Swiss-US Privacy Shield

In July, we reported that the EU Court had invalidated the viability of the US-EU Privacy Shield (EU Invalidates the Privacy Shield . . BUT Says Contracts May Save the Day!).  A few weeks ago (September 8, 2020), the Swiss Federal Data Protection and Information Commissioner (FDPIC) also decided to remove the United States from a list of nations that are considered to be providing “adequate level of data protection.”

Unlike the EU Court’s decision, decision by the Swiss FDPIC does not automatically invalidate the applicability of the Privacy Shield, because the list of countries on or off the list is technically not legally binding. That said, if your company is relying on the Swiss-US Privacy Shield to continue to transfer data from Switzerland to the United States, it would not be prudent to assume these transfers will continue to be viewed as complying with the adequate protection standards under Swiss law.  It seems to make sense to re-assess the risks and start relying on corporate policies and regulations, as well as legally binding contract clauses to ensure they are consistent with Swiss data protection law.

Even when the company policies and contract provisions are properly constructed, there still remains the risk that even these protections may be considered inadequate.  For example, if local authorities have the right to obtain the data without safeguards and legal protections consistent with those required under Swiss regulation, the transfer may be considered in contravention of Swiss law.  Similarly, if the entity to which the data is being transferred is not legally obligated, for any reason, to cooperate with the enforcement requirements that may apply under Swiss law this too creates a problem.  While encryption technology exists that can ensure no personal data can become available in another country, that approach only makes sense for pure storage capability (e.g., cloud based storage) but NOT if the data is intended to be used, displayed or otherwise handled in another nation.

While further guidance and information may ultimately be promulgated by the FDPIC, at present, a review of current procedures and data transfers, the exercise of caution and consideration of implementing additional steps to deal with this development in Switzerland, as with the EU Court decision, seems to be a prudent course of action.

At Rimon Law, our professionals are available to answer question about these developments, so feel free to contact me, Joe Rosenbaum, or any of the Rimon lawyers with whom you regularly work for information about this or any other matters.

EU Invalidates the Privacy Shield . . BUT Says Contracts May Save the Day!

Today (July 16, 2020), the EU Court of Justice, (the EU’s highest court) struck down the validity of the Privacy Shield – a mechanism that well over 5,000 U.S. companies have been using and relying upon in order to legally justify the transfer of personal data across the Atlantic into the US.  This same court had previously invalidated the “Safe Harbor” protocol, concluding the Safe Harbor failed to adequately protect privacy rights of EU citizens, since it accorded law enforcement in the United States priority over the rights of EU citizens – permitting law enforcement virtually unrestricted access to the data.

This new case began when Max Schrems, an Austrian privacy advocate, complained to Irish data protection regulators that Facebook’s reliance on standard contract clauses to permit data being transferred from the European Union to the United States did not provide adequate protection. Schrems argued that it didn’t prevent intelligence officials and other third parties in the United States from getting at the information. The Commissioner at the Irish Data Protection Authority took the complaint to Ireland’s high court and they referred certain questions regarding the validity of standard contractual clauses to the EU Court of Justice. Although Schrems’ complaint never raised the Privacy Shield issue, it was raised in oral argument before the court, opening the door for the court to include it in their opinion and decision.

While the European Court invalidated the Privacy Shield, it didn’t buy Schrems’ argument that standard contractual clauses should be deemed invalid as a matter of EU law or regulation. They basically said that standard contract clauses could be among the “effective mechanisms” if they required both sides involved in the transfer to ensure information is accorded the equivalent level of protection as required under EU law. They went on to note that the parties should not use those clauses if they can’t comply with that requirement.

As a result, while neutering the Privacy Shield, they did uphold the validity of the use of standard contractual clauses to legally move personal information outside the European Union, if these clauses were effective in providing the same level of privacy protection as the EU requires.

The case is Between the Data Protection Commissioner and Facebook Ireland Ltd. and Maximillian Schrems (Case Number C-311/18) and as always, if you have any questions or need more information about this posting, feel free to contact me, Joe Rosenbaum, or any of the lawyers at Rimon with whom you regularly work.

Warning Against COVID-19 Claims and more . . .

On April 24, 2020, the Federal Trade Commission (FTC) announced it had sent warning letters to 10 multi-level marketing companies regarding claims they or their participants (distributors) were making in social media posts and online related to COVID-19.
The claims included supposed health benefits, as well as pitching business opportunities related to the pandemic. You can read the announcement and obtain more detailed information at FTC Sends Warning Letters to Multi-Level Marketers Regarding Health and Earnings Claims They or Their Participants are Making Related to Coronavirus. These new letters come on the heels of letters previously sent to companies about unsupported claims concerning products that can treat or prevent coronavirus (FTC, FDA Send Warning Letters to Seven Companies about Unsupported Claims that Products Can Treat or Prevent Coronavirus).

The FTC and the FDA (Food and Drug Administration) have sent scores of warning letters to companies that may be violating federal law by making deceptive or scientifically unsupported claims about the ability of these products to treat or cure coronavirus. Warning letters have also been sent to voice over Internet protocol (VoIP) service providers and other companies warning against “assisting and facilitating” illegal coronavirus-related telemarketing calls.

You can visit the FTC Coronavirus Warning Letters to Companies web page to see a list of warning letters related to the COVID-19 pandemic.  The FTC also keeps track of consumer complaints related the pandemic and updates the data regularly.  As of yesterday, there were almost 30,000 COVID-19 related consumer complaints, and although less than 50% of all these complaints report a loss, the estimated fraud losses based on those that do is now well over $20,000,000.  For the latest statistics, visit Coronavirus (COVID-19) Consumer Complaint Data, which the FTC updates regularly.

The FTC and the Department of Justice have also issued a joint statement expressing their views on unfair competition and antitrust laws and regulations to make it clear, especially in these extraordinary times of crisis, how firms (including competitors) are permitted to engage in pro-competitive collaboration that does not violate the antitrust laws.  You can read the statement at Joint Antitrust Statement Regarding COVID-19.

Rimon lawyers continue to follow these and related developments applicable to the Paycheck Protection Program and other government initiatives available through the SBA and related to the COVID-19 pandemic. For more information or assistance you can contact me, Joe Rosenbaum or any of the Rimon lawyers with whom you regularly work.  Stay safe!!

 

 

 

Paycheck Protection Program & Disaster Relief Loan Information Released (Updated)

Following up on our post yesterday (US Chamber of Commerce Issues Coronavirus Small Business Guide), you can find the Paycheck Protection Program (PPP) Information Sheet for Lenders and the Paycheck Protection Program (PPP) Application Form (and accompanying instructions) just released by the US Small Business Administration.

The SBA has established a streamlined process for disaster loan assistance that you can access online at COVID-19 ECONOMIC INJURY DISASTER LOAN APPLICATION.

As noted previously, the lawyers at Rimon Law are following these developments closely and while you may already be deluged with summaries, information bulletins and alerts, we are and remain available to help any time across a broad spectrum of businesses, industries, relationships, activities and transactions that have been affected by the COVID-119 pandemic.

 

US Dept. of Labor Issues FFCRA Guidance

The U.S. Department of Labor’s Wage and Hour Division released its initial guidance providing information describing how to take advantage of the protections and relief offered by the Families First Coronavirus Response Act (FFCRA) which takes effect April 1, 2020. The guidance includes links to information for employees and employers, as well as links to questions and answers and other useful information about the FFCRA.  The DOL has a separate Coronavirus Resources webpage, providing a large number of references and links to additional information.

The US DOL has also released an FFCRA Poster that every covered employer must post in a conspicuous place on its premises, although the guidance does allow an employer to satisfy this requirement by emailing or directly mailing the notice to employees or by posting the notice on an employee information internal or external website.  Although there is no legal requirement at this time to post the notice in other languages, DOL is currently working on translating the notice.

The legal professionals at Rimon are available to help and as always, if we can’t help you – especially in these challenging times – we will assist you in finding someone who can!  Stay safe and following the recommendations of your national, state, provincial and local authorities to keep yourself, your family, colleagues and friends healthy and prevent the spread of this infection.

Rimon’s Complimentary 2019 CLE Webinar Series: Coming in January

Enrollment for the 2019 Rimon Law CLE Webinar Series being held in January is now open, so don’t wait too long to register!

Don’t miss the chance to register, to learn and to earn CLE credits.

This January (2019) we will be offering the following programs:

  • State and Local Taxation: Headline News and Trends, conducted by David Fruchtman;
  • Corporate Governance Issues Related to Mergers and Acquisitions of Delaware Corporations, conducted by Frank Vargas and Michael Vargas;
  • It All Ads Up: Advertising, Promotions & Celebrity Endorsements in a Digital, Mobile, Social & Augmented World, conducted by Joseph I. Rosenbaum;
  • Copyright and Trademark Law: The Uncomfortable Interface, conducted by Mark S. Lee; and
  •  Law and Behavior: Ethics in Deception before the PTO, AIA Proceedings and Enforcement Presentations, conducted by Maxim Waldbaum.

To get dates, times and more information and to register for any or all of them go to 2019 Rimon Law CLE Webinar Series.

Practical Law: Sweepstakes in New York

I had the privilege of working as a contributor and contributing editor to a recently published Practice Note from Practical Law, a Thomson Reuters company, entitled Complying with New York Sweepstakes Law.  Although focused on New York law, there are references to Federal law and regulation that apply throughout the United States.

If you are not already a subscriber to Practical Law, you can read the Practice Note and download a copy for your personal use and reference here: Complying with New York Sweepstakes Law.  As always, if you need further information about the publication or you have questions relating to sweepstakes, contests, promotions, advertising or marketing anywhere in the world, feel free to reach out to me, Joe Rosenbaum, Partner or to any of the lawyers with whom you regularly work at Rimon Law.  If you wish, you can also review my biography JIR Bio.

Thank you for being a loyal Legal Bytes reader.

Fake News, Troubled Celebrity Endorsements & Social Media

On Tuesday, July 24, 2018, I had the privilege of presenting a live, interactive, video-conference program and course entitled “A Perfect Storm: The Intersection of Fake News, Celebrity Endorsements & Social Media,” sponsored by Lawline.
The course was broadcast live and also recorded at Lawline’s Studio in lower Manhattan and is now available for on-demand viewing at Lawline.com. With permission, I have also posted a PDF of the PowerPoint visuals used during the presentation (although you will not be able to see the embedded videos) and you can view or download a copy for your personal use right here: A Perfect Storm: The Intersection of Fake News, Celebrity Endorsements & Social Media

As always, if you need more information, you can contact me directly (Joe Rosenbaum) or any of the Rimon attorneys with whom you regularly work.

The Blockchain Ecosystem

Dror Futter, a Venture Capital and Technology Partner at Rimon, P.C. has authored a comprehensive update on the state of blockchain law, which has been published by The Journal of PLI Press, the quarterly journal of the Practicing Law Institute The Current, (Winter 2018 Edition; Vol. 2, No. 1, Winter 2018 – Page 21.   The article summarizes developments in the blockchain ecosystem to date, draws attention to considerations that participants in that ecosystem should take into account and also highlights many currently unanswered legal questions.

In addition to a growing blockchain practice, Mr. Futter focuses his practice on startup companies and their investors, and has worked with a wide range of technology companies.  You can read the entire article right here: Blockchain Law ICO Regulation and Other Legal Considerations in the Blockchain Ecosystem and if you need more information you can contact Mr. Futter directly or if you want to know more about his practice click here.  Of course, you can always contact me, Joe Rosenbaum, or any of the Rimon lawyers with whom you regularly work.

 

The Antitrust Division Finds the Nails

– By Stephen Díaz Gavin

Just yesterday (Monday, November 20th), as Stephen Diaz-Gavin’s article “For Want of a Nail: The AT&T – Time Warner Merger” was posted on Legal Bytes, the Antitrust Division of the U.S. Department of Justice (“DOJ”) filed a lawsuit opposing the merger in the U.S. District Court for the District of Columbia, asking that the proposed merger and related transactions be permanently enjoined.  The lawsuit is a significant departure from U.S. antitrust policy in recent years, which has generally permitted vertical mergers and, as we pointed out in our original post, highlights the problems in not having availed themselves of the FCC’s  public interest review to address the concerns about the merger, publicly.  AT&T  immediately responded that it will defend the merger, but win or lose, one thing is a sure thing – approval of AT&T’s $85.4 billion entry into the content production business — is no longer a sure thing. You can read the full text of the DOJ Complaint and again, if you have any questions feel free to contact Stephen Díaz Gavin directly. Of course, you can always contact me, Joe Rosenbaum, a Partner at Rimon in New York or any of the lawyers at Rimon with whom you regularly work.