July 24, 2020

Dave & Marty: The “Fond Farewell” Episodes, Part 1

In this 30-minute podcast, Dave Lynn welcomes a series of eminent guests to remember his great friend and “Radio Show” co-host Marty Dunn, who died on June 15, 2020 (here’s Dave’s written tribute). Topics include:

– Origin stories: E-Proxy & Securities Offering Reform

– How to find substitute pants

– Ideal meeting length (22 minutes)

– Memorable song performances

– “International Marty Day”

– How to be a good friend, colleague & mentor

Covid-19: Does “Force Majeure” Apply?

Although the social media sphere is quick to characterize this year’s parade of horribles as an “Act of God,” that characterization may be more difficult for companies that want to call off their contractual obligations. If you’re negotiating a contract right now and want to preserve an “out” for an inability to perform, check out this Vinson & Elkins memo for drafting tips (and for more resources, see the “Contractual Performance” memos that we’re posting in our “COVID-19” Practice Area):

Looking ahead, parties seeking to boost the chances that their inability to perform will be excused should specifically reference the COVID-19 pandemic on the list of events that would qualify as force majeure. In addition, the COVID-19 pandemic should be identified as unforeseeable and unpredictable. The reason: in many states, even if an event is specifically listed, courts require that a party claiming force majeure demonstrate that the event was not foreseeable.

The blog also recommends asking these four questions if you’re on the receiving end of a force majeure notice and want to continue to enforce performance:

1. Is the pandemic covered by the force majeure clause?

2. If so, is the activity that is not being performed as promised something that actually is being prevented by the covered event?

3. Is there a specific exclusion in the force majeure clause for that performance?

4. What are the notice requirements — was the notice sent within the specified deadline?

Cybersecurity Oversight: What Boards Are Doing

This article from Melissa Krasnow of VLP Law Group looks at recent NACD benchmarking in the cyber-risk oversight of public versus private company boards. Among other things:

– Public and private company boards engaged in the same top seven and the bottom cyber−risk oversight practices over the past year, with differences in terms of percentages

– Over 60% of public companies scheduled cyber risk at least once on the board agenda over the last year, versus over 40% of private companies

In addition, the “Private Company Governance Survey” – which was published in May 2020, about five months after the “Public Company Governance Survey” was published in December 2019 – alludes to the impact of the COVID-19 pandemic on cybersecurity: “The surge of remote workers in the first quarter of 2020 may expose companies to a new set of risks.” This impact continues beyond the first quarter of 2020 and affects both public and private companies.

Liz Dunshee