Business Law (including Franchises)

Baker, Todd H and Kathryn Judge, 'How to Help Small Businesses Survive COVID-19' (Columbia Law and Economics Working Paper No 620, 2020)
Abstract: Small businesses are among the hardest hit by the COVID-19 crisis. Many are shuttered, and far more face cash flow constraints, raising questions about just how many will survive this recession. The government has responded with a critical forgivable loan program, but for many of these businesses, this program alone will not provide the cash they need to retain workers, pay rent, and help their business come back to life when Americans are no longer sheltering in place. This essay calls on regulators to find new and creative ways to work with existing intermediaries, including banks and online lenders, who have the infrastructure and tools needed to help small businesses get the additional loans they need to survive and thrive. Leveraging existing institutions could enhance the speed, scale, and scope of the government's response, all critical virtues in the efforts to support small business.

Berman, Douglas A et al, 'Struggling Through the Pandemic: Cannabis Social Equity During COVID-19' (SSRN Scholarly Paper No ID 3628533, 16 June 2020)
Abstract: In March 2020, in response to the COVID-19 national emergency, states across the United States began issuing shelter-in-place orders curtailing operations of individual businesses based on 'essential' and 'non-essential' classification. Virtually all states with legalized medical cannabis, and the majority of adult-use states, allowed cannabis establishments to remain open albeit often with significant restrictions on their operations. Yet, the cannabis industry, and small, minority-owned or social equity designated businesses in particular, are not insulated from the broader economic shockwaves spreading through the country. In April 2020, the Drug Enforcement and Policy Center conducted a survey asking patients/consumers and cannabis industry professionals about the challenges they were experiencing and government responses. Hoping to fill a gap in early discussions of the impact of the COVID-19 crisis, we were especially interested in the impact on cannabis industry participants designated as social equity businesses. The results indicate that the COVID-19 pandemic has both introduced tremendous new challenges for the cannabis industry and exacerbated long-standing difficulties for businesses in this arena. If small, minority-owned and social equity businesses are to survive, they need to be treated by the system like any other regular small business venture. While regulations and safeguards are necessary, these businesses need to be able to operate as a true business, rather than a semi-legal venture with no access to loans, banking, insurance, tax relief, and flexible deliverable modes.

Boon, Gert-Jan et al, 'The COVID-19 Pandemic and Business Law: A Series of Posts from the Oxford Business Law Blog' (Oxford Legal Studies Research Paper No 15/2020, 2020)
Abstract: The COVID-19 Pandemic is the biggest challenge for the world since World War Two, warned UN Secretary General, Antonio Guterres, on 1 April 2020. Millions of lives may be lost. The threat to our livelihoods is extreme as well. Job losses worldwide may exceed 25 million.Legal systems are under extreme stress too. Contracts are disrupted, judicial services suspended, and insolvency procedures tested. Quarantine regulations threaten constitutional liberties. However, laws can also be a powerful tool to contain the effects of the pandemic on our lives and reduce its economic fallout. To achieve this goal, rules designed for normal times might need to be adapted to 'crisis-mode', at least temporarily. Business Laws in particular fulfil an important function in this context. Our livelihoods depend on how well businesses are able to navigate through the current crisis.Beginning in early February 2020, the Oxford Business Law Blog has published posts on how Business Laws could contribute to containing the effects of the COVID-19 Pandemic, and on how they need (or need not) to be adapted to achieve the desired effect. This working paper collects the posts published throughout March in chronological order. Thematically, the focus is on finance, financial regulation and insolvency laws. This is not surprising as the most pressing problem businesses face right now is to manage their cash flow. We hope that the contributions in this paper inspire more work by scholars and help policymakers worldwide to adopt the right measures to reduce the damage caused by the Pandemic.

Buchan, Jenny and Rob Nicholls, 'The Challenges of Navigating the COVID-19 Pandemic for Australia's Franchise Sector' (2020) 48(2) Australian Business Law Review 126-137
Abstract: A pandemic forces franchisors, franchisees and other stakeholders to look with fresh eyes at contracts that usually remain in the bottom drawer. Government light-touch legislation is challenged, and the franchise sector must deal with forcefully drawn contracts and competition from more agile non-franchised businesses. All concerned must come to grips with how contract law addresses a pandemic, if at all, and how courts might interpret established contractual and statutory obligations and legislation enacted to respond to COVID-19. This article reviews franchising through the lenses of force majeure and frustration, and considers how the courts might interpret responses to COVID-19 in the light of the good faith obligation under the Franchising Code of Conduct. It also canvases federal and State regulatory responses in the context of franchising. The article concludes that franchisors will need to depart from a one-size-fits-all response to a more bespoke approach on this occasion.

Cresanti, Robert, 'The Impact of COVID-19.' (2020) 52(4) Franchising World 8-8
Abstract: An editorial is presented which discusses the Impact of COVID-19. It discusses about how the new federal coronavirus laws will impact the business from Littler Mendelson's Michael Lotito and James Paretti; IFA board member Jerry Crawford from Jani-King shares important information about how to safeguard your business, employees and customers; and the rest of this issue is still dedicated to providing important information about franchising to our members that we know you'll find value from.

Deere, Kelly and Christine Gottesman, 'We Can Do This: Reopening the Non-Public Office Sector and Keeping It Open During the COVID-19 Pandemic' (SSRN Scholarly Paper No ID 3709466, 1 September 2020)
Abstract: In March 2020, COVID-19 forced many non-essential businesses with non-public office settings to physically close their doors and conduct their businesses remotely. For many non-essential businesses, physical office space shut down and many employees began working from home or telecommuting. As states reopened their economies, the CDC, OSHA and a number of state agencies provided guidance for employers to reopen and/or maintain a safe workplace in these office setting businesses. While these guidelines are not uniform in size, scope or content, we conclude that there is sufficient guidance for these employers to safely open their businesses and stay open. We recommend that CDC and OSHA issue joint guidance to create a uniform and not piecemeal approach for office workplace safety and that the guidance be updated regularly. Since the non-public office settings are at a low-risk of COVID-19 exposure, we recommend that both federal and state governments provide guidance and not more formal standards or regulations. There is no one-size fits all approach to the non-public office setting therefore these employers should have the flexibility to implement the recommendations that work best for them.

Lotito, Michael J, James Paretti and Littler Mendelson, 'New Federal Coronavirus (COVID-19) LAWS: A Summary of the New Laws Impacting Your Franchise during the Coronavirus Pandemic' (2020) 52(4) Franchising World 16-19
Abstract: The article discusses New Federal Coronavirus Laws. Topics include The FFCRA creates two limited-duration programs for providing workers impacted by the coronavirus with paid sick leave and paid 'family' leave under the federal Family and Medical Leave Act (FMLA); and the CARES Act provides additional economic support for individuals and businesses to maintain operations, retain workers and increase unemployment benefits under state-administered unemployment compensation systems.

Pacheco, Thomas, 'Top Legal Issues for 2020: The Legal Developments You Need to Know' (2020) 52(4) Franchising World 24-27
Abstract: The article discusses legal developments related to Covid-19. Topics include California Consumer Privacy Act went into effect on January 1, 2020, the CCPA establishes consumer rights with regard to data; California's AB 5 law finally came into effect in January 2020; and The Protecting the Right to Organize (PRO) Act.

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