On June 8, 2020, Phase 1 businesses, including agriculture, construction, manufacturing, retail, and wholesale trade, are permitted to reopen in NYC. The NYC Department of Consumer and Worker Protection (DCWP) has outlined the relevant sick leave laws for both employers and employees returning to work during this time. The City also offers various resources for those impacted by COVID-19: free COVID-19 testing, a COVID-19 Hotel Program for those who cannot isolate at home, free or low-cost health care, and NYC Well, a confidential 24/7 helpline.
The Department of Health has also released NY Forward Safety Plan Templates for businesses that are re-opening. The templates are available in English, Chinese, Korean, and Bengali.
The Department of Health recommends that employers conduct daily employee health screenings; provide workers with free face coverings; maintain hand hygiene stations; regularly clean shared equipment and frequently touched surfaces; and post signs and markers to show people where to stand.
On Thursday, June 11, SupChina will be hosting an installation of their CEO Webinar Series. Thursday’s discussion will be with Lorna Davis, former CEO of Kraft China and Danone North America. Davis, with more than 20 years of experience in the consumer goods industry, will be leading a conversation regarding COVID-19’s effects on the food business and food security in China.
The event will be moderated by the SC Johnson Professor in Sustainable Global Enterprise at Cornell University Johnson School of Business Christopher Marquis.
On June 5, 2020, the Membership Committee hosted their weekly Zoom Membership Mixer, with 25 participants in attendance. The icebreaker question posed to the participants was: “Who is your favorite villain from television, movies, or literature?” Members reported their favorite villains as Emperor Palpatine and Darth Vader of Star Wars, Khan Noonien Singh of Star Trek, Professor Moriarty from Sherlock Holmes, Negan from Walking Dead, Cersei Lannister from Game of Thrones, Tony Soprano, Jack the Ripper, Agent Smith of Matrix, Mother Nature in Disney films, Bridget Gregory of the Last Seduction, Thanos in Marvel Universe, Maleficent of Sleeping Beauty, Hannibal Lecter, and Joker in Batman (both Jack Nicholson and Heath Ledger).
The Membership Committee previously hosted Monthly Mixers at bars, ballparks, stadiums, operas, etc. but due to COVID, we have 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 feel free to stay on after 7:30pm for smaller breakout groups.
This week, after the main mixer, a breakout group of 12 members stayed to discuss anti-Asian hate crimes in the age of COVID, and the current protests happening in response to the death of George Floyd.
We are giving away door prizes in some weeks. In order to win, you must be a member and must RSVP on the calendar entry for the mixer to get a raffle number. Non-members can join the Zoom mixer but won’t be eligible to win a prize. Congratulations to Kevin Hsi for winning an Amazon gift card this week!
On Wednesday May 27th, the AABANY Intellectual Property Committee kicked off the season with our first ever Zoom mixer. The session started off with some TV and movie-based Rebus puzzles, which were easily crushed by the codebreaking attendees. There will be more challenging games to come. We followed with learning a bit about each other and finding out what people have literally been cooking with more time at home. Fun ideas and plans for future events and activities were discussed, so there will be more to come this year in the form of intro to IP sessions, career track discussions, case study discussions and ways to provide practical knowledge to artists, creators and inventors in New York City.
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 [email protected].
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 [email protected].
To watch a recording of the presentation, see the video above.
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.”
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.
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.
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).
