BLT: November 2020

     

    Featured Articles

    Business & Corporate

    Driving to One-Click: The New Point of Sale

    Sumeet Chugani, Joseph Schuster

    Although the financing of consumer goods and services is not a new concept, there has been a recent, rapid evolution in the methods, means, and speed of providing point-of-sale financing to consumers. The history of consumer credit traces back to retailers permitting consumers to pay for goods and services over time. Financing of goods and services was later outsourced to banks and finance companies who took on the risk, and reward, of financing on the retailer’s behalf. As time went on, the correlation between the creditor and the retailer became closer, at times becoming difficult to differentiate between the retailer and the creditor through the sales and financing process. Despite this point-of-sale financing evolution, roughly the same disclosure regime remains in place from 40 years ago.

    Business & Corporate

    Reactions to Mixed Metaphors: Decoding Google v. Oracle’s Impact

    Michael Arin

    After a long and arduous path, the Supreme Court of the United States finally heard Google v. Oracle.[1] In this case, Google faces potential liability for over $8 billion in damages because it copied the computer code as well as the structure and organization of that code from the original developer, Sun Systems, now owned by Oracle. The questions before the Court included whether the code and organization are copyrightable despite the merger doctrine and, even if so, whether Google’s use of the declaring code in the Android operating system constitutes fair use.

    Business & Corporate

    Taking a Stand on Racial Justice and Equality

    Alan S. Gutterman

    A few weeks ago, we launched a series of articles on the commitments and contributions of business to racial justice and equality.[1] As this is written, almost five months have passed since the death of George Floyd, and the world is awash in public statements by businesses and their leaders, many of which were issued just days or weeks after Floyd’s death. If someone wanted to say something, he or she should have said it by now. Nonetheless, it is important to consider the process of “taking a stand” since words will be closely scrutinized and serve as foundational guidance for all the actions that follow.

    Business & Corporate

    Contract Attorneys Are in High Demand

    Leslie A. Firtell

    As companies continue settling into new work environments and business patterns, their law firms and legal departments are being asked to step in on a variety of fronts. In many cases, these legal advisers are reinforcing their own teams with contract attorneys to help them address not only immediate issues triggered by the coronavirus pandemic, e.g., shoring up expertise gaps in areas such as employment and cybersecurity, but also longer-term matters related to contract breaches and corporate restructurings.

    Business & Corporate

    The Evolving Employment Landscape for People With Disabilities: New Opportunities in a Time of Workplace Readjustment

    Andrew Webb

    October 2020 was the 75th observance of National Disability Employment Awareness Month (NDEAM), annually administered by the U.S. Department of Labor as part of its efforts to ensure that employers include and accommodate workers with disabilities in the workplace. This year’s NDEAM is especially noteworthy given its coincidence with the 30th anniversary of the signing of the Americans with Disabilities Act. It also carries deeper significance in light of the COVID-19 pandemic and the ongoing national reflection on issues of diversity, opportunity, and social justice.

    Business & Corporate

    A Development to Watch: California's "Mini-CFPB" and Small Business Financing

    Susan Manship Seaman

    In late September, California enacted the California Consumer Financial Protection Law (“CCFPL”), which renamed the California Department of Business Oversight (now the California Department of Financial Protection and Innovation) and granted the department broad authority “to regulate the offering and provision of various consumer financial products or services under California consumer financial laws” and to “exercise nonexclusive oversight and enforcement authority under California consumer financial laws and, to the extent permissible, under federal consumer financial laws.”[1] Modeled off of the federal Consumer Financial Protection Bureau (“CFPB”), some have dubbed the newly named Department of Financial Protection and Innovation (“Department”) a “mini-CFPB.”

    Business & Corporate

    Leveraging Trusted Methods to Mitigate FCPA Risk during COVID-19

    Tricia Fratto, Juliette Gust, Stephen Ward

    Prior to the COVID-19 pandemic, investigators relied on a proven playbook for addressing potential bribery and corruption: due diligence into relevant personnel or vendors, in-person interviews, and surveillance operations. Meanwhile, audit teams reviewed archived records, historical issues, and wider market practices to discern common techniques, missteps, or potential problem areas. This process is more complex during the pandemic. Triggers for an FCPA investigation and the possible steps to address violations have shifted, obfuscating the future of these investigations and enforcement. The following discusses practical strategies for navigating this altered landscape.

    Business & Corporate

    The Different Flavors of RegTech and SupTech: How Companies and Regulatory Agencies Are Leveraging Technology to Improve Regulatory Compliance and Supervision

    Chris Capurso

    When the calendar turned to 2020, my first thought was about how futuristic the year sounded and what kind of interesting things it had in store. At that time, no one could possibly have imagined that some of those interesting things would be face masks, working from home, and wearing the same loungewear so often that you begin to lose any concept of time. Still, the COVID-19 pandemic has hammered home the point even further that technology touches nearly every facet of our everyday lives. Consider something as benign as a lamp: you can purchase it on Amazon, turn it on or off using Google, and pay for the electricity that powers it via app. Given this and the current state of the world we live in, it should come as no surprise that modern technology has even impacted financial services industries and the regulatory environments in which they operate. Through RegTech and SupTech, both industry and regulatory agencies are finding ways to modernize compliance and create a more efficient and increasingly digital regulatory landscape.

    Business & Corporate

    When Should Law Firms Notify Clients About Data Breaches?

    Jennifer Goldsmith, David Standish, Barry R. Temkin

    Much has been written in recent years about lawyers’ duties to preserve the confidentiality of client information under the rules of professional conduct and to take reasonable precautions to strengthen cybersecurity in order to avoid data breaches. Executing those duties has become more difficult amid an increase in the frequency and sophistication of state-sponsored and criminal cyberattacks directed at law firms and their clients. Further complicating matters for lawyers is knowing when disclosure to clients of a law firm data breach is required by the rules of professional conduct even though the threat of exfiltration or loss of client confidential data is in doubt. Below we examine opinions of the American Bar Association that offer some guidance on when client notification of a data breach is appropriate to ensure protection of client confidentiality and minimize exposure to legal malpractice liability. In addition, we will discuss the requirements of bar associations in various states and analyze law firms’ exposure to potential professional liability.

    Business & Corporate

    German Corporate Venture Capital (CVC): Successfully Structuring CVC Vehicles and Implementing Corporate Governance

    Robin Eyben, Maximilian Vocke

    As digital transformation progresses, large and established corporations, but also medium-sized companies, are increasingly coming under competitive and innovative pressures. Start-ups are developing disruptive business models, which are competing with traditional models or even threatening to replace them. The former needs access to innovation and the latter needs investment, providing a mutually beneficial opportunity for corporate venture capital (CVC) to provide a solution, giving traditional companies access to the newest innovation on the market (a so-called "window on technology").

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