Volume 72 - Number 1

THE BUSINESS LAWYER - Vol. 72, No. 1

The Business Lawyer

THE BUSINESS LAWYER - Vol. 72, No. 1

Complete Collection for Winter 2016/2017

72(1): 101-156 (Winter 2016/2017)
This report represents an effort to define and illustrate the competencies of a business or transactional lawyer. Its intended audience includes law schools (including faculty, curriculum committees, and administrators), law students, and practicing lawyers.

72(1): 157-180 (Winter 2016/2017)
The Annual Survey Working Group reports annually on the decisions we believe are the most significant to private equity and venture capital practitioners.

72(1): 181-294 (Winter 2016/2017)
Cyberspace law covers a lot of territory. Virtually every legal issue that is relevant to a business lawyer must be examined afresh when digital networked communications technologies become involved. Due to the breadth of that territory, our annual survey must be selective in subject matter as well as time. Nevertheless, the contributions to this year’s survey cover a wide range of topics: cybersecurity and privacy, social media, contracting and payments, copyright, intermediary liability, and ransomware.

72(1): 181-184 (Winter 2016/2017)
Cyberspace law covers a lot of territory. Virtually every legal issue that is relevant to a business lawyer must be examined afresh when digital networked communications technologies become involved. Due to the breadth of that territory, our annual survey must be selective in subject matter as well as time. Nevertheless, the contributions to this year’s survey cover a wide range of topics: cybersecurity and privacy, social media, contracting and payments, copyright, intermediary liability, and ransomware.

72(1): 185-194 (Winter 2016/2017)
It was another very active year in the federal courts on the class action data security breach front, although we have yet to see a case of this type go to trial. A well-pleaded instance of actual data misuse, such as identity theft or fraud, resulting from a data security breach will usually state an injury in fact sufficient for Article III standing, but 2015–2016 produced a few opinions that denied standing in spite of alleged actual misuse. The related issue of whether heightened risk of future harm may alone be sufficient remains controversial, without even a consensus on whether the circuits are split, and this year also featured grants of standing to plaintiffs who had yet to see any misuse.

72(1): 195-206 (Winter 2016/2017)
The year covered by this essay, June 2015–May 2016, saw the continuation of two trends in cybersecurity incidents: first, increasingly sophisticated cyber intrusions that exploit vulnerabilities in critical infrastructure, and second, increasing awareness that the success of such attacks threatens to erode the trust that operators and users place in computer-based systems such as software-intensive emission controls, connected cars, and computer networks for interbank communications and fund transfers.

72(1): 207-220 (Winter 2016/2017)
In recent years, two principal areas of privacy-related legal exposure for businesses maintaining consumer personal information have been private litigation under the Telephone Consumer Protection Act (“TCPA”) and enforcement actions by the Federal Trade Commission (“FTC”). However, in the last year, other federal and state regulators have become more active in policing and enforcing privacy, and plaintiffs have enjoyed success in expanding the use of existing federal and state statutes to pursue privacy litigation. This survey reviews the key developments in these areas in the past year, including the highly publicized legal battle between the U.S. Department of Justice and Apple, Inc. over access to the encrypted iPhone used by one of the terrorists in the San Bernardino attacks.

72(1): 221-234 (Winter 2016/2017)
Some of the most significant European data privacy law developments that have emerged since the European Union adopted the Data Protection Directive in 1995 occurred during the past year. These include the adoption of the European Union’s General Data Protection Regulation (“GDPR”), the invalidation by the Schrems decision of the U.S.–EU Safe Harbor cross-border data-transfer framework, and the subsequent replacement of the Safe Harbor framework with the EU-U.S. Privacy Shield. The “right to delisting,” which the 2014 Google Spain decision created, also experienced continued development. This survey reviews the GDPR’s main provisions—arguably the most important recent development—and then discusses the other developments noted above.

72(1): 235-242 (Winter 2016/2017)
Despite not being, strictly speaking, its own area of law, the term “social media law” usefully captures this complex interplay between different areas of law and social media platforms. This survey provides an overview of significant developments in social media law over the past year, concerning multiple categories: copyright, fair competition, First Amendment (including its intersection with criminal law), and employment.

72(1): 243-254 (Winter 2016/2017)
The recent cases do not change the standards for assent to online contracts. They do, however, provide more guidance as to how these standards are applied. Significantly, in these cases, the courts engaged in a more nuanced analysis of notice.

72(1): 255-264 (Winter 2016/2017)
Developments affecting e-payments and financial services were as varied as ever during the past year. The subjects we chose for this survey focus on emerging issues in e-payments and federal and state regulation of e-payments and e-payment providers.

72(1): 265-274 (Winter 2016/2017)
In this year’s survey, we continue to explore the copyright doctrine of fair use in disputes involving digital media and software development.

72(1): 275-286 (Winter 2016/2017)
This survey discusses recent cases applying the intermediary liability provision of the Communications Decency Act (“CDA”), 47 U.S.C. § 230 (“Section 230”), which gives providers and users of “an interactive computer service” broad protection against liability for claims based on information “provided by another information content provider.”

72(1): 287-294 (Winter 2016/2017)
Extortion is a longstanding business model for criminal enterprises. Kidnapping still presents a significant business risk in some areas.

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