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For most trade associations and professional societies, the coronavirus pandemic has resulted in major reductions in member’s revenues. With retail stores closed and professional practices dependent on virtual meetings between professionals and clients/patients, non-essential industries and professions experienced devastating decreases in revenue. Now that the economy is reopening, members of trade associations and professional societies are asking how they can, individually and collectively, maximize opportunities to regenerate revenue. Trade associations and professional societies are being asked to provide information on raw material availability, government support programs, coronavirus-related safety issues, insurance questions, employee relations, telecommuting as a way of life, and more.

The issues raised are mostly unique to the profession or industry. Some of the discussions are private, while others – such as debates involving if and when to open professional sports leagues – are reported on a daily basis by the media. These information exchanges and discussions are of great assistance in propelling our economy forward, but also pose an antitrust risk. If the information exchanges or discussions result in an agreement, direct or indirect, which unreasonably restrains trade, you have a potential antitrust violation. If the agreement involves price fixing, customer allocation, bid rigging, territorial allocation or certain types of boycotts, all potential per se antitrust violations, those who participate in the agreement (including trade association executives who facilitate the discussions) may be charged with a felony, which carries a statutory maximum penalty of 10 years in prison and a $1 million dollar fine. The maximum fine may be increased to twice the gain derived from the crime or twice the loss suffered by the victims if either amount is greater than $1 million dollars.

Trade associations and professional societies should have antitrust counsel review the agendas of all meetings that involve discussions of sensitive antitrust issues. The FTC and the Department of Justice have offered to provided trade associations and professional societies with expedited advisory opinions or business review letters as to whether contemplated action will be challenged by the government as an antitrust violation.

The cost of violating the antitrust laws is compounded by the fact that plaintiffs injured by antitrust violations can file class action law suits. If successful, a class of plaintiffs will be entitled to recover actual damages multiplied by three, plus reasonable attorney fees and costs of litigation.

If an association executive or member feels that any subjects scheduled for discussion at an association meeting or raised during such a discussion present antitrust issues, counsel should be consulted before the discussion is held.

For further information, contact Steven John Fellman (sfellman@gkglaw.com) or Rich Bar (rbar@gkglaw.com).

The coronavirus (COVID-19) pandemic has disrupted business operations on a world-wide scale. As a result, many businesses have looked to government loans and aid to help offset their losses. It is important to remember, however, that business insurance policies also may cover some of your company’s losses depending on the language of your insurance policy and the law in your jurisdiction. Indeed, while some business owners (and most insurers) assume that business interruption coverage does not apply in the absence of direct physical harm to your premises, this assumption may not be well founded.

Does Your Policy Include Business Interruption Insurance?

Business interruption insurance is intended to compensate policyholders for loss of income caused by certain damaging events that require your company to vacate insured property. The scope of business interruption coverage varies widely between policies, but often requires the policyholder to demonstrate direct physical loss or damage to insured property. If you have business interruption insurance, it is important to identify what types of events are explicitly covered or excluded from the policy.

While some business interruption insurance policies may only require that the policyholder demonstrate direct physical loss or damage to the premises, other policies may limit business interruption coverage to loss or damage resulting from covered events, such as fires. Policyholders should review their business interruption coverage to determine how it fits into the broader insurance policy. For example, your policy (or the underlying property insurance) may cover infectious diseases, government mandates, or even your supply chain (through contingent or dependent property insurance).

Infectious Disease Coverage

Your policy may include infectious disease coverage and could cover business interruption caused by COVID-19. While many insurers may be updating their infectious disease coverage to expressly exclude the coronavirus, pre-existing policies from 2019 may not include this carve-out.

“Civil Authority” Clauses

Civil Authority coverage is intended to apply to situations where government mandates prevent the use of property. For example, Civil Authority insurance often covers business interruption where the government prevents the policyholder from using its facility because a nearby or adjacent property was damaged in a fire or natural disaster. Accordingly, while the state-wide coronavirus lockdowns would likely meet a policy’s definition of a government mandate, the more contentious question for courts may be whether pandemic contamination constitutes a direct physical loss to property (somewhere) that triggers coverage.

Contingent or Dependent Property Insurance?

Contingent or dependent property insurance can cover business interruption resulting from issues in your supply chain. Like standard business interruption coverage, policyholders will likely need to demonstrate some type of physical damage or loss to property somewhere in the supply chain.

How Courts Interpret “Direct Physical Loss or Damage”

Not surprisingly, businesses and insurance companies are currently evaluating to what extent the COVID-19 pandemic or facility contamination may constitute or cause direct physical loss. If it does, companies may have multiple paths for compensation under business interruption, civil authority, or contingent property insurance. Some courts (prior to the coronavirus pandemic) have held that direct physical loss requires damage to the insured’s premises. Courts in other jurisdictions, however, have not construed the language so narrowly. Further, although different jurisdictions have interpreted the scope of direct physical loss differently, the unprecedented circumstances of the coronavirus pandemic may re-open the question for many courts seeking to determine the scope of the applicable coverage.

As noted above, a number of courts have held that direct physical loss can exist without actual destruction or structural damage to property. For example, courts have found direct physical loss in situations where facilities become unusable as a result of contamination by a substance that is harmful to workers (e.g., lead, asbestos, sulfur gas) even where the substance does not harm the property itself. Depending on the pandemic’s effect on your company, you may have grounds to argue that your facility, nearby property, or property in your supply chain was contaminated by the coronavirus.

These issues are currently being examined by businesses, insurance companies, and courts across the country. Some jurisdictions may also answer this question through legislation. For example, legislatures in Louisiana, Massachusetts, New Jersey, New York, Ohio, Pennsylvania, and South Carolina are considering legislation expressly providing that business interruption insurance covers losses attributable to the coronavirus pandemic and associated government mandates.

If you have any questions regarding business interruption or related insurance coverage for losses suffered during the coronavirus pandemic, please contact Brendan Collins (bcollins@gkglaw.com / 202.342.6793) or Oliver Krischik (okrischik@gkglaw.com / 202.342.5266).