AABANY Co-Sponsors: COVID-19: Relief for Small Businesses Webinar Series Part 2 (Bankruptcy and Restructuring)

On May 28, the Asian American Bar Association of New York (AABANY) co-sponsored “COVID-19: Relief for Small Businesses Webinar Series Part 2” as part of a series dedicated to helping small businesses mitigate financial losses in light of COVID-19. The presentation discussed the various economic relief packages passed under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), including the Payroll Protection Program (PPP) and the Economic Injury Disaster Loan (EIDL), as well as how Chapter 11 bankruptcy and the Small Business Reorganization Act can help small businesses ensure long-term financial stability. The webinar featured William Hao, Counsel at Alston & Bird with extensive experience in bankruptcy, litigation, and out-of-court restructuring and Treasurer of the AABANY Board. The presentation was moderated by William K. Lee, an associate at Alston & Bird LLP and AABANY member.

The presentation began by addressing the various relief packages currently available to small business owners, specifically those regarding eligibility requirements and application information. Small businesses need to submit their payroll processing records, tax filings, Form 1099-MISC, and other supporting documentation to be eligible to receive the PPP principal loan. The loan amount will be the lesser of either $10 million or 2.5 times the average monthly payroll based on 2019 annual statistics. The deadline for PPP loans is June 30, 2020 but will likely be extended for the next round of funding. As for EIDLs, eligible small businesses must have suffered economic injury in connection with COVID-19 and have an acceptable credit history that demonstrates an ability to pay back loans. Businesses may receive a principal loan amount of up to $2.5 million that can only be used to pay for expenses the businesses would have paid for even if the disaster had not occurred with an interest rate of 3.75%.

The presentation also discussed how filing for Chapter 11 bankruptcy could help small businesses reduce debt, restructure certain obligations, and come out of bankruptcy a more financially stable company. Filing for Chapter 11 bankruptcy allows owners to retain ownership of their businesses by restructuring their internal operations and finances, while incentivizing creditors to negotiate a more favorable reorganization plan. However, heavy legal expenses and other administrative requirements have traditionally blocked smaller businesses from being able to file for Chapter 11 bankruptcy. Under the Small Business Reorganization Act, many of the barriers that have deterred small businesses from filing Chapter 11 bankruptcy have been removed by allowing small businesses to qualify as Subchapter V debtors. By filing under Subchapter V, small businesses would not need to incur the significant legal expenses associated with forming a creditors’ committee, paying the appointed trustee, and filing for a disclosure statement. In addition, the Small Business Administration has raised the aggregate noncontingent, liquidated debt limit from $2,725,625 to $7,500,000, and has expedited the process for filing Chapter 11 bankruptcy.

The discussion also provided guidance on the process of filing for Chapter 11 bankruptcy. Small business owners should seek out a lawyer to help prepare and file a petition along with other potential filings such as an initial affidavit. An automatic Subchapter V trustee is appointed upon filing the petition and will formulate a plan to address outstanding debts. 

Debtors should also prepare for court appearances such as Section 341 meetings, during which creditors can come and ask questions regarding company finances and status conferences between all parties to discuss progress toward developing a restructuring plan. These plans must contain a brief history of the business operations of the debtor; an analysis of how much money the company is worth if all of its assets were immediately liquidated; a valuation of future profitability if the company was allowed to continue operating; and any relevant forms. Plans must also outline how to manage and pay various classes of claims and interests including administrative expenses, priority claims, secured claims, general unsecured claims, and equity interests. Secured creditors can be paid over time and can be paid at a potentially lower interest rate whereas unsecured creditors must complete repayment within five years and all income not allocated for the maintenance of the company and basic personal living expenses of the debtor will be applied to make payments. If the plan is mutually agreed upon by all parties, the debtor will pay regular installments to creditors and any liability for debts is waived upon confirmation of the plan. If the plan is nonconsensual, the appointed trustee will make regular payments on behalf of the debtor, and liability is waived upon the completion of payments.

We thank William Hao and William Lee at Alston & Bird for helping to organize this webinar series and for their demonstrated commitment to helping small business owners affected by COVID-19. To learn more about AABANY’s Commercial Bankruptcy & Restructuring Committee, visit https://www.aabany.org/page/353. For any specific details, please refer to the video above.

If any attorneys would like to volunteer with AABANY to assist small business owners adversely affected by COVID-19, please contact probono@aabany.org.

AABANY Co-Hosts Webinar on Employment, Labor, and Safety Issues Related to Returning to Work During COVID-19

On May 27, 2020, the Labor & Employment Law Committee of the Asian American Bar Association of New York (AABANY) co-sponsored an event with Littler and Alston & Bird–Silver-level sponsors of AABANY–addressing safety guidelines for returning to work during the pandemic. The presentation highlighted a variety of topics including re-opening guidelines for different industries, Paycheck Protection Program (PPP) loans, and various sick leave laws.

The webinar featured panelists Yoojin Deniro, Co-Chair of the Labor & Employment Committee of AABANY and Counsel at Advance Publications Inc., and William Ng, a Shareholder at Littler and founding Co-Chair of the Labor & Employment Law Committee. The event was moderated by William Lee, an Associate at Alston & Bird and AABANY member.

To begin, Yoojin Deniro explained that prior to re-opening, businesses must submit a Business Affirmation online and develop and post a Business Safety Plan, which must be retained on the premises and made available to the New York State Department of Health in the event of an inspection. The Business Safety Plan requires guidelines for physical distancing, protective measures (e.g.. providing face coverings to employees at no cost), hygiene and cleaning, communication, and health screenings. 

Next, William Ng discussed how individuals and businesses can make the most of PPP loans. The Paycheck Protection Program Flexibility Act, which is still pending before the Senate, is a bipartisan effort to fix problems with the PPP. If passed, the Act will allow forgiveness for expenses beyond the eight-week covered period; eliminate restrictions limiting non-payroll expenses to 25% of loan proceeds; remove limitations that constrain loan terms to two years; ensure full access to payroll tax deferment for businesses that take PPP loans; and extend the rehiring deadline to offset the effect of enhanced unemployment insurance.

In order to maintain a safe place to work, the panelists recommended that employers safely conduct temperature checks, which are permitted under the Americans with Disabilities Act’s (ADA) “direct threat” exemption. Temperature checks should be conducted by a trained and authorized individual with proper PPE, and symptomatic employees should be sent home in accordance with ADA confidentiality requirements. Employers are also urged to adopt other health screening protocols, including COVID-19 testing and creating health questionnaires. Moreover, employers must provide employees PPE at no cost, and offer necessary accommodations for employees with disabilities. Finally, individuals must continue to practice social distancing in the workplace and develop a comprehensive exposure control plan. Under the Occupational Safety and Health Act (OSHA) of 1970, any confirmed cases of COVID-19 or other illnesses and injuries must be recorded.

The panelists also reviewed various sick leave laws, including the Families First Coronavirus Response Act (FFCRA), which provides Emergency Paid Sick Leave (EPSL) and Emergency Family Medical Leave Act (FMLA) benefits for employees unable to work due to quarantine or isolation orders related to COVID-19. The FFCRA also offers exemptions for small businesses with fewer than 50 employees. New York State has also instituted Paid Family Leave, which grants paid leave for employees who must provide care for a minor dependent subject to a quarantine order. New York City offers Paid Safe and Sick Leave for employers whose business closed due to a public health emergency or who must care for a child whose school or child care provider closed due to a public health emergency. Lawmakers are also in the process of passing statewide New York Paid Sick Leave, which will apply to all employers and vary depending on the size and net income of the employer. Furthermore, in accordance with the ADA, employees can leave or request remote work if they engage in “cooperative dialogue” with their healthcare provider. Employer-specific policies also include Paid Time Off (PTO), sick leave, and personal or unpaid leave. 

We thank our colleagues at Alston & Bird and Littler for co-sponsoring and organizing this informative event with the Labor & Employment Law Committee of AABANY. We also thank the presenters, Yoojin Deniro and William Ng, and the moderator, William Lee, for their time. For more information on the Labor & Employment Law Committee, see https://www.aabany.org/page/398. If you are interested in volunteering with AABANY to assist with small businesses that have been adversely affected by COVID-19, please contact probono@aabany.org.

To watch a recording of the presentation, see the video above.

MNAPABA and NAPABA Stand in Solidarity with the Black Community

The Minnesota National Asian Pacific American Bar Association (MNAPABA) and the National Asian Pacific American Bar Association (NAPABA) released the following statement on June 2, 2020:

“The events of the past few weeks—the deaths of George Floyd, Ahmaud Arbery, and Breonna Taylor, as well as numerous incidents of explicit bigotry, bias, and brutality—are nothing less than disturbing and heartbreaking. The Minnesota Asian Pacific American Bar Association (MNAPABA) and the National Asian Pacific American Bar Association (NAPABA) stand in solidarity with our Black neighbors in the Twin Cities and beyond.

We demand change. When there is an imbalance of power, our position as members of the Bar and our understanding of the rule of law makes it even more critical that we stand strong against any form of injustice. We recognize the generational failures of our government and criminal justice systems in protecting the Constitutional and human rights afforded to Blacks. 

We must address deeply rooted racism in our society. We must work to create trust and fairness in our legal system by addressing systemic bias in the law to safeguard civil rights, civil liberties, and justice for all individuals regardless of race, ethnicity, disability, gender, gender identity, sexual orientation, religious background, or immigration status.

MNAPABA and NAPABA stand in solidarity with the Minnesota Association of Black Lawyers (MABL) and the National Bar Association (NBA) as they seek justice and reform at a local and national level. We stand in unity with our affiliated Asian Pacific American bars and sister bar associations in speaking out against racism in all its forms.”

AABANY Solo and Small Firm Practice Committee Presents Webinar on Standards of Civility in the Courtroom

On May 28, 2020, the Solo and Small Firm Practice Committee of the Asian American Bar Association of New York (AABANY) hosted a panel–“How to Woo Clients, Wow Judges, and Win Cases”–discussing professional conduct and standards of civility in the courtroom. The panel was also co-sponsored by the Litigation Committee and Judiciary Committee of AABANY.

The event, moderated by Bart Wu, Chair of the Solo and Small Firm Practice Committee of AABANY, featured panelists: Hon. Tanya R. Kennedy, Supreme Court Justice in New York County; Hon. Lizette L. Colon, Acting Supreme Court Justice in Kings County; and Hon. John Wang, a Housing Court Judge who is a fellow member of AABANY and currently running for Civil Court in District 1.

All panelists emphasized the importance of enforcing civil behavior in the courtroom. Judge Kennedy noted that engaging in civility allows litigators to work towards an effective resolution of the case and weed out unnecessary conduct that frustrates the case. Judge Wang added that standards of civility lift up the bar and the bench, and they help counteract negative perceptions that the public has about members of the bar–for example, that some attorneys are uncooperative.

Judge Colon warned panelists that when litigators engage in disrespectful behavior, they get a reputation for being rude and lackluster, not just to the judge, but also to the staff. Similarly, using condescending language, especially targeting an individual’s identity (for example, referring to a female court attorney as “young lady”), is unacceptable. Judge Wang also observed that courtrooms are now virtual due to COVID-19, and attorneys have difficulty adjusting to the new professional setting. They often sigh very loudly and make inappropriate facial expressions, and forget that they are still in a courtroom.

The judges advised attorneys, especially those who are inexperienced or younger, to study their case very well, research the judge and what they expect (such as reviewing the judge’s individual practice rules), and respect the authority of the court. Judge Colon suggested that attorneys get a summary sheet and review the basics of the case: what discovery is outstanding, if there are any motions, what the injuries or claims are, and what the policy is. Judge Kennedy encouraged panelists to ask their colleagues about what the judge is like in order to better understand the expectations of the judge. Judge Wang urged both seasoned and newer attorneys to respect humility and to not undermine the court’s authority by challenging the judge’s ruling in an unprofessional or inappropriate manner.

We thank the judges for their insightful comments and time, and Bart Wu and the Solo and Small Firm Practice Committee for organizing this event. This event fulfilled one hour of CLE credit in Ethics and Professionalism. For more information on the Committee, please see https://www.aabany.org/page/111.

Global Investigations Review Article on “Why anti-bribery enforcement scrutiny in China is here to stay” Co-Authored by Jian Wu

On May 21, 2020, Global Investigations Review published an article co-authored by AABANY Asia Practice Committee Co-Chair Jian Wu. The article is titled “Why Anti-bribery Enforcement Scrutiny in China Is Here to Stay.”

The article discusses how the US Department of Justice (DOJ) and Securities and Exchange Commission (SEC) are increasingly enforcing the Foreign Corrupt Practices Act (FCPA) against US public companies with operations in China. Following the DOJ’s announcement of the new “China Initiative” in November of 2018, priority has been given to identifying FCPA cases involving Chinese companies that compete with American business. Recently, it was reported that a US-listed health nutrition company was nearing a $123 million settlement with the DOJ and SEC related to an anti-corruption compliance investigation in China. The article highlights that such FCPA investigations and cases are likely to increase in the US. However, it still remains to be seen if China will follow up enforcement measures with a parallel focus.

The article notes that because “…the China Initiative puts Chinese companies and individuals in the spotlight, multinational corporations should carefully deal with their ongoing business relationships involving Chinese companies. At the same time, multinational corporations should not take enforcement by the Chinese authorities lightly. Chinese authorities are increasingly exercising closer supervision over bribery activities involving multinational corporations.”

With recent and ongoing policy changes and rising tensions between the US and China with the COVID-19 pandemic, multinational corporations need to focus on corporate compliance in 2020, remain informed about any new FCPA related developments, and get ahead of any challenges that may arise ahead of time.

To read the full article, click here.

AABANY Hosts “Fortune 500 General Counsel Panel: Leadership During Crisis Webinar”

On May 21, the Asian American Bar Association of New York (“AABANY”) presented its “Fortune 500 General Counsel Panel: Leadership During Crisis,” part three of NAPABA’s General Counsel Webinar Series. The event highlighted prominent General Counsels working in various industries and discussed the impact of COVID-19 in the workplace along with advice for aspiring General Counsels. The panelists included Damien Atkins, General Counsel of the Hershey Company; Peter Beshar, Executive Vice President and General Counsel of Marsh & McLennan; Elisa Garcia, Chief Legal Officer and General Counsel of Macy’s; David Hyman, General Counsel and Company Secretary of Netflix; Alan Tse, Global Chief Legal Officer and Corporate Secretary of JLL; and David Yawman, Executive Vice President of Government Affairs, General Counsel and Corporate Secretary of PepsiCo. The panel discussion was moderated by Michael Wu, Chief Legal Officer and Corporate Secretary of Madewell.

The panel discussed the immediate challenges faced by General Counsels in light of the current pandemic and the transition to an online work environment. Emphasis was placed on adaptability and flexibility as General Counsels and legal departments across all industries have had to quickly put together plans for long-term financing and shifts in day-to-day operations. This emphasis on adaptability also stresses greater cooperation between the legal team, the board of directors, and C-suite executives in forming a coherent strategy in both dealing with the pandemic and also pursuing non-COVID-19 related objectives. As Alan Tse stated, companies are, more than ever, looking toward their legal teams for leadership in navigating through economic uncertainty and changes in corporate governance.

Additionally, the importance of communications and integrating technology into the workplace are vital as General Counsels need to be able to coordinate all the moving parts of the company in making the localized decisions necessary to ensure compliance with local regulations and sustainable growth. While it is important to have contingency plans during times of crisis, General Counsels need to be vigilant and flexible in their approach toward unpredictable and complex problems in the future. Peter Beshar stated that General Counsels should also prioritize “collective cyber resilience, not just of our company, but of broader society” by protecting critical online communication channels. Additionally, General Counsels should form effective response plans to prepare companies from destabilizing cyberattacks.

Recent changes in legislation and the regulatory environment have also driven General Counsels to be more proactive in how they view the relationship between what David Yawman describes as the “great continuum… between the legislative environment and policy issues coming out of societal trends.” Ultimately, General Counsels should recognize that changes in corporate governance are facilitated by both government legislation and company policies and that, as legal professionals, they have a crucial role to play as both a guide for their clients and a trailblazer for corporate policy.

Lastly, the panel discussed efforts to promote diversity within their organizations and the role General Counsels play in ensuring inclusion in the workplace. Inclusion championship should be a fundamental, core value of corporate governance and thus, should be, as David Hyman describes, a “top-down” process embodied by all corporate executives. Individuals and legal teams should be empowered to take initiative in leading pop-up conversations and workshops that champion inclusive leadership that stresses not only diverse participation, but diverse leadership. Companies should also hold individuals accountable and translate inclusion policies into action.

The panel attracted more than 500 registrants, making it the single biggest AABANY Zoom meeting to date. Attendees were eligible to receive 1.0 New York CLE credits, with 0.5 credits fulfilling the Diversity, Inclusion, and Elimination of Bias requirement and 0.5 credits fulfilling the Law Practice Management requirement. We thank Michael Wu for organizing the panel and for moderating a highly informative and substantive discussion. We thank all the speakers for sharing their insights, knowledge and perspectives. The event was covered by Corporate Counsel. Read the article here (Law.com subscription required).

AABANY Co-Hosts Webinar on Becoming a Magistrate Judge

On May 20, 2020, the Judiciary Committee of the Asian American Bar Association of New York (AABANY) and the Public Interest Committee of the South Asian Bar Association of New York (SABANY) co-hosted a panel on how to become a Magistrate Judge. Recently, the Eastern District of New York announced vacancies for four US Magistrate Judge positions, the first time so many opportunities have been simultaneously available since the positions were created. The webinar provided important information and advice for individuals who might be considering a career as a Magistrate Judge.

The event featured panelists Hon. Sanket Bulsara, Hon. Peggy Kuo, and Linda Lin. Judge Bulsara was appointed as a Magistrate Judge of EDNY on August 28, 2017, and previously served as Acting General Counsel of the Securities and Exchange Commission. Judge Kuo was appointed on October 9, 2015, and prior to her appointment, she served as the Acting Deputy Chief of the Civil Rights Division Criminal Section at the U.S. Department of Justice; litigation counsel at Wilmer Hale, LLP; Chief Hearing Officer at the New York Stock Exchange; and Deputy Commissioner and General Counsel of the New York City Office of Administrative Trials and Hearings. Linda Lin is the General Counsel of Business Unit Support at QBE North America and a member of the EDNY Magistrate Judge Merit Selection Panel. Austin D’Souza, Principal Law Clerk to Hon. Faviola A. Soto at the New York Court of Claims and Vice President of Public Relations at SABANY, served as the moderator.

Judge Bulsara and Judge Kuo discussed their responsibilities as Magistrate Judges. They emphasized that though their docket is heavily civil, varying between 400-500 cases per judge, they also play an important role on the criminal side. Magistrate Judges are on criminal duty approximately once every ten weeks, during which they preside over arraignments, initial appearances, and bail hearings. They also conduct jury selection in felony cases. Judge Bulsara noted that his favorite part of being a Magistrate Judge is presiding over naturalization ceremonies and interacting with wonderful colleagues.

Linda Lin described the application process and how potential candidates are evaluated. Members of the Selection Panel independently review the applications and decide on which candidates to interview. Prior to the interview, the panel conducts due diligence and may reach out to references beyond those mentioned in the candidate’s application. The Selection Panel also requests writing samples, preferably those that demonstrate analysis and are centered around advocacy and litigation. Finally, five names are presented to the Board of Judges, who decide whom to appoint as a Magistrate Judge. While reviewing applications, members of the Selection Panel look for the following qualities: scholarship, from academic records to achievements; active practice of the law, including breadth and depth of experience, professional competence, and pro bono and public service activities; knowledge of the court system and recent experience in front of the federal bench; and personal attributes, or judicial temperament.

Judge Kuo advised individuals applying to become a Magistrate Judge to prepare for their interviews by going back and reading their application and writing samples, looking up the biographies of members of the Selection Panel, and reviewing the Rules of Civil Procedure. Judge Bulsara urged candidates to take advantage of the mock interviews offered by AABANY and sit in on proceedings in court.

We thank our panelists for speaking on the program and sharing insightful advice about the process of becoming a United States Magistrate Judge. Thanks also to Austin D’Souza for serving as an excellent moderator. For more information on AABANY’s Judiciary Committee, please see https://www.aabany.org/page/115.

AABANY Hosts Weekly Zoom Membership Mixer on May 29

On May 29, 2020, the Membership Committee hosted their weekly Zoom Mixer Membership Mixer, with 29 participants in attendance. In honor of Membership Director Beatrice Leong’s birthday, the icebreaker question posed to the participants was: “What was your favorite or most memorable birthday memory or gift?” The overwhelming answer by most participants was “getting drunk on their 21st birthday.” Other answers included a one-week alcohol bender, birthday parties in McDonald’s with childhood crushes, Tokyo birthdays, birthdays where members took the LSAT and passed the bar exam. Members’ favorite gifts included a Voltron toy, a song written in their honor, and a 3D printed toy of the member’s likeness.

This mixer featured Trivia Night hosted by Sal Chan. Sal is Chief of Operations at the trial boutique Mukasey Frenchman & Sklaroff. Thank you, Sal! Anyone interested in joining Zoom trivia nights every Thursday can email Sal at  sal.chan@mfsllp.com.

We had enough attendees to form four teams. Three of the teams stayed through two full rounds of quetstions. The winning team was “Taking Back Monday.” Congratulations to team members Andrew Kao, Puja Sharma, Kevin Hsi and William LimDuring the game, we encouraged participants to donate to a fund, with the winning team getting to pick which charity or cause they wished to support. Taking Back Mondays kindly agreed to donate to AABANY’s Pro Bono Clinic. Thank you, Taking Back Mondays!

The Membership Committee previously hosted Monthly Mixers at bars, ballparks, stadiums, operas, etc., but due to COVID, we moved online to offer members a weekly outlet to share their feelings, see old friends, and make new connections. Mixers start at 6:30pm on Friday and the main event ends at 7:30pm but people have stayed on after 7:30pm for smaller breakout groups.

We are giving away door prizes during some weeks. In order to win, you must be a member and must RSVP on aabany.org to get a raffle number. Non-members can join the Zoom mixer but won’t be eligible to win a prize. Mixers are not recorded, and are LIVE, so don’t miss out.

This week’s mixer will take place on Friday, June 5, at 6:30 pm. Register by June 4 at https://www.aabany.org/events/event_details.asp?legacy=1&id=1366638. We hope to see you there.

Co-Chair Karen Lin Published in Historical Society of the New York Courts blog for APA Heritage Month

Pro Bono and Community Service Committee co-chair Karen Lin writes about why we celebrate Asian Pacific Islander American Heritage Month for the Historical Society of the New York Courts blog.

The Historical Society of the New York Courts was founded in 2002 by then New York State Chief Judge Judith S. Kaye. Its mission is to preserve, protect and promote the legal history of New York, including the proud heritage of its courts and the development of the Rule of Law.

A first generation immigrant herself, Lin attempts to define what it means to be “Asian American,” noting that the term often groups a diverse collection of people into a single phrase. In actuality, she explains, there are a plethora of cultures, languages, religions, histories, and patterns of immigration within the umbrella term; perhaps what most strongly links Asian Americans to one another are the hardships they face.

“Asian Americans are often grouped together as an undifferentiated mass and many share the experience of being treated as perpetual foreigners who do not fully belong in America,” Lin writes. From the Bubonic Plague of the 1900s – when San Francisco’s Chinatown was quarantined – to the present day, when COVID-19 has propelled a new wave of anti-Asian xenophobia and racism, Asian Americans have historically faced people challenging their place in this country, Lin says.

The designation of May as Asian Pacific Islander American Heritage Month, then, is an homage to Asian Americans who often feel invisible. Lin explains that May was chosen to celebrate Asian American history to mark the anniversary of Japanese immigrants arriving in the US, and to acknowledge the contributions of Chinese workers in building the transcontinental railroad.

Lin embeds a powerful lesson in her article: Asian Americans will no longer accept being silenced, blamed, or overlooked. This month is only the first step on the journey ahead.

Thanks to Karen Lin for sharing these important thoughts on APA Heritage Month. To read the full blog post, click here.

Asian American Federation Hosts Two-Part Series on Staying Safe During COVID-19 And Beyond

The Asian American Federation (AAF) will be hosting two safety trainings on how individuals can protect themselves and their communities during COVID-19.

On Friday, May 29, 2020, from 3 PM to 5 PM, AAF will be presenting on Using Nonviolent Communication During COVID-19.

On Thursday, June 4, 2020, from 3 PM to 5 PM, AAF will be exploring Using Conflict De-Escalation Strategies In Our Homes.

Register for these events at https://www.eventbrite.com/e/staying-safer-a-two-part-series-tickets-104770272706.