OFF THE RECORD
SPECIAL COVID-19 ALERT
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Dear Clients and Friends!
As the landscape continues to change during this pandemic, we want to remind you that we are here to help you. We understand how stressful this time is, not only for business owners, but for each individual and family. There are so many unknowns, but we will get through this together. We want to help you focus on what you can control, so you can put your mind at ease. Perhaps that means creating a succession plan for your business or looking to make adjustments to one you already have in place; it might mean you are finally ready to update your estate planning documents; or maybe you just want to sit down (virtually) with us and discuss what's next for you or your business. No matter what it might be, please remember we are here for you as your advisor and trusted confidant.
Keep in mind you can always reference our dedicated COVID-19 section on our website for important updates. Along the right hand column you will find links to prior alerts and newsletters. This page can also be easily accessed from our homepage at
www.darslaw.com
.
We hope that you are able to make the best of these difficult and uneasy times. Please know we are prepared to do what we can to help support you, our friends, clients and colleagues, to overcome the challenges during this period of uncertainty and disruption. Our thoughts are with the individuals and communities that have been directly impacted by the virus. Please stay safe and healthy.
Very truly yours,
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Paul G. Skalny
Managing Director
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For Businesses, Entrepreneurs & Organizations
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THE MAIN STREET LENDING PROGRAM PROVIDES
RELIEF TO SMALL & MEDIUM-SIZED BUSINESSES
On April 9, 2020, the Federal Reserve announced details of a $600 billion lending program to provide support for small and mid-sized businesses. The Main Street Lending Program uses funds allocated to it by the Coronavirus Aid, Relief and Economic Security (CARES) Act and is designed to provide some relief to small and mid-sized businesses impacted by COVID-19.
Who qualifies for a Main Street loan?
Businesses with up to 10,000 employees or up to $2.5 billion in 2019 annual revenues may be eligible for a Main Street loan. Eligible borrowers must be created or organized in the United States and have a significant portion of its operations and the majority of its employees based in the United States. Borrowers participating in the Main Street program may either borrow a new loan or borrow more under an existing eligible loan, but not both. Borrowers who participate in the Primary Market Corporate Credit Facility program (a lending program aimed at large employers) are also not eligible for a new loan under the Main Street program. Loan proceeds may not be used to refinance or pay down any of the Borrower’s existing loans.
Where can I apply for the Main Street loan?
Applicants for Main Street loan can apply with a U.S. insured depository institution, U.S. bank holding company or U.S. savings and loan.
What is the maximum amount of the loan?
Loans of a minimum of $1 million up to a maximum of (i) $25 million or (ii) up to four times the Borrower’s 2019 earnings before interest, taxes, depreciation, and amortization (when combined with the Borrower’s existing outstanding undrawn debt) are available with a 4-year maturity at a variable rate of interest. Loan payments will be deferred for one year.
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U.S. PATENT & TRADEMARK OFFICE UPDATE
The United States Patent and Trademark Office (USPTO) has provided relief for trademark and patent owners impacted by COVID-19.
In a pair of notices, the USPTO has (i) extended the deadlines for various responses for ongoing matters in the USPTO (
see notice here
), and (ii) waived petition fees for reviving matters that have gone abandoned during the outbreak (
see notice here
).
For trademark deadlines, the due dates for various responses that were due between, and inclusive of, both March 27, 2020 and April 30, 2020, will be extended 30 days from the initial date it was due, provided that the filing is accompanied by a statement that the delay in filing or payment was due to the COVID-19 outbreak as defined in the attachments in the links above.
For various patent and trademark applications and registrations that have gone abandoned during the outbreak, fees for petitions to revive the applications and registrations may be waived in the petitions are filed within two months of the date of a notice of abandonment.
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COURT STATUS DURING THE COVID-19 CRISIS
Because of the COVID-19 Crisis, the Federal and State Courts in the DMV are operating under Orders that have severely curtailed the court operations. This is a summary of the current status of the courts’ limited operations as a result of the issued orders that have tolled certain deadlines, statutes of limitations and suspended and postponed civil and criminal hearings and trials.
Maryland
State Courts:
Chief Judge of the Court of Appeals of Maryland has issued several Administrative Orders tolling the application of case time standards, which set forth the time periods during which cases must be scheduled and concluded, as well as statutes of limitations from March 16, 2020, until the time that the courts re-open. These Administrative Orders apply to all District and Circuit Courts of Maryland in the 23 counties and Baltimore City as well as the Court of Appeals and the Court of Special Appeals. The most recent Order has kept courts closed until June 5, 2020 with limited exceptions.
Certain matters that are considered emergency matters including but not limited to bail hearings, arraignment of detained defendants, family law emergency hearings, some domestic violence hearings, emergency guardianship matters, and more, will still be heard in court. Our firm will be able to advise you if you are uncertain as to whether your matter constitutes an emergency and will be heard by the courts.
Federal Courts:
The U. S. District Court of Maryland, issued Standing Order 2020-05, post-postponing and continuing all civil and criminal petit jury selections and trials, and other non-emergency proceedings through April 24, 2020. On April 10, 2020, the court issued Standing Order 2020-07, suspending the prior Standing Order and extending all court closings until June 5, 2020.
District of Columbia
D. C. Superior Court
: On March 18, and amended on March 19, 2020, an Order issued by Chief Judge Morin tolled all deadlines and statutes of limitations from March 16 through May 15, 2020. All criminal and civil trials have been continued until May 15, 2020. In a discussion with the judges who head the civil division this past Friday, April 10, 2020, we learned it is likely that the May 15, 2020 deadline will be extended to a date in June and that jury trials in both criminal and civil matters will likely not take place until late June 2020, at the earliest. We were also advised that criminal trials will have priority over civil trials in scheduling.
U. S. District Court for the District of Columbia
: Similarly to the other courts, on March 16, 2020, Chief Judge Beryl A. Howell issued, Standing Order 20-9, providing that all civil and criminal trials scheduled to begin on March 17 through May 11, 2020, were postponed and continued until further Order of the Court.
Virginia
State Courts
: The Supreme Court of Virginia issued IN RE: ORDER DECLARING A JUDICIAL EMERGENCY IN RESPONSE TO COVID-19 EMERGENCY effective March 16 through April 6, 2020, providing that all non-essential, non-emergency court proceedings in all circuit and district courts were suspended, and all deadlines were tolled and extended for a period of 21 days. On March 27, 2020, the Court issued a similar Order extending the suspension until April 26, 2020.
Federal Courts
:
The Eastern District Court of Virginia that includes the federal courts in Alexandria, Norfolk, Richmond and Newport News, on March 12, 2020, issued General Order 2020-01, that effective March 16, 2020, all misdemeanor, traffic and petty offense dockets scheduled in the court were suspended through April 30, 2020. On March 13, 2020, the Court issued General Order 2020-02, suspended all civil and criminal hearings and trials from March 16, through April 17, 2020. On April 10, 2020, the Court issued General Order 2020-12, extending all criminal and civil trials and hearings until June 10, 2020. This Order noted that this deadline could be amended in the future.
It should be noted that some of the courts are enabling hearings and settlement conferences to proceed via electronic methods. Even the United States Supreme Court is conducting oral argument via telephone in certain cases.
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EMPLOYMENT AND LABOR LAW UPDATES
Occupational Safety & Health Administration (OSHA)
Earlier this week, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an interim enforcement response plan for the coronavirus pandemic (
see announcement here
). The response plan provides instructions and guidance to OSHA Area Offices and compliance safety and health officers (CSHOs) for handling coronavirus-related employee complaints, referrals, and severe illness reports. OSHA Area Offices will use their resources to fulfill mission essential functions and protect workers. This memorandum will take effect immediately and remain in effect until further notice. This guidance is intended to be time-limited to this current public health crisis.
The Family First Coronavirus Response Act (FFCRA) Regulations Update
As mentioned earlier this month, The Family First Coronavirus Response Act was recently passed and The Department of Labor (DOL) has released temporary regulations related to paid leave under FFCRA. There are significant interpretations to which employers should pay attention.
What does it mean for an employee to be “unable to telework”?
The employee may only take Emergency Paid Sick Leave (EPSL) or Expanded Family & Medical Leave (EFML) if the employee is unable to work or telework due to one of the FFCRA qualifying reasons. Telework is defined in the regulations as:
When an employer has work for an employee to perform and permits the employee to perform that work from the location where the employee is quarantined; and, no extenuating circumstances apply preventing that employee from working.
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For Individuals & Families
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COMMUNITY ASSOCIATION & STAY-AT-HOME ORDERS
As the COVID-19 crisis continues, community associations in Maryland and in the District of Columbia have had to adjust operations to comply with Stay-At-Home orders issued by Governor Hogan and Mayor Bowser. To protect both residents and staff, on-site offices are conducting business exclusively via phone, e-mail and other electronic means and in-unit service calls are limited to strictly emergency matters. However, in multi-unit buildings, particularly in hi-rise buildings, some interaction between residents, and between residents and staff is inevitable. To enforce social distancing, many associations have implemented rules limiting access to the building. These rules include requiring deliveries to be left at the building’s front desk, prohibiting contractors from performing non-emergency construction projects in common areas and in units and curtailing the times residents may move in and out of the building. Most associations have the authority to promulgate rules that are in the best interest of the association. However, a review of each association’s governing documents is necessary to determine whether it has the authority to enact these and other types of access restrictions.
In addition to modifying day-to-day operations, many associations hold their annual meetings and elections in the spring. How can associations hold annual meetings and still comply with social distancing rules? In both Maryland and the District of Columbia, associations can hold meetings remotely, as long as all participants can hear one another. Therefore, board meetings, as well as annual and special meetings of the members, can be held via conference call or video conferencing. For matters requiring the vote of the members, including the election of directors, in both Maryland and the District of Columbia owners are permitted to vote by proxy. Moreover, in both jurisdictions the ballot and proxy can be submitted electronically, provided the electronic transmission contains information that verifies that the vote or proxy is authorized by the owner or the owner’s proxy.
For associations that do not have the technical ability to hold an annual meeting remotely or, if the board prefers to wait until the members can convene an in-person meeting, most bylaws provide that the directors and officers continue to remain in office until their successors are elected. For associations in both Maryland and the District of Columbia that are incorporated, corporate law in both jurisdictions provides that the failure to hold an annual meeting at the time fixed in the bylaws does not affect the validity of any corporate action.
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CHANGES TO FAMILY LAW CASES
IN THE COURT SYSTEM
By an Administrative Order issued April 14, 2020, the closure of Maryland courts has been extended through June 5, 2020. Courts remain restricted to mandatory and emergency operations. Please refer to our article above,
Court Status During the COVID-19 Crises in Maryland, District of Columbia, and Virginia Update,
for more information. What is considered an “emergency” in the realm of family law matters is defined on a jurisdiction-by-jurisdiction basis. Typically, a situation is not considered an “emergency” unless there is a substantial risk of harm to a child.
In general, deadlines prescribed by Maryland Rules and Court-issued Scheduling Orders remain unaffected by the April 14th Administrative Order, and its predecessors, which provide only that modifications to Scheduling Orders issued in family cases are to be addressed by Motion on a case-by-case basis. Each individual jurisdiction may handle these matters, as well as other administrative matters, such as conducting proceedings remotely, differently. Below is a sampling of information from various jurisdictions with varying or more specific policies than set forth in the April 14
th
Administrative Order.
Howard County
Howard County has been conducting certain matters remotely, including uncontested divorce hearings where both parties are represented by counsel and all parties and counsel are willing to “appear” for the virtual hearing. Also, notwithstanding prior Administrative Orders directing that domestic violence temporary or final protective order hearings—the hearings that follow issuance of an interim protective order by a police commissioner—would be set no earlier than May 5, 2020, the district court has, in certain circumstances, set domestic violence matters in for temporary hearings on a remote basis. Our firm has also experienced the scheduling of petitions for emergency evaluation and for emergency guardianship to be scheduled for remote hearing.
Baltimore City
Pleadings and motions can be filed by mail or via the secure drop boxes located in the Mitchell Courthouse. Litigants and attorney’s should mark a matter as either “Emergency” or “Non-Emergency” on the envelope to ensure that the limited staff working in the Clerk’s office is able to process emergency matters appropriately. The Administrative Judge has requested that Motions to Modify Scheduling Orders not be filed at the present time, and that such motions filed after the court’s reopening will be timely addressed.
Montgomery County
Montgomery County is a jurisdiction in which electronic filing is not yet enabled, but the Court has established a Virtual Drop Box only for certain civil cases and for limited purposes (i.e., motions for failure to provide discovery, motions for discovery protective orders, motions to quash deposition subpoenas filed in cases designated as “Civil Track 3”). More information can be found
here
. All other filings must be by regular mail or via the physical drop box located at the courthouse. With regard to Scheduling Orders, Motions seeking to modify these Orders—which the Court requests be filed after the court’s reopening, will be addressed, with extensions to be liberally granted, based upon time lost due to the court’s closure, but will not be considered during the closure.
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WITNESSING AND ELECTRONIC SIGNING OF ESTATE PLANNING
DOCUMENTS NOW PERMITTED BY EXECUTIVE ORDER
On April 10, 2020 Maryland Governor Larry Hogan signed Executive Order 20-04-10-01, which authorized the remote witnessing and signing of certain legal documents. Specifically, this Order applies to wills, powers of attorney, and medical advanced directives. Under normal circumstances, Maryland law requires that these documents be signed by witnesses in the physical presence of the signer/the person to whom the document pertains or applies.
Pursuant to Executive Order 20-04-10-01 in effort to combat COVID-19 and limit social interaction in order to slow the spread of the virus; wills, powers of attorney, and medical advanced directives may now be remotely witnessed, as long as certain conditions are met. Among these conditions is the requirement that the witness and the Signer are in the electronic presence of one another, using some form of video-conferencing software (FaceTime, Zoom, Skype, etc.) so that the witness can view the Signer put their signature on the document.
Executive Order 20-04-10-01 does not preclude the execution and witnessing of wills, powers of attorney, and medical advanced directives in person and does not alter any of the legal requirements of an in person signing of such a document. It also does not alter the legal requirements as to the number of witnesses required by law for the execution of such a document.
What Does this Order Mean for Me?
With Executive Order 20-04-10-01 now in effect, clients who need to sign wills, powers of attorney, and medical advanced directives may do so from the comfort and safety of their own home, without the need to travel to a law office or have attorneys or witnesses come to them in person. Clients and all witnesses may legally execute documents from their own homes, as long as the conditions are met.
What If I Don’t Have a Printer or Video-Conference Capability?
If you would like to execute your estate planning documents remotely pursuant to this Order, but do not have the capability to print the documents in your home, unsigned copies can be mailed to you. Once you receive the documents in the mail, our Estates and Trusts team would be happy to organize the necessary video-conference with one of our attorneys, all witnesses, and a remote notary. Each of these witnesses would also have copies of the documents sent to them to sign. We are also able to provide witnesses, if necessary.
If you do not have a computer with a webcam, it is very likely that you can use your phone to join the video-conference free of charge, as most modern phones have this capability.
How Do I Initiate an Electronic Signing and Witnessing of My Documents?
Simply inform our Estates and Trusts team that you would like to sign your documents electronically and we will take care of the rest. If you have any specific person that you would like to witness your documents, we can contact them and coordinate a time that works for everyone.
What If I Still Want My Documents Signed and Witnessed In Person?
This is not a problem. The Davis, Agnor, Rapaport & Skalny Estates and Trusts team has developed methods for in person signing and witnessing of documents while still maintaining recommended COVID-19 social distancing guidelines.
If you have any questions about Executive Order 20-04-10-01 or estate planning in Maryland, please contact a member of our Estate Planning team.
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