A recent decision out of SDNY rejects defendants’ claim that “inability” to pay on a consent judgment “due to” financial difficulties arising from COVID-19 translates to the defense of legal “impossibility” https://wp.me/p82CaO-9B, explains @SilberLaw:
Asserting the impossibility defense, held the Judge, is only available when performance is rendered “‘objectively impossible’” by an unforeseen event that could not be anticipated. . .
With this, while the defendants’ “financial difficulties arising out of COVID-19 and the PAUSE Executive Order” may have adversely affected their ability to pay, their obligation to do so cannot be excused.
Asserting an impossibility defense, as we have noted, is not an easy task, and COVID-19 seems unlikely to provide a free pass.
Not a bad try. And, after all, when you don’t have the money, no sense in getting worried sick about it.