Commercial Litigation Update

Recent decisions from the European Union (EU) have placed renewed focus on the use of common cookies used on ecommerce and other websites used by consumers and employees and transfers of personal data collected through cookies to the United States. The EU Data Protection Authorities (DPAs) found that the use of widely used website technologies (i.e., cookies and java script) to automatically collect identifiers from the users’ devices or through their use of internet protocols (e.g., IP addresses) resulted in the collection of personal data. The DPAs further found that the subsequent transfer of this data to Google servers located in the United States violated EU cross-border data transfer requirements because there were inadequate safeguards under the Schrems II decision invalidating the EU-US Privacy Shield. One notable impact of the decisions is to dismiss the adequacy of encryption technologies where the service provider (such as Google) has access to the cryptographic key and can be compelled to surrender it in order for the data to be decrypted and read by U.S. surveillance authorities. Consideration of the impact of these decisions is critically important for ecommerce and other websites operating in the EU, as well as more generally for organizations that transfer personal data of consumers and employees to the U.S.

Former Alaska Governor and Vice Presidential candidate Sarah Palin recently lost the trial of her defamation case against The New York Times. Given the complexity of the legal issues and the unusual events at trial, a messy appeal is sure to follow. But if the appellate courts can see past the procedural novelties, Palin’s case could become a vehicle for revisiting the seminal case of New York Times v. Sullivan.

The Court has decided the case of Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., holding that lack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration. Reversing the Ninth Circuit, the Court held that the appeals court was wrong to overturn a copyright infringement verdict that a fabric designer won against fast-fashion chain H&M when it ruled that inadvertent legal errors cannot be the basis for challenging a copyright registration.

Many employers have granted their white collar workers increased flexibility to work remotely in response to the pandemic. As a result, some employees have moved away from the areas surrounding their offices and into places with lower costs or higher quality of living. In cases where an employee with a non-compete moves to a state such as California, which has a prohibition against any “contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind,” that can present potential problems for a Company. Cal. Bus. & Prof. Code. § 16600.

Last week, FINRA published its 2022 Report on its Examination and Risk Monitoring Program (the “Report”), identifying key areas of focus for broker-dealer exams this year. The Report contains many of the same areas of focus as last year’s report, including anti-money laundering, cybersecurity, Reg BI and Form CRS, communications with the public, best execution and segregation of customer funds. Although the Report again identifies these general areas, it identifies new concerns and recent examination findings in those areas. In an effort to be user friendly, the Report highlights that new content in bold and identifies new areas for 2022. A key takeaway from the Report is the continued challenges posed by technology.

Appellate aficionados have undoubtedly heard the news that the distinctively Jerseyan Courier New 12-point font may be on its way out of New Jersey appellate practice. On January 28, 2022, the Supreme Court Rules Committees published proposed amendments to the New Jersey Court Rules, including a number of appellate rules (such as required font). Appellate practitioners should be aware of these potential changes that may be adopted for the New Jersey Appellate Division and Supreme Court.

The Paycheck Protection Program (“PPP”) was critical in helping small businesses stay afloat amidst the COVID-19 pandemic and resultant government restrictions on all manner of commerce. Now, as more businesses have applied for PPP loan forgiveness, some will receive notice that the United States Small Business Administration (“SBA”) is denying forgiveness of those loans. Small businesses whose PPP loans are denied will receive a letter that looks like this.

In a recent Press Release dated December 15, 2021, the Office of the Attorney General for the State of New Jersey (the “N.J. Attorney General’s Office”) announced the settlement, via consent order, of alleged HIPAA violations involving three, New Jersey based cancer treatment providers, In the Matter of RCCA MSO LLC, Regional Cancer Care Associates LLC, and RCCA MD LLC. Two key takeaways from this matter are that New Jersey based health care providers need to be wary of state as well federal authorities when it comes to information security and related policies and warrant substantial investments in cyber security.

Breathless headlines warn of the “Great Resignation” or a “Resignation Apocalypse” that will soon empty cubicles all around the nation. Exaggerated as these reports may be, there is a kernel of truth to these warnings, and they should impact the way lawyers and their clients view depositions.

For decades, the median number of years that a salaried employee stayed with a single employer remained relatively stable at about four years. But this number is expected to decline in the years ahead.

On January 12, 2022, the closely watched Nevada lawsuit filed by emergency medicine providers against one of the largest health insurance companies in the world—UnitedHealthcare Insurance Company—was again the focus of hundreds of thousands of providers throughout the country.

The recent hearing followed a seven-week trial during which the jury found that United and its affiliates deliberately underpaid frontline healthcare workers for emergency medical services. The jury awarded $60 million in punitive damages and $2.65 million in compensatory damages to three Nevada-based emergency physician group affiliates of TeamHealth, a physician services and staffing company.