A recent ruling by the Court of Justice of the European Union (CJEU) established that companies seeking to store “cookies” that are used to track online browsing behavior must obtain “active consent.” The ruling is likely to cause angst among companies, which often maintain websites that are not set up to obtain active consent, as well as with internet users who are increasingly frustrated by having to continually provide consent while visiting websites.
NEWS FOR LAWYERS AND SOURCING PROFESSIONALS
Morgan Lewis partners Ksenia Andreeva, Anastasia Dergacheva, Vasilisa Strizh, and Brian Zimbler and associate Anastasia Kiseleva contributed the chapter on Russia for the recently released Data Protection & Privacy 2020, the eighth edition of the Lexology Getting the Deal Through publication.
Lexology Getting The Deal Through provides international expert analysis in key areas of law, practice, and regulation for corporate counsel, cross-border legal practitioners, and company directors and officers. The publication addresses many of the most important data protection and data privacy laws in force or in preparation throughout the globe, with a discussion of the same key data protection and privacy questions with analysis from leading practitioners in each of the featured jurisdictions.
California has become the first state to allow collegiate student athletes to benefit financially from the use of their name and likeness and to enter into licensing contracts by recently passing Senate Bill 206, a bill known nationally as the “Fair Pay to Play Act.” But, we recommend holding off on preparing templates for student athlete license and promotional agreements for now; the legislation will undoubtedly face zealous resistance from the National Collegiate Athletic Association (NCAA) in the time before the law takes effect.
On September 30 the California Senate enacted Senate Bill 206, which would effectively end amateurism for NCAA athletes and therefore is a game changer for the NCAA, which currently prohibits college athletes from receiving compensation. The California law does not require colleges to pay athletes a wage, but it allows athletes to procure business and sponsorship deals.
As our loyal Tech & Sourcing readers know, we have been doing our best to keep you informed about the requirements of the California Consumer Privacy Act (CCPA) and what you can do to prepare as its January 1, 2020, effective date draws near. Continuing that vein, we invite you to an upcoming webinar wherein Morgan Lewis partners Reese Hirsch, Mark Krotoski, and Carla Oakley and associate Kristin Hadgis will provide an overview of the latest amendments to the CCPA, the state of the law and related regulations, and practical perspectives on CCPA compliance.
The Morgan Lewis team will discuss the following topics:
- The new one-year exemption for employee data*
- The new one-year exemption for B2B communications*
- Other new amendments, including those related to the use of toll-free numbers and verifiable consumer requests*
- Failed amendments and other issues to watch
- Status of California attorney general regulations and a possible new ballot initiative
- Other state laws influenced by the CCPA
- Preparing for the January 1 effective date and 2020 enforcement date
We hope you will join us for the one-hour webinar on Tuesday, October 22 at 1:00 pm ET.
*Indicates an amendment to the CCPA that has passed the California Legislature but, as of this writing, has not yet been signed into law by Governor Gavin Newsom.
Companies that use app-based technology platforms to connect consumers directly with service providers have faced an important question of whether the individuals providing the services are contractors or employees. California recently passed legislation that requires companies to treat contract workers that perform core company functions as employees.
A recent Delaware court ruling found an agreement to be unenforceable despite being executed by each of the parties via “orphan” signature pages because there was insufficient evidence that the parties had a meeting of the minds as to which version of the contract they were signing. While the facts of this case could be characterized as a “perfect storm” of circumstances to invalidate the commonly accepted practice, it is worth noting the court’s findings for any takeaways that could help you avoid being blindsided by the invalidation of a contract.
The California legislature passed five bills on September 13 to amend and clarify the scope of the California Consumer Privacy Act (CCPA). If the amendments are signed by the California governor by the October 13 deadline, they will become part of the CCPA, set to take effect on January 1, 2020. A LawFlash by Morgan Lewis partner Reese Hirsch and associates Kristin Hadgis, Lauren Groebe, and Terese Schireson discusses the key proposals in each amendment, such as:
Partner Barbara Melby, the leader of our technology, outsourcing, and commercial transactions practice, will be presenting “Intellectual Property Issues in Outsourcing” at Practising Law Institute’s (PLI’s) upcoming Outsourcing 2019: Innovation and Disruption program in New York. Barbara’s one-hour presentation will take place on Thursday, October 31 at 1:15 pm ET. She will discuss intellectual property (IP) issues in outsourcing, including the following topics:
- Recognizing and avoiding common IP pitfalls
- Copyright, patent, and trade secret issues from vendors’ and customers’ perspectives
- IP representations, warranties, and indemnities in outsourcing transactions
- Open source considerations
- IP issues in cloud deals
The EU Council Presidency on September 18 put forward to member states an 88-page compromise proposal on the Eprivacy Regulation with considerable changes and amendments. There are several proposed changes to the provisions on email marketing and cookie use that we think readers may find relevant. Here is the proposal of the Finnish Presidency. The main areas that were modified by the current proposal are:
- Email marketing
- The definition of direct marketing
- Procedures around direct marketing calls
- End user consent for cookies
Many contracts in the United Kingdom and elsewhere contain amounts that are indexed to the Retail Price Index (RPI). Morgan Lewis partner Bruce Johnston recently published a LawFlash outlining how recent changes to the UK RPI could impact contracts that leverage the index.
More broadly, many clients take for granted that indexes published by third parties (for example, the Consumer Price Index in the United States) generally reflect the economic reality of their transactions. We recommend that before simply referring to a particular index, lawyers take a few extra steps to add value for their clients.
- Look up the index. Does it still exist? Consider adding a mechanism into the agreement that allows a new index to be selected in the event the chosen one is discontinued.
- Has the index been around for a while? If not, consider using something that has.
- Has the index changed recently? If so, alert your client.
- Are there other indexes that may more accurately address the economics of the transaction? For example, is the Producer Price Index potentially more applicable than the Consumer Price Index?