Tel: 804.864.1100

Tel: 804.864.1100

Virginia

COVID-19 Impacts and a Potential Avenue for Contract Relief

pen on a contract documentAs the impacts of the COVID-19 virus spread and more businesses begin slowing or ceasing operations, some by government order, others voluntarily, many businesses are left wondering whether their contracts contain any avenue to excuse their non-performance during the emergency. Most turn immediately to the “force majeure” provisions, hoping to find relief. We have received numerous inquiries from our clients over the past days regarding force majeure clauses. The force majeure term generally lives among the boilerplate terms of a contract, and may not have been heavily reviewed or discussed (if at all) by the parties during contract negotiation. Accordingly, most force majeure provisions take a generalized catch-all approach, which could potentially benefit such an unusual situation as the COVID-19 pandemic.

From a general standpoint, the concept of force majeure is intended to excuse the performance of one or both parties to a contract when that performance is prevented or delayed by some event outside of the control of the performing party. The basic idea is that if a party cannot avoid, prevent, or overcome the occurrence of an event or circumstance that was not foreseen or foreseeable at the time of contracting, the affected party should be excused from any delay that is caused or, in some cases, the party may be excused from performing altogether. In practice, however, the exercise becomes more complicated. Force majeure provisions, like all other provisions in a contract, are subject to negotiation, and while the basic idea remains as described above, the application of this idea in each contract can vary widely. For instance, the term may only protect one party, it may have strict notice requirements, or it may be limited to a specific set of enumerated circumstances. The devil is truly in the details.

Unfortunately, the inquiry does not stop there. Assuming that the force majeure provision in your contract applies to your performance and encapsulates the effects of the COVID-19 virus, the critical question remaining is whether your performance is actually prevented by this emergency. Some cases may be clearer, such as when your business is ordered by a local, state or federal agency to cease operations. However, many businesses have not yet received such an order, meaning their cases for force majeure relief are murky.

In either case, the two key factors to consider are (1) what type of performance is required and (2) is the direct cause of non-performance outside of the party’s control? The answers to these questions are, unsurprisingly, dependent on the particular circumstances of each case. Some businesses may be directly prevented from performing under one or more contracts. Many businesses, however, may be left in a tough position where performance is possible, but is neither advisable nor profitable. While there may be other avenues for relief in certain circumstances, the best course of action in this situation may be to open a dialogue with your counterparty with the goal of clarifying (and properly documenting) that that anticipated impacts of the COVID-19 emergency will be treated as force majeure impacts.

As mentioned above, the impact, and potential avenues for contractual relief, arising from the COVID-19 emergency will depend greatly on the particular facts of each situation and, as is generally the case, there is no one-size-fits-all solution. In order to discuss the impacts of the COVID-19 emergency or the particular circumstances of your company’s situation, please contact one of the corporate and transactional attorneys at GreeneHurlocker.

Duties of Loyalty for Corporate Board Members versus LLC Managers

Limited Liability Companies (LLC’s) are functional and flexible forms of ownership for operating companies as well as investment vehicles. As common as LLC’s are today, we ought to remember that relative to other forms of legal entities, LLC’s are still very new. It was only as recently as 1996 that all fifty states had enacted limited liability company statutes, so in many states these forms of ownership are less than 30 years old. For instance, the Virginia Limited Liability Company Act (VLLCA) was only originally passed in 1991, making it only 29 years old. Thus, the body of law governing LLC’s is much less robust than that of corporations or partnerships.

Twice in the last few months, we have been asked by clients to look into issues regarding the duties of managers of a Virginia LLC, and it’s illustrative of a key difference of the two entity structures, and the much smaller body of case law regarding limited liability companies versus corporations. The key statutory provision outlining the duty a director owes a corporation is Virginia Stock Corporation Act (VSCA) Section 13.1-690, which states that “A director shall discharge his duties as a director, including his duties as a member of a committee, in accordance with his good faith business judgment of the best interests of the corporation.” The key statutory provision outlining the duty a manager owes a limited liability company is VSCA Section 13.1-1024.1, which states that “A manager shall discharge his or its duties as a manager in accordance with the manager’s good faith business judgment of the best interests of the limited liability company.”

They seem almost identical, right? Perhaps, but a body of case law in Virginia has confirmed that corporate directors have a common law duty of care and a duty of loyalty to the corporation underpinning Section 13.1-690 (See Willard v. Moneta Bldg. Supply, 515 S.E.2d 277 (Va. 1999), Feddeman & Co. v. Langan Associates, 260 Va. 35, 530 S.E.2d 668 (2000), Simmons v. Miller, 261 Va. 561, 544 S.E.2d 666, (2001)). In contrast, there is no case law in Virginia establishing a common law duty of loyalty by managers to the LLC. To the contrary, limited case law applying Virginia law indicates that managers affirmatively do not have a duty of loyalty to their LLC. (See In re Virginia Broadband, LLC, 2014 BL 313170 (Bankr. W.D. Va. 2014)).

The VSCA also contains Section 13.1-691, titled “Director conflict of interests”. Section 13.1-691 defines certain transactions that would cause a conflict of interest with a director, and creates something akin to a safe harbor for a corporation’s board of directors engaging in such a transaction if certain information is disclosed and certain procedures are followed. While this statute does govern specific acts of potential self-dealing, the duty of loyalty of a director to their corporation is more generally governed by Section 13.1-690 and the common law described above. Stated differently, while Section 13.1-691 only covers transactions between a director and their corporation, the general duty of loyalty underpinning Section 13.1-690 covers a far broader set of possible actions by a director. (See Goolsby & Haas on Virginia Corporations, 6th Ed., Section 9.8, p. 247).

Despite this seemingly large gap of protection for limited liability companies, all is not lost. Another major difference between corporations and limited liability companies is the flexibility, as mentioned at the top of this post, that LLC members may contract, via an operating agreement, for a set of governance provisions customized to their specific needs, as long as those contracted provisions do not violate the Virginia Limited Liability Company Act. The members could agree that managers have a duty of loyalty to the LLC, and they could also define its parameters. They could choose to limit the duty of loyalty to the equivalent of Section 13.1-691 of the VSCA, or they could state that managers are subject to the same standards applicable to directors of a corporation.

It is very important to note that these comments are only applicable to Virginia LLC’s and the law applicable in other jurisdictions may be quite different. For instance, in Delaware, by far the most popular jurisdiction for forming LLC’s, the default rule is the complete opposite. In the absence of a provision in the operating agreement to the contrary, managers and controlling members of an LLC owe a duty of care and a duty of loyalty to the LLC. (Delaware Limited Liability Company Act, Sections 18-1104 and 18-1101(c)).

The examples described in this post is just one of a number of important considerations when forming a limited liability company. Do not rely on a form downloaded from the internet. The corporate attorneys at GreeneHurlocker commonly assist clients with the formation of corporations, limited liability companies and partnerships, so please contact me or one of the other members of our corporate team to discuss these issues if you are considering forming a new company.

Progress on Virginia’s Clean Economy Act

The folks at  Virginia Mercury carried a nice summary today about the pending Virginia Clean Economy Act [ht to RichmondBizSense for pointing this out for us], one of Governor Ralph Northam’s signature efforts for this year’s General Assembly. We’re following its progress carefully.

If you want to know more about he Virginia Clean Economy Act or anything about energy issues in Virginia or the mid-Atlantic, simply contact one of our Virginia energy lawyers.

Richmond’s Commercial Real Estate Market Still Robust

GreeneHurlocker’s commercial real estate attorneys, Andy Brownstein and Jared Burden, along with more than 200 real estate industry colleagues, attended the Greater Richmond Association for Commercial Real Estate (GRACRE)’s 2020 Real Estate Market Review on February 18, 2020. What’s the verdict on the health of the local commercial real estate market in the Richmond MSA? Good, with few reservations.

Among the six speakers we heard plenty of optimism about the area’s ability to absorb more commercial real estate space, including apartments, office, industrial and hospitality. However, a consistent them was that is both finite demand, given the middle-market nature of Richmond’s business environment, and finite supply, given the lead time (up to 36 months) in developing commercial property. As a result, given shifting interests rates and other financing considerations, projects will have to be carefully planned and developed.

News coverage in the Richmond Times-Dispatch of the event is here.

Richmond’s rise in the Metropolitan Statistical Area ranking (now 45th) due to its population growth (1.3 million), of which 54% are of prime working age, along with relatively constant rates of space absorption, suggests commercial development has not reached saturation. Even older office developments, such as Innsbrook, are getting seeing good demand rents due to redevelopment and improvement of old commercial stock.

If there was one property class that is especially hot, it would be multifamily. Eric Phipps of SNP Properties cited properties in Scott’s Addition and Manchester as continuing to be in very high demand. He also suggested that the West Broad Street corridor and Jackson Ward to be ripe for future commercial development, and that Richmond could consistently absorb 1,500-2,000 a year for the next few years.

Nick Patel of Kalyan Hospitality discounted the potential for multiple casinos to be developed in Virginia in the short term, even if the proposed development in Richmond goes forward, but said he felt up to 1,000 additional rooms could be built in the greater Richmond market. He did not believe the downtown hospitality market would not see any luxury hotel development until average room rates approached $200, up from approximately $150 today.

While retail is still a challenging asset class, there are a number of exciting projects underway in the Richmond area, including the redevelopment of Regency Square and Virginia Center Commons, Carytown Exchange and the Sauer Center, showing that there is still an appetite for retail development under the right circumstances. Nikki Jassey provided a window into the shifts created by the rise of Amazon and different approaches taken by retail tenants and developers.

Finally, there remains a strong demand for industrial properties, especially along the interchanges of Interstates 295 and 64 and Interstates 295 and 95. We have benefited from strong local transportation infrastructure as well as the growth of data center demand without the downsides of locating in Northern Virginia.

It sure was good to run into a number of our friends and colleagues in the real estate business and hear some promising news about the future at GRACRE. If you would like to know more about what we learned, or discuss commercial real estate opportunities in Richmond or other parts of Virginia, contact Andy (804.864.1100)  or Jared (703.258.2678) or any of GreeneHurlocker’s Virginia real estate attorneys.

GRACRE Market Review

The Greater Richmond Association for Commercial Real Estate will hold its February Market Review tomorrow, and my partner Jared Burden and I will be there at the Westin Hotel on West Broad in the Reynolds Crossing development tomorrow afternoon starting at 3:30 p.m..

These annual market reviews bring together brokers, agents, commercial landlords and developers to discuss market conditions, possible opportunities and new ventures. If you’re attending, be sure to find us and say hello. We’d like to tell you more about our commercial real estate and mergers and acquisitions practices across Virginia and beyond. If we miss you, just contact me or any of our Virginia real estate lawyers.

Ideas Are Just That: Part 3

We’ve been sharing a series of blog posts and videos here and here about how an idea is just that: an idea, and how there are some basic, critical things a high-potential start-up technology company founder must do in order to make any idea worth having and building upon. As I said in my first post, the fact is, most ideas suck. So a founder needs to be sure this idea is worth making it the most important thing in her life for the next months or years.

My third suggestion for the immediate post-idea step is: Focus obsessively on creating a minimally viable product.

Don’t get caught up in the romance of the wonderfulness or inevitability of your idea, the greatness of your team, or the exuberant free feeling of having decided to jump in with both feet. The fact is, you haven’t yet accomplished the whole reason for doing this in the first place, which is selling something to people who want to buy what you have to sell. The excitement is going to wear off and then it’ll be time to get to work. If you don’t get to work immediately, you probably will have lost your opportunity.

It is all about speed.

Too many startups begin with an idea for a product that they think people want. When it isn’t resonating with customers, it is often because the founders never spoke to prospective customers and determined whether or not the product was interesting. When customers ultimately communicate, through their indifference, that they don’t care about the product, the startup fails.
The truly most important question you need to start asking yourself is the following. It’s the first thing you should ask yourself even before you swing your legs off the edge if the bed to get up on the first morning after to you come up with your great idea.

“Should this product be built?”

And then, soon thereafter, maybe before you brush your teeth, you need to ask “Can we build a sustainable business around your product?’
At this point it’s really only about two things: a first product that you know the world needs, and a plan for how first product can actually get customers. The team needs to be focused brutally on these things. Let the customers be your source of accountability.

The new company should be focused on quickly developing a minimally viable product and then learning as much as possible about its weaknesses and opportunities for improvement. Iteration upon iterations, pulling your hair out from anxiety that you’ll never get it right, near-all-nighters and lost weekends — all of that fun stuff. The point is to do all of this on the front end, quickly, and always being in dialogue with the customer, not stuck in an echo chamber of a founder team that may be overly enamored with the original concept.

When a founder focuses on figuring out the right thing to build—the thing customers want and will pay for—she need not spend months developing a prototype or waiting for a beta launch to change the company’s direction. Instead, she can adapt her plan incrementally, inch by inch, minute by minute, moving fast, boxing out the competition.

A couple of years ago I spent three days in the James Madison University’s Icehouse facility with about 24 entrepreneurs who had agreed to lock themselves in and spend that whole weekend developing companies based on pitches that they made on the first night. These people , for the most part, had never met each other. Groups coalesced around about eight ideas big and small. Through the weekend there was a compressed process of honing the original idea and creating a business plan and readying the product or service for the launch. I remember several of the teams were stumped by this question: Will customers want this? Only one of the groups spent the first night doing customer demand research – one group had thought to do this out of eight. That may be somewhat reflective about what real companies do when they go out into the real world. I hope not.

The founding team members need to relish being sponges for crucial information gleaned from the only people that matter: potential customers. This is never more true than at inception and in the earliest weeks and months.

Watch for our next post on “Ideas are just that.” Meanwhile, if you have any questions about startup steps or business law, just reach out to me or any of our Virginia business lawyers.

Proud to Call Him Counsel!

Eric Wallace has been promoted to Counsel at our firm starting this January. Eric has been with us since his third year of law school at the University of Richmond and has developed a sophisticated understanding and practice of regulatory law in the mid-Atlantic, which is a hub of our firm.

With a practice focused on energy law, energy regulation, and commercial transactions, Eric represents clients in the energy and renewable energy industries on licensing, technology acquisition, investment, business development, sales and other commercial matters.

Eric’s depth of knowledge and unfailing energy for his clients has helped make our firm stronger and more successful each year since he joined us, and we are proud to recognize his skills and dedication with this new status in our firm.

If you want to know more, just contact Eric or any of our energy lawyers.

Brian Greene Appointed to Virginia Israel Advisory Board

Brian Greene of GreeneHurlockerBrian has been named to the Virginia Israel Advisory Board (VIAB) by the General Assembly of Virginia.

The VIAB is a Commonwealth of Virginia agency that helps Israeli companies locate and grow their U.S. operations in Virginia. The VIAB offers a variety of programs to foster international business success in Virginia. Dov Hoch is currently Executive Director of VIAB, whose board includes business executives and other professionals from across the state.

“I’m delighted to serve on the VIAB and to be able to encourage Israeli companies to invest in Virginia, and to encourage partnerships between Virginia and Israeli companies,” Brian says.

“The VIAB has a proven track record of successfully forging economic and cultural links between Virginia and Israel, and I’m honored to be a part of it,” he explains.

Brian has always been very active in the Richmond Jewish community. He currently serves on the board of the Jewish Community Federation of Richmond and the Weinstein Jewish Community Center. He served for four years as the president of Rudlin Torah Academy, Richmond’s Jewish day school. He also has served on the board of the Herb Cohen Memorial Fund — which has provided more than 400 scholarships since 2001 for kids to attend summer camps — since its inception.

Brian concentrates on energy and utility regulation and related issues in the mid-Atlantic region, and he represents a diverse clientele of electric, natural gas, and water companies..
The mission of VIAB is to assist Israeli companies to locate and grow their U.S. operations in Virginia and to partner with Virginia businesses to facilitate the acquisition and use of Israeli technology. VIAB also focuses on increasing direct foreign investment in Virginia, and on bilateral trade and lasting partnerships, especially in industries such as manufacturing, maritime, military-related and agribusiness industries.

GreeneHurlocker Welcomes Business and Employment Attorney Laura Kight Musick

Laura Kight Musick, a business and labor and employment attorney, has joined the business, corporate, and regulatory law practice as Counsel at our firm, Eric Hurlocker announced today.

“Laura brings a well-developed set of skills in commercial and employment law which our clients increasingly need as their businesses grow and become more complex,” Hurlocker said. “Additionally, her significant litigation experience dovetails nicely with our firm’s growing regional regulatory practice,” he explained.

Laura practiced in Illinois and Virginia in her prior firms, and has counseled clients in employment matters, including hiring, severance and transition agreements, employment policies, and risk management and avoidance. In addition, she advised her business clients regularly about contracts, financing agreements, and corporate formation and governance.

“I’m delighted to be joining GreeneHurlocker and offering our clients the benefit of my employment law background while advising them as they grow and expand their businesses,” she says.

Laura graduated summa cum laude from the Honors Program at Murray State University in Kentucky, receiving a dual degree in English Literature and Philosophy. She earned her J.D. at the Robert H. McKinney School of Law, Indiana University, and was the inaugural recipient of the Baker and Daniels Public Interest Law Fellowship in 2008.

Legislative Post-Session Discussion in Harrisonburg

Chamber Post-Legislative Breakfast 2019On April 8, our Harrisonburg partner Jared Burden will join in sponsoring the Harrisonburg-Rockingham Chamber of Commerce and Shenandoah Valley Technology Council’s Post Legislative Breakfast with legislators and business leaders discussing the laws, budget actions and plans made at the recent General Assembly session. The discussion starts at 7:30 a.m. and we hope, if you’re interested, you’ll register with the Chamber here.

If you have questions about the event, contact the Chamber. If you want to know more about our Harrisonburg practices or need to discuss a legal issue, just get in touch with Jared, or any of our business lawyers.