IF YOU HAVE QUESTIONS ABOUT THIS MATERIAL, PLEASE CONTACT:

ANNE MURRAYamurray@orrick.com

LILY BECKERlbecker@orrick.com

JONATHAN DIRENFELDjdirenfeld@orrick.com

MICHAEL WEILmweil@orrick.com

MATTHEW GEMELLOmgemello@orrick.com

ROB MCKENNArmckenna@orrick.com

SHERYL GARKOsgarko@orrick.com

ORRICK.COM/COVID19

APRIL 9, 2020

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WELCOMEMATTHEW GEMELLO

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COVID-19: Mounting Impact, Signs of Flattening the Curve

• Global coronavirus cases approach 1.5 million and 420,000 in the U.S.

• Spain, Italy, France and Germany exceed 100,000 cases

• UK Prime Minister Boris Johnson hospitalized with coronavirus

• University of Washington model lessens death projections

• New York, California, Washington state make progress slowing new cases

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Global Government Response

• Trump administration seeks additional $250 billion in emergency aid for small

businesses

• New Jersey joins other states in extending lockdown orders to early May

• China lifts 76-day lockdown on Wuhan

• Austria, Czech Republic, Denmark and Norway announce plans to relax

restrictions

• Japan prepares to declare state of emergency

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Market Response

• Stock market rebounds from lows to exit bear market

• Pandemic reportedly slowing national security reviews of foreign

investments in U.S.

• Federal Reserve plans to keep rates near zero until economy emerges

from crisis

• More than 6 million file for unemployment in U.S.

• Oil prices rise from 18-year low but remain volatile

• Real estate investors reportedly eyeing expected surge of distressed assets

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PROTECTING YOUR COMPANY FROM FRAUD AND CORRUPTIONLILY BECKER & ANNE MURRAY

C19 Impact: Increased Fraud and Corruption Risk

• Perfect Storm for Fraud and Corruption

– Supply chain disruption

– Leadership focused on immediate crisis

– Budget cuts, furloughs, and layoffs

– Employees and business partners under pressure

– Opportunities to demand bribes

– Representations to government to secure relief funds

– Representations to insurance companies to obtain covered recovery

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C19 Impact: Fraud and Corruption Laws

• Fraud Basics

– Making or concealing a material fact

– Criminal and civil liability

– State and Federal statutes

– Insurance fraud, statements to government, and more

• FCPA Basics

– Prohibits bribery of foreign officials

– Requires accurate books and records and internal controls

– Enforced by DOJ and SEC

– No materiality threshold

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What to Do? Increase Awareness and Training

Ensure your leaders, employees, and third parties can spot problems

• Issue: Bad acts go unnoticed in confusion

• Solutions

– Train your Board, Leadership Team, employees, and high-risk third parties

– Use examples that resonate

– Encourage escalation of improper requests

– Focus on gatekeepers

– Keep written training records

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What to Do? Clearly Message Ethics

Send clear messages to act ethically - in turbulent times the temptation to cut

corners is real

• Issue: Messaging about meeting numbers or doing whatever it takes can be

misinterpreted

• Solutions

– Strengthen tone at the top and tone in the middle

– Acknowledge unique circumstances and emphasize commitment to integrity

– Encourage communication about pressure and risk

– Reinforce ethical standards in messaging for employees and third parties

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What to Do? Continue Screening Business Partners

Scrutinize new third-party relationships, as they create exposure for the

company

• Issue: Third-party business partners may not be able to meet your needs in

the current environment, and you may look for new solutions

– Companies have liability for misconduct by their third-party business partners

• Solutions

– Scrutinize new, last-minute and urgent requests for third party onboarding

– Examine scope of work and payment terms

– Ensure third parties in higher-risk categories receive training, have contracts in

place requiring compliance with anti-corruption laws, and acknowledge your ethical

standards12

What to Do? Diligence, Diligence, Diligence

Conduct thorough anti-corruption diligence on potential M&A targets

• Issue: After the immediate crisis, there may be a flurry of M&A activity

– Successor liability is real. Companies can inherit FCPA liability of the target, and

can be liable for misconduct that continues after closing. Not to mention paying

too much…

• Solutions

– Diligence the target’s compliance program

– Focus on FCPA risk areas

– Seek information about internal investigations and audit findings

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MITIGATING AGAINST PREDATORY PRICING AND CONSUMER PROTECTION CLAIMS BY INCREASINGLY ACTIVE STATE ATTORNEY GENERALS AND THE FEDERAL TRADE COMMISSIONJONATHAN DIRENFELD & ROB MCKENNA

State AGs Are Laser Focused on "Price Gouging"

• More than half the states have price gouging laws that apply during a declared

state of emergency

• They typically make it unlawful to sell goods or services at a price 10% greater

than the original price

• A typical exception is for a price increase that is directly attributable to

additional costs imposed on the seller by its supplier

• Price gouging laws provide for significant monetary penalties, injunctive relief,

and even imprisonment

• In addition, all the states have consumer protection statutes that prohibit

"unfair or deceptive acts and practices" by businesses (UDAP statutes)

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State Attorneys General – Price Gouging

• State AGs aggressively enforce against price gouging

– Lots of consumer complaints

– AGs want to show leadership during natural disasters

• Complaints and enforcement mainly focus on essential goods – hand sanitizer,

face masks, cleaning supplies, groceries

• NEW: 33 state AGs sent letter to large on-line platform retailers

• New York AG Letitia James investigating Zoom for privacy concerns

• Florida AG Ashley Moody investigating cruise line for misleading consumers

• Most investigations are business to consumer, but can also involve B2B

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FTC is Aggressively Policing C19 Fraud/Deception

The Federal Trade Commission is devoting significant resources to aggressively

investigating a broad set of potential C19 fraud and deception including:

• Health claims

• Products effectiveness at combating C19 (e.g., disinfectants, hand sanitizers,

etc.)

• Work-at-home schemes

• Financing terms and opportunities

• Product availability or shipping date

• Telemarketing

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FTC is Targeting Companies who Facilitate Deception

The FTC is not only focusing on merchants who sell deceptive products, but also

service providers who facilitate the marketing and sale of the products including:

• Lead generators

• Affiliate advertising networks

• Telecommunication providers

• Payment processors and independent sales organizations

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IP PROTECTION IN A COVID-19 REMOTE-WORK-WORLDMICHAEL WEIL & SHERYL GARKO

Protecting IP While Working From Home

• Secure network access e.g., VPN

• Inventory tracking and control e.g., bar-coded devices

– Integrate security applications and VPN systems into employees’ personal device

• Employee awareness and training

• Security protocols and log monitoring

• Video conference security (Zoom issues)

• Maintain sense of community and common purpose

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Keeping Track of Licensed IP

• Licensed IP – trademarks, copyrights, trade secrets, patented inventions – can be a valuable

revenue stream

• BUT – significant cost to the licensee

– May see challenges to contracts and agreements

– Terminations and failure to pay

• Monitor those contracts carefully

– Evaluate economic health of the licensee

– Watch for signs of coming breach

– Is the licensee staying within the scope of the license?

○ Many companies have moved to new remote models and existing IP licenses may not cover the new

uses

○ I.e. is the license limited to a certain number of systems, type of media, number of participants or

viewers?21

USPTO & COPYRIGHT OFFICE COVID-19 POLICIES

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COVID 19 - USPTO Response

• All new information on the USPTO’s response to COVID-19 is located here:

https://www.uspto.gov/coronavirus.

• Filings are all still happening electronically.

• All examiner and examining attorney interviews, Patent Trial and Appeal Board (PTAB) and

Trademark Trial and Appeal Board (TTAB) oral hearings will be conducted remotely by video

or telephone until further notice.

• The USPTO has issued a notice of extension of certain trademark or patent-related document

and fee deadlines. If an eligible document or fee was or is due between (and inclusive of)

March 27, 2020, and April 30, 2020, the filing will be considered timely if made within 30 days

of the original due date, provided that the filing is accompanied by a statement that the delay

in filing or payment was due to the COVID-19 outbreak. See the following FAQ pages for

helpful information on eligible filings and requirements.

– https://www.uspto.gov/trademark/laws-regulations/cares-act-faqs

– https://www.uspto.gov/patent/laws-and-regulations/cares-act-faqs23

COVID 19 - Copyright Office Response

• All new information on the Copyright Office’s response to COVID-19 is located here:

https://www.copyright.gov/coronavirus.

• All Library of Congress buildings, which includes the U.S. Copyright Office, will be closed

to the public until further notice. This means you cannot go and view deposit copies for

registrations (which can impact infringement analyses).

• Electronic copies of “best edition” deposits are being accepted by the Office (in addition to

the required physical copies) to facilitate remote examination of copyright applications

during the disruption period.

• Timing requirements for certain statutory remedies, serving and recording notices of

termination, and serving Section 115 notices of intention and statements of account may

be tolled if the Office receives satisfactory evidence after the disruption period has ended

that the applicant was affected by the national emergency. See

https://www.copyright.gov/coronavirus for information on specific requirements.

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FILING FOR TEMPORARY RELIEF DURING COVID-19

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COVID-19: TRO & PI Filing Restrictions• In an intellectual property case, plaintiffs often request a preliminary injunction or a temporary

restraining order at the start of the litigation to immediately prevent further harm.

• Throughout the current crisis, courts across the country have imposed numerous restrictions on

filings and court appearances—potentially making it more difficult for a plaintiff to request, let alone

receive preliminary relief.

• However, some courts are making exceptions for TRO filings. See

https://support.onelegal.com/california-court-updates-covid-19 (showing most filings are currently

being allowed in many California state courts and emergency TROs allowed in others).

• And a temporary restraining order was recently granted in a trademark case in the Southern District

of Florida (despite the COVID-19 crisis). See Bacson Tobacco Co., Ltd. v. Diplomatic Int'l Co., Ltd.,

No. 1:20-CV-21066, 2020 WL 1288572, at *4 (S.D. Fla. Mar. 18, 2020).

• Regardless, before filing any new lawsuit or TRO/PI request, it is important to check current court

guidelines. For federal courts, see https://www.uscourts.gov/about-federal-courts/court-website-

links/court-orders-and-updates-during-covid19-pandemic.

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COVID-19: The Optics of Filing a TRO/PI

• Recently a federal judge wrote a scathing decision in the Northern District of Illinois, after

the Plaintiff filed a motion for a TRO in trademark and copyright case, the judge moved

the hearing deadline due to COVID-19, and the Plaintiff then moved for reconsideration of

the scheduling order (twice).

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Takeaways

• Protecting your company from fraud and corruption

– Fraud and corruption risk is mounting; be vigilant to protect your assets

– Send clear messages that ethical behavior is essential in this unprecedented time

• Consumer Protection Enforcement

– Closely monitor and document prices to ensure they do not exceed 10% or higher than normal during

state of emergency

– Ensure vigilant screening and monitoring for potential fraud/deception

• IP Protection in a COVID-19 remote working world

– Be mindful of the new opportunities for mischief that a remote working environment can create.

– Keep an eye on your valuable IP assets.

– Continue to pursue protection, but understand the need to keep up with changing policies and the

strain on the court system.

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