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Rebooting the economy: key legal considerations for businesses

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Rebooting the economy: key legal considerations for businesses 1

By Ian Borman, Partner, Winston & Strawn 

With the UK government slowly lifting the lockdown, businesses are having to wrestle with some fundamental questions and prepare to navigate the choppy waters of the post-Covid-19 economy. According to the Office for Budget Responsibility (OBR), the UK is heading for its deepest recession in 300 years.

So far, UK Government’s efforts to support businesses have been loans and other forms of credit within existing legal structures. However, we are at the beginning of a new phase in the response, with UK Government proposals to relax wrongful trading rules and introduce a company moratorium likely to come into force shortly. Moves to ensure that supply chains for businesses remain functional are also being proposed, with a Government scheme to replace credit insurance with Government support and rules to stop business ceasing to trade with businesses that are in insolvency proceedings.

These schemes challenge the way businesses under stress operate and, whilst increasing the breathing space for businesses and directors under severe pressure, they also open up new uncertainties for other businesses trading with and financing those businesses.

The background to these developments is that businesses have really only begun to experience the financial impact of the enforced economic slowdown. Many have calculated that they will survive through to the end of summer, assuming ongoing relaxation through that period, but the backdrop for business recovery is stark.

To give themselves the best possible chance of surviving, business need to plan around three key corporate financing needs.

  1. Direct Costs
Ian Borman

Ian Borman

Firstly, there are the direct expenses incurred whilst shutdown continues. Businesses that have shut down quickly continue to have liabilities to suppliers, landlords and employees without income to support those expenses. Even businesses that have apparently benefitted from the disruption, such as online delivery platforms and supermarkets, have had to foot the bill on exceptional costs, many of which may not be recoverable or ultimately contribute to profitability.

These costs have depleted cash reserves, driving an almost universal search for liquidity from banks and the bond markets. Even businesses with naturally large cash resources are looking to raise funds. A small proportion of these debts are in the form of government grants, but many are being absorbed in the form of debt that will remain long after the crisis has averted.

  1. Ramp up

As we emerge from the crisis, it is unclear how long the return to normality will take and it is unlikely that many businesses will return to usual levels in the short term. For some it may be quick, but for others this may lead to a period where activity returns to pre-crisis levels slowly.

Through this ‘ramp up’ phase businesses will still be incurring ‘usual’ running costs. They may be able to trim maintenance and investment expenditure, but this will also harm asset condition and future growth potential. Businesses which are able to maintain investment are those most likely to be able to take advantage of opportunities and benefit in the longer term.

In the initial phase, some of these continuing costs will have been met by cash receipts from  previous trading, which in the ordinary course would have been used to fund the business, investing in stock, materials and work-in-progress. With those cash receipts spent elsewhere, businesses will need to find the cash to fund working capital and restart their supply chain whilst facing uncertain demand.

Businesses also drive efficiencies by accurately predicting demand to avoid waste. As we saw at the start of the crisis, whilst supermarkets have now got to grips with the situation, they initially struggled to adjust to changing demand as they rely on just-in-time delivery and demand modelling in order to stock shelves.  But a host of industries now rely on low stocking levels and supply chains to drive profitability

Without having an accurate means of assessing demand, businesses will need to make judgements regarding business levels, and perhaps lose out on opportunities where they under provide or wastage where they over-provide. Businesses that are highly integrated with their supply chain will also be exposed to any weak links in that supply chain which might fail give the current stresses.

  1. Rightsizing

It seems likely that, as we come out of the crisis, a substantial number of businesses will have ceased to trade. For some this will create opportunities to grow to replace those businesses, but for others it will leave them without the same customer base in the short term or for the foreseeable future. Other businesses will simply not be able to sustain the levels of debt they have incurred dealing with the crisis.

In either case, those businesses will need to create or accelerate plans to rightsize their business.

However, the process of completing restructuring plans almost always leads to costs itself. These take many forms, but in a European context the most obvious item is redundancy costs. But others would include:

  • investments in more efficient equipment
  • the cost of moving production lines to lower cost countries
  • shut down costs of sites or business lines
  • renegotiating with landlords to reduce rent to market levels
  • the costs of stripping out and repairing leased premises on surrender
  • refinancing costs and waiver or amendment fees

These processes typically also accelerate costs such as environmental clean-up or pensions entitlements and, as well as cash costs, have significant costs in terms of management time and consultancy fees.

As a result of the above pressures, while we may start to see an easing of lockdown restrictions, businesses are only beginning to deal with the cash impact of COVID-19.

 Solvency

Businesses with low financial indebtedness will be best placed to raise the financing needed to meet these costs. Ultimately businesses will need to seek to remain solvent through the whole process of responding to COVID crisis.

Each country has its own definition of solvency and rules on when management can be held liable personally for trading when they know a business is or may become insolvent, but these rules exist in all jurisdictions. Solvency will generally be determined by two factors: whether a company can continue to pay it creditors as they fall due (known as the ‘cash flow’ solvency test); and whether the aggregate of the company’s liabilities exceeds its assets (known as the ‘balance sheet’ solvency test).

Generally, if a business can continue to pay its debts as they fall due it will be permitted to continue to trade. However, in some countries (notably Germany) management are require to file for insolvency as soon as they are aware, or should be aware, that the balance sheet test is being breached. It is interesting to note that now seeing modification to the insolvency tests in almost all countries.

Funding

On the surface, Government schemes to fund working capital and maintain solvency are very welcome but will need to be available to fund all of the above costs outlined above if they are going to be successful. However, if it leaves businesses with such high liabilities that they are not solvent or the medicine has the potential to kill the patient.  These claims will often sit alongside stretched payables, including unpaid rent.

Businesses have come to this crisis with very different balance sheets. Some will have significant existing debt and for those it is already proving challenging to fit debts under the Government schemes alongside existing debt packages. By their very terms the Government schemes require that businesses being funded have ceased to be viable as a result of COVID-19 – at least in the short term. To the extent repayable debts under the Government schemes are going to have to be absorbed into wider balance sheets at the same time as businesses are dealing with the pressures already outlined.

Some businesses may be lucky enough to be funded by existing debt and equity funding sources, but others will need to access additional funding either from debt or, at some point, equity funding. There are a wealth of sources for healthy business to choose from. On the debt side the choices for most companies will be either bank debt, non-bank lenders or debt capital markets funding. All of these can be accessed as either unsecured or secured debt, for those with higher leverage. They can also be accessed in the form of asset-backed loans which are being used more since they have an improved capital treatment for regulated lenders and by their nature such facilities help to control leverage to manageable levels.

If an equity funding is required, the right solution will likely be more bespoke and depend significantly on the size of the company. Existing investors in public or private companies can be asked to fund companies but the most controversial aspect will be the extent to which existing shareholder are diluted by new funding. Generally, existing shareholders can protect themselves by exercising pre-emption rights and subscribing for the new capital, but this requires them to have the capital to invest in the new round.

Restructuring

The greatest challenge in these situations will always arise if businesses cannot demonstrate to investors that they are financially healthy or otherwise investable. This can be through a range of factors, not all of which are obvious. For instance, businesses:

  • may be over-indebted, either through COVID funding or changes in the business environment. If businesses run out of cash, despite COVID funding, before business starts to recover this will be the case;
  • may have other liabilities weighing on them such as environmental liabilities or defined benefit pension liabilities, or perhaps historic leases on off-market terms;
  • may have ongoing litigation, which may or may not be determined in their favour;
  • maybe undergoing regulatory investigations or have operated in jurisdictions that have become subject to sanctions, which makes it very difficult or impossible to access funding from certain sources. This has become increasingly likely as sanctions regimes have been changing more quickly.

All of these may ultimately mean that a business may have to cease to trade and go out of business. Or, more positively, may seek to restructure either through consensual negotiation with creditors for a debt for equity swap or other debt restructuring, or through more formal processes such as a company voluntary arrangement (CVA) or pre-packaged insolvency which allows the business to continue with reduced liabilities.

The crisis has had a different effect around the world. Some groups of companies may have divisions or regions that are impacted in different ways and, on the face of it, they may be able to dispose of or shut down part of the group. However, many groups will have cross-guarantees or structural issues that mean restructuring will have an impact beyond the part of the business that is directly affected, even where those businesses appear to be held in separate companies, making this far more complex.

Conclusion

The economic ramifications of COVID-19 are not yet clear, but as we move through the fast-changing crisis businesses will need to respond to the changing landscape, identifying both challenges and opportunities and adapting accordingly.

So far, the business response to COVID-19 has been broadly successful, but the challenges that will emerge as the financial effects emerge will be complex and real. The most successful businesses will see the crisis as an opportunity for renewal, while remaining flexible for new challenges as they emerge.

Business

Retailers need to deliver better rewards to ensure customer loyalty

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Retailers need to deliver better rewards to ensure customer loyalty 2
  • 62% feel retailers need to improve the ways they reward consumers for shopping with them
  • 55% believe that loyalty programmes rarely offer them the things they actually want or would use
  • 48% want retailers to focus on making the shopping experience better for them, rather than a loyalty programme

Rewards programmes are not delivering on their promise to drive customer loyalty for retailers, according to the latest research from Adyen, the payments platform of choice for many of the world’s leading companies. The majority of customers (55%) say that rewards programmes do not offer things they actually want and that customer experience holds almost equal influence when it comes to loyalty (48%). 

 

The findings come from a report conducted by Adyen exploring how agility will be key for the retail sector as it emerges from the Coronavirus pandemic. The research polled more than 2,000 consumers in the UK in 2020.

 

The results showed that, while rewards and loyalty schemes are still welcomed by many customers, the majority (62%) feel that retailers need to improve how they reward their shoppers.

 

“Every customer counts – especially in the context of the pandemic. Anything retailers can do to keep customers coming back for more is worth exploring. But it goes beyond a loyalty or rewards scheme. The customer experience, both online and in store really matters. Making it as easy as possible to shop is equally as important as other incentives. And, if you do go down the rewards route, a one-size-fits-all approach rarely delivers. You must make the effort to understand your customers and offer something they really want,” said Myles Dawson, UK Managing Director, Adyen.

 

Nearly half of the respondents (48%) want retailers to focus on making the shopping experience better for them, rather than delivering a loyalty programme.  When it comes to an experience that will drive loyalty, customers want a seamless link between online and physical stores. 60% of consumers said they would be more loyal to retailers that let them buy out of stock items in store and have them shipped directly to their home. And 53% said they would be more loyal to retailers that let people buy online and return in store.

 

“The high street is under increasing competition from online retailers who put convenience and usability at the centre of their customer experience. To succeed now, businesses must harness the best of their physical and digital worlds to create amazing experiences. This will increase conversions and also raise the prospects of customer loyalty.

 

“For those consumers that want loyalty schemes, it must be as seamless and easy as possible. 61% of respondents were more likely to shop with a retailer that linked their loyalty scheme to the payment card. By doing this, businesses can track customer buying behaviour and shopper data which lets them offer a more personalised shopping experience,” Dawson concluded.

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The pandemic has changed consumer behaviour and retailers need to adapt

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The pandemic has changed consumer behaviour and retailers need to adapt 3

By Mary Keane-Dawson, Group CEO of TAKUMI

It’s no secret that the retail industry has been badly hit by the pandemic, with the recent collapse of Arcadia and Debenhams providing a harsh reality check as to what the future could hold for brick-and-mortar stores. With all non-essential shops being ordered to close last month, with no re-opening date confirmed, it is inevitable that a natural shift to online platforms would occur.

Online giants, ASOS and Boohoo, have established themselves as the new industry leaders. Both e-commerce giants bought failing Arcadia brands and Debenhams and ruthlessly closed all the retailers’ physical premises. The shift to online in the retail sector has never been more apparent.

Retail brands need to establish their digital presence to serve their consumers’ changing behaviour and to remain competitive in the retail industry.

Capitalising on changing consumer behaviour

The pandemic has meant consumer needs have adapted, which in turn has led to a shift in consumer behaviour. Retailers need to capitalise on changing consumer behaviour to remain relevant, but more importantly profitable.

The ‘stay at home’ message from the government, which has been almost constant throughout the past 12 months, has meant many consumers have started to become more reliant on online channels and platforms.

Supermarkets, such as Aldi and Co-Op, responded to this change in consumer behaviour by deciding to serve their customers on delivery apps, such as Deliveroo. As fewer people were ‘popping to the shops’ due to lockdown restrictions, supermarkets reacted by offering an instant delivery service, essentially where the ‘shop pops to you’.

The shift to online platforms and influencer marketing

Retail brands need to follow suit and adapt their ways of working to reflect this shift to e-commerce. Ted Baker, the premium fashion retailer, has admitted its disappointing online sales figures last quarter could be due to its slow response to the shift to ecommerce. The retailer is aiming to “significantly improve” its online shopping platform because of this.

As the shift to online platforms accelerates, retailers need to start investing in digital marketing, for example influencer marketing, to ensure their brand stays at the forefront of their consumers’ minds. Evan Horowitz, CEO of Movers+Shakers, a creative agency, explained in our whitepaper in August how the pandemic has led his company to increase its influencer marketing as “influencers are more influential than ever”.

As such, many traditional retailers have started exploring the benefits of influencer marketing. Wickes, in partnership with TAKUMI, launched the UK’s first ever home improvement industry TikTok campaign to reach a new audience with authentic and creative content and to drive awareness of its range of products. Our whitepaper, Into the Mainstream: Influencer Marketing in Society, which surveyed over 3,500 consumers, marketers, and influencers across the US, UK, and Germany, found that almost three-quarters of marketers (73%) upped spend on influencer marketing in the past 12 months, with spending significantly increasing in the retail (79%) sector.

It seems inevitable that more brands will continue to invest in influencer marketing with social media’s popularity increasing as we start to enter a post-pandemic world.

Using social media as a tool to respond to changing consumer behaviour

With marketers upping their influencer marketing spend, many social media platforms have also responded to the growing popularity of ecommerce.

Instagram redesigned its layout to ensure its Shopping and Reels tabs were given more prominence. The Instagram shopping feature allows brands to attach a virtual shopping tag to their ads on the platform. People can click on a tagged item and then be re-directed to the brands’ product webpage.

Similarly, TikTok’s rising popularity has led it to launch its own ecommerce offering. Last October, TikTok announced a partnership with Shopify. This partnership will enable Shopify merchants to create, run and optimise TikTok marketing campaigns that will attract consumers from TikTok’s growing user base.

Instagram and TikTok are slowly evolving from content platforms to ecommerce hubs. This transformation coincides with the rise in consumers shopping online following the pandemic.

What’s to come for retailers, post-pandemic?

Consumer behaviour is changing and the pandemic has accelerated the shift towards social media and ecommerce. Retail brands need to recognise that the shift to online is here to stay.

To remain relevant, brands need to allocate appropriate budgets to digital marketing channels. Interestingly, our whitepaper found it was marketers from traditional media channels that were increasing their influencer marketing spend the most, demonstrating that the shift to digital marketing has already begun. Retail brands need to start to prepare themselves for the post-pandemic retail environment to avoid ending up like Arcadia and Debenhams.

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5 Trends Driving the Future of Customer Service in 2021 and Beyond

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5 Trends Driving the Future of Customer Service in 2021 and Beyond 4

By Matt McConnell, CEO of Intradiem

2020 ignited radical shifts for contact centre operations with the move to a remote work environment. Our customers say this trend is more of a permanent transformation – one that uncovers trends that include more flexible operations and greater efficiencies in leveraging contact centre data.

Trend 1: The Remote Agent Model is Here to Stay, Permanently

Historically, many IT teams discouraged remote working for customer service teams, but it was quickly proven virtual contact centres could work and offered a significant upside. The average annual cost to physically house a call centre agent is approximately $8,300 per agent in the United States. If a 200-person contact centre decided to move only half of its agents to home offices, that translates to $830,000 in annual real estate cost savings.

Working remotely also opened the doors to reach talent and hiring beyond a specific geography. For example, call centres based in rural locations who may have exhausted their local talent pool can bring in quality agents from anywhere in the world.

Trend 2: The Role of AI will be to Support Human Agents, Not Replace

Despite many years of buzz, it’s worth acknowledging that AI cannot entirely replace one-on-one human interaction in customer service (yet, or maybe ever). Many interactions with chatbots or other entirely automated CX tools only drive the escalation of customer issues rather than resolving them at the first touchpoint.

Instead, AI is best used to assist and manage agents to help them work more efficiently. For example, AI-powered technology can reduce handle time by auto-populating call notes or automatically log agents into or out of applications to further save time.

AI will provide an added layer of support as a management tool to keep agents on track in remote environments. AI also enables better connectivity for customer service teams and enables agents to receive consistent communications and Information they need to excel in their role in serving customers.

Trend 3: A Swift Migration to the Cloud

Call centres have been notoriously slow to move to the cloud. In the past, this has not been an issue when centres use on-premise technologies. With fully remote call centres, companies must reconsider their approach to the cloud.

Call centres can no longer rely on on-premise data with a decentralised workforce. Often their information is locked up in data centres, while operations remain outside of the office. Moving to the cloud offers more flexible operations, easier access to data and substantial cost saving, but only if call centres tap the right partners to make the most of the shift.

Trend 4: The Emergence of Predictive Analytics

Call centres generate an enormous amount of time-sensitive data that must be gathered and analysed in real-time to effectively manage their operations. Without real-time capabilities, Insights gathered on a Monday may only be contextualised later that day or week. This is not impactful as the time to act has passed and call centre conditions have already changed.

Looking beyond 2021, we will see call centres take their analytics a step further to go beyond real-time analytics, and into predictive analytics.  This will leverage real-time data at scale to offer preventive support to both agents and customers, moving call centres from reactive to proactive. Instead of waiting for a customer to call with an issue, centres can leverage historical data to reach out pre-emptively.

The same approach can be used to identify agents who struggle or may be experiencing burnout earlier in order to reduce attrition rates. A smarter mindset on data will revolutionise how call centres operate and in turn, companies will see higher customer and agent retention.

Trend 5: Real-Time Technologies Will Be Applied to the Back-Office

We will also see companies increasingly apply call centre technologies to their back-office operations. They will start to leverage back-office data in real-time to cut down on wasted hours and better track employee activities.

This part of the business has not been managed with the same technology investment as the call centre, leading to inefficiencies where back-office employees may struggle with certain tasks or spend time in non-work applications. Now, companies will be able to use AI-powered technologies to drive productivity gains in the back-office — leading to significant savings to the bottom line.

2020 served as the inflection point for call centre transformation. The shift to remote work unlocked new uses of technology and opportunities thought impossible before. We are now at the tip of the iceberg, as successful call centres will continue to innovate and think differently on how they can improve their operations in the new year and beyond.

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