Last week, a divided Second Circuit panel affirmed a district court ruling denying a motion to compel arbitration of a putative class action seeking classwide equitable remedies under ERISA for alleged mismanagement of an employee stock ownership plan.  The Second Circuit found the defined contribution plan’s mandatory arbitration clause unenforceable because it limited plaintiff’s ability to assert a claim that would result in any relief other than individual relief, and specifically prevented him from pursuing the plan-wide remedy authorized by ERISA Section 502(a)(2).  The Court’s ..read more

Today, the Federal Acquisition Regulatory Council (“FAR Council”) released an Advance Notice of Proposed Rulemaking (the “ANPRM”) describing the agencies’ plan to implement Section 5949 of the National Defense Authorization Act (“NDAA”) for FY 23 (Pub. L. 117-263). Section 5949 prohibits the Federal Government from procuring certain semiconductor parts, products, or services traceable to named Chinese companies and potentially other foreign countries of concern.  To that end, the ANPRM invites public comment on the proposed contents of an implementing FAR clause, to take effect December 2 ..read more

On April 26, 2024, the Office for Civil Rights (“OCR”) at the U.S. Department of Health & Human Services (“HHS”) published a final rule that modifies the Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”) under the Health Insurance Portability and Accountability Act (“HIPAA”) regarding protected health information (“PHI”) concerning reproductive health. We previously covered the proposed rule (hereinafter, “the NPRM”), which was published on April 17, 2023. The final rule aligns closely with the NPRM. OCR noted that the Supreme Court’s ruling in Dobbs v ..read more

On April 23, 2024, the U.S. Department of Labor (DOL) announced a final rule that increases the salary thresholds required to classify certain employees as exempt from overtime pay requirements under the Fair Labor Standards Act (FLSA).  The final rule, applicable to employees who otherwise satisfy the “white-collar” (bona fide executive, administrative, and professional) and “highly compensated” exemptions, is similar to the proposed rule DOL issued last August, although the salary thresholds in the final rule have been increased to align with the latest Census salary data. The final rul ..read more

As the 2024 elections approach and the window for Congress to consider bipartisan comprehensive artificial intelligence (AI) legislation shrinks, California officials are attempting to guard against a generative AI free-for-all—at least with respect to state government use of the rapidly advancing technology—by becoming the largest state to issue rules for state procurement of AI technologies.  Without nationwide federal rules, standards set by state government procurement rules may ultimately add another layer of complexity to the patchwork of AI-related rules and standards emerging in t ..read more

In 2020, Illinois residents whose photos were included in the Diversity in Faces dataset brought a series of lawsuits against multiple technology companies, including IBM, Facefirst, Microsoft, Amazon, and Google alleging violations of Illinois’ Biometric Information Privacy Act.[1] In the years since, the cases against IBM and FaceFirst were dismissed at the agreement of both parties, while the cases against Microsoft, Amazon, and most recently, Google were dismissed at summary judgment. These cases are unique in the landscape of BIPA litigation because in all instances, defendants are not al ..read more

On April 24, 2024, President Biden signed into law H.R. 815, which includes the Protecting Americans’ Data from Foreign Adversaries Act of 2024 (“the Act”), a bill that passed the House 414-0 as H.R. 7520 on March 20.  The Act is one of several recent actions by the U.S. government to regulate transfers of U.S. personal data for national security reasons, with a particular focus on China.  While the ultimate policy objectives are similar, the Act takes a different approach by comparison to the Biden Administration’s Executive Order on Preventing Access to Americans’ Bulk Sensitive Pe ..read more

In a recent decision, the Ninth Circuit concluded that a damages model that had been developed, but not actually applied to the underlying data, sufficiently showed that damages were susceptible to common proof for purposes of class certification.  The case, Lytle v. Nutramax Lab’ys, Inc., — F.4th— 2024 WL 1710663 (9th Cir. Apr. 22, 2024) concerns allegations that the defendants misled purchasers of their dog supplement—marketed as improving dogs’ joints and mobility—when allegedly no such benefits exist.  To support class certification, the plaintiffs put forward an expert who had c ..read more

On Friday, April 26, 2024, the Federal Trade Commission (“FTC”) voted 3-2 to issue a final rule (the “final rule”) that expands the scope of the Health Breach Notification Rule (“HBNR”) to apply to health apps and similar technologies and broadens what constitutes a breach of security, among other updates.  We previously covered the proposed rule, which was issued on May 18, 2023. In the FTC’s announcement of the final rule, the FTC emphasized that “protecting consumers’ sensitive health data is a high priority for the FTC” and that the “updated HBNR will ensure [the HBNR] keeps pace with ..read more

Plaintiffs appear to be increasingly focused on keeping certain types of class actions, including cases brought under the California Invasion of Privacy Act (CIPA), in California state court, likely seeking to take advantage of less rigorous pleading and class certification requirements.  Some plaintiffs are even bringing individual claims and affirmatively alleging that less than $75,000 is at stake to avoid removal under CAFA or diversity jurisdiction, while purporting to reserve the right to add class allegations at a later stage.  See, e.g., Casillas v. Hanesbrands Inc., 2024 WL ..read more