The “new normal” has become a household phrase, not only because we are all stuck working from home, but because it seeks to identify the ways in which we work, interact, and conduct business in the middle of a global pandemic. But what will the “next normal” look like? What will be the impact of the legal and operational decisions that are made now, in the middle of this crisis? What should we expect in the next normal?
The post-COVID-19 world for many companies, particularly in the short term, will necessarily focus on productivity and value. Legal departments will be asked to do more with less − to find ways, via technology, forward-thinking and prioritization, to manage enterprise risk and legal needs more effectively and efficiently. At the same time, the human and economic impacts of COVID-19 are creating novel legal work beyond the ordinary course. The ability to anticipate the consequences of these issues, and to start thinking now about solutions, will be critically important to mitigating future risks and paving a way out of this economic deep freeze.
Based on an informal survey of some of the largest companies and most influential global business leaders, here are some of the issues that are front of mind as we look forward to the next normal:
- Investment opportunities – The economic disruption we are experiencing will result in significant investment opportunities for virtually all asset classes. Some examples include take-private transactions, sale-leaseback opportunities and distressed debt. There also is a lot of investment capital (so-called dry powder) in the market, and several firms already have announced their intention to be buyers. Early stages of this crisis will be marked by Section 363 sales as sponsors look to sell underperforming private equity companies. And Congress is considering a $1 trillion infrastructure expenditure, which will open up investment opportunities in technology, health, airports, water and waste water facilities.
- Investigations – As the current crisis subsides, there will be allegations of abuse or non-compliance across industries. Federal and state authorities will be forced to actively investigate abuses, fraud and other misconduct. Companies must be vigilant in their compliance efforts, but be prepared to defend their conduct once the investigations start.
- Taxation – The federal government’s emergency measures during this pandemic are likely to add $5 to $10 trillion to a national debt that was already nearly $25 trillion. Add to this a potential rise in interest rates and the enormous pressure to pay down the debt. The government will likely respond through changes to the current system and/or by adding a federal VAT or national sales tax. States also will feel the heat to raise taxes. Proactive tax planning, including scenario planning, now, will be critical.
- Privacy, security and information sharing – Companies will have to face a number of information-related issues in the aftermath of this crisis. First and foremost will be how privacy impacts the public and private sector’s ability to track the virus as it inevitability reappears. Companies also will face increasing security threats as criminals attempt to take advantage of the crisis. Apart from privacy, companies will also need to create strategies to share information among themselves, as well as with the public sector. Security issues will also be critical as the supply chain inevitably changes.
- Supply chain and the US onshore movement – This pandemic has brought renewed focus on the source of the American supply chain. Policymakers will challenge the notions of lean manufacturing, offshoring and outsourcing. Most vulnerable will be companies that rely heavily on China for parts and materials. Proposals already in play would require certain products in the medical supply chain to be produced in the US and would create federally backed low-interest financing or tax breaks for capital expenditures that would bring jobs onshore. Finally, expect to see US counter-measures aimed at slowing China’s global growth.
- The next generation board room – The pandemic is the latest threat fueling the potential for deglobalization, nationalist movements and major shifts in global supply chains and the global economy as we know it. This perfect storm likely will accelerate the adoption of digital strategies (ie, digital transformation) to counter these threats and remain competitive in this time of crisis as well as shine a new light on corporate resiliency practices. Directors and officers will face increasing pressures from shareholders, investors and the markets generally to shore up their defenses and prepare for the next normal.
- Legislative support – As occurred after 9/11, Congress is considering prospective measures to protect businesses that suffer losses due to the pandemic. States are looking at similar legislation. These measures are being considered while litigation over the insurability of such damages is ramping up. It will be critical for companies to closely monitor developments in this important area. Being proactive in monitoring, proposing and advocating for or against legislation that will materially impact the business will be critical.
- Post-COVID-19 health check – Many companies are making critical operational and legal decisions that often are reactive to a crisis that they did not expect. Many of these decisions, while appropriate in the midst of a global pandemic, may not be in the long-term best interest of the company. Operations, legal and compliance should be planning now to perform a post-COVID-19 health check of the business. There will certainly be changes to how legal and compliance, in particular, work going forward.
- Litigation – Many studies are predicting that post-COVID-19 litigation will explode for companies, whether it is commercial contract disputes, insurance coverage, product liability/negligence or securities and consumer class actions. Each company should evaluate its potential litigation risk by looking both at its own risk portfolio and across its industry, as well as looking backwards to litigation spikes following other crises. Bucketing different types of litigation and identifying law firms now to get up to speed and prepare for coming litigation will save money and reduce risk later.
Being prepared for the next normal will require vigilance, creativity, imagination and hard work. The ability to anticipate and plan for issues that will most directly affect your business will be what separates those businesses that survive this crisis from those that don’t.