In United States Patent & Trademark Office v. Booking.com B. V.,[1] SCOTUS held that a mark styled as “generic.com” is eligible for federal trademark registration if the applicant shows  “generic.com” is not a generic name to consumers. Although the Court did not expressly say so, this decision chips away at the rule that generic terms cannot become protectable marks.[2]

A travel-reservation agency known as “Booking.com” sought to register a trademark for its website of the same name with the United States Patent and Trademark Office (“PTO”). The PTO denied the registration concluding that the term “Booking.com” is a generic name, a name of a class of products or services instead of a specific brand. So, BOOKING.COM was ineligible for federal trademark registration.

According to the PTO, “booking” was a generic term for online hotel-reservations, and the combination of generic term with “.com” did not overcome this finding.[3] Booking.com sought judicial review, and the District Court determined that BOOKING.COM—unlike the term “booking” standing alone—is not generic. The Court of Appeals affirmed and the PTO sought review with SCOTUS.

The 8–1 majority opinion plays out a clash between two principles of trademark law: the ability to distinguish one’s goods from another’s based on consumer recognition and the need to leave generic terms in the public domain.[4]

The PTO relied on the principle articulated in Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598 (1888), which stated that a generic term followed by word “company” is not trademark-eligible. But the majority opinion distinguished the prior ban on generic terms by noting that that the mark “generic.com” implies a specific website domain that is only occupied by one entity at a time. So, if the public perceives “generic.com” as a specific brand name—which, in the case of BOOKING.COM, consumer surveys indicate it does—the term acquires the descriptiveness needed for federal trademark registration.[5]

Although the majority noted that marks like BOOKINGS.COM would be “weak” marks that would necessarily be difficult to enforce in court, Justice Breyer, the lone dissenter, urged that the majority underestimated the anticompetitive effects of the holding. According to Justice Breyer, “[t]erms that merely convey the nature of the producer’s business should remain free for all to use.”[6]

With this decision, SCOTUS has decisively expanded the availability of federal registration for domain names containing generic terms. This relaxing of the sweeping anti-generic rule may indicate an uptick in trademark registrations for historically generic terms (as long as they include “.com”).

The author wishes to thank their law clerk, Joseph Balhoff, for their assistance in preparing this article. 

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[1] The opinion is available at: https://d2qwohl8lx5mh1.cloudfront.net/5OsQDpOQ2dJ63nh0n-PMog/content.

[2] See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976).

[3] United States Patent & Trademark Office v. Booking.com B. V., No. 19-46, 2020 WL 3518365, at *2 (U.S. June 30, 2020).

[4] Id. at *9 (Breyer, J., dissenting).

[5] Id.

[6] Id. at *9 (citing Goodyear, 128 U.S. at 603).

The COVID-19 pandemic has forced a technological revolution, with many companies switching their workforce to remote solutions for the first time and now recalling those same workers back to offices as cities move to reopen. While working remotely has had significant benefits, it has also presented new and different risks to company data security. Now as some employees are returning to the office (though others remain at home), this transition also presents challenges.  Some of the most basic things to consider include:

  • Do your employees work from their own personal devices?
  • Are your employees or contractors using public Wi-Fi to connect to your business network?
  • Are your employees or contractors storing work data on their cell phones, iPads, USB sticks, and other personal devices?
  • Are your employees or contractors using their personal e-mail accounts to transfer business documents to themselves and others?
  • Does your business have corporate policies in place regarding telework?
  • Does your business provide adequate data security training to your employees?

Remote work presents significant opportunity for bad actors to attack unsecured systems. Employees working from home are more likely to make mistakes, click on email links that they should not, and be more relaxed about data-security and privacy issues. We have previously written about measures that companies can take to protect themselves from cyber-security threats while employees work from home,[1] but if the worst should happen, cyber insurance can ease the burden associated with a data breach.

1.What is cyber insurance?

Cyber insurance policies generally provide a mixture of first-party and third-party coverages.  First-party coverages protect an insured for loss to the insured’s own property; whereas, third-party coverages protect an insured for losses sustained as a result of demands and/or lawsuits made by third-parties.  One of the most important forms of cyber insurance coverage protects your business from liability for data breaches involving individual personal information. Individual personal information typically includes Social Security numbers, credit card numbers, passport numbers, driver’s license numbers, user names, passwords, health records, and other information protected from disclosure by state and/or federal law. The Ponemon Institute estimates that the average cost of a data breach in the United State is $242 per lost record.[2] These costs include direct costs like computer forensics, attorney fees, notification to affected persons, and credit monitoring services, as well as indirect costs from lost business, business interruption, and reputational damage.  Therefore, cyber insurance can be extremely valuable in the event of a data breach.

2.What is typically covered by cyber insurance?

It depends on the policy that you buy and the specific terms of that policy. Unlike automotive insurance, which is fairly standard and has form policies that have existed for many years, cyber insurance is currently far from uniform. There are many different forms of cyber insurance and coverage “enhancements” available in the insurance marketplace.  Therefore, there is no “one-size-fits-all approach” to buying cyber insurance and it is wise to consult an experienced broker or lawyer and purchase a policy that best suits your company’s risks. Depending on the policy you select, common coverages can include the following:

  • Data breach investigation costs, including computer forensics experts and attorney fees associated with investigating and repairing the damage from the breach.
  • Business losses caused by business downtime, business interruption, data loss recovery, and reputational damage.
  • Notification costs and costs of providing free credit monitoring to individuals who were affected by the data breach.
  • IT system failures and data destruction.
  • Money paid in response to extortion (i.e., a ransomware attack) and brokerage fees for the purchase and transfer of bitcoin.
  • Legal expenses for attorney guidance in responding to a breach, as well as litigation expenses associated with the release of confidential information or intellectual property, shareholder suits, suits by affected individuals, regulatory investigations, and other legal expenses.

3.I have Commercial General Liability (“CGL”) insurance policy already. Isn’t that enough?

 Trying to find coverage for the consequences of a cyber incident under a CGL policy is a huge gamble.  Many CGL policies expressly exclude cyber liabilities from coverage, and a number of courts have found that CGL policies do not cover cyber incidents. Therefore, you should not rely on your CGL policy for cyber coverage.  Instead, it is best to talk to your insurance broker or an experienced attorney who can review your policy and identify the scope of your coverage.

4.I’m not a Fortune 500 company. Do I really need this?

 Like most insurance, you’re buying peace of mind that you will hopefully never have to use. Unfortunately, the number of cyber incidents continues to rise each year and hackers are becoming more sophisticated. Hackers target big and small companies alike, with approximately 43% of cyber-attacks aimed at small businesses.[3] Smaller companies are often considered an “easy target” because they are less likely to have a sophisticated security infrastructure, are less likely to have data backups, and are more likely to pay ransomware demands.

5.I have a robust, state of the art IT security system. Shouldn’t that be enough?

Strong IT security systems can certainly help, but they are not invincible. Significant time, money, and effort are expended by hackers to crack these “ironclad” systems, and they have moments of success in those efforts. Much of data security is reactionary, meaning that systems are built up and made secure only after a hacker has found a vulnerability that can be exploited.

Further, while a healthy IT department and resources provide safeguards, they do not remove the risks associated with human error. More than half of all data incidents are caused by human mistakes, like clicking on links in phishing emails or providing confidential information in response to a phishing email request. There are also employees who intentionally send out confidential information to unauthorized persons because they are disgruntled or have been offered money to do so. A robust IT system also cannot guard against all physical breaches, such as theft and accidental loss of equipment. Therefore, your IT infrastructure likely will not protect you from all types of breaches.

6.Okay, fine, you convinced me. Anything else I should know?

 When a data incident is discovered or suspected, it is critical to act quickly and competently. Privacy attorneys can help guide the process, and retaining a privacy attorney increases your chances of cloaking the most sensitive areas of your investigation under a privilege. If you would prefer to work with your current law firm and have those attorney’s fees covered by insurance, a streamlined way to set up that arrangement is through an endorsement to choose your own counsel. Negotiation of that endorsement would happen before you buy the policy. Note that the insurance provider is unlikely to agree to the endorsement unless the preferred attorney is experienced in data privacy law and breach management.

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[1] Jessica Engler, “Cybersecurity Considerations for an Increasingly Remote Workforce”, Louisiana Law Blog, Kean Miller LLP (Apr. 6, 2020) (https://www.louisianalawblog.com/covid-19/cybersecurity-considerations-for-an-increasingly-remote-workforce/).

[2] “2019 Cost of a Data Breach Report”, IBM.com (https://www.ibm.com/security/data-breach)

[3] Scott Steinberg, “Cyberattacks now cost companies $200,000 on average, putting many out of business”, CNBC (Oct. 13, 2019) (https://www.cnbc.com/2019/10/13/cyberattacks-cost-small-companies-200k-putting-many-out-of-business.html).

Every few weeks, another news outlet reports that a wave of energy-related bankruptcy cases is on the way.  See links below if you need some examples.[1]  A recent decision in the Alta Mesa bankruptcy case about pipeline contracts has some important lessons for producers and midstream companies evaluating how future bankruptcy cases may affect their costs and revenue.

Alta Mesa Holdings, LP filed an adversary proceeding against one of its major midstream partners, Kingfisher Midstream, LLC, seeking a declaratory judgment that two gas gathering agreements between the parties did not run with the land and could be rejected as executory contracts under Section 365 of the Bankruptcy Code.  The agreements at issue obligated Kingfisher to build a gas gathering system linking certain of Alta Mesa’s wells in Oklahoma to a central collect point, and obligated Alta Mesa to deliver its hydrocarbons (up to a certain threshold) to Kingfisher. Alta Mesa wanted to reject those contracts as part of its bankruptcy case.

The Bankruptcy Code provides that a debtor in bankruptcy can reject executory contracts, but cannot reject a real property covenant that runs with the land.  For an agreement to be a classified as a real property covenant under Oklahoma law, three factors must be met: (1) the covenant must “touch and concern” real property, (2) there must be privity of estate, and (3) the original parties to the covenant must have intended to bind their successors.  United States Bankruptcy Judge Marvin Isgur determined that the pipeline agreements were real property covenants because they concerned real property in Oklahoma by burdening and benefitting Alta Mesa’s lease interests; there was privity of estate because the agreements conveyed an easement to Kingfisher to construct and maintain the gas gathering system; and the agreements evidenced an intent to bind the parties’ successors by identifying the agreement as one “running with the land” and requiring recordation.

In coming to its conclusion, the court distinguished a New York Bankruptcy case (Sabine Oil & Gas Corp. v. HPIP Gonzales Holdings, LLC (In re Sabine Oil & Gas Corp., 550 B.R. 59 (Bankr. S.D.N.Y. 2016))), which held that gas gathering agreements did not form real property covenants under Texas law.  Both Texas and Oklahoma law require the same elements to form a real property covenant. However, the Sabine Court found that the agreements did not touch and concern real property and that parties lacked privity of estate, two of the essential elements to a real property covenant. The Sabine Court found it particularly important that there was no privity because surface and mineral rights are severable under Texas law.  The lack of a real property covenant allowed the gas gathering agreements in Sabine to be rejected.

Judge Isgur’s decision in Alta Mesa, and the decision in Sabine that reached a different result, will be cited repeatedly in 2020 and 2021.  Just last week, Chesapeake Energy Corp. filed for Chapter 11 protection, and one of its first motions asks the Bankruptcy Court to approve its request to reject roughly $311 million in pipeline contracts.[2]  Whether those contracts are classified as “executory contracts” that can be rejected, or “real property covenants” that cannot be rejected, will have a major impact on Chesapeake, its midstream counterparties, and its other creditors.

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[1] https://www.latimes.com/business/story/2020-05-25/shale-bankruptcies-demand-coronavirus

https://www.startribune.com/another-wave-of-megabankruptcies-is-coming-experts-say/571381212/

https://www.cnbc.com/2020/06/22/shale-industry-will-be-rocked-by-300-billion-in-losses-and-a-wave-of-bankruptcies-deloitte-says.html

[2] https://pgjonline.com/news/2020/06-june/chesapeake-asks-to-cancel-pipeline-contracts-amid-bankruptcy-filing

 

On June 15, 2020, the Supreme Court of the United States issued a landmark decision in Bostock v. Clayton County, Georgia, holding that an employer who fires an individual based on the individual’s sexual orientation or gender identity violates the express terms of Title VII of the Civil Rights Act of 1964 (“Title VII”), which makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…sex.” In holding that Title VII’s prohibition on sex discrimination applies to sexual orientation and gender identity, Justice Neil Gorsuch, writing for the majority, explains: “An employer who fires an individual for being [gay] or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

In Bostock, the Court considered three cases in which an employer fired a long-time employee shortly after the employee revealed his or her sexual orientation or gender identity. Gerald Bostock was employed with Clayton County, Georgia as a child welfare advocate for nearly a decade. Despite Mr. Bostock’s role in leading Clayton County to national awards for its child advocacy work, the county fired Mr. Bostock for conduct “unbecoming” a county employee after he began participating in a gay softball league.  Donald Zarda worked for several seasons as a skydiving instructor at his company but was fired by his employer within days after mentioning that he was gay. Aimee Stephens, who originally presented to her employer as male, wrote a letter to her employer in her sixth year of employment explaining that upon her return to work from a scheduled vacation she intended to “live and work full-time as a woman.” Her employer fired her before she left for vacation, telling her “this is not going to work out.”

The Court’s decision in Bostock expands workplace discrimination protections to LGBTQ employees under Title VII of the Civil Rights Act of 1964. Employers that have not already done so should update their policies accordingly.

The Louisiana Governor has issued a proclamation that permits Louisiana to move to Phase 2, effective June 5, 2020. Restaurants and bars with food permits issued by the Louisiana Department of Health may open at 50% of its State Fire Marshal maximum capacity (including employees in the capacity count), an increase over 25% permitted in Phase 1. Restaurants may select any of three options for seating arrangements, which seating arrangements are identified as “active monitoring”, “partitioning tables”, and “strict social distancing”.  “Active monitoring” allows for a restaurant to provide for 6′ of distance between persons or tables at all times, but requires additional measures including non-contact temperature checks of customers and the posting of signage notifying patrons that they may not enter if they have COVID-19 symptoms. “Partitioning tables” requires the installation of 6′ high partitions between ALL tables or seating arrangements. The “strict social distancing” guideline is similar to the Phase 1 requirements: a minimum of 6′ of distance must be maintained between customers and adjoining tables where customers are seated on all sides require 10′ of space between tables. Booths may be used with partitions that exceed the height of an average person’s head when seated.  Customer waiting areas or other areas where customers tend to congregate must remain closed.

Bars without food service permits may open at 25% capacity with similar restrictions as restaurants.  According to the State Fire Marshal, bars may allow some standing-room, but most patrons should be seated and customers should not be “mingling” or standing around in non-household groups, but the Louisiana Office of Alcohol and Tobacco Control has advised that all customers are required to remain seated at tables and no congregate in open areas. Non-contact bar games, such as pool, darts, or corn holing, are permitted so long as social distancing is observed.

Businesses with liquor licenses may continue to offer inside and outside table service of food and alcoholic beverages. (Check with your local government to find out if a sidewalk permit is needed.) Additionally, businesses with liquor licenses may continue to offer curbside or to-go services of food and sealed containers of beer and wine, and frozen specialty drinks.  The sale of mixed cocktails to go is prohibited.  Alcohol delivery may continue if the business has received a delivery permit issued by the Louisiana Office of Alcohol and Tobacco Control.

As a reminder, for all restaurants and bars, any employees that interact with customers must wear a covering over their nose and mouth.

Self-service buffets and service stations are still prohibited under Phase 2.  Additionally, kitchen and employee area workspaces must continue to keep a 6′ distance between employees.  Indoor live entertainment (except DJs) is still prohibited. Outdoor entertainment must allow for 6′ minimum distancing between customers and a 2′ aisle between the band and the customers. There is no dancing permitted indoors or outdoors.

The New Orleans Mayor has indicated that to the extent that the restrictions in her proclamations are more restrictive than Governor Edwards’ proclamation, New Orleans businesses and residents must abide by the Mayor’s proclamations.  The Mayor has not indicated when the current Phase 1 restrictions will expire or indicated what could be required in Phase 2.

The coronavirus continues to adversely impact so many, and the court systems across the country are adapting in kind.  Accordingly, the Louisiana Supreme Court has issued orders over the last several weeks to help the court system navigate through these challenging times.  Recently, Louisiana’s Governor, in Proclamation JBE 2020-58, lifted the Stay-at Home Order and modified the emergency provisions in consideration of the ongoing pandemic. In Proclamation JBE 2020-59, the Governor of Louisiana suspended all legal deadlines until at least June 5, 2020.  Below is a digest of the most up-to-date information regarding courts in Louisiana as of the time of this posting.

On May 15, 2020, the Supreme Court repealed and replaced its April 2020 orders.  No jury trials, civil or criminal, will begin before June 30, 2020, pursuant to the Louisiana Supreme Court’s May 15, 2020 order. In-person proceedings are no longer prohibited, and courts are authorized to conduct in-person proceedings on all matters, except those suspended by executive action by the Governor, including, but not limited to evictions.

Courts must continue to take measures to limit access to courtrooms and other spaces, with absolute minimum physical contact, to practice social distancing and limit in-person court capacity to 25% of the total capacity, as determined by the State Fire Marshall, counting both the number of employees and members of the public present in the building at one time. As this situation is constantly changing, courts are further instructed to follow all guidelines issued by the Center for Disease Control, the President, and the Governor, and to further limit access to courtroom and other spaces to the maximum number of people set forth in any future guideline or official proclamation that may be issued. All matters should be conducted with the use of video and telephone conferencing whenever possible.

Please see below for additional court-specific information.

  1. Louisiana Supreme Court: All filings which were or are due to the Court from March 12, 2020 through June 5, 2020 shall be considered timely if filed no later than June 8, 2020.  Parties who are unable to meet this deadline due to the COVID-19 emergency may submit motion for extensions of time, supported by appropriate documentation and argument.
  2. First Circuit Court of Appeal: The court is open with restricted access. The court encourages electronic filings and mail-in filings.  The court continues to process all filings, and all cases with filed briefs will proceed to docketing and disposition. All deadlines set by the court, in all cases pending before the court, are extended until Friday, June 5, 2020.  All filings due during the period of March 12, 2020 through June 5, 2020 or which become due during this period shall be deemed timely if filed on or before June 8, 2020.  Parties who are unable to file within the extended time may submit a motion and order with supporting documentation and argument requesting reconsideration of timeliness or other such relief.
  3. Second Circuit Court of Appeal: All parties must submit filings via e-filing, mail or fax (fax filings are allowed only with prior notification and authorization from the Clerk of Court during normal court business hours).  The next oral argument is scheduled for June 22-23, 2020, either in person or by videoconference, as directed by the court.  Oral arguments for July 20-21, 2020 have been added to the court’s calendar to take place either in person or by videoconference, as directed by the court.  The period of suspension of legal deadlines ending June 5, 2020 is considered a legal holiday such that pleadings due that day are due within seven days of the resumption of normal court operations (June 12, 2020), except that expedited matters, such as cases governed by Uniform Riles- Courts of Appeal, Rule 5 will be due on or before June 8, 2020.
  4. Third Circuit Court of Appeal:  All deadlines are extended until June 5, 2020. All filings due during the period of March 12, 2020 through June 5, 2020 or which become due during this period shall be deemed timely if filed on or before June 8, 2020. All oral arguments scheduled to take place through April 30, 2020 and May 31, 2020 will be submitted on briefs.  All filings must be submitted by email, U.S. mail, or fax filing.
  5. Fourth Circuit Court of Appeal: The Court will have limited physical accessibility starting on May 18, 2020.  All in-person filings must be deposited pursuant to written instructions in the lobby of the Supreme Court building (400 Royal Street, New Orleans, Louisiana). All oral arguments scheduled to take place through April 30, 2020 are continued unless parties notify the court to have their matters submitted on briefs.  All filings due during the period of March 12, 2020 through June 5, 2020 or which become due during this period shall be deemed timely if filed on or before June 8, 2020.
  6. Fifth Circuit Court of Appeal: The court reopened on Monday, May 18, 2020.  All filing deadlines for the court will be suspended until at least June 5, 2020. All filings otherwise due between March 12, 2020 and June 5, 2020 shall be considered timely if filed on or before June 8, 2020. The court will continue to accept email filings and fax filings as a courtesy until June 30, 2020.  Convenience fees association with eFilings will remain waived as a courtesy until June 26, 2020.
  7. United States Court of Appeals for the Fifth Circuit: In-person oral arguments scheduled in New Orleans for April are cancelled. Parties are advised that the court has suspended until further notice the requirement to file paper copies of electronically filed pleadings and documents. The Clerk’s Office remains open for telephonic, electronic, and mail operations. The Clerk of the Court may direct the parties or counsel to provide paper copies of filings on a case-by-case basis, and at a future date, parties or counsel may be directed to provide paper copies of filings previously submitted electronically. All current deadlines for attorney filers remain in effect, except for those regarding production of paper copies. Extensions with justification may be requested from the Clerk’s Office following normal procedures and rules.  The Court has authorized panels to conduct oral arguments using videoconferencing technology or by means of audioconferencing.  The court will, when feasible, provide real-time public access to the audio-only portion of oral arguments that are conducted using videoconferencing technology or by means of audioconferencing. The Court expects that such access will be feasible for most if not all arguments.
  8. United States District Court, Eastern District of Louisiana: The court building is closed. All civil and criminal jury trials scheduled before or on August 1, 2020 are continued to a date to be reset by each presiding judge. With respect to other matters requiring in-person appearances, including bench trials, hearings, conferences,  or  other proceedings in either civil or criminal matters scheduled before or on August 1, 2020, counsel must contact the presiding judge’s chambers to determine whether and how the matter will proceed. Those continuances do not continue any pending deadlines other than the trial dates. Attorneys should contact the presiding judges in their continued cases if they seek to modify such other deadlines. Litigants may file documents electronically, by U.S. mail, or by facsimile. Due to concerns regarding COVID-19, until August 1, 2020, the Clerk’s Office for the Eastern District of Louisiana will not accept sealed documents on paper for filing. Sealed documents should be submitted by email to the Court.
  9. United States District Court, Middle District of Louisiana:  All civil and criminal (bench and jury) trials are postponed to a date to be determined by the presiding judge on or after June 30, 2020.  This postponement does not affect any other pending deadlines other than the pre-trial conference and trial dates. Parties seeking to modify other deadlines must do so by written motion. All civil evidentiary hearings and other in-court hearings and proceedings requiring personal appearances, on the dockets of the United States District Court and the United States Bankruptcy Court, set before June 30, 2020 are hereby postponed, to be reset by, and at the discretion of, the presiding judge. No in-person filings will be accepted through June 30, 2020 or until further order of this Court. Filings in sealed matters which are required to be filed conventionally (in-person) pursuant to administrative procedures shall be filed by facsimile by sending an electronically signed pleading in PDF format via encrypted or secure email (if available).  Non-sealed pleadings and sealed pleadings that are not required to be filed conventionally pursuant to administrative procedures should not be submitted to this email box and must be submitted for filing through CM/ECF. Electronic filing via the CMECF system will be fully functional and help desk support will be available.
  10. United States District Court, Western District of Louisiana: Public access to the Louisiana Western District Clerk of Court Offices in all divisions is suspended through May 31, 2020. The court is closed to tenants and employees through May 8, 2020 and will reopen on May 11, 2020.  All civil and criminal jury trials scheduled to begin on any date from now through July 1, 2020, are continued, to a date to be reset by each presiding judge. All other hearings, conferences and/or proceedings are subject to the discretion of the individual judge presiding over the proceeding. Any court filings or correspondence may be time-stamped and placed in the drop box located in each division.  Any and all payments made to the Clerk, U. S. District Court for the payment of fines, fees, criminal debt or restitution must be made online via www.pay.gov or paid via money order or check and mailed to any divisional office.
  11. Civil District Court for the Parish of Orleans: The court issued its last order on April 30, 2020, extending the closure of Civil District Court for the Parish of Orleans, First City Court, and Second City Court, until 8:00 AM on Monday, May 18, 2020.  All civil jury trials are suspended until July 1, 2020. All civil hearings scheduled between May 1, 2020 and May 18, 2020 may proceed by video conference via Zoom or Skype platform with the consent of the parties. Additionally, the court’s prior order provides that all civil matters that are set during the closure are continued and will be reset by request or by order of the court, and the parties are instructed to contact the division clerk for further instructions. The court’s order does not prohibit any court proceeding by telephone, video conferencing, or any other means that do not involve in-person contact. And the court’s order does not affect the court’s consideration of matters that can be resolved without in-person proceedings. All judgments rendered by a First and Second City Court or Civil District Court judge during the suspension period will be mailed pursuant to La. C.C.P. article 1913, unless notice is waived, after May 15, 2020. With respect to the Civil Division of the Civil District Court for the Parish of Orleans, you can continue to electronically file (e-file) documents and can fax file documents. Additionally, the Clerk of Civil District Court has offered free subscriptions to the Remote Access system, including civil records and land records, to ensure public access.  Existing subscriptions are being extended. For more information, please visit the Civil District Court for the Parish of Orleans’ website or the Clerk of Civil District Court for the Parish of Orleans’ website
  12. 19th Judicial District Court for the Parish of East Baton Rouge: The 19th Judicial District Court for the Parish of East Baton Rouge issued its last order on April 30, 2020, stating it is closed through the end of the business day on Friday, May 15, 2020. Those with pending criminal cases and civil matters set during this closure will be notified of a new court date. All dockets are cancelled except for emergency and time-sensitive matters as determined by the court that may be held by teleconference or video conference. The court’s order expressly does not prohibit any court proceedings by telephone, video conferencing, or any other means. The East Baton Rouge Parish Clerk of Court’s Office will reopen its operations on Monday, May 18, 2020, and its hours will be 8:00 AM to 4:30 PM, Monday thru Friday. For more information, please visit the 19th Judicial District Court’s website or the East Baton Rouge Parish Clerk of Court’s website.
  13. 15th Judicial District Court for the Parishes of Acadia, Lafayette and Vermilion: As of May 18, 2020, the courthouses in Acadia, Lafayette, and Vermillion parishes are open on a limited basis in accordance with certain “Phase One COVID-19 guidelines,” and will close to the public at 4:00 PM each weekday to allow for additional sanitation measures. All people entering the courthouses must wear a mask or face covering that covers the nose and mouth. Civil hearings should be conducted via video and in scheduled time slots, unless good cause can be shown otherwise. All matters that must be taken up in person shall be done in a manner so as to limit the number of people in a courtroom or hallway to 25% capacity and to allow for 6 feet of distancing between people. Only those with direct business with the court are allowed in the courtrooms, and no one is allowed to go to a judge’s office without an appointment. And as per the April 22, 2020 Order of the Louisiana Supreme Court, no civil or criminal jury trials shall commence prior to June 30, 2020. For more information, please visit the 15th Judicial District Court’s website, the Acadia Parish Clerk of Court’s website, the Lafayette Parish Clerk of Court’s website, or the Vermilion Parish Clerk of Court’s website.
  14. 1st Judicial District Court for the Parish of Caddo: As of May 18, 2020, the prior orders restricting access of the public to the courthouse are lifted, but all those entering the courthouse shall wear a mask covering their nose and mouth at all times unless instructed to remove it by courthouse security or court staff. No courtroom shall be permitted to contain, in the public gallery, more people than 25% of its public seating capacity. The court will strive to accomplish the goal of limited courtroom presence by the use of video, by staggering times for the appearance of litigants, and continuing matters that are not time-sensitive in favor of those that are. The court finds that the current health emergency continues to be a factor for the court’s consideration in what constitutes good grounds for continuance of all matters under Louisiana Civil Code Article 1601 to the extent that any continuance is necessary to comply with these orders. The Clerk of Court is directed that matters may be placed on a court’s docket for consent judgment or confirmation of preliminary default judgments only after the judge’s office has approved the setting. This is to confirm that dockets may comport with the court’s order regarding courtroom occupancy. The Caddo Parish Clerk of Court’s Office is now open from 8:30 AM to 5:00 PM, Monday thru Friday. It is still strongly suggested that persons utilize E-Recording/E-filing/Clerk Connect options due to the fact that admittance to the courthouse will be limited to 25% occupancy. For more information, please visit the Caddo Parish Clerk of Court’s website.
  15. 14th Judicial District Court for the Parish of Calcasieu: As of May 18, 2020, the Calcasieu Parish Clerk of Court’s Office is open from 8:30 AM to 4:00 PM, Monday thru Friday, with limited access and services. The Court issued its last order on May 1, 2020, stating that prior orders of this court continuing all civil hearings are rescinded. Non-jury and non-in-person civil matters may proceed as outlined by the Louisiana Supreme Court’s orders regarding such matters. The following matters remain exempt from those orders: (1) civil protective orders; (2) emergency child custody matters; (3) matters of public health; and (4) matters deemed necessary by the Duty Judge as provided by the Louisiana Supreme Court order. A judge will be available at the courthouse between 8:30 AM to 4:30 PM, Monday thru Friday, to handle such matters. For more information, please visit the 14th Judicial District Court’s website or the Calcasieu Parish Clerk of Court’s website.

For more information about state district courts, parish and city courts not mentioned here, visit the Louisiana Supreme Court website for frequently updated court information.

The Louisiana Governor and State Fire Marshal have issued updated guidelines that take effect on May 15, 2020. As of the time of this post, the New Orleans Mayor has not yet issued her formal proclamation, but references are made to those differences with State law that the Mayor has verbally communicated in press conferences. The following applies to restaurants, bars with Department of Health and Hospitals food permits, cafes and coffee shops:

  • Those businesses may begin dine in service under the following conditions:
    • No exceeding 25% State Fire Marshal occupancy (including employees) (per State Fire Marshal – one person per 60 feet of gross area or 25% of posted State Fire Marshal capacity);
    • Maintain strict social distancing between employees and guests with employees wearing face coverings at all times when interacting with the public;
    • Waiting areas must be closed – guests should be required to make reservations or wait outside maintaining social distancing or in vehicles
    • All buffets or common food stations closed;
  • Businesses are allowed to continue drive-up or curbside delivery services;
  • (New Orleans proclamation will require reservations to be taken where the names and contact numbers of customers must be kept for 21 days for contact tracing purposes)
  • All must follow State Fire Marshal guidance (as of May 15th):
    • When possible, maintain at least 6 feet of separation from other individuals not within the same household.
    • Measures such as face covering, hand hygiene, cough etiquette, cleanliness, and sanitation should be rigorously practiced.
    • Tables shall be arranged such that a minimum of 6 feet of distance between persons seated at other tables is maintained, and more specifically:
      • Tables shall be placed a minimum of 6 feet apart, measured from the table edges, where movement or seating between tables is not necessary;
      • Where movement between tables is necessary, or where one person is seated between tables, the tables shall be spaced a minimum of 8 feet apart from the table edges;
    • Where persons are seated at each table back-to-back, the tables shall be spaced a minimum of 10 feet apart from the edges;
    • Booth seating units can be fully utilized if separated by partitions with a height that exceeds the height of an average seated patron’s head. If not, they are subject to spacing as provide above.
    • No more than 10 persons shall be seated at a single table and such parties should be members of the same household.
  • Kitchen and employee area capacity shall be reduced to allow for 6-foot distancing between employees.
  • Indoor live entertainment is not authorized in this Phase.
  • Customers are required to be seated at tables and not congregating in open areas of the establishment.
  • For outdoor seating::
    • Seating reduced to 25% capacity;
    • Tables 10’ apart;
    • Tables limited to groups of 10 people;
    • Self serve or table service allowed;
    • Outdoor live entertainment with no dancing or standing allowed;
    • For tents (same as above plus):
      • Fire extinguisher within 75’ of any tent area
      • If barriers exist, two remotely located exits
      • Minimum 7’6” ceiling height
    • Staff should check for fever and respiratory symptoms daily
      • Clean and sanitize tables and counters, as well as surfaces that customers touch often, like doorknobs, handles, plates, light switches, countertops, refrigerator and freeze door handles, etc. Follow the CDC guidance for proper cleaning and disinfecting.
      • Clean and disinfect the restrooms regularly.
      • Handwashing is the most important hand hygiene that can be done to stop the spread of COVID-19. Gloves are recommended when handling money but not recommended for other tasks that do not normally require gloves. If gloves are worn:
        • Hands should be washed before putting gloves on and after removing gloves.
        • Gloves should be changed often, changed between tasks, changed when they are obviously soiled, and changed after each interaction with a new individual.
      • Do not touch the customers.

Phase 1 is anticipated to last from Friday, May 15, 2020 to Friday, June 5, 2020. If you have any questions concerning the foregoing, please do not hesitate to contact Jill Gautreaux at (504) 620-3366 or jill.gautreaux@keanmiller.com.

For clients having operations in Louisiana which were affected by the recent Louisiana stay-at-home order (which expired May 14, 2020), the State Fire Marshal has released new phasing plan requirements as Louisiana moves into Phase 1 of reopening.  The link can be found here.  Guidance is broken down as follows:

  • Outdoors sports
  • Business/Organizations
  • Fitness centers/health clubs
  • Libraries
  • Movie theaters
  • Museums/zoos/aquariums
  • Places of worship
  • Restaurants
  • Salons/barber shops

These phasing requirements are in conjunction with Governor John Bel Edwards’ new proclamation found here.

Note that essential (critical) infrastructure businesses are not further restricted by the Fire Marshal’s new guidelines and may continue to operate under existing guidelines (if any) applicable to your business.

Businesses should periodically check for updates.  Those businesses that register with OpenSafely.la.gov should be aware of the fact that the state has announced that it will do periodic compliance checks, and by registering your business, the state has proof that your business was made aware of the requirements.

On May 13, 2020, the USCG published a Notice of Proposed Rulemaking advising of its intent to amend and update the regulations governing financial responsibility for environmental pollution under OPA 90 and CERCLA. Triggering these changes include a desire to close compliance gaps that cause untimely responses to oil spills due to operators failings to timely report certain changes relevant to financial responsibility. The USCG also aims to improve its ability to verify vessel compliance with COFR Regulations. In the USCG’s own words: “These changes are necessary to manage the COFR program more effectively, reduce the burden to the public, and accommodate the frequent changes in vessel operation during the normal course of maritime commerce.” Additional revisions focus on the National Pollution Fund Center’s administration of the COFR program, including a technologically-competent update regarding electronic record keeping. Highlights of the proposed changes include:

  • 33 CFR Part 138, Subpart A: Extending the regulatory requirement to establish and maintain evidence of financial responsibility to any tanker vessel between 100 and 300 gross tons.
    • Expands the population of vessels under 300 gross tons that are required to establish and maintain evidence of financial responsibility under 33 USC 2716, by removing an exception for vessels not engaged in transshipping or lightering.
  • New regulatory text expressly authorizing COFR Operators, guarantors, and agents for service of process to submit signed scanned documents.
  • Permitting COFR Operators submitting Applications or requests for COFR renewal by email or fax to pay COFR Application and certification fees up to 21 days after submission;
    • This method would replace the current rule’s requirement to pay certification fees before the NPFC issues the COFR.
    • Clarifies that Master Certificates do not name any specific vessel, but do state the maximum tonnages for the largest vessel for which the COFR Operator may be responsible.
    • Requires the COFR Operator to include a report with the Application providing information on the vessels covered by the Master Certificate.
    • Add a new requirement that certain Master Certificate application information be updated.
  • Updating and simplifying the provisions that detail how to apply gross tonnage assigned under different measurement systems.
    • This reflects changes in the law since OPA 90’s initial legislation and conforms the regulatory text to the Coast Guard’s “Measurement of Vessels” final rule (81 FR 18701, March 31, 2016), which amended the U.S. Tonnage regulations in 46 CFR part 69;
    • Requires reporting of the gross tonnage measurement system used and submission of a copy of the tonnage certifying document, upon request;
  • Adding new provisions describing the COFR program’s current procedures for determining the acceptability of COFR guarantors.
    • Modifying past technical amendments to implement the Electronic COFR (eCOFR).
    • Removes surety bonds as a specifically mentioned method for establishing and maintaining evidence of financial responsibility, because it falls under the “other method” provision.
    • Formalizes the current NPFC practice of guarantor liability for 30 days following NPFC receipt of notice of cancellation.
    • Describes current practice for establishing and maintaining the acceptability of COFR insurance guarantors;
    • Clarifies the net worth and working capital requirements for financial guarantors to reflect current practice, which requires net worth and working capital to be based on the aggregate total applicable amounts of each vessel owned by one operator.
  • Revises reporting requirements to emphasize prior notices of change that will require a new COFR before the change occurs;
    • Changes that will require issuance of a new COFR include, but are not limited to: a permanent vessel transfer, change of COFR Operator, vessel name change, change in the vessel’s gross tonnage, or termination of guaranty.
  • The proposed revisions also clarify and simplify terminology for consistency with law and COFR business practices.
  • Removes 33 CFR part 135 (OCLSA Fund) and subpart D of 33 CFR Part 153 (311(k) Fund) because OPA 90 repealed the legal authorities for them.

The USCG and OMB will collect public comments on the proposed rulemaking on the Federal Register’s Website, which will be open until August 11, 2020.

The Small Business Administration (“SBA”) issued an update to its “Frequently Asked Questions for Lenders and Borrowers for the Paycheck Protection Program,” adding question #46 and the response, which is recited below.  For PPP loans of less than $2 million, the borrower will be “deemed to have made the required certification concerning the necessity of the loan request in good faith.”  PPP loans greater than $2 million will be subject to SBA review for compliance. If the SBA concludes that “a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request,” it will seek repayment. Importantly, if the loan is repaid in response to such notification, the SBA will not pursue administrative enforcement or referrals to other agencies in regard to the loan necessity certification.

  1. Question: How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request?

Answer: When submitting a PPP application, all borrowers must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” SBA, in consultation with the Department of the Treasury, has determined that the following safe harbor will apply to SBA’s review of PPP loans with respect to this issue: Any borrower that, together with its affiliates,20 received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.

SBA has determined that this safe harbor is appropriate because borrowers with loans below this threshold are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans. This safe harbor will also promote economic certainty as PPP borrowers with more limited resources endeavor to retain and rehire employees. In addition, given the large volume of PPP loans, this approach will enable SBA to conserve its finite audit resources and focus its reviews on larger loans, where the compliance effort may yield higher returns.

Importantly, borrowers with loans greater than $2 million that do not satisfy this safe harbor may still have an adequate basis for making the required good-faith certification, based on their individual circumstances in light of the language of the certification and SBA guidance. SBA has previously stated that all PPP loans in excess of $2 million, and other PPP loans as appropriate, will be subject to review by SBA for compliance with program requirements set forth in the PPP Interim Final Rules and in the Borrower Application Form. If SBA determines in the course of its review that a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request, SBA will seek repayment of the outstanding PPP loan balance and will inform the lender that the borrower is not eligible for loan forgiveness. If the borrower repays the loan after receiving notification from SBA, SBA will not pursue administrative enforcement or referrals to other agencies based on its determination with respect to the certification concerning necessity of the loan request. SBA’s determination concerning the certification regarding the necessity of the loan request will not affect SBA’s loan guarantee.