Shook Partner Kris Verra and Associate Razvan Axente have authored an article for ACC Tampa Bay's newsletter examining force majeure clauses. "As we move past the initial trauma of a virtual global shutdown and have the benefit of a few months' hindsight, a number of considerations related to these contractual provisions are worth exploring," they explain.
Axente and Verra focus on triggering events and how they are defined in contracts. "The relevant force majeure event need not be COVID-19 itself. The broad consequences of the pandemic, and the impact upon the ability of the affected party to fulfill its contractual obligations will be relevant under the language of most contracts. For example, the seemingly ubiquitous stay-at-home orders forced many businesses into repose, making them unable to fulfill contractual obligations. Thus, while the triggering event might not specify 'pandemic,' it becomes equally important to note whether it references other applicable determinants like 'governmental decree.'"