COVID-Related U.S. Government Financial Supports for U.S. Affiliates of Irish Businesses

On March 27, 2020, President Trump signed into law the Coronavirus, Aid, Relief and Economic Security Act (the “CARES Act”). The nearly $2 trillion relief package is the boldest action to date in response to the COVID-19 pandemic and is the single largest relief bill in U.S. history. The CARES Act includes (a) direct financial assistance to Americans; (b) aid to small businesses and employees; (c) efforts to stabilize the economy and keep people employed; and (d) additional support for health care professionals, patients, and hospitals. More specifically, the CARES Act provides $349 billion in small business loans and $500 billion in loans for distressed companies, which may be available to U.S. affiliates of Irish companies.

This memorandum will focus on the $349 billion allocated for Paycheck Protection Program loans (“PPP Loans”), administered by U.S. Small Business Administration (“SBA”). Private SBA-approved financial institutions (and not the SBA itself) will administer PPP Loans, so it is crucial for U.S. affiliates of Irish companies to reach out as soon as possible to their U.S. banker or an SBA-approved lender (we can provide a list of such lenders upon request).

Are U.S. affiliates of Irish companies eligible for a PPP Loan?

The CARES Act seems to allow U.S. affiliates of Irish companies to apply for a PPP Loan, and we are waiting in final SBA regulations to confirm this fact. The statute states that an eligible borrower (a) be “created or organized in the United States or under the laws of the United States;” (b) “have significant operations . . . in the United States;” or (c) have “a majority of its employees based in the United States.” Whereas the requirement in clause (a) may be determined objectively (and may apply to most U.S. affiliates of Irish parents), the requirements in clauses (b) and (c) have ambiguity for interpretation. Our guidance right now, pending issuance of relevant regulations, is that U.S. affiliates of Irish companies should prepare to obtain a PPP Loan; given the perceived demand for these loans, there is risk that the funding could run out before finalization of each detail of the program.

Are there other eligibility requirements?

U.S. affiliates of Irish parent companies must have been in operation on February 15, 2020 and have 500 or fewer employees to be eligible for a PPP Loan. The 500-employee limit is subject to certain exceptions based on industry: (a) businesses with a North American Industrial

Classification System code begins with “72” (accommodations and/or food services/restaurants; (b) for any business concern acting as a franchise; and (c) for any business concern that receives financial assistance from a company licensed under §301 of the Small Business Investment Act of 1958.

Existing SBA regulations contain rules that provide for the aggregation of the number of employees, for purpose of determining the 500-employee limit, where businesses are affiliates (under common control, controlling or controlled by) of one another. Our understanding of how the CARES Act intends for these rules to be applied (pending final regulations) is that employees outside the U.S. will not be counted for purposes of the 500-employee limit.

How much can be borrowed?

The maximum PPP loan size is the lesser of (a) $10 million; or (b) 250% of the average monthly “payroll costs” (discussed below), measured over the 12 month period ending on December 31, 2019 (although the CARES Act specifies a different time period, the PPP Loan application states that the relevant payroll measurement period is calendar year 2019). If the U.S. affiliate could be classified as a seasonal business, it may use the period February 15, 2019 – June 30, 2019 or March 1, 2019 – June 30, 2019 to calculate the average payroll.

For PPP Loan purposes, “payroll costs” include salaries, commissions, tips, certain employee benefits (including health insurance and retirement benefits), state and local taxes and certain types of compensation to sole proprietors or independent contractors. Payroll costs specifically exclude compensation of an individual employee in excess of an annual salary of $100,000 (but only to the amount of such overage), employees outside the U.S., FICA and income tax withholdings.

What are PPP Loan terms?

The U.S. Treasury Department has stated the PPP Loan terms will be the same for every borrower. More specifically:

  • Loan payments deferred for six (6) months;
  • Initial 0.5% interest rate (capped at 4%);
  • Loan is due two (2) years from inception;
  • No prepayment penalties or fees;
  • No collateral required; and
  • No personal guarantee required.

What can a PPP Loan be used for?

PPP Loans may only be used for (a) payroll costs (as discussed above); (b) group healthcare benefits, insurance premiums; (c) interest (but not principal) on mortgages or other debt incurred prior to February 15, 2020; (d) rent on any lease in force prior to February 15, 2020; and (e) utility payments (electricity, gas, water, transportation, telephone or internet access which began prior to February 15, 2020). U.S. affiliates of Irish parent companies may not use PPP Loan proceeds to pay dividends to a parent entity, make other capital distributions or make loans to non-US entities.

Are PPP Loans forgivable?

 PPP Loans can be forgiven, in whole or part, in a number of circumstances; the expectation is that a majority of PPP Loans will be forgiven. As a threshold matter, the amount of a PPP Loan that may be forgiven is equal to the amount spent by the borrower during an 8-week period after the origination date of the loan on (a) payroll costs (as discussed above); (b) interest payment on any mortgage incurred prior to February 15, 2020; (c) payment of rent on any lease in force prior to February 15, 2020; and (d) payment on any utility for which service began before February 15, 2020. The amount forgiven may not exceed the principal of the PPP Loan.

However, the amount forgiven will be reduced based on failure to maintain the average number of full-time equivalent employees versus the period from either February 15, 2019, through June 30, 2019, or January 1, 2020, through February 29, 2020, as selected by the borrower. The amount forgiven will also reduced to the extent that compensation for any individual making less than $100,000 per year is reduced by more than 25% measured against the most recent full quarter. Reductions in the number of employees or compensation occurring between February 15, 2020, and 30 days after enactment of the CARES Act will generally be ignored to the extent that reductions are reversed by June 30, 2020. It is anticipated that not more than 25% of the forgiven amount may be for non-payroll costs.

Forgiven amounts will not constitute cancellation of indebtedness income for U.S. federal tax purposes.

What will potential borrowers have to provide as part of the PPP Loan process?

As part of the loan origination process, potential borrowers will have to affirm that (a) current economic uncertainty makes the loan necessary to support its ongoing operations; (b) the funds will be used to retain workers and maintain payroll or to make mortgage, lease, and utility payments; and (c) it has not and will not receive another loan under the PPP Loan program or other CARES-related program.

Applicants will have to provide to the lender documentation that verifies the number of full-time equivalent employees on payroll and the dollar amounts of payroll costs, covered mortgage interest payments, covered rent payments, and covered utilities for the eight weeks after getting this loan.

Are there other issues around PPP Loans?

 Potential borrowers should carefully review existing loan terms and other existing financing arrangements to ensure that obtaining a PPP Loan does not breach the terms of such arrangements.

Companies that obtain a PPP Loan may not be able to use some of the tax benefits in the CARES Act, such as a payroll tax deferral.

Potential borrowers should speak to their U.S. banker as soon as possible because we’re hearing from banks that, given the expected demand for these loans, they are prioritizing their existing customers.

 What’s next?

 The CARES Act allocates $500 billion to the U.S. Treasury Department for loans and other financial supports for distressed companies who may not be eligible for a PPP Loan. We are waiting on specific guidance and regulations from the U.S. Treasury Department as to the process and procedures that will be used in connection with deployment of this $500 billion allocation. We will provide an update once such guidance is published.

Please contact Michael E. Burke at mike.burke@agg.com or +1.202.677.4046 if you have any questions on PPP Loans, the CARES Act or other related matters.

Is the Coronavirus a Force Majeure that Excuses Performance of a U.S. Law Contract?

David Marmins, my incredibly talented partner, has written a great legal update on whether the coronavirus is a force majeure event in U.S. contract law. This is essential reading for any Irish or Northern Irish company with contracts governed by U.S. law.

This is the update:

The coronavirus is causing a true Friday the 13th nightmare scenario for many companies today. In mid-March, the country began ardently practicing social distancing and self-quarantining to a degree never seen before, and many businesses are immediately facing an uncertain future.

One coronavirus-related question real estate litigators are getting often today is whether force majeure (“superior force”) or “Act of God” clauses justify the suspension of performance of their duties under contracts. The answer depends on the specific contract language, local law, and the causal connection between the pandemic and the parties’ ability to perform their contractual obligations.

What Is a Force Majeure Clause?

Black’s Law Dictionary explains that a force majeure clause “is meant to protect the parties in the event that a contract cannot be performed due to causes which are outside the control of the parties and could not be avoided by exercise of due care.” Force majeure clauses allocate risk between the parties when an unanticipated event makes performance impossible or impracticable.

While state laws vary, every jurisdiction respects parties’ right to contract. So, disputes over application of force majeure clauses start with the specific language used in the contract. A force majeure lease clause may contain a list of specific events that constitute a force majeure; it may be vaguer to include anything out of the parties’ control; or the clause may define specific events and then include broad “catch-all” language such as “for other reason whether of a like nature or not that is beyond the control of the party affected.” The following comprises an example of such a clause:

If either party is delayed or hindered in or prevented from performing any term, covenant or act required hereunder by reasons of strikes, labor troubles, inability to procure materials or services, power failure, restrictive governmental laws or regulations, riots, insurrection, sabotage, terrorism, act of the public enemy, rebellion, war, act of God, or other reason whether of a like nature or not that is beyond the control of the party affected, financial inability excepted, then the performance of that term, covenant or act is excused for the period of the delay and the party delayed shall be entitled to perform such term, covenant or act within the appropriate time period after the expiration of the period of such delay.  Nothing in this Section, however, shall excuse Tenant from the prompt payment of any Rent or the obligation to open for business on the Commencement Date.

Generally speaking, the more specific the clause, the more limited application it has – if the actual occurrence is not on a long list of specific events, it is not likely a force majeure. Most clauses specify that they are only invoked when performance becomes impossible; some have more liberal language requiring only the hindrance or delay of performance.

The Coronavirus Outbreak and Force Majeure Clauses

As it pertains to the coronavirus, any broad force majeure clause language should apply since March 11, when the World Health Organization declared it a pandemic. It is unlikely any court would decide that any private party has caused the coronavirus (though, a few years ago, an Idaho Court did determine that there were questions of fact whether an egg-producer for a grocery chain contributed to an outbreak of avian flu; which outbreak allegedly prevented it from fulfilling its contractually obligated output of eggs, see Rembrandt Enterprises, Inc. v. Dahmes Stainless, Inc.2017 WL 3929308 (N.D. IO 2017)). And, many force majeure clauses specifically include “epidemic” or “pandemic” in its laundry list of qualifying events. See Aukema v. Chesapeake Appalachia, LLC904 F.Supp.2d 199, 206 (N.D. NY 2012) (“term ‘force majeure” as used herein shall be Acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy, wars, blockades, riots, epidemics, lightning, earthquakes, explosions, accidents or repairs to machinery or pipes, delays of carriers, inability to obtain materials or rights of way on reasonable terms, acts of public authorities, or any other causes, whether or not of the same kind as enumerated herein, not within the control of the lessee and which by the exercise of due diligence lessee is unable to overcome”) (emphasis added). Even without that specific reference, the coronavirus should qualify under most force majeure clauses due to the government-imposed travel bans and quarantines.

Most courts require the party claiming force majeure to show that the event was not foreseeable and directly caused the failure to meet its contractual obligations. While this is often a close call in weather-related natural disasters—the geographic scope and actual impact on the stream of commerce of a storm is often debatable—a pandemic resulting in mass closures of all public events and schools should not be a close call. This is not a normal risk of doing business. The law does require the mitigation of damages, and many businesses can continue to operate at some, if not full, capacity.

As in any contract matter, strict compliance with the technical requirements of the contract may be necessary for a party to invoke a force majeure clause. Typically, a contract requires prompt notice of a claim of force majeure. Several courts have refused parties’ force majeure claims when they failed to provide adequate notice under the contract. Seee.g.Three RP Limited Partnership v. Dick’s Sporting Goods, Inc., 2019 U.S. Dist. LEXIS 22534, at *14 (E.D. OK 2019), quoting Sabine Corp. v. ONG Western, Inc., 725 F. Supp. 1157, 1168 (W.D.Okla.1989) (“‘failure to give proper notice is fatal to a defense based upon a force majeure clause requiring notice’”).

Questions regarding force majeure clauses are one of many issues that arise during challenging times for commerce, but with vigilant adherence to their contracts and applicable law, parties can navigate these troubled waters successfully.

COVID-19 AND U.S. BUSINESS INTERRUPTION INSURANCE COVERAGE

My wonderful colleague, Rebecca Kolb, has written a terrific client alert, below, on whether, and how, business interruption insurance in the U.S. could cover COVID-19-related losses. Irish and NI companies with US operations certainly have a lot on their plates right now, but this alert is essential reading:

 

Everyone is facing an unknown future with COVID-19. One question for clients is whether the impact of business interruption from the virus can be covered by their insurance policies. Having some of the loss covered by insurance could actually be the difference in a business making it through this uncertain time or facing bankruptcy. But whether coverage exists is not an easy question and requires a close examination of the coverages a business has. And, even if there is coverage, some requirements for invoking that coverage may require rapid action. Notice requirements may be be within thirty days (or less) of the interrupting event—a fairly short window when balancing other considerations that come with managing a response to a pandemic.

What is business interruption coverage and when does it generally apply?

Business interruption coverage will generally cover lost revenue and unavoidable continued business costs and is usually under the commercial property coverage part of a policy. It provides for coverage when there is “direct physical loss of or damage to” insured property. Government efforts to contain COVID-19 may also invoke a “civil authority” provision in a business interruption policy, which may apply when a government restricts or prohibits access to the insured property based on physical loss or damage.

The policy language is typically along the lines of:

This policy insures against loss resulting directly from necessary interruption of business caused by physical loss or damage by a peril not otherwise excluded herein to insured property of the Insured, all subject to the terms and conditions of this policy.

Thus, the requirements are: (1) physical loss or damage, (2) to insured property, (3) caused by a covered peril, (4) resulting in quantifiable business interruption loss, (5) during the period of time it takes to restore the damaged property.

Can COVID-19 be physical loss or damage?

Whether exposure or potential exposure to COVID-19 at a property falls within the requirement of physical loss or damage is likely to be a hotly contested issue. Already, one business out of New Orleans has sued its insurance provider to have a court rule on whether closures from the pandemic could qualify. Some courts have already determined that physical loss can occur without structural or tangible changes to a property, such as through contamination. See, e.g., Gregory Packaging, Inc. v. Travelers Prop. Cas. Co. of Am., No. 2:12-CV-04418 WHW, 2014 WL 6675934, at *4 (D.N.J. Nov. 25, 2014) (ammonia contamination that rendered the premises unsafe constituted direct physical loss under business interruption coverage); Sentinel Mgmt. Co. v. New Hampshire Ins. Co., 563 N.W.2d 296, 300 (Minn. Ct. App. 1997) (asbestos contamination was direct physical loss under “all-risk policy”). And other courts have indicated that the threat of harm which renders property unsafe could be enough to trigger coverage. See, e.g., Murray v. State Farm Fire & Cas. Co., 203 W. Va. 477, 493, 509 S.E.2d 1, 17 (1998) (the threat of rocks and boulders “crashing down at any time” on a property after a landslide would qualify as direct physical loss); Fire Ins. Co. v. First Presbyterian Church, 165 Colo. 34, 39, 437 P.2d 52, 55 (1968) (the saturation of the ground around a property rendered the premises unsafe and would qualify as direct physical loss).

When could “civil authority” coverage apply?

Generally, “civil authority” coverage applies when there is a forced closure by a civil authority. This typically happens through a government order barring access to the insured property based on physical loss or damage. In addition to the considerations regarding physical loss, there are questions of whether the government guidance in a particular area rises to a forced closure.

If the government has not ordered the closure of a particular business, and merely discourages the population from visiting that business, it may not be enough to invoke civil authority coverage, though that still depends on the policy language. This has already led to substantial commentary from, for example, the United Kingdom’s hospitality trade organization, UKHosptiliaty, given the British government’s decision to only strongly advise its citizens to avoid restaurants, rather than order that they be shut down.

What about other bars to business interruption coverage?

There are several potentially applicable standard exclusions that could separately bar coverage for a COVID-19 business interruption, some specifically adopted by the industry to address pandemic concerns after the last SARS outbreak. For example, the Insurance Services Offices, Inc., or “ISO,” is a company that creates template forms that insurance companies often use for their policies. In 2006, the ISO forms for business interruption coverage added an exclusion to specifically bar coverage for virus pandemics. But some states seem to be looking at legislation that would negate the exclusion. New Jersey, for example, has proposed legislation that would require business interruption coverage for COVID-19 even if there is a specific exclusion in the policy for influenza pandemics.

Are there other potential policies or coverages that could apply?

Depending on the type of business, there could be several other types of insurance that could apply in the wake of this pandemic. Under a commercial property policy, there could also be dependent property/contingent liability coverage. This coverage may apply if a supplier or another business has a business interruption from physical loss that impacts the insured business.

Other potential policies that may apply are:

  • Event Cancellation policies (which are available to companies in the event business)
  • Loss of Attraction coverage (which can apply for destruction of an “attraction” nearby the insured property)
  • Supply Chain policies (which are similar to dependent property/contingent liability coverage but may not require physical loss from the supplier business)
  • Commercial General Liability policies (which may apply to loss suffered from bodily harm)
  • Director & Officers policies (which may apply in the event of a lawsuit based on company actions in response to COVID-19.

Conclusion

Insurance policies exist to mitigate the effects of unanticipated economic harms. COVID-19 certainly qualifies. But clients should carefully review existing policies to take advantage of any existing coverage and, equally as important, to give proper notice to their insurers of potential claims.

IP Update: Irish and Northern Irish Businesses Now Must Be Represented by a U.S.-Licensed Attorney on USPTO Matters

As of early August, all Irish and Northern Irish persons and entities (whose permanent legal residence or principal place of business is outside the U.S.) are required to be represented by a licensed U.S. attorney in good standing in all matters before the U.S. Patent and Trademark Office and the Trademark Trial and Appeal Board. This is a significant change for Irish and Northern Irish companies with IP registrations in the US, especially those protecting their brands.

This new rule applies to (i) new application filings and subsequent filings in pending applications; (ii) maintenance filings in connection with existing registrations; and (iii) ex parte appeals and contested proceedings before the TTAB, including, opposition and cancellation actions.

Irish and Northern Irish applicants, registrants and parties now need to engage a licensed U.S. attorney to file submissions on their behalf.

If you have any questions about the impact of this changed rule, contact me –AGG has a great IP practice that represents a number of Irish and Northern Irish businesses on US IP matters.

@agglaw

Growing Complexity of U.S. Visa Processing for Irish/NI Companies

U.S. visa processing is growing in complexity, with many new U.S. operations of Irish/NI parent struggling to qualify for classification to sponsor qualified professionals for work authorization in the U.S . New U.S affiliates usually do not qualify to sponsor foreign nationals for work authorization until they are fully established, with a lease for offices, investment, and in many cases U.S. personnel on payroll.

If a U.S. affiliate of an Irish/NI parent is not qualified to sponsor key personnel for work authorization, professionals may often qualify for a temporary professional visitor visa to travel to the US . B-1 visas and/ or B-1 in lieu of H-1 visas are alive and well at most European posts (including Dublin and Belfast) when a visitor can show that he or she is traveling to the U.S. for purposes of investing in a U.S. business, or engaging in professional services related to their employment outside the U.S. and their area of their expertise, provided they have earned a Bachelor’s degree equivalency. For example, an employee of an Irish/NI parent company may qualify for a B-1 visa to travel to the U.S. for up to 6 months in one stay to set up corporate operations. An IT professional may qualify for a B-1 in lieu of H-1 visa for purposes of setting up critical IT systems in the US to support operations.

 Documentation reflecting qualification is required, as is a prepared applicant. My partner, Teri Simmons (who wrote most of this post) is an expert in U.S. business immigration law and has advised many Irish/NI businesses on these issues. Reach out to her or me if you have any questions or need guidance.

 

Will China-Specific Tariffs Impact Irish/NI Exports to US?

My last post discussed the potential (but likely very small) impact of the relatively new U.S. steel and aluminum tariffs on Irish and Northern Irish exports to the U.S. In this post, I turn to the related question of whether proposed U.S. tariffs against China could impact Irish and Northern Irish exports to the U.S. The answer is ‘maybe.’ In fact, U.S. tariffs on Chinese products could have a larger impact on U.S. imports from Ireland and Northern Ireland than the steel/aluminum tariffs.

U.S. tariffs are applied on certain imports that meet the (i) relevant country of origin test; and (ii) the relevant HTSUS code test. In other words, the tariffs hit certain products (each item imported into the U.S. is given a multi-digit Harmonized Tariff Schedule number) from certain jurisdictions–in this case, China. In general, the jurisdiction of product’s ‘last substantial transformation’ will be the product’s country of origin for U.S. customs purposes. And that could be an issue for some Irish/NI companies that source their product from China.

Let’s assume for a minute that an Irish company sources a widget (I remember my college economics) from China, imports it into Ireland for labeling and packaging, and then exports the packaged widget to the U.S. Let’s assume further that the U.S. has just placed a 50% tariff on all Chinese origin widgets. Are the Irish company’s subject to the tariff? In this scenario, yes. If the product is sourced from China and not substantially transformed elsewhere (and packaging/labeling almost always will not be a substantial transformation for U.S. customs purposes), then the product is determined to be–again, for U.S. customs purposes–of Chinese origin. It doesn’t matter that the exporter/seller is an Irish company–the relevant questions focus on the product(s) at issue.

Of course, the precise scope, and timing, of U.S. tariffs on Chinese products remains a bit foggy. But we have some indications as to scope from U.S. government pronouncements.

Irish and Northern Irish exporters should, sooner rather than later: (i) determine if their products are included within the HTSUS code of products subject to tariffs; and (ii) check their supply chain to determine if their products would be considered to be of Chinese origin under relevant U.S. customs rules. If their products are subject to tariffs, affected companies have few options; (i) continue to sell to the U.S. market at a higher cost; (ii) alter their supply chains to source from a place other than China and/or have the last substantial transformation of the product happen outside of China; or (iii) seek a tariff exemption from the U.S. government. None of these options is particularly attractive, easy or inexpensive.

US Aluminum/Steel Tariffs and Irish/NI Companies

Several Irish and NI companies have asked me whether the recently-imposed US tariffs on aluminum and steel would impact their products–products that use/incorporate aluminum and steel. Much of the confusion stems from how the tariffs were developed and publicized. The bottom line is that US steel/aluminum tariffs should not impact most Irish or Northern Irish companies.

As for the tariffs, for goods entered, or withdrawn from a warehouse for consumption, on or after March 23, 2018, there will be a (i) 10% ad valorem tariff on defined “aluminum articles” imported from all countries except Canada and Mexico; and (ii) a 25% ad valorem tariff on defined “steel articles” imported from all countries except Canada and Mexico.

Under the tariff proclamation, “aluminum articles” are defined in the Harmonized Tariff Schedule (HTS) as: (i) unwrought aluminum (HTS 7601); (ii) aluminum bars, rods, and profiles (HTS 7604); (iii) aluminum wire (HTS 7605); (iv) aluminum plate, sheet, strip, and foil (flat rolled products) (HTS 7606 and 7607); (v) aluminum tubes and pipes and tube and pipe fitting (HTS 7608 and 7609); and (vi) aluminum castings and forgings (HTS 7616.99.51.60 and 7616.99.51.70). “Steel articles” are defined at the HTS 6 digit level as: 7206.10 through 7216.50 including ingots, bars, rods and angles), 7216.99 through 7301.10 (including bars, rods, wire, ingots, and sheet piling), 7302.10 (rails), 7302.40 through 7302.90 (including plates and sleepers), and 7304.10 through 7306.90 (including tubes, pipes and hollow profiles).

The tariffs cover unfinished products that would be used an inputs for finished products, and not for products that incorporate or use aluminum or steel. There is a very low volume of imports from Ireland ant the UK under the covered tariff headings. As stated above, the bottom line is that US steel/aluminum tariffs should not impact most Irish or Northern Irish companies.