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FEBRUARY 2020
 
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IN THIS ISSUE
 
Where Are We and Where Are We Going?
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California Consumer Privacy Act is Now in Effect
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Save the Date! April 2: Webinar – 2020 California and Delaware Law Annual Update
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Welcome New Executive Committee Members
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Law Firm Memos
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The Business Law Section Newsletter
is published by the LACBA Business Law Section

Editors:
Andrew Clark
Latham & Watkins LLP
Andrew.Clark@lw.com

Alex Voxman
Latham & Watkin LLP
Alex.Voxman@lw.com


Executive Committee Officers:

Katherine Blair, Chair
June M. Baldwin, Vice Chair, Corporate Law Departments
Harumi Hata, Vice Chair, Membership
Roger Loomis, Vice Chair, Membership
Barry Burten, Vice Chair, Programs
James Coupe, Vice Chair, Treasurer and
Council of Sections Liaison
Mark Hiraide, Vice Chair, Events
Scott Lochner, Vice Chair, Events and Secretary

Barristers Liaison
Sarah Kelly-Kilgore
Department of Business Oversight Liaison
Teresa Leets
LACBA Liaison
Terrina Scott

 

 
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Where Are We and Where Are We Going?
 
Happy (belated) 2020! We began our 2019-2020 fiscal year as a new section combining the Corporate Law Departments and the Business and Corporate Law Sections into our current Business Law Section. The Business Law Section now consists of private practitioners and in-house counsel. We are committed to providing our members with programs, resources, and information relevant to their practices and their companies as well as opportunities to network and engage with others in the Los Angeles legal community.
 
52nd Annual Securities Regulation Seminar
So we are now past the halfway mark in our 2019-2020 fiscal year and are proud to report the offerings we have provided thus far. In October, we conducted the 52nd Annual Securities Regulation Seminar co-sponsored by the California Department of Business Oversight and FINRA. John Hartigan, who has been successfully organizing the Securities Regulation Seminar for the Business Law Section for many years, led a thought-provoking conversation with then-Commissioner of the Securities and Exchange Commission, Robert J. Jackson, Jr. The Securities Regulation Seminar is a premier program where you can hear directly from, and interact with, both state and federal regulators, including the Department of Justice. We are proud to bring this important event to Los Angeles every year during October.
 
Institute for Corporate Counsel
In December, the Business Law Section also hosted along with USC, the Institute for Corporate Counsel.  For over 30 years, the Institute has hosted a premier day-long event in Los Angeles providing sophisticated and practical continuing legal education, focusing on the intersection of law, politics and business and highlighting current topics, perspectives and strategies for dealing with the evolving challenges of corporate representation and governance vital to Southern California’s business lawyers. Along with a conversation with California Supreme Court Justice, Joshua P. Gordon, Philip A. Washington, CEO of the Los Angeles County Metropolitan Transposition Authority provided an insightful overview of the future of LA as a global metropolis.
 
General Counsel Roundtables
The BLS also continued the tradition of putting on General Counsel Roundtables on topics which are of interest to our in-house section members. In November, we started with “Do you want to be a GC?” discussing topics ranging from how to locate opportunities, transitioning to in-house counsel and challenges of moving up in the ranks. In January, the second Roundtable, which was hosted by Jeffer Mangels, addressed Cybersecurity and Privacy with the adoption of the California Consumer Privacy Act of 2018. With the advent of AB 5, our third Roundtable will cover new developments in Employment Law.
 
So What’s Next?
  • Mixer:  We believe that not only should we offer quality programming, but in this age of online networking, we want to offer in-person mixers so that we can meet and greet each other in the LA community. We are planning an upcoming mixer for April so watch for our announcements!
  • Securities Enforcement – Recent Developments: Led by the program chair, Robert C. Rosen, we are preparing our next program “Securities Enforcement – Recent Developments.” This program always offers the latest investigations, initiatives and activities directly from regulators at the SEC, U.S. Attorney’s Office and FINRA. Date to be announced soon!
  • Upcoming Webinar: On April 2, we will be hosting our annual webinar on California and Delaware Law Updates. For further details, check out the Save the Date below!
  • BLS Annual Meeting: We are excited that to announce that we are planning our first Annual Meeting of the Business Law Section. This event will thank our out-going officers, welcome our incoming officers, and most importantly, will be held at a fun and entertaining venue.  Currently, we are shooting to hold the Annual Meeting sometime in May.  You will not want to miss this event!
This has been an exciting year for us so far and we are looking forward to finishing the fiscal year on a high note!  We continuously endeavor to provide quality programs and events. We have accomplished much but we know that there is always more we can do for our members. Thank you for your membership in the Business Law Section.
 
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California Consumer Privacy Act is Now in Effect
 

On January 1, 2020, California’s landmark privacy law, the California Consumer Privacy Act (CCPA), took effect. The CCPA applies to companies doing business with and collecting personal information from California consumers (subject to certain threshold parameters). Among other things, the CCPA provides consumers with the following rights over their personal information:  (i) the right to know the categories of personal information a business has collected about them, how it is used, and how it is sold or shared; (ii) the right to know the specific pieces of personal information collected or maintained about them; (iii) a (highly qualified) right to request the deletion of personal information; (iv) the right to opt out of the sale of their personal information; and (v) the right to not be discriminated against for exercising these aforementioned rights. The law also imposes a set of obligations on businesses, including, among others:

  • Covered businesses must recognize and treat consumers’ use of technical privacy controls as valid requests to opt out and cannot deny an opt-out request based on a lack of verification;
  • Covered businesses must help consumers cure certain deficiencies in their data requests;
  • Covered businesses must treat a deletion request as an opt-out request if a requestor cannot be verified;
  • Covered businesses must personalize their responses to requests for access, including requests seeking categorical information;
  • Covered businesses must not disclose personal information that will jeopardize the security of the data — and certain data can never be disclosed;
  • Covered businesses — even those that are exclusively online — must provide a toll-free phone number to receive requests for access;
  • Consumers’ identities must be verified using existing pieces of information when possible, and covered businesses must delete personal information collected only for verification purposes;
  • Covered businesses must give notice and obtain explicit consent when planning to reuse personal information they collected for a new, previously undisclosed purpose;
  • Data rights requests and responses must be recorded and retained;
  • Covered businesses must provide ways to confirm a child’s parent/guardian;
  • Covered businesses that “sell” information collected indirectly from consumers must give or get proof of notice;
  • Covered businesses need to assess which data elements span entire households in order to fulfill household-wide data rights requests;
  • Covered businesses must explain financial incentives and value of information.

The CCPA is enforced through a combination of private right of action resulting from the business’s breach of its “duty to implement and maintain reasonable security procedures and practices” and the broad authority of the California Attorney General to enforce the new law. 

 
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Save the Date – April 2: Webinar – California & Delaware Law Annual Update
 
On April 2, we will hold our incredibly popular annual webinar on California and Delaware Law Updates. Join Michael Allen, partner at Richards, Layton & Finger, and Keith Bishop, partner at Allen Matkins and former California Commissioner of Corporations in their review of case law and legislative developments in California and Delaware during the past year. Further details and registration information will be provided soon!
 
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Welcome New Executive Committee Members
 

We are pleased to welcome the following new members that have joined the Executive Committee during this fiscal year:

  • Jeffrey R. Groendal, Jeffer Mangels Butler & Mitchell LLP
  • Derek Rockers, Sheppard Mullin
  • David A. Niemeyer, Skadden, Arps, Slate Meagher & Flom LLP

We could not do what we do without the support, time and effort of our Executive Committee members.

 
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Law Firm Memos
 

Developments in California Law

What Happens When A Board Fails To Determine The Fair Value Of The Consideration For Shares?
Allen Matkins Leck Gamble Mallory & Natsis LLP

Court Rules Share Repurchase Is Not Subject To CGCL Limitations
Allen Matkins Leck Gamble Mallory & Natsis LLP

California Judge Prevents Enforcement of Ban on Mandatory Arbitration Agreements
Leech Tishman Fuscaldo & Lampl LLC

California AB 5’s Impact on Board Directors and Advisory Members
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

California Courts May Not Apply New York Choice of Law Clauses
Schulte Roth & Zabel LLP

Court Finds Forum Selection Clause That Includes Jury Trial Waiver To Be Unenforceable
Allen Matkins Leck Gamble Mallory & Natsis LLP

M&A

Second Circuit Recognizes ‘Customer’ Safe Harbor in Tribune LBO Litigation
Skadden, Arps, Slate, Meagher & Flom LLP

U.S. Releases Draft Guidelines That Could Significantly Impact Vertical Merger Review
Blake Cassels & Graydon LLP

Delaware Court Of Chancery Dismisses Transaction-Related Breach Of Fiduciary Duty Claims After Board Terminates Merger In Favor Of An Alternative Acquisition
Shearman & Sterling LLP

Treasury Finalizes New CFIUS Regulations
O'Melveny & Myers LLP

Court of Chancery Confirms that, Post-Akorn, It Will Evaluate MACs Under the Traditional Framework-Channel v. Boston Scientific
Fried Frank Harris Shriver & Jacobson LLP

Private Investment Funds Not Liable for Portfolio Company's Pension Withdrawal Liability
Holland & Knight LLP

Securities Laws

SEC Commissioner Hester Peirce’s Provocative Crypto Proposal
Mitchell Silberberg & Knupp LLP

SEC Proposes Allowing More Investors To Participate In Regulation D Offerings
Linklaters LLP

Chancery Finds General Counsel Potentially Liable for Misleading Tender Offer Documents
Stinson LLP

SEC Approves FINRA Rule 5110 Amendments
Mayer Brown LLP

"Test-the-Waters" Now Available to All Issuers
GableGotwals LLP

SEC Approves Amendments to FINRA New Issue and Anti-Spinning Rules
Dechert LLP

 

Readers are advised that changes in the law may affect the accuracy of this publication or the functionality of links after the publication date.
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