Adam Wasserman

VT comprehensive privacy bill down for the count? Hear more from Kyle G. Kessler (she/her), Christine Xiao and William Carter #privacylaw

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Consumer Financial Protection Bureau, after surviving its existential challenge, expect: (1) the obvious: renewed and more enforcement, (2) defense focus on “major questions” doctrine to attack any overstepping, and (3) revived rulemaking on payday lending and so-called “junk” fees. Nice discussion in Law360 for those that subscribe. #cfpb #enforcement #consumerfinance #consumerprotection #junkfees #majorquestions

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This article was just published by eight newspapers in Connecticut. Here's a link: https://lnkd.in/eDT3FySB And here are the opening few paragraphs: The importance of planning for your future now — regardless of your age We live in a society that moves so quickly — there is too much to do, too many options and too much information. When do we stop and look, where we are going? Life happens even when we’re too busy to notice. At every age and every stage of our lives, we must be aware of the future and plan for the unexpected. Whether we have generational wealth or are living paycheck to paycheck, just starting in a career with small children, or in the mature years of retirement, everyone needs a plan. Having the correct legal documents in place is essential. An estate plan encompasses not only a strategy for distribution of your wealth upon your passing but also considers asset management and health care decisions for your lifetime. These “life planning” documents are as important as your after-death planning because you control who will have the legal authority to carry out your directives. And the plan must change as your life and the world changes — personally, financially and medically. 

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When Is a Rule Targeted? by Rebecca Durcan is the latest Regulation Pro blog entry: https://lnkd.in/evfXvHPQ #professionalregulation Courts tend to give deference to regulators when they enact subordinate legislation such as regulations, by-laws, or rules. So long as the provision furthers the goals of the enabling legislation, courts loath to strike it down as being unreasonable or enacted for an improper purpose. A recent BC case discussed this deference where a registrant claimed that the rule targeted their business model. In FS Insurance Brokers, Inc. v Insurance Council of British Columbia, 2024 BCSC 1218 (CanLII), the regulator for insurers enacted a rule preventing insurers from providing products to strata buildings (e.g., condominiums) where the insurer had common ownership with the strata’s property management provider. The applicant’s business model was to provide support services for its affiliated property management company which might give its insurance business to a third-party insurer and that third-party insurer would then pay a commission to the applicant. The applicant sought an advance ruling as to whether this business model was contrary to the new rule. The regulator denied the request. The applicant sought a court order seeking to have the new rule declared invalid. Without getting into the interpretation issue, the Court held that the new rule was valid. The regulator’s briefing notes and public consultation documents demonstrated that the rule addressed conflict of interest concerns and those concerns were within the “purposes and objects of the parent legislation read as a whole.” This was true even if the rule prevented the property management company from receiving an indirect benefit (through its common ownership structure with the direct recipient of the commission). This intent was reasonably related to the object and purpose of the legislative scheme. It was not the Court’s role to assess the policy merits of the rule or whether it was the most efficacious way to protect the public interest. The Court noted that the applicant may be justified in feeling it was being targeted by the rule since it is the only entity that may have to cease operations as a result of the rule (depending on the regulator’s interpretation). However, the rule was one of general application and the evidence suggested the rule was not targeted at the applicant. The regulator’s documents consistently addressed the broader policy issue. Also, the applicant’s business model seemed to be gaining popularity and the regulator had previously raised this same concern with another potential registrant. [see link for the entire blog]

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Recent Developments in Business and Corporate Litigation | Chapter | Recent Developments in Tribal Court Litigation 2024 A guide to the past year’s tribal litigation for business lawyers, reviewing cases on issues from tribal court jurisdiction to land into trust regulations. The Business and Corporate Litigation Committee’s annual compendium collects the state of the law in a diverse range of practice areas, recapping the changes of the past year in a comprehensive but accessible style. Don't miss this premium online resource on Business Law Today! Read: https://lnkd.in/gCt5qTTx #CorporateLitigation #BusinessLaw #BusinessLawToday

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In a recent case, Palkon v. Maffei (TripAdvisor), the Delaware Supreme Court accepted an interlocutory appeal of the Court of Chancery’s denial of shareholders’ motion to dismiss. Such appeals are not common: Delaware Supreme Court Rule 42(b) expressly provides that “[i]nterlocutory appeals should be exceptional, not routine, because they disrupt the normal procession of litigation, cause delay, and can threaten to exhaust scarce party and judicial resources.” Even more unusually, the Delaware Supreme Court took this step over the Court of Chancery’s refusal to certify the appeal. This decision and others demonstrate the Delaware Supreme Court’s willingness to step in affirmatively, even mid-case, to ensure the coherence and predictability of corporate governance law — particularly when a matter of public concern is at stake. Read more on "Delaware’s Appealing Interlocutory Review Regime" on Jim Ducayet and Deepa Chari's blog post.

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In his latest article for Judicature, Douglas M. Fasciale, associate justice of the New Jersey Supreme Court, opens with the following hypothetical: Imagine that you (a former civil trial judge) and your colleague (a former tax court judge) are on an appellate panel assigned to adjudicate two appeals. One is an appeal from an order entered by a tax court judge dismissing a complaint. The other is an appeal from a judgment entered following a jury trial in a car accident case. All other things being equal, can you envision deferring to your colleague or being particularly solicitous of her views given her prior experience as a tax court judge? Wouldn’t you want the same consideration in the car accident appeal? Through a personal case study based on his 35 years of experience, Justice Fasciale unpacks this hypothetical. He outlines 8 specific benefits of prior trial court experience to the appellate judge, and recommends 5 ways that appellate judges can maintain a trial court perspective that is “current and useful.” More broadly, Justice Fasciale concludes, “The institutional prior judicial experience of each intermediate appellate judge diversifies and strengthens the appellate court and its administration of justice.” Read the full article in Judicature Vol. 107 No. 3 (2024): https://loom.ly/j8dwtuc • • • • • #trialcourts #appellatecourts #attorney #professionaldevelopment #newjersey #jurytrial #casestudy #justice #judgment #civiltrial #diversity #judges #judging #supremecourt #statesupremecourt #administrationofjustice #law #legalessay #jurist

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The Vermont Data Privacy Act is no more. Governor Scott vetoed the bill last week, and after calling a special legislative session, the Vermont Senate failed to override the veto by just a single vote. What does the VDPA’s defeat mean for the future of consumer privacy laws? What should businesses take away from all of this? Learn more in my latest blog. https://lnkd.in/gkxwntiK

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Week 8! Regulatory Rhythms is my informal exploratory series where Generative AI authors a poem and makes a visual aid about one of the laws in my practice.    After 7 weeks of highlighting environmental laws, we're taking a pivot into the other portion of my practice, international trade. This week we'll look at an important set of federal regulations (only lawyers care that a regulation is not the same as a statute) that govern the export of defense articles and services to foreign countries and/or foreign persons (even if physically in the USA): The International Traffic in Arms Regulation (#ITAR).    This week, I started to play around with a Large Language Model not named ChatGPT. Namely I started scratching the surface of Anthropic's Claude, which was just upgraded to the "3.5 Sonnet" version. Claude's user interface feels a little more polished than Open AI's ChatGPT and I am reading it is quite good in working with code and algorithms. On the other hand, certain tools are more limited than ChatGPT, such as image generation. Much like any products on the market, some companies are better than competitors at some things and worse at others. In any case, here is my first AI-generated poem via Claude (though the image still comes from ChatGPT).   "Arms of Diplomacy"   Steel and circuits, carefully controlled, A global chess game, each move patrolled. ITAR's reach spans land and sea, Guarding secrets, setting hardware free.   Export licenses, a paper shield, Determining what can be revealed. From missile guidance to night-vision sight, Balancing security and trade's might.   Lawyers navigate this complex dance, Of national safety and business chance. In boardrooms and embassies, we make our case, For a world where peace and progress embrace.   Why the ITAR? The ITAR is a critically important regulatory framework that supports US national security by restricting what kind of defense articles can leave the country, either physically, digitally or in other forms such as conversation or training. The country needs to work with (and in some cases, sell to) foreign allies so there is an established export licensing program by which the State Department will approve many defense exports.  ITAR compliance is highly enforced and penalties for violations can be severe if not voluntarily disclosed. #AI #AIpoetry #Claude #ChatGPT #exports #regulatoryrhythms #aerospace #manufacturing #compliance

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Fellow NY Attorneys - check out the below link in support of protecting IOLA revenue from being diverted away from crucial civil legal services - definitely worth two minutes of your time: https://lnkd.in/eaersaw4

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🌟 I will be speaking at The Lawyer 's In-house Financial Services Conference tomorrow. Join me and a distinguished panel of General Counsels including Stephanie Wallace, Victoria Matthews, Ehsan Haque, and Quentin Zentner as we discuss "Building and Maintaining a Culture of Excellence". 📊 We'll explore critical questions like: 🔹 How do you tailor performance metrics and KPIs? 🔹 What criteria guide your development and opportunity creation for lawyers? 🔹 Innovative methods to motivate and retain talent, especially when traditional growth paths are constrained. 🔹 Strategies to integrate diverse generational expectations within the workplace. 🔹 Adapting work models to fit varied generational needs and expectations. 👥 This panel is a valuable opportunity for anyone interested in fostering a culture of excellence within their teams. Looking forward to seeing many of you there and exchanging insights that propel our teams forward! The Lawyer Events https://lnkd.in/eTtAdUAh #Lawyers #FinancialServices #InHouseCounsel

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The New Jersey Law Journal published "Litigators Face New Challenges Under Revised Open Records Law," explaining that some New Jersey litigators will need to adjust their methods in light of Governor Murphy's decision to sign a measure modifying the state's Open Public Records Act (OPRA). Cohn Lifland's Walter Luers, who represents records requesters said, "I think that because OPRA remains a remedial statute, courts will still accept arguments that, even in the absence of bad faith on the part of a records custodian, counsel fees should be awarded to prevailing plaintiffs.” Luers is more concerned, however, about whether a law firm representing a records requester in OPRA litigation is considered a commercial requester under the new law. The legislators who drafted the law say it was needed because of the burden that commercial data companies create for records custodians. Requesters who give the wrong answer on whether they are commercial entities are subject to a $1,000 fine under the new law, Luers said. “Law firms are going to have to look very carefully as to whether or not requests that they file on behalf of a requester are commercial requests.” He adds, “I think that’s a gray area that’s probably going to have to be litigated.” #OPRA #openpublicrecordsact

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With the publication of so many articles highly critical of 401(k) plans, our partner Carol Buckmann puts it all in perspective reminding us of all the benefits of 401(k) plans, particularly in view of recent developments that could substantially improve the existing private employer system without creating a whole new federally-funded structure to replace employer-sponsored 401(k) plans. It is an objective and thoughtful analysis that is MUST READING by anyone who's interested in this important topic.

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A Recipe for Litigation: #Notforprofits and the #FTC #Noncompete Ban The FTC doesn’t generally have jurisdiction over not-for-profits. Here’s a great article from Becker's Healthcare laying out the uncertainty around how the FTC’s noncompete ban interacts (or doesn’t interact) with #NFP and #taxexempt status. It’s as clear as mud—a recipe for litigation. But the point is, ultimately, that that uncertainty is quite intentional. From the article: “Timothy Fry, a partner at law firm McGuireWoods, told Becker's. ‘So, the FTC rule provides that you can have a tax-exempt nonprofit that is in fact a profit-making enterprise. Claiming tax-exempt status is not enough for the FTC.’” Look, I’m no fan of for profit entities playing at being not-for-profits. That is part of what animates my concerns about very large, very profitable, and not very charitable #340b #hospitals (even though I very much support those 340B covered entities actually delivering substantial #charitycare and helping needy patients with their #copays at the #pharmacy counter). But the FTC’s “standard” is formless, without any clear means of prospective delineation. Those are exactly the kind of issues that make lawyers rich and leave everybody else frustrated and with empty pockets. Every FTC challenge in this NFP space, many efforts by an NFP to enforce a noncompete, and pretty much every attempt by an employee to break a NFP noncompete is going to involve a litigation challenge as to whether the NFP “really” is a NFP. I can see the legal complaints now. The pleading stock phrase will be that the NFP holding the noncompete “was a not-for-profit in name only”. Feel free to create the macro now. That will mean a searching and messy inquiry into how the NFP operates, how personnel are compensated, how much it has in revenues, what it does with those revenues, what, if any, insider transactions have occurred, etc. That will, in turn, inevitably raise the legal and, importantly, the non-legal costs (reputational, risk of a government investigation, impact on donors, etc.) of trying to enforce a noncompete. Sounds pretty uninviting from a NFP persepective, doesn’t it? Well, that’s the point. By creating uncertainty around the application of the ban and raising the costs of trying to explore or define those boundaries, FTC has identified a way of effectively extending its own jurisdiction. Kind of brilliant regulatory slight of hand, really. It does, interestingly, also create some real potential for tension with #Treasury and state authorities. FTC is kind of playing in their NFP garden.

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Good article reviewing how the FTC is using its powers via "unfair or deceptive acts or practices" to increase US Federal data privacy enforcement and oversight, as well as a few measures to take in response. Don't forget, "browsing and location data" are sensitive. Full Stop. #data #dataprivacy #dataprotection #ftc #datagrail #privacy #legal #privacylaw #usaprivacy #usprivacy

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#CEQA reform. I know, you don't believe it will happen. But the members of the influential Little Hoover Commission spent time thinking about CEQA and have published realistic recommendations that would make the process more predictable and fair. For example, the Commission proposes to reduce data dumps and late hits. The Commission also proposes a simple #infill #housing exemption that would not require multiple technical reports to support. Would love to see even one of the proposed reforms enacted. A summary of the report is here: https://lnkd.in/gWPQFBW9 The full report is here: https://lnkd.in/gB3_AqfH

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A U.S. judicial panel has approved a new rule to guide federal mass tort cases. The new rule offers non-binding guidance, allowing judges significant discretion in its application, potentially leading to different case management practices. This could result in varied experiences and outcomes for claimants. The rule emphasizes early case management and information exchange. Expected to take effect on December 1, 2025, this rule marks a significant step in handling mass tort litigation. Read more here: https://lnkd.in/dQJMiGR4. #masstorts #legalupdates #legalnews

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