COVID-19 Guidance for Fintech Companies

It is said that there is never great loss without some small gain, and in the midst of the COVID-19 crisis, financial technology (fintech) may be an industry that receives a small, or perhaps even significant, gain. The current quarantine restrictions have resulted in a significant portion of our business and personal lives moving online, and companies that provide technology focused on financial transactions and services that can ease or enhance this transition may find they have gained new customers, additional investors, and a broader consumer base. However, fintech companies must still weather these turbulent times—just like all other industries.

Here at Wilson Sonsini, we have produced a range of guidance that may be helpful to clients in the fintech space and is generally applicable to many start-ups and emerging growth companies:

Contracts and Financing

• Companies may be concerned about how COVID-19 could impact their contractual relationships. This client alert addresses the impact of COVID-19 on existing contracts and specifically examines its effect on force majeure clauses.
• Many early stage and emerging growth companies use venture lending as a source of capital. In this client alert, our corporate finance practice summarizes their thoughts on accessing venture lending during this time.

Corporate Governance

• As almost all work has now moved online, companies will likely need to prepare for fully virtual board and investor meetings. The U.S. Securities and Exchange Commission (SEC) has provided guidance and practical considerations for public companies holding virtual annual meetings, which is summarized here. While we recognize that many fintech companies are not yet public, some of the SEC's guidance is applicable to private companies as well. For example, the SEC notes that companies should review their charters and bylaws to ensure that virtual meetings are permitted, and should ensure that all attendees are provided appropriate notice of the meeting and access details.

Regulatory Filings and Disclosure

• The SEC has provided special relief for public company filing and reporting obligations, which has been summarized here and to which the SEC provided an update here. We note that this relief provides exemptions for requirements to file or furnish materials with the SEC under the Exchange Act; however, it is possible that companies subject to other forms of reporting obligations, such as those under Regulation CF or Regulation A, may be able to obtain relief as well if the company meets similar conditions for eligibility as the conditions set out for public companies.
• Companies that make any type of public disclosures should review the SEC's most recent guidance regarding disclosure with respect to COVID-19.

Employment

• The Families First Coronavirus Response Act, signed on March 18, 2020, includes two pieces of legislation which provide employees with additional time off for reasons related to COVID-19. These new acts, the Emergency Family Medical Leave and Expansion Act and the Emergency Paid Sick Leave Act, require that employers, subject to certain exceptions, provide their employees with certain types of leave under certain conditions. Summaries of these acts are provided here.
• While many states have already implemented quarantine regulations, the number of states requiring people to observe various quarantine regulations will likely continue to grow. This action plan offers employers a list of recommendations for employers to consider when adapting to a quarantine.

Privacy and Data Protection

• Clients with operations in the EU are aware of the EU's strict privacy and data protection laws. In response to COVID-19, certain European privacy regulators have adopted emergency guidance in regard to the processing of personal information and other privacy issues, which is summarized here.

Patents and Trademarks

• For those companies seeking to patent certain aspects of their technology, or trademark various intellectual property, a summary of the United States Patent and Trademark Office's announcements related to COVID-19 is available here.

Tax

• For companies interested in utilizing the new refundable payroll tax credits for businesses for the cost of paid sick leave and paid family leave, this client alert summaries the new payroll tax credits and provides information on the postponement of tax filing and payment deadlines.

In addition to these considerations, companies should note that government regulators generally appear highly interested in engaging with companies that can provide useful services and products during these times. In his recent public statement, Commissioner Clayton specifically noted "health care, pharmaceutical, manufacturing, transportation, [and] telecommunications" as being "critical" to the response to COVID-19, but noted that "[t]he thousands of firms and entrepreneurs in these industries—and the millions of employees and contractors that are working around the clock to fight COVID-19 depend on continued access to payments and credit." It is possible that, as a result, government regulators may be willing to work more closely and flexibly with companies that can provide solutions to our current challenges and move them through regulatory processes more efficiently.

Wilson Sonsini continues to monitor the global impact of COVID-19 on various industries. Wilson Sonsini's COVID-19 Client Advisory Resource is a collection of alerts, advisories, and programs—all of which are intended to help the management, boards of directors, and in-house counsel of our clients maintain key operational and business functions, despite pressing challenges related to the COVID-19 outbreak.

This Wilson Sonsini Alert was written by Johanna Collins-Wood, Rob Rosenblum, and Amy Caiazza.

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