Thursday, April 23rd, 2020
LYNCHBURG, Va. (April 23, 2020) – The Virginia law firm of Gentry Locke is pleased to announce that Andrew O. Gay has rejoined the firm in its Lynchburg, Virginia office. Gay will work in the firm’s commercial litigation practice group, where he will focus on assisting clients with complex construction contracts and construction litigation.
“Andrew grew up working in the construction industry, so he understands firsthand the processes and challenges that contractors and developers face. He’ll be a terrific asset to our construction, road-building, and I-81 practice,” said Managing Partner, Monica T. Monday.
Gay has significant experience in construction claim and defect litigation, as well as contract drafting and negotiations. He has represented a variety of clients in the road and bridge, residential, commercial, aerospace, and utility sectors, including national home builders, ENR-ranked contractors, national material suppliers, local and regional subcontractors, design professionals, and a variety of owners and developers.
Gay received his B.S. degree in Construction Management from Everglades University and his J.D. from Liberty University School of Law. He is licensed to practice in Virginia and Florida.
About Gentry Locke
With more than 60 lawyers practicing across a range of disciplines, Gentry Locke brings uncommon thinking and deep experience to the legal and business challenges of companies, institutions, organizations and individuals—a commitment the firm has met since 1923. Operating from offices in Roanoke, Lynchburg, and Richmond, Virginia, Gentry Locke serves clients in Virginia and across the United States. Meet the firm’s dynamic attorneys and learn more about its fierce drive to achieve success for its clients by exploring www.gentrylocke.com.
Friday, April 17th, 2020
One month after issuing “15 Days to Slow the Spread,” the first national coronavirus guidelines, President Donald J. Trump and the Federal coronavirus task force on Thursday issued “Guidelines for Opening America Again.”
The Federal guidance is intended as direction to state Governors who must now make decisions on if and win to lift various lockdown and stay-at-home orders that have closed schools, shuttered businesses, and left many wondering what’s next?
In Virginia, Governor Ralph Northam recently extended his Executive Order closing entertainment businesses and severely limiting other non-essential retail establishments until May 8, 2020. His “stay-at-home” order is in effect until June 10.
Employers and businesses may now have to consider how to handle potentially conflicting advice from state and Federal leaders. Or do they?
Current Virginia Guidance
The Commonwealth of Virginia is under a state of emergency declared by Governor Ralph Northam.
The governor has issued two executive orders, one closing a number of retail businesses and limiting the circumstances under which others can operate, and another ordering state residents to stay home unless conducting ‘essential’ activity. You can read more about those orders here.
New Federal Guidelines
The new Federal guidelines are designed to inform state decisions on reopening as the outbreak subsides. State governments will still make the decisions, but these guidelines establish broad parameters through which they should make these decisions.
The guidelines establish a gating criteria that includes a decline in a level of influenza activity, a downward trend in the number of confirmed cases, and excess hospital capacity.
When those states meet that criteria, they can proceed into a phased reopening.
Under phase one, individuals will be asked to continue social distancing and limiting the number of people in crowds. Employers will be allowed to reopen in phased shifts, but are encouraged to continue teleworking and asked to close common areas. Schools, large venues, and bars should remain closed.
Under phase two, individuals are asked to continue moderate social distancing and the number of people in crowds will be limited to 50. Employers will be allowed to bring more people back to work, but common areas will still be closed. Some larger venues will be allowed to operate, and all bars and restaurants will be allowed to reopen though with some moderate social distancing guidelines.
Under phase three, individuals are allowed to return to normal activities and employers are allowed to return to normal operations.
Considerations
On the surface, it may appear that there is conflicting state and Federal advice. But in reality, the federal guidelines are designed to inform the decisions of state governments – where most of the decisions will be made.
Employers will have to consider first the state orders, but should also consider the federal guidelines as those state orders change.
Employers and businesses not impacted by current executive orders, including professional services, manufacturing, or other non-retail businesses, may already continue to operate though they should continue to consider policies on social distancing, telework, the use of PPE, sanitation and temperature checks.
For specific questions regarding your business, you should consult a Gentry Locke attorney. Gentry Locke’s Government & Regulatory Affairs team is closely monitoring the actions of state and local governments throughout the coronavirus outbreak as part of Gentry Locke’s coronavirus response team. If you have questions about how your business or organization may be affected by state action, please call us at 866.983.0866
Monday, April 13th, 2020
ROANOKE, Va. (April 13, 2020) – The Virginia law firm of Gentry Locke is pleased to announce that 20 of the firm’s attorneys were selected for inclusion in the 2020 Virginia Super Lawyers® lists. Attorneys were nominated by their peers and recognized for their outstanding professional achievement in several legal practice areas including appellate law, business/corporate law, business litigation, construction litigation, criminal defense, employment law and litigation, health care, intellectual property, land use and zoning, personal injury, and professional liability.
Seven of the 20 were elected Virginia Super Lawyers Rising Stars—attorneys who are 40 years old or younger, or in practice for 10 years or less. New to Super Lawyers Rising Stars this year is Andrew Bowman.
Managing Partner Monica Taylor Monday and Partner K. Brett Marston were also included on this year’s “Top 100” list.
Super Lawyers, which distinguishes the top 5 percent of attorneys in each state in more than 70 practice areas, recognizes those who have attained significant peer recognition and professional achievement.
Gentry Locke’s 2020 Virginia Super Lawyers include:
Thomas J. Bondurant, Jr. (Criminal Defense: White Collar)
Matthew W. Broughton (Personal Injury General: Plaintiff)
Gregory D. Habeeb (Business Litigation)
Guy M. Harbert, III (Personal Injury General: Defense)
Kevin Walker Holt (Business Litigation)
Paul G. Klockenbrink (Employment Litigation: Defense)
Brett Marston (Construction Litigation)
Monica Taylor Monday (Appellate)
David Paxton (Employment & Labor)
Glenn W. Pulley (Business Litigation)
William R. Rakes (Business Litigation)
Scott Sexton (Business Litigation)
Bruce C. Stockburger (Business/Corporate)
Gentry Locke’s 2020 Virginia Super Lawyers Rising Stars include:
Andrew Bowman (Intellectual Property)
Charles R. Calton (Personal Injury General: Plaintiff)
Christen C. Church (Health Care)
Andrew D. Finnicum (Personal Injury General: Plaintiff)
Jeffrey P. Miller (Civil Litigation)
Jonathan D. Puvak (Land Use/Zoning)
Ashley W. Winsky (Civil Litigation: Defense)
About Gentry Locke
With more than 60 lawyers practicing across a range of disciplines, Gentry Locke brings uncommon thinking and deep experience to the legal and business challenges of companies, institutions, organizations and individuals—a commitment the firm has met since 1923. Operating from offices in Roanoke, Lynchburg, and Richmond, Virginia, Gentry Locke serves clients in Virginia and across the United States. Meet the firm’s dynamic attorneys and learn more about its fierce drive to achieve success for its clients by exploring www.gentrylocke.com.
Friday, April 10th, 2020
On April 6th and April 7th, the Department of Treasury and Small Business Administration issued additional guidance for the Paycheck Protection Program in the form of “Frequently Asked Questions.” Importantly, these FAQs provide additional clarity on some key terms, and in some respects depart from prior guidance issued by the Department of Treasury and SBA, returning more closely to the original text of the Paycheck Protection Program outlined in the CARES Act.
Among the FAQs:
- The exclusion for employee compensation in excess of $100,000 applies only to cash compensation
- The exclusion in compensation in excess of $100,000 (annualized) applies only to cash compensation and not to non-cash benefits like employer contributions to retirement plans or group health care coverage.
- Prior guidance from the Department of Treasury and the application for the Paycheck Protection Program itself indicated a per employee cap on “payroll costs” (which would include wages and benefits) of $100,000, but the approach of these FAQs is more in line with the text of the CARES Act.
- The period for calculating average monthly payroll costs is the last 12 months or calendar year 2019.
- Borrowers have the option of using either the prior 12 months or calendar year 2019 to calculate average monthly payroll costs. The average monthly payroll costs will then be multiplied by 2.5 to determine the maximum loan amount (with adjustment in certain instances for Economic Injury Disaster Loan recipients).
- Prior guidance from the Department of Treasury, and the application for the Paycheck Protection Program itself, indicated borrowers should use calendar year 2019 to calculate average monthly payroll costs, however, the addition of the option for the prior rolling 12 month calculation is more in line with the text of the CARES Act.
- Borrowers should not deduct employee federal tax withholdings when calculating average monthly payroll costs
- These FAQs clarify that payroll costs are calculated on a gross basis and are not reduced by the taxes required to be withheld from employees.
- Many lenders had struggled with language in the text of the CARES Act which specifically excluded certain federal taxes “imposed or withheld” from certain calculations of “payroll costs.” The initial guidance issued did not assist in clarifying this issue, with such guidance calling for the exclusion from the definition of “payroll costs,” the “income taxes required to be withheld from employees.” These FAQs should address lender concerns.
- An application in process may be updated to reflect the guidance provided in these additional FAQs.
- The FAQs provide that borrowers do not need to take any action in response to the updated FAQs. However, if a borrower has previously submitted an application and it has not yet processed, the borrower may revise its application to reflect the guidance provided in the most recent FAQs.
- The additional clarity and guidance included in these FAQs are likely to increase the maximum loan amount a borrower may be eligible for, therefore, it may be beneficial to review the calculations in your pending application and discuss with your lender. If you have not yet submitted your application, review your calculations to confirm your numbers reflect the most recent guidance.
On April 7, 2020, Senate Majority Leader McConnell, Secretary of Treasury Mnuchin, and President Trump each separately announced that an additional $250 Billion would be requested to fund the Paycheck Protection Program. If approved, this would result in approximately $600 Billion being deployed in the form of forgivable loans to eligible borrowers under the program.
We do anticipate additional FAQs will continue to be posted on the SBA and the Department of Treasury websites. Additional guidance related to the Paycheck Protection Program and associated loan forgiveness continues to be issued on a rolling basis, and the rules remain largely fluid as the government works through administering a program, the scope of which we have never experienced.
We will continue to monitor guidance as it is received, and additional information may be found at www.sba.gov and www.treasury.gov .
Friday, April 3rd, 2020
Paycheck Protection Program:
The following summary of Sections 1102 and 1106 of the CARES Act related to the Paycheck Protection Program should be read in connection with the following:
4/3/2020 Update: Interim Final Rule Paycheck Protection Program
4/1/2020 Update: Paycheck Protection Program Update
Small Business Paycheck Protection Program and Loan Forgiveness
Within the nearly 900 pages that outline the “Coronavirus Aid, Relief, and Economic Security Act” (the “CARES Act”) is the “Keeping American Workers Paid and Employed Act,” which contains the Paycheck Protection Program and associated loan forgiveness.
The Paycheck Protection Program is a low interest loan (a “covered loan”) that is eligible for up to 100% principal forgiveness if certain requirements are met by the borrower. Borrowers can generally borrow up to 2.5 times the borrower’s average monthly payroll costs (capped at $10 Million). Covered loans will be deployed through the Small Business Administrations’ (SBA’s) 7(a) loan program, but these are not typical SBA 7(a) loans. The covered loans under this program are unsecured, no guarantors are required, and the loans are made without fees paid by borrowers.
If the borrower uses the covered loan funds for covered expenses (payroll costs, rent, utilities, etc.) during an 8-week measurement period that begins when the loan is made, the borrower will be eligible to have up to the entire principal balance of the loan forgiven. This forgiveness amount may be reduced in certain instances, including if there is a reduction in work force or if salaries of employees are materially reduced.
Payments by borrowers toward covered loans will be eligible for deferment for no less than six months and no more than one year. We are awaiting guidance from the SBA on how these payment deferments may be requested by borrowers.
Any portion of a covered loan that is not forgiven will continue to be guaranteed by the SBA, with a maximum interest rate of 4% and a maximum maturity date of 10 years.
We anticipate that additional guidance from agencies, like the SBA, will be forthcoming to address remaining questions and ambiguity associated with the text of the CARES Act.
Below are some frequently asked questions we have received, along with answers based on the information in the version of the CARES Act passed by the Senate and House of Representatives this week, and signed into law by President Trump today. The below FAQs specifically reference provisions of Section 1102 (the Paycheck Protection Program) and Section 1106 (Loan Forgiveness) of the CARES Act.
FAQ
Who is eligible for the Paycheck Protection Program?
- Businesses, including both for profits and 501(c)(3) nonprofits, employing fewer than 500 employees (or possibly more than 500 if the SBA small business designation for your industry is more than 500 employees). Sole proprietors, independent contractors and self-employed individuals are also eligible to receive these covered loans. There are very few exceptions.
- The language of the CARES Act contains a “Sense of the Senate” section stating the SBA should issue guidance to lenders to prioritize small business, rural, women owned, veteran, businesses in operation less than 2 years, etc.
Is there any requirement for a borrower to prove alternative funds are not available or to demonstrate the scope of the detrimental impact of COVID-19 on your business?
- NO, there is no requirement in the CARES Act for a borrower to prove that alternative funds are not available.
- NO, there is no requirement in the CARES Act to demonstrate the scope of COVID-19’s impact on your business. Borrowers must provide “a good faith certification…that the uncertainty of the current economic conditions makes necessary the loan request to support the ongoing operations of the eligible recipient”
What is the maximum amount of a covered loan?
- In general, the maximum amount of the loan that can be taken as a covered loan is 2.5 times average monthly “payroll costs” of the borrower for the year prior to loan being made (capped at $10 Million). There is an alternative measurement period if the borrower was not in existence for a full year prior to receiving a covered loan.
- “payroll costs” include things like wages, health care benefits, retirement benefits, certain taxes assessed on employee compensation. There are also some exclusions, including “the compensation of an individual employee in excess of an annual salary of $100,000 as prorated for the covered period” as well as certain sick leave and family leave wages for which an employer is eligible for a credit under the Families First Coronavirus Response Act. We anticipate additional guidance from the SBA on how to calculate a borrower’s “payroll costs” including what amounts to exclude from these calculations will be forthcoming.
What can the loan funds be used for?
- There are several allowable uses of covered loans including payroll, healthcare benefits, rent, utilities, interest on certain debt obligations. To be eligible for forgiveness, the borrowed funds must be used for covered expenses during the 8-week period after the loan proceeds are received.
What is the process for obtaining the loan?
- This is to be determined. The expectation from the Trump Administration is that the process should be streamlined, with applications to be provided to approved lenders and the loan processed very quickly, within a day or two.
- The covered loans will be deployed using the 7(a) SBA loan program. The expectation is that additional lenders will be approved, but one thing that businesses can do now is to check with your lender to see if they are already approved lenders under the 7(a) SBA loan program.
How are loans forgiven?
- To be forgivable, the covered loan funds need to be used during the 8-week period beginning on the date the covered loan is made for covered expenses. Borrowers will be eligible for forgiveness of indebtedness on a covered loan in an amount equal to the sum of payroll costs, interest on any covered mortgage obligation (but not prepayment of principal), covered rent obligations, covered utility payments, up to the principal amount of the covered loan. The amount of the covered loan that is forgiven will not be included in gross income of borrower.
- The amount forgiven will be reduced proportionately if the number of full-time equivalent employees is less than the number employed 2/15/19-6/30/2019 or 1/1/2020-2/29/2020 (employer choice on measurement dates) or if comp has a significant reduction, more than 25 percent, and with some exceptions (for example, reductions related to employees earning above $100,000 per year).
- If an employer has reduced its workforce or reduced wages prior to applying for or receiving the covered loan, there is a provision that allows the employer to rehire employees or increase salary in accordance with the terms of the CARES Act, and the temporary reduction in salary or workforce will not be counted against the employer in calculating the forgiveness amount.
- The borrower will submit an application for loan forgiveness to its lender with associated documentation and certification from borrowers and we anticipate additional guidance will be forthcoming from the SBA.
Tuesday, March 24th, 2020
Virginia Governor Ralph Northam added the Commonwealth to the growing ranks of states with so-called “stay-at-home” orders, issuing Executive Order 55 in the latest effort to battle the spread of the coronavirus.
Executive Order 55 is the furthest use of the governor’s executive power, but relative to his previous actions is only an incremental step that moves from encouraging people to stay home to ordering such action.
The governor strongly encouraged Virginians to stay home as he announced the latest action, but in reality there is little difference from his previous actions. You should stay home unless your activity is “essential” as defined under the two applicable executive orders.
Background
Previously the governor issued Executive Order 53, limiting all restaurants and entertainment establishments to carry-out or delivery, banning all in-person gatherings of more than 10 people, requiring all non-essential retail establishments to either close or stay under the 10-person limit for gatherings.
That order stays in effect and remains the primary guidance on what actions business should take. In summary, Virginia:
- Closed K-12 schools for the remainder of the school year
- Banned all gatherings of more than 10 people statewide
- Closed all “recreation and entertainment” businesses
- Limited all restaurants, bars, and food establishments to offering carry-out or delivery only
- Required all “non-essential” retail businesses to limit the number of patrons to no more than 10, and require they always practice social distancing
You can read more on that order by clicking here.
Executive Order 55
The new order builds on those previous actions and goes a step further to orders individuals to stay home unless conducting an essential activity – such as buying food or medical supplies or traveling to work that cannot be done remotely.
E.O. 55 requires all Virginians to “remain at their place of residence,” with a few exceptions including:
- Obtaining food, beverages, goods, or services as permitted in Executive Order 53;
- Seeking medical attention, essential social services, governmental services, assistance from law enforcement, or emergency services;
- Taking care of other individuals, animals, or visiting the home of a family member;
- Traveling required by court order or to facilitate child custody, visitation, or child care;
- Engaging in outdoor activity, including exercise, provided individuals comply with social distancing requirements;
- Traveling to and from one’s residence, place of worship, or work;
- Traveling to and from an educational institution;
- Volunteering with organizations that provide charitable or social services; and
- Leaving one’s residence due to a reasonable fear for health or safety, at the direction of law enforcement, or at the direction of another government agency.
The order also incorporates all of the guidelines issued in the previous order.
E.O. 55 also reinforced the prohibition on gatherings of more than 10 people, limited all public institutions of higher education to online instruction, closed all public and private campgrounds, and closed all public beaches except for fishing.
While Governor Northam stated publicly, he expects law enforcement to urge compliance before making arrests or issuing tickets, by law the new order is punishable as a class 1 misdemeanor, which means up to 1 year in jail or a $2,500 fine.
The so-called “stay-at-home” order is designed to further limit the spread of the coronavirus. Previously state officials had only encouraged people to stay home and taken steps to increase social distancing or close “non-essential” businesses. The new order, which now applies to individuals, is the most drastic action to date but also represents an incremental change from previous state actions.
Gentry Locke’s Government and Regulatory Affairs team is closely monitoring the developments related to state government as part of Gentry Locke’s coronavirus response team. If you have questions about how your business or organization may be affected by state action, please call us directly at 866.983.0866.
Tuesday, March 24th, 2020
In addition to the excellent summary of the CARES Act prepared by our colleague, Christen Church, the AGC of America has prepared its own summary of the CARES Act, which specifically addresses the impact of the act on the construction industry. A link to the AGC of America’s summary can be found here.
Tuesday, March 24th, 2020
In the challenging times of COVID-19 related lockdowns and stay at home orders, the occasional good news story is a welcome departure from the daily gloom bombarding your email inbox and the newspaper pages. The Roanoke Times ran an article concerning the status of outdoor construction projects in the region. The article quotes Gordon Dixon, CEO of the AGCVA, and a friend of ours, who reports that as of this week, the AGCVA has not received reports of significant shutdowns. Mr. Dixon also noted that the situation is changing daily, and that contractors remain concerned about the potential unavailability of inspectors to review and approve work. The City of Roanoke’s inspectors continue to carry out inspections, and the article specifically notes that the Fralin Biomedical Research Institute project on the Virginia Tech-Carilion campus is continuing. The article does point out that certain private projects are currently on hold at the request of the project owners, quoting Sam Lionberger, III of Lionberger Construction. VDOT confirmed that its projects in the region are continuing. Also of concern is a note that planning commission activities are suspended, which will delay the commencement of some future projects.
Stay safe and healthy out there.
Wednesday, March 18th, 2020
Last updated: March 18, 2020
Just a little over a month ago, on February 11, 2020, the World Health Organization (WHO) announced a name for the new coronavirus illness: COVID-19. A month later, on March 11, 2020, the WHO characterized COVID-19 as a pandemic.
In the week since the WHO’s announcement that COVID-19 is a pandemic, we have seen restrictions on travel, limitations on gatherings, as well as schools, businesses, and non-essential governmental operations shut down physical offices, moving toward remote work when and where possible. At the local, state, and federal levels, we are seeing an unprecedented response from our government officials in an effort to change the course of this pandemic. On social media #socialdistancing and #flattenthecurve are trending. But what does this mean for you and your business? Will COVID-19 affect your ability, directly or indirectly, to force your vendors and suppliers to perform? What if your supply of goods or workers is interrupted and your performance schedule is shifted or remains up in the air? These are all questions that are facing many of our clients.
If these are questions that you have for your business, we strongly recommend discussing with your attorney. The question of what defenses may be available to excuse nonperformance or delayed performance, through force majeure contractual clauses or other mechanism, such as statutory or common law excusable nonperformance, are largely facts and circumstances driven. An attorney will work with you to gather the necessary information in order to evaluate your situation. For example: Do you have a written contract? If you have a written contract, your attorney will likely need to review the entire agreement, because we need to see not only whether it has a force majeure clause, but other key terms like choice of law, notice requirements, and term and termination provisions. What is the nature of the services or goods that are the subject of the agreement, and how is the current pandemic affecting your or your vendor/supplier/service provider’s ability to perform? How are you working to mitigate losses? Will your business interruption or disruption insurance cover what we are experiencing, or is a viral outbreak excluded from coverage?
Just because you have a force majeure clause in a contract, and it lists epidemic or a pandemic as a possible force majeure event, that does not mean that COVID-19 will automatically excuse nonperformance or delayed performance. Similarly, if you have a force majeure clause that does not specifically list an epidemic or pandemic as a triggering event, if your contract is silent to such events, or if you have no written contract at all, that does not mean that there is no excuse for nonperformance or delayed performance as a result of this pandemic. Particularly when a contract is silent as to force majeure, courts will look at the whether the events were foreseeable or unforeseeable when you entered into the contract, and whether performance is impractical or impossible, all of which can turn on facts and circumstances that are unique to you and your situation.
While writing this news alert, all levels of government are working to address the stresses this pandemic places on our economy, and we can anticipate additional assistance and guidance may be forthcoming. If you have questions or issues regarding what the current pandemic can mean for your business, Gentry Locke attorneys are available to assist. We have implemented our business continuity plan and continue to maintain full operations during this evolving situation, all while we continue to monitor updates from our government officials. Continue to check www.gentrylocke.com for updates to this news alert.
Tuesday, February 18th, 2020
ROANOKE, Va. (February 18, 2020) – The Virginia law firm of Gentry Locke is pleased to announce that Partner Evans G. Edwards has been named the recipient of the firm’s 2019 Pro Bono Promise Award. The award recognizes pro bono work that exceeds the 2% yearly aspirational goal set by the Supreme Court of Virginia, either quantitatively or qualitatively. In 2019, Evans dedicated almost 100 hours to pro bono efforts.
“As a firm, we recognize the importance of making legal representation available to everyone. We are proud of the commitment of Evans and others within the firm to make sure this happens,” said Gentry Locke Managing Partner Monica Taylor Monday.
In 2019, Edwards’ pro bono efforts included representing an individual in the circuit court and Supreme Court of Virginia involving a property rights and trespass issue. The Supreme Court of Virginia has agreed to hear the appeal of the client’s claim.
About Gentry Locke
With more than 60 lawyers practicing across a range of disciplines, Gentry Locke brings uncommon thinking and deep experience to the legal and business challenges of companies, institutions, organizations and individuals—a commitment the firm has met since 1923. Operating from offices in Roanoke, Lynchburg, and Richmond, Virginia, Gentry Locke serves clients in Virginia and across the United States. Meet the firm’s dynamic attorneys and learn more about its fierce drive to achieve success for its clients by exploring www.gentrylocke.com.
