from the SBA’s website (sba.gov/coronavirus) and not apply for a loan before verifying the lender. If businesses identify scams, they are asked to submit a complaint at ftc.gov/complaint. (4/29/20)

Litigation Issues   

  • The Department of Justice announced the first enforcement action regarding alleged PPP fraud. The DOJ alleged that two defendants falsely claimed to have dozens of employees at several locations to get more than $500,000 in forgivable loans. (5/5/20)
  • The impact of the coronavirus pandemic may be a scheduling challenge for the courts, but bankruptcy cases remain active. For an examination of the implications of a bankruptcy case where the majority shareholder seeks to enforce its blocking rights, read this A&B advisory. (5/8/20) (New)
  • Higher education protected students’ and employees’ health by closing their campuses and moving – virtually overnight – to online learning. Now they face high-risk class actions from students and their parents. A&B’s Colleges & Universities Team provides insight into current litigation in this advisory. (4/30/20)

Department of Labor/OSHA   

  • Department of Labor (DOL) announced over $10 million in dislocated workers grant awards. (5/7/20)
  • DOL announced that states and territories can use Dislocated Worker Grant funding for contact tracing. (5/5/20)
  • DOL announced that it was issuing additional guidance about the short-time compensation program under the CARES Act. (5/4/20)
  • DOL announced that it was issuing additional guidance to state unemployment insurance programs regarding reporting requirements for administrative grants and sharing commonly asked questions about unemployment insurance. (5/4/20)

Small Business Administration   

  • Small Business Administration (SBA) – In response to the CARES Act requirements, the SBA formally launched its Paycheck Protection Program (PPP) for small businesses. (4/3/20)
  • The SBA released PPP of Round 2 data. (5/8/20) (New)
  • The SBA released its latest PPP data that the agency had processed 2.5 million applications from 5,425 lenders for loans totaling $185.4 billion. The average loan size is a little greater than $74,000. The posted data also shows that 53% of the loan amount has come from banks with more than $50 billion in assets, 15% from mid-size banks, and 32% from lenders with less than $10 billion in assets. (5/7/20)
  • The SBA and Treasury updated their FAQs on the Paycheck Protection Program. The FAQs clarify that employers will not be penalized if they are unable to rehire a worker despite good faith efforts. (Updated 5/6/20)
    • The FAQs also extend the safe harbor to repay PPP loans until May 14 and confirms that foreign affiliate employees must be counted for size purposes.
  • The SBA released a list of PPP participating lenders. (5/7/20)
  • Review this A&B advisory for information on relief under the CARES Act for fund managers. (5/5/20)
  • The SBA announced that agricultural businesses are now eligible for Economic Injury Disaster Loan (EDIL) and EDIL Advance programs under the Paycheck Protection Program and Healthcare Enforcement Act. (5/4/20)
  • The SBA and Treasury announced making 2.2 million loans in Round 2 of the Paycheck Protection Program totaling more than $175 billion. Summary information on Round 2 is available here. (5/3/20)
  • The SBA and Treasury announced that they would review all PPP loans over $2 million, in addition to other loans as appropriate, to ensure that applicants meet eligibility criteria. (4/28/20)
    • A&B’s White Collar, Government & Internal Investigations Team summarizes the latest stimulus addition and emerging enforcement developments related to the certification, receipt, and use of PPP funds, including for banks processing the related loans, in this advisory. (4/30/20)

Department of Treasury/IRS/Federal Reserve   

  • The Department of Treasury website for CARES Act programs, including specific sections on assistance for American workers and families, small businesses, state and local governments, and preserving jobs for American industry.
  • The Department of Treasury jointly with the IRS released summary details of the Economic Impact Payments, including state-by-state figures. (5/8/20) (New)
  • Treasury also released a Get My Payments process to provide a quicker route to prompt payment. (5/8/20) (New)
  • The IRS updated its FAQs with #64 and #65 regarding the amount eligible employers may treat for health care expenses. (5/8/20) (New)
  • And the IRS added a new FAQ #79 regarding businesses that repay their PPP by May 14. (5/8/20) (New)
  • Treasury Secretary Steven Mnuchin has communicated to Senator Grassley his decision to revise the employee retention tax credit rules to make the tax break available to companies who have furloughed workers but are still providing health insurance. The IRS has updated its FAQs to reflect the change. (5/7/20)
  • The Treasury announced plans to increase the amount of debt the Department will issue in quarterly refunding auctions to a record high of $96 billion. The announcement noted that the “Treasury’s borrowing needs have increased substantially as a result of the federal government’s response to the COVID-19 outbreak.” (5/6/20)
  • Treasury and the Department of the Interior announced an agreement to begin making $4.8 billion in funds available to Tribal governments under the CARES Act. (5/5/20)
  • The Federal Reserve announced that it was modifying its liquidity coverage ratio for banks participating in the Money Market Mutual Fund and Paycheck Protection Program Liquidity Facilities. (5/5/20)
  • The Federal Reserve announced an expansion of the scope and eligibility for the Main Street Lending Program, essentially creating a third option to help credit flow to small and medium-sized businesses. (4/30/20)
    • FAQs regarding the Main Street Lending Program were released. (4/30/20)
    • For more information on how to chart a course through all three Main Street Lending Program options, read this A&B advisory. (5/6/20)
  • The Internal Revenue Service (IRS) posted several FAQs on higher education financial aid relief under the CARES to clarify that emergency CARES Act aid is not taxable. (5/7/20)
  • The IRS announced three new employer tax credits on employee retention, sick leave, and family leave. (5/7/20)

Other Agencies   

  • The Department of Commerce (Commerce) announced the allocation of $300 million in CARES Act aid to the fishermen and seafood industries. (5/8/20) (New)
  • Commerce announced it was accepting applications for grants from the Economic Development Administration to help communities prevent, prepare for, and respond to COVID-19. (5/7/20)
  • The Federal Housing Finance Agency (FHFA) announced that it was extending loan processing flexibilities for Fannie Mae and Freddie Mac customers through June 30 to allow alternative appraisals, alternative methods of verifying employment, flexibility for documentation requirements to allow renovation disbursements, and expanding the use of power of attorney and online notarizations. (5/5/20)
  • FHFA announced that Fannie Mae and Freddie Mac created online property lookup tools to allow renters to see if they live in a property that is covered by the temporary eviction moratorium. (5/4/20)
  • The S. Patent and Trademark Office announced (4/28/20) that it would further extend certain patent and trademark deadlines to June 1, 2020, given the ongoing effects of the COVID-19 pandemic. These extended deadlines apply to those situations identified in the USPTO’s March 31, 2020, guidance, such as responses to Office Actions.
    • For more detail, read Alston & Bird’s advisory explaining how and when to claim these extensions. (4/2/20)
  • The Securities and Exchange Commission (SEC) announced that it was issuing a temporary final rule providing temporary relief to certain companies to meet urgent needs through regulation crowdfunding offerings. (5/4/20)
  • The Department of Transportation (DOT) announced exemptions under the CARES Act for Spirit Airlines and JetBlue Airlines to stop providing service at certain large hubs and focus on city airports. (5/5/20)

Trade and International Business Issues   COVID-19: global supply chains to expect major reshuffle COVID-19: global supply chains to expect major reshuffle COVID-19: global supply chains to expect major reshuffle COVID-19: global supply chains to expect major reshuffle COVID-19: global supply chains to expect major reshuffle

  • Examining the strong performance of environmental, social, governance (ESG) funds, the developments in the UK and Europe and more are investigated in the A&B advisory. (5/8/20) (New)
  • Chinese imports from U.S. down 3 percent, exports down 16 percent. Data released Thursday by China’s Customs Administration shows China is importing less from the U.S. than it was a year ago through April, despite Beijing’s promise to increase its purchases of American goods by about 60 percent from last year’s totals. The U.S. trade deficit with China, however, is also down close to 22 percent as a result of a nearly 16 percent drop in Chinese exports to the U.S. (New)
  • USA-China phase one trade agreement implementation expected in timely manner despite COVID-19, says USTR. China is expected to fully meet its obligations under the U.S.-China phase-one trade agreement “in a timely manner” despite the novel coronavirus outbreak that has wreaked havoc on the global economy, U.S. Trade Representative Robert Lighthizer and Treasury Secretary Steven Mnuchin said in a joint statement late Thursday after a phone call with their Chinese counterpart. “Both sides agreed that good progress is being made on creating the governmental infrastructures necessary to make the agreement a success,” the statement said. “They also agreed that in spite of the current global health emergency, both countries fully expect to meet their obligations under the agreement in a timely manner.” (New)
  • With everyone focused on COVID-19, this A&B advisory analyzes the implications of Brexit on cross-border litigation in Europe. (5/5/20)

Insurance Issues   

  • For a 50-state review of business interruption insurance related issues see this new COVID-19 Insurance Litigation and Regulatory Issues tracker. The tracker is updated weekly. (Updated weekly - 5/10/20)
  • On April 24, the Rutgers Center for Risk and Responsibility and the National Council of Insurance Legislators (NCOIL) sponsored a webinar attended by hundreds of legislators, government officials, industry professionals and others to discuss state legislative proposals that would retroactively require insurers to provide coverage for business income losses caused by COVID-19. NCOIL President reportedly “began by expressing NCOIL’s opposition to retroactive legislation at the state level.” A recording of the webinar is available online. (New)
  • The pace of new business income coverage claims flooding state and federal courts nationwide has not slowed over the last few weeks. In addition to new case filings, we continue to monitor requests by Plaintiffs to transfer and consolidate federal COVID-19 business interruption cases into an industry-wide MDL notwithstanding significant variations between the policyholders, issuers, terms, coverages claimed, and causes of action alleged. A group of insurance industry trade groups led by the American Property Casualty Insurance Association has filed an Amici Curiae Brief in Tambellini v. Erie Insurance Exchange, urging the Pennsylvania Supreme Court to deny Plaintiff’s Emergency Application for Extraordinary Relief, which seeks to bypass the ordinary course trial court procedures and catapult Plaintiff’s claims straight to the Pennsylvania Supreme Court under the court’s infrequently-used King’s Bench Powers. (New)
  • Other Notable case filings include:
    • On May 7, Hartford Fire Insurance Company (“Hartford”) filed suit against its insured Moda LLC et al (“Moda”) in Connecticut state court, seeking a declaration that Hartford has no obligation under Moda’s policy to pay claims for Moda’s alleged losses of business income due to COVID-19. Hartford’s declaratory judgment action follows earlier lawsuits by Moda against Hartford seeking a declaration that Hartford is obligated to pay Moda’s claims for business income coverage. The case is Hartford Fire Ins. Co. v. Moda LLC et al., No. HHD-CV20-6127638 (Hartford Sup. Ct., Conn.) (New)
    • Also on May 7, Rinnigade Art Works filed suit against its insurers The Hartford Financial Services Group, Inc., Hartford Fire Insurance Co., and Twin City Fire Insurance in the federal district court for the District of Massachusetts seeking a declaration that Plaintiffs have “suffered direct physical loss of and/or damage to . . . insured premises” resulting in “interruptions or suspensions of business incomes” and that the resulting losses are covered under Plaintiffs’ policies. Plaintiffs also seek damages for breach of contract and violation of Massachusetts General Laws, Chapter 93A. Plaintiff seeks to represent a class “of persons and entities located in Massachusetts and such other states as the Court may deem appropriate.” The case is Rinnigade Art Works, et. al. v. The Hartford Fin. Servs. Grp., Inc., et al., No. 1:20-cv-10867-IT (D. Mass.) (New)
  • On April 30, the General Assembly of Pennsylvania proposed Senate Bill No. 1127 “r]elating to property and business interruption insurance coverage for COVID-19 Pandemic-related Losses.”  The Bill is structured differently than earlier proposals in that rather than simply asserting that policies will be construed to cover COVID-19 business income losses, it instead applies certain “rules of construction” to first-party insurance policy provisions in order to tie common coverage-triggering terms to COVID-19 related executive orders and the presence of the virus in a particular business.
  • The National Association of Insurance Commissioners has issued a Business Interruption COVID-19 Data Call Letter to property and casualty insurers indicating that state insurance regulators in 50 states, the District of Columbia, and the U.S. territories “have agreed to participate in a data call to collect data related to business interruption insurance and COVID-19.” Insurers are “requested to complete both parts of the COVID-19 business interruption data call” and to submit a “Premiums Data Template” by May 22, and a “Claims Data Template” by June 15, with mid-monthly update filings thereafter.

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