Month: March 2020

COVID-19, Labor & Employment, Regulatory

Best Practices for Maintaining Employee Privacy Regarding COVID-19

Written by Jeremy Mittman and Susan Kohn Ross

The situation surrounding COVID-19 is, to the say the least, fluid and scary. The ultimate outcome of the disruption to the business community is also unclear. There are nonetheless a couple of topics we can talk about right now with some degree of certainty on which businesses may want to focus as we all struggle to deal with the very human toll of this pandemic. One is employee privacy and is addressed in this edition. The cybersecurity topics worthy of immediate attention will be covered in a subsequent blog post.

We start here with the confidentiality obligation of employers regarding information about the health of their employees. If someone on your staff becomes infected, as a general proposition, as the employer, you may not share that information with other employees. The Centers for Disease Control published an Interim Guidance for Businesses and Employers, and stated: “If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act.” Since COVID-19 has spread to many different countries, the privacy laws in those countries also need to be considered. For example, the European privacy law – the GDPR – addresses privacy around health data, plus local public health authorities in those countries will have their own protocols to follow.

Continue reading “Best Practices for Maintaining Employee Privacy Regarding COVID-19”

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Intellectual Property

Ninth Circuit Ends Lawsuit Involving Copyright Protection for Characters, Leaving Plaintiffs in a Bad Mood

Photo Credit: istock.com/Ja_inter

Written by Robert H. Rotstein

On March 16, 2020, the Ninth Circuit ended a lawsuit alleging that Disney’s Inside Out infringed plaintiffs’ alleged copyright in characters known as “The Moodsters.” Daniels, et al., v. The Walt Disney Company, et al., Case No. 18-55635 (9th Cir. Mar. 16, 2020). The Court elaborated on the standards governing character protection and enunciated a rigorous standard for pleading “idea submission” claims in federal court.

Plaintiffs’ five characters are color-coded anthropomorphic emotions, each representing a different emotion. Between 2007 and 2009, Plaintiffs allegedly pitched The Moodsters to Disney. In 2015, Disney released Inside Out, a film that centers on five anthropomorphized emotions that live inside the mind of an eleven-year-old girl. Continue reading “Ninth Circuit Ends Lawsuit Involving Copyright Protection for Characters, Leaving Plaintiffs in a Bad Mood”

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COVID-19, Labor & Employment

Three New Coronavirus Developments for Employers

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Photo credit: istock.com/rabbitti

Written by Jeremy Mittman and Stephen Franz

There are several new developments at the federal and state level regarding the Coronavirus (COVID-19) outbreak and its impact on California employers and workers.  The United States House of Representatives passed the “Families First Coronavirus Response Act,” (H.R. 6201), tentatively creating new paid leave obligations related to the coronavirus for many employers.  Moreover, two California government agencies have issued important new guidance on coronavirus and its impact on employers and workers:  The California Labor Commissioner’s Office issued an FAQ Memo and the California Employment Development Department (EDD) also issued relevant guidance.

Continue reading “Three New Coronavirus Developments for Employers”

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International Business, International Trade

COVID-19 and the Trade Community

COVID19, Coronavirus disease, corona virus, Concept Picture about epidemic in the World
Photo Credit: istock.com/AlxeyPnferov

By Susan Kohn Ross

There are a bunch of other things going on when it comes to international trade, but the most concerning topic right now is the coronavirus or COVID-19. From a purely business continuity perspective, we are receiving lots of inquiries around the following question: “Can we get out of our contracts by invoking the force majeure clauses?” Such a clause allows parties to cancel contracts when events occur which are both beyond their control but also totally unexpected. A typical illustration would be an “Act of God.” First, make sure your contract includes a force majeure clause, because if not, that could present a significant uphill and costly battle. Given the widespread losses which are likely to result, it is reasonable to anticipate companies of any size will, so to speak, “stick to their guns” in trying to “spread the pain.”

Assuming such a clause is present in your contract, what does it say? An example of one recently presented includes among its examples: “… strikes, riots, floods, storms, earthquakes, fires, power failures, natural disasters, pandemics, insurrection, acts of God, or for any cause beyond the control of” the named party. Is that language sufficient to permit cancellation under the current circumstances of the COVID-19 outbreak? Probably so, since it mentions pandemics and the World Health Organization has labeled the outbreak as such, but would this language have been broad enough to cover the situation a month ago? Maybe not. Continue reading “COVID-19 and the Trade Community”

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Cybersecurity, Regulatory

CCPA: More Regulatory Changes Proposed

CCPA Image
Photo Credit: istock.com/KrulUA

By Susan Kohn Ross and Timothy Carter

On March 11, 2020, the California Attorney General (CA AG) issued additional revisions to the proposed regulations implementing the California Consumer Privacy Act (CCPA). The CA AG published a redline against the earlier proposed regulations highlighting the latest changes. A copy can be found here. The latest modified draft regulations are subject to a public comment period which ends on March 27, 2020, at 5:00 p.m. (PDT). Information about where to submit comments can be found at the end of this Alert.

While many of the latest changes consist of technical corrections or clarifications, there are some significant modifications, all are effective on July 1, 2020. Below, we summarized the key changes: Continue reading “CCPA: More Regulatory Changes Proposed”

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COVID-19, Immigration

Novel Coronavirus European Travel Ban (Effective March 13, 2020)

Airport terminal and coronavirus sign
Photo Credit: istock.com/Marta Ortiz

By Frida Glucoft and Benjamin Lau

On March 11, 2020, the White House issued Proclamation 9984 “Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus,” which suspends entry to the United States for immigrants and nonimmigrants who were physically present in the Schengen Area during the 14-day period preceding their arrival to the United States. The Schengen Area includes the following 26 countries:

Austria Hungary Norway
Belgium Iceland Poland
Czech Republic Italy Portugal
Denmark Latvia Slovakia
Estonia Liechtenstein Slovenia
Finland Lithuania Spain
France Luxembourg Sweden
Germany Malta Switzerland
Greece Netherlands

Exceptions: The travel restriction does not apply to US Citizens, legal permanent residents (green card holders), spouses of US Citizens or legal permanent residents, unmarried children under the age of 21 of US Citizens or legal permanent residents, parents or legal guardians of US Citizens or legal permanent residents who are unmarried and under the age of 21, or members of the US Armed Forces and spouses and children of members of the US Armed Forces. Additional less common immigration statuses, such as individuals traveling on diplomatic visas, United Nation visas, or C-1/D crewmember visas, are also excluded from the travel restriction. Continue reading “Novel Coronavirus European Travel Ban (Effective March 13, 2020)”

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Intellectual Property

Ninth Circuit Rules in Favor of Led Zeppelin, Clarifies Standards for Copyright Infringement

By David A. Steinberg and James Berkley

Photo Credit: istock.com/NiroDesign

On March 9, 2020, the Ninth Circuit issued its en banc decision­­­ in the long-running and closely watched copyright case concerning the rock group Led Zeppelin’s 1971 song “Stairway to Heaven.” Skidmore v. Led Zeppelin et al., Case No. 16-56057, 16-56287 (9th Cir. Mar. 9, 2020).  A 2014 lawsuit in the Central District of California alleged that “Stairway to Heaven” infringed portions of an instrumental composition titled “Taurus” that had been recorded and released in 1967 by the group Spirit.  Capping off several years of uncertainty, the Court’s en banc opinion reversed the previous 2018 ruling of a three-judge panel and reinstated the judgment entered at the district court, where a jury found that “Stairway to Heaven” does not infringe the “Taurus” musical composition.

Among many topics covered, the Ninth Circuit’s en banc opinion contains three sets of holdings that, absent a successful petition to the U.S. Supreme Court, should have continuing implications for copyright litigation in the Ninth Circuit.  These holdings may be summarized as follows: Continue reading “Ninth Circuit Rules in Favor of Led Zeppelin, Clarifies Standards for Copyright Infringement”

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Corporate, Start 'n Knupp

SEC Proposes Rule Changes That Will Enable Entrepreneurs to Raise More Capital at Lower Costs

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Photo Credit: istock.com/z_wei

By Mark T. Hiraide

This week, in a nearly 300-page release, the Securities and Exchange Commission proposed significant changes to its rules applicable to online equity crowdfunding and other securities offerings that are exempt from SEC registration.

These kinds of offerings generally are most advantageous to smaller and emerging companies that have limited funds to spend on raising capital. Last year, exempt securities offerings accounted for an estimated $2.7 trillion (69.2%) of new capital, compared to $1.2 trillion (30.8%) raised through SEC-registered offerings.

If adopted, the proposed changes will enable entrepreneurs to raise more capital through exempt offerings and simplify certain complex rules, thereby reducing legal costs associated with funding a business. The changes also will continue provisions to protect investors, especially individual retail investors. Continue reading “SEC Proposes Rule Changes That Will Enable Entrepreneurs to Raise More Capital at Lower Costs”

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Intellectual Property

YouTube May Be An Enormous Town Square, But It’s Still Not Subject to The First Amendment

Photo Credit: istock.com/Mack15

Written by Theresa B. Bowman

In Prager University v. Google LLC, et al., Case No. 18-15712 (9th Cir. Feb. 26, 2020), the Court of Appeals for the Ninth Circuit dismissed a First Amendment lawsuit against YouTube late last week, holding that the video hosting giant is a private forum that is free to foster particular viewpoints – and need not be content-neutral.  The victory is a significant message to other online content hosts, aggregators and service providers that they need not feel threatened by censorship claims for selecting and curating content on their systems.

The lawsuit began in 2017, when conservative media company PragerU sued YouTube for imposing restrictions on some of PragerU’s short animated educational videos.  YouTube tagged several dozen videos for age-restrictions and disabled third party advertisements on others.  PragerU claimed the restrictions constituted censorship because they muted conservative political viewpoints. Continue reading “YouTube May Be An Enormous Town Square, But It’s Still Not Subject to The First Amendment”

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COVID-19, Labor & Employment

Be Prepared: What Should Employers Do About the Coronavirus?

Woman Applying Soap On The Hand Near Basin
Photo Credit: istock.com/AndreyPopov

Written by Jeremy Mittman and Thea Rogers

This week, the U.S. Centers for Disease Control and Prevention (CDC) warned that the Coronavirus, otherwise known as COVID-19, will likely continue its spread around the world and to the U.S.  While we don’t know the extent to which the Coronavirus will take hold in the U.S., employers should start planning now so they can protect the safety of their workforces and maintain normal business operations, to the extent possible, should the Coronavirus have a significant impact.

In doing so, employers face potentially conflicting laws that should be taken into account in determining how to move forward.  For example, under the Occupational Safety and Health Act (OSHA) and similar state laws, employers have a general duty and obligation to provide a safe and healthy work environment and must not place their employees in situations that are likely to cause serious physical harm or death.  On the other hand, overreacting or implementing overbroad bans or quarantines that aren’t based on reasonable or reliable facts or information could violate laws that prohibit discrimination (based upon disability, national origin, or other protected characteristics).

Employers should contact counsel with any questions as they navigate putting together their Coronavirus (or general infectious disease prevention) plans and policies, or dealing with employee-specific issues that may arise.

Continue reading “Be Prepared: What Should Employers Do About the Coronavirus?”

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