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Nota Bene Episode 76:The Impact of COVID-19 on Force Majeure Clauses in Business Contracts with Whitney Roy

The world’s commerce has come to a screeching halt in response to the COVID-19 pandemic. As a result, many businesses are finding it difficult or maybe even impossible to perform their obligations under their business contracts. In this episode, we’re framing the various contractual performance issues that are currently implicated as the pandemic continues to impact contractual obligations.

Joining Michael Cohen for this conversation is Whitney Roy. Whitney is a litigation partner in Sheppard Mullin’s Los Angeles office. Whitney was recognized by Law360 as a “Female Powerbroker” and by the Daily Journal as one of the Top 100 Women Lawyers in California in 2014. Whitney has experience in all aspects of California and federal civil procedure through trial. She also defends her clients on appeal when necessary.

What We Discussed in This Episode:

  • What are the various ways contracts are impacted by the coronavirus pandemic?

  • What is force majeure and how does it show up in contracts?

  • Is the current pandemic sufficient to implicate the force majeure clause?

  • For contracts that include force majeure clauses, what is the next step in figuring out what a party’s duties are under the contract?

  • If it’s impossible, impractical, or illegal to perform one’s duties under a contract, can a party simply walk away from their obligations?

  • What can you do to salvage a potentially damaged contractual relationship?

  • If for whatever reason, a party is unable to perform their duties under a contract, what steps must be taken by the party that won’t be able to perform?

  • When is notice of nonperformance necessary?

  • Why is it important for parties to maintain records and documents of all transactions and communications regarding business and contracts?

  • Are force majeure provisions the same in every state?

  • What happens with contracts that don’t include force majeure clauses?

  • What is frustration of purpose and under what circumstances can it be invoked as a defense?

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 104


About this Author

Whitney Jones Roy  Los Angeles Litigator at Sheppard Mullin Law Firm

Ms. Roy specializes in business litigation and complex environmental litigation. Her experience includes representing clients in a variety of business disputes and against claims of fraud, breach of fiduciary duties, breach of contract, unfair business practices, negligence, nuisance and trespass. Ms. Roy has also developed a specialty in litigation relating to products liability, Proposition 65, the Clean Air Act, and CERCLA. She has been involved in insurance litigation and defending class action lawsuits. Ms. Roy's cases have related to a broad spectrum of industries...

 Michael P.A. Cohen Partner DC Antitrust and Competition

Michael is a partner with the Antitrust and International Competition Practice Group in the firm's Washington, D.C. office.

Areas of Practice

Michael began his career as an Assistant Special Prosecutor, investigating and prosecuting organized crime involvement with the failure of local financial institutions in the early 1990s. After his government service, Michael joined the historic Washington, D.C. antitrust firm Howrey & Simon, where in 1996, he became one of the youngest partners in that unique firm’s history. In 2003, Michael joined Heller Ehrman as a partner in Washington, D.C., where he helped develop and grow the firm’s federal government antitrust merger defense practice. When Heller Ehrman ceased operations in 2008, Michael joined Paul Hastings as a partner in its Washington, D.C. office, where he founded, built and chaired that highly regarded firm’s international competition practice group for seven years.