Attention:

May the Force (Majeure) Be With You or Not?: Navigating Force Majeure and Business Interruption in the Age of the Virus


Level: Advanced
Runtime: 91 minutes
Recorded Date: May 05, 2020
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Agenda

  • While an analysis of the impact of COVID-19 under a particular agreement is necessarily dependent on (i) the actual language used in the contract and (ii) the laws of the state whose law governs the contract, we will nonetheless provide an overview of the key issues to watch out for as you consider your positions under your various contracts.
  • As we have clients on both the league/team/school/property side and clients on the sponsor side, this will purposely not be an advocacy piece but rather an overview of the relevant issues to consider.
  • We would recommend consulting with legal counsel to assess the impact of the relevant provisions under your agreements.

Runtime: 1 hour, 31 minutes
Recorded: May 5, 2020

Description

The coronavirus pandemic has interrupted business flow in unprecedented ways. Businesses have ground to a halt or been severely restricted in economic activity. The Force Majeure clause has, in some cases, become the means for businesses to allocate losses which has meant business shutdowns, "furloughs" and other disruption of cashflow for workers and employees in the entertainment and sports industries.

What do Force Majeure clauses cover? What is the allocation of cost and expense under a Force Majeure clause? How do you make sure the Force Majeure clauses don’t excuse a party’s negligence or fault? What are Make Good Clauses? What is the interplay between business interruption or cancellation insurance and the Force Majeure clause? How do companies seeking to invoke Force Majeure reduce their exposure to the likely raft of litigation that will follow the return to work?

What is the interplay between Force Majeure provisions and the defenses of impossibility and frustration of purpose, and commercial impracticability? What are the remedies that employees have, if any, to combat the overuse of Force.

This program was recorded on May 5th, 2020.

Provided By

American Bar Association

Panelists

Ryan Scott Davis

Partner
Bryan Cave Leighton Paisner

Ryan Davis is a transactional and business lawyer with a focus on mergers & acquisitions, corporate counseling and sports, entertainment and sponsorship matters. Mr. Davis regularly represents public and private company clients, private business owners and sports teams, owners, players, sponsors and concessionaires in connection with a broad range of corporate transactional matters and serves as a co-leader of the Firm’s Sports and Entertainment Group.

His sports and entertainment practice focuses on advising sports teams and their owners, players, sponsors and concessionaires as well as clients in the entertainment space in connection with their investments in and ownership of sports franchises, their naming rights, telecast rights, suite license, sponsorship, concession and other commercial agreements, their development and operation of entertainment districts and venues, their litigation matters and ongoing legal and business counseling. His M&A and corporate counseling practice focuses on advising clients in connection with their merger, acquisition and divestiture transactions; their joint venture and other strategic transactions; their corporate governance and formation matters; their contractual matters; and their general business and securities law counseling matters. Mr. Davis has advised clients with respect to structuring, fiduciary duty and other corporate and securities law matters in connection with their merger, acquisition and divestiture transactions, joint venture and other strategic transactions and other investment transactions.

Among other clients, Mr. Davis has provided legal counseling to Alticor Inc.; American Water Company; Anheuser-Busch Companies, Inc.; Banc of California; Centene Corporation; Coin Acceptors, Inc.; Comcast Spectacor; Compass Group Equity Partners; Contractors Register, Inc.; Delaware North Companies; DHL Supply Chain; Emerson Electric Co.; Enterprise Holdings, Inc.; ESCO Technologies Inc.; Fiserv, Inc.; Genesis Management and Insurance Services Corporation; Government Employees Health Association (GEHA); Hi-Rez Studios; HOF Village, LLC (a joint venture of the Pro Football Hall of Fame and Industrial Realty Group); International Paper Company; Jim Kavanaugh (member of the St. Louis MLS team ownership group); the Memphis Grizzlies of the National Basketball Association; Michelin North America, Inc.; The Neiman Marcus Group, Inc.; New York Life Insurance Company; Oak View Group; Orlando Pace, Kurt Warner and Roland Williams, former players from the St. Louis Rams of the National Football League; PricewaterhouseCoopers LLP; Scottrade, Inc.; the St. Louis Blues of the National Hockey League; the St. Louis Cardinals from Major League Baseball; Stifel Financial Corp.; Target Corporation; Windstream Corporation; World Wide Technology, Inc. and all thirty-one National Hockey League clubs and/or their owners. Prior to joining the firm, Mr. Davis worked in the corporate finance group of Stifel, Nicolaus & Company, Inc. and in the congressional office of a United States Congressman.

M Darren Traub

Partner
Davis Wright Tremaine LLP

Darren has a full-service practice at the intersection of entertainment, fashion, sports, and technology. Combining business-savvy transactional skills with two decades of litigating high-stakes corporate, entertainment, and IP litigation, Darren works with some of the most recognized entertainment companies; festivals; esports leagues, teams, and companies; media platforms; lifestyle and fashion houses; and emerging technology companies and routinely leverages his expansive network in these industries to establish unique and profitable collaborations for his clients.

On behalf of his clients, Darren develops bespoke business strategies to grow and protect their assets through the use of profitable contracts, structured branding and licensing deals, intellectual property transactions, digital media, publicity, and internet-related content.

When litigation is the path, Darren provides a vehement defense for his clients in a wide range of disputes, with a national focus in state and federal courts, as well as in private arbitrations.

Ivy Kagan Bierman

Partner
Loeb & Loeb LLP

Ivy Kagan Bierman’s practice includes the representation of entertainment and related companies in labor, production, distribution, technology and other business matters. She handles both transactional and litigation matters for clients.

Ivy is one of a select few entertainment industry labor lawyers looked to for representation in guild and union matters by film and television production companies, digital companies and networks, cable networks, public broadcasting companies, distribution companies, film finance companies, national advertisers and advertising agencies. She regularly counsels entertainment and advertising companies with respect to SAG-AFTRA, DGA, WGA, AFM, IATSE and Teamsters agreements. She also negotiates separate agreements and waivers with the guilds and unions for entertainment and advertising clients. She was one of the first to negotiate interactive, multimedia and secondary digital channel agreements with SAG-AFTRA, the WGA and the DGA.

Ivy strategizes with film and television production, distribution and finance companies regarding WGA, SAG-AFTRA and DGA negotiations and potential strikes. She advises national advertisers and advertising agencies with respect to the SAG-AFTRA Commercials Contract negotiations and potential strikes. She also protects film, television and public broadcasting companies during guild and union organizing campaigns and advises them with respect to their obligations and rights during picketing and strikes.

Ivy currently advises clients with respect to the guilds’ and unions’ evolving positions regarding reality television, brand integration, and development and exhibition of digital content.

Ivy also regularly provides sexual harassment, discrimination and non-fraternization training tailored to entertainment industry companies with “edgy” programming content. She handles investigations of sexual harassment claims and violations of non-fraternization policies in connection with high-profile television series and works closely with television network attorneys to resolve such claims. She is currently serving as a member of the Legal, Legislative and Policy Committee on Sexual Harassment and Gender Parity for Time’s Up and is outside counsel on Sexual Harassment and Gender Parity for The Commission on Eliminating Sexual Harassment and Advancing Equality in the Workplace.

Ivy’s litigation practice is also focused on the entertainment industry. She has represented several television production companies and payroll companies in a series of entertainment industry-wide wage and hour class action lawsuits which were settled favorably for the firm’s clients. Ivy also defends entertainment companies against wage and hour claims before the Division of Labor Standards Enforcement. She also represents entertainment companies in investigations by the Labor Commissioner’s Bureau of Field Enforcement and the Equal Employment Opportunity Commission and defend them against citations arising out of such investigations. Ivy also defends clients against guild and union grievances and arbitration claims and unfair labor practice charges before the National Labor Relations Board.

Ivy is an Adjunct Professor at the University of Miami Law School where she teaches a short course titled Union Organizing and Collective Bargaining in the Entertainment Industry.


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