Alternative Dispute Resolution During the Pandemic

Have a dispute that needs resolution? Call Dan Voelker, mediation services lawyer, at (312) 870-5430 - IL Super Lawyer for Commercial Litigation and Mediation.Notwithstanding the fact that many Courts around the country are closed indefinitely, there are still a steady stream of disputes that need resolution. In addition to the closure of courts, with current social distancing guidelines in place, it is difficult, to say the least, to effectively communicate and even attempt to resolve a dispute. Jury trials have been postponed indefinitely and judges are reluctant to conduct lengthy evidentiary hearings until the virus is under control or eliminated.

Mediation is an alternative

But there are effective methods of alternative dispute resolution that are available to the litigant under the current circumstances. One such method is known as mediation. Mediations, in contrast to arbitrations, are voluntary and the goal is to arrive at a mutually acceptable solution. This is a process where the parties in a dispute agree to allow a neutral third-party to assist them in arriving at a solution to the problem. The mediator is usually a lawyer with experience in the area of the dispute. This might be a familiarity with the applicable law and/or the industry at issue. The most important attribute of the mediator is that he or she be someone the parties and their attorneys respect.

How mediation works

Once selected, the mediator can arrange to hear the given matter in a fashion that protects the health and safety of the participants. Hearings can be held informally and virtually by computer. The process is much less costly than litigation, and eliminates appeals and issues with collection. The results are swift and must be arrived at with the agreement of the parties. This is a process that is well-suited for the unique environment that the pandemic has thrust us into currently.

Have a dispute that needs resolution?

Dan has been selected as an Illinois Super Lawyer in the areas of Commercial Litigation and Mediation for several years running.

For your mediation needs, contact Daniel J. Voelker and the Voelker Litigation Group at (312) 870-5430.

 

Trade Secrets and Proprietary Information Are at Risk As a Result of the Pandemic

Trade Secrets and Proprietary Information Are at Risk As a Result of the Pandemic. Call Voelker Litigation Group at (312) 870-5430.One significant concern to businesses is the risk of inadvertent disclosure of their trade secrets and proprietary information in the wake of the pandemic. When they say that we are currently operating in uncharted waters, this is no understatement. What were once heavily-guarded trade secrets and proprietary information are now spread across the kitchen table and being communicated via unsafe internet connections. This risk of hacking and actual disclosure of the same is significant.

Safeguard breakdowns lead to protection lapses

Under the law in most jurisdictions, the protection afforded to trade secrets and proprietary information is a function of the safeguards the employer asserts over the protected information. This includes the manner in which the information is gathered, stored, accessed, used, shared and otherwise guarded.  Once the safeguards begin to breakdown, so too do the protections granted to the information under the law. Lapses in the exercise of the safeguards will give your competitor a defense to your claim in the event that a dispute arises over the use and ownership of such information.

Non-standard employee severances can leave employers at risk

Additionally, as a result of financial hardship, employees are being severed from their employment in a sometimes less than normal manner, leaving the trade secrets and proprietary information of the business more vulnerable than in the usual setting where exit interviews, references and severance payments are discussed and agreed-upon. This creates an opportunity for carefully-guarded trade secrets to be shared in another setting by your ex-employee with your competitors. The employer should reinforce to human resources the need to continue to conduct exit interviews and related separation activities at least virtually until face-to-face discussions may resume safely, and to, therein, stress to the departing employee the importance of protecting the sanctity of the trade secrets and proprietary information of the business.

For assistance in protecting your trade secrets and proprietary information contact Daniel J. Voelker of the Voelker Litigation Group, at 312-870-5430.

 

Employer Liability for COVID-19 Transmission: Yay or Nay?

The SARS CoV-2 coronavirus causes COVID-19 disease.

The SARS CoV-2 coronavirus causes COVID-19 disease.

In the current environment, employers are biting their nails in fear of liability claims from their employees who contract COVID-19 in the workplace. Is this a risk? While no appellate court, much less a trial court, has yet to decide this issue, the answer is most likely negative.

Follow CDC and OSHA Guidelines

This, of course, presumes that, as employer, you maintain proper social distancing within the employee ranks, require protective masks and clothing, as the case may be, and follow generally accepted guidelines issued by the CDC and OSHA.

Company Policy on Illness

This outcome is also contingent upon, among other things, close scrutiny of the health of your workforce and an open policy that permits employees to bow out of the work place at the first symptom of an illness without fear of reprisal or demotion.

Deviating from Protocols Could Result in Devastating Liability

On the other hand, employers who allow non-essential workers to go back to work prematurely or to break social distancing guidelines, will surely face suits from sick employees and their families.  Given the harsh realities of the virus and its relatively high mortality rate, deviating from the protocols set out by the regulatory authorities and social norms could result in devastating liability to the employer. As some intentional conduct is not covered by insurance, the risk of a break-the-company verdict is a real concern as well.

In sum, employers whom exercise good judgment and put the health of their workforce ahead of profits will have little risk of liability. Those that do not, face an almost certain risk of suit and a potentially large damage award.

Have questions about employee liability claims?

Call Dan Voelker at (312) 870-5430.

 

Business Interruption Insurance: Savior or Sorrow?

While it may be difficult to imagine a policy that does not provide coverage for an interruption in revenue caused by a pandemic or the like, many policies have exclusions for the same.

While it may be difficult to imagine a policy that does not provide coverage for an interruption in revenue caused by a pandemic or the like, many policies have exclusions for the same.

Under the current circumstances, business interruption is an on-going reality. Until state and local governments allow businesses to reopen, loss of business and revenue will continue to grow. At the same time, many expenses continue to accrue and must be paid.

The issue as it relates to business interruption insurance, though, is whether or not you have a policy of insurance and whether or not there is coverage available to you. The question invariably comes down to the precise language of your policy of insurance. While it may be difficult to imagine a policy that does not provide coverage for an interruption in revenue caused by a pandemic or the like, many policies have exclusions for the same. Of course, under the applicable law, the language of the policy will be construed in favor of the insured (or policyholder) and against the insurer (or insurance company). A careful review of your policies is a prerequisite to a considered approach to making a claim for lost revenue.

Assuming there is coverage, the next issue will be to determine what losses in business and revenue are recoverable under the policy. While the insured will certainly want to compare the revenue/profit he was making before the catastrophic event with his business/profit revenue after the event, the insurer may argue that this is not the proper analysis. Instead, the insurer may estimate the business the insured would have done had the state and local governments not ordered a shutdown in order to use this figure as the more appropriate measure of the claim. This will, no doubt, be a matter of contention and a strong negotiation will be a must.

Daniel J. Voelker, who is both an experienced litigator and a C.P.A., can help guide you through both phases of the analysis referenced above.

Do you need help with business interruption insurance?

Call Dan Voelker at (312) 870-5430.

 

Force Majeure is the Term Du Jour!

The SARS CoV-2 coronavirus causes COVID-19 disease.

The SARS CoV-2 coronavirus causes COVID-19 disease.

A force majeure clause in a contract relieves the parties from performing their contractual obligations. Many contracts contain such a provision. Given our current environment of local, state, national and global emergencies as a result of COVID-19, this long-forgotten provision may provide a salvation for a party unable to perform through no fault of her own.

Force majeure provisions are frequently drafted to include valid excuses for non-performance in the event of, among other things, a hurricane, tornado, medical epidemic, labor unrest, acts of war or “acts of God.” Such provisions are generally narrowly-construed, meaning that only a listed event will act as a valid excuse from performance.

In the absence of a force majeure provision, the age-old common-law defenses of “impossibility of performance,” “frustration of purpose” or “impracticability” may provide a defense. These defenses are, however, more difficult to sustain and prove.

A carefully worded force majeure clause is an important tool in drafting a contract under the current circumstances. Taking appropriate precautions at the outset of a contractual relationship will give you the safety, security and flexibility you need in today’s unsettling and unknown environment.

 

Do you have a business problem caused by a force of nature or other events outside your control? Talk to a commercial lawyer who is knowledgeable about force majeure.

Call (312) 870-5430.