On May 5, 2020, The New York Times (NYT) reported under the heading “Here come the busted deals,” that L Brands, majority owner of Victoria’s Secret, who had a seemingly airtight case for selling a majority stake in Victoria’s Secret, had agreed to let the buyer, Sycamore Partners, walk.

L Brands agreed to let Sycamore walk away, even though it had a strong argument to enforce the agreement made in February 2020. Sycamore had argued that the coronavirus outbreak led to irreparable damage to Victoria’s Secret, but the merger agreement actually anticipated the concept of a pandemic and excluded pandemics as a reason for walking away from the deal. Yes, the merger agreement allowed for the voiding of the deal due to an “act of God,” but in the acquisition agreement, the lawyers carved out specific exceptions to those acts of God, including a pandemic. That meant that even if a pandemic struck, Sycamore would be legally obligated to complete the deal.Continue Reading Post pandemic drafting with governmental authorities: Force Majeure clauses in consent agreements

Post COVID-19 stay-at-home orders (SAHO) – and as we go back to “normal” – what is the likelihood of a sudden resurgence in new or deferred Superfund cleanups, and associated construction?

It is impossible to ignore that fact (and EPA must be aware of it) that construction jobs can and will be important to economic recovery. Construction work provides good, well-paying jobs, which will be critical to restarting the economy, and that is paramount. EPA, especially Office of Land and Emergency Management,  will recognize they have a key role to play in those efforts.Continue Reading Companies Beware: Will EPA ramp up mandated ‘clean up’ as part of perceived economic ‘stimulus’ package?

Last Friday, April 17, the attorneys general of New York, Pennsylvania, California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Oregon, Rhode Island, Virginia, Washington, and Wisconsin filed a comment letter with the U.S. Environmental Protection Agency (EPA) urging the agency to take more comprehensive actions regarding per-fluoroalkyl and poly-fluoroalkyl substances (collectively, “PFAS”), stating “the final rule should be broadened to more effectively serve the goals and mandates of the Toxic Substance Control Act (TSCA) to prevent exposures to harmful substances before they are introduced into the marketplace.” Specifically, the attorneys general urge EPA to strengthen the supplemental proposal by: (1) including the entire chemical family of long-chain PFAS rather than the subset of these chemicals proposed in the Supplemental Proposal; (2) in accordance with its initial proposal, adopting a final rule that applies to articles containing long-chain PFAS anywhere in the article and not only to those articles in which PFAS are contained within the surface coatings; (3) applying the rule to the processing of articles and not just to the importing of them; and (4) disallowing any carve outs to the requirement to notify EPA for de minimis amounts of PFAS covered by the rule.
Continue Reading In the midst of COVID-19, attorneys general of 18 States urge stronger EPA Action on PFAS

In conjunction with the U.S. Environmental Protection Agency’s (EPA’s) move to relax enforcement efforts, and despite criticism of the EPA’s move, the Department of Justice (DOJ) has suspended collection of civil penalty payments for six weeks – until at least May 31, 2020 – in a move that could be a demonstration that

As governments and health authorities institute increasingly strict responses to COVID-19, companies worldwide face unprecedented challenges in meeting their otherwise “business as usual” contractual and regulatory obligations. While these challenges span all areas of business, this post focuses on particular environmental obligations and associated risks.

The U.S. Environmental Protection Agency (EPA) recently instituted a temporary enforcement discretion policy, in keeping with which the agency will not seek penalties for certain violations. As part of this policy, the EPA encourages companies to make use of force majeure provisions in consent decrees and settlement agreements. However, contractual obligations between two private parties are not covered by the EPA policy, leaving companies struggling to find how to: a) utilize a force majeure provision to their advantage; and b) block counter-parties from claiming force majeure against the companies’ business objectives, or mitigate the impact of such claims.Continue Reading COVID-19 induced force majeure applied to environmental obligations