Planning for disruption, and the obligations that continue through it.
Esshaki Legal Media TeamCurrent as of June 2022
A disruption tests contracts, insurance and regulatory obligations
simultaneously, and the legal work should be done before it occurs.
Contract review. Force majeure clauses and what they cover; notice
requirements and deadlines; service level commitments and remedies; termination
rights on prolonged failure; and whether payment obligations are suspended.
Insurance. Business interruption coverage requires physical damage under
most policies; contingent business interruption for supplier failures; cyber
coverage for system disruption; and event cancellation. Notice deadlines are
short and are the recurring failure.
Regulatory obligations that do not pause — reporting deadlines, safeguarding
of client funds and data, and continuity requirements imposed on regulated
entities.
Employment. Pay obligations during closure, particularly for exempt
employees; leave entitlements; and notice requirements if a temporary closure
becomes a permanent one.
Data and records. Access to systems, backup restoration, and the ability to
respond to legal holds and records requests through the disruption.
Communications. Pre-approved templates and a decision-maker, because
statements made in the first days become evidence.
Testing. A tabletop exercise involving legal, not merely operations, which
is where the contractual and notice obligations get discovered.