ROPES & GRAY LLP BOSTON NEW YORK PALO ALTO SAN FRANCISCO WASHINGTON, DC Preparing for Foreseeable Risks: Corporate and Contract Law Issues Presented by John O. Chesley Legal Preparedness for Pandemic Flu Health Care Track – Licensing Facilities and Credentialing Personnel Breakout Session I

ROPES & GRAY2 “What We Have Here is a Failure of Communication … AND Imagination” Roles and responsibilities of counsel in preparing for the phases of disaster: –response –recovery –renewal Foreseeing risks The components of legal preparedness

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4 Government Expectations for Private Industry “Pandemic Flu Business Letter” dated December 6, 2005 from the Secretaries of the Departments of Homeland Security, Health and Human Services and Commerce Also see “Business Pandemic Influenza Planning Checklist” issued by the Department of Health and Human Services and the Centers for Disease Control and Prevention

ROPES & GRAY5 Avian flu: Foreseeable risks High uncertainty/high risk Mild vs severe scenarios Duration/waves Periods of sustained labor immobility Increase in demand for capital and technology Commerce: internet up, other demand down because of loss of employment Citigroup: “Weaker markets over a longer period of time would reinforce the slowing of demand via both confidence and wealth effects.”

ROPES & GRAY6 Specific Areas of Focus for the Law Department Contracts Planning for contracting during emergencies: –authority –memorializing agreements Pre-crisis contracting for business needs during emergencies Contract “Outs” 101: basics of the law of excuse from performance obligations

ROPES & GRAY7 Specific Areas of Focus for the Law Department – con’t. Insurance Coverage issues Laying the groundwork during the crisis for claims to be made afterward

ROPES & GRAY8 Specific Areas of Focus for the Law Department – con’t. Corporate and Securities Laws The board: role and responsibilities, before and during the crisis Public statements Disclosure before (“Risk Factors”) and during a crisis

ROPES & GRAY9 Specific Areas of Focus for the Law Department – con’t. The interaction of government with the company: emergency powers of federal, state and local governments; governmental priorities.

ROPES & GRAY10 Selected Readings and Resources For overall business planning: An old but detailed FEMA planning guide: SBA planning guide:

ROPES & GRAY11 Selected Readings and Resources – con’t. Regarding labor issues (lab workers, airline crews, etc.): Specifically regarding avian flu: ses/immun/avian_flu.shtml

ROPES & GRAY12 Selected Readings and Resources – con’t. For health care institutions: American Health Lawyers Association “Emergency Preparedness, Response and Recovery Checklist” commerce/ProductDisplay.cfm&ProductID= commerce/ProductDisplay.cfm&ProductID=21152 The state and local government lawyer perspective: