On September 15, 2021, CMS published a proposed rule to repeal the Medicare Coverage of Innovative Technology (MCIT) and Definition of “Reasonable and Necessary” Final Rule (“MCIT/RN Rule”), which was published on January 14, 2021 and was set to take effect on December 15, 2021. The MCIT/RN Rule would have created a pathway to provide
September 2021
OFAC Issues Updated Guidance on Ransomware Payments
On September 21, 2021, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued an “Updated Advisory on Potential Sanctions Risks for Facilitating Ransomware Payments” (the “Updated Advisory”). The Updated Advisory updates and supersedes an earlier OFAC Advisory released on October 1, 2020, and is directed toward not only organizations…
Consumer Privacy Hearing Focuses on Expanding FTC Resources, Creating Federal Privacy Law
On September 29, 2021, the Senate Committee on Commerce, Science, and Transportation held a hearing entitled “Protecting Consumer Privacy.” The hearing centered on strengthening consumer privacy rights, including by increasing the FTC’s resources and creating a comprehensive federal privacy law.
To explore these issues, the Committee invited David Vladeck, Professor and Faculty Director of the…
Ninth Circuit Permits Companies to File Early Motions to Defeat Class Certification If Most of the Class has Agreed to Arbitration
A company facing a putative class action from a plaintiff who has opted out of an arbitration agreement may still file an early motion to defeat class certification if the company can prove that most of the class has agreed to arbitration. In Lawson v. Grubhub, Inc., 2021 WL 4258826 (9th Cir. 2021), the plaintiff…
Ninth Circuit Adopts New Approach to Deciding When Arbitrability-Related Questions Should Be Delegated to an Arbitrator
Arbitration agreements often delegate to the arbitrator threshold questions of arbitrability, including whether the agreement itself is valid and enforceable. The Second, Third, and Fourth Circuits have invalidated entire arbitration agreements as prospective waivers—unenforceable waivers of a party’s right to pursue federal statutory remedies—without separately analyzing or enforcing the delegation clauses in those agreements.
The…
Ninth Circuit Narrowly Defines What Qualifies As “Public Injunctive Relief” Within the Meaning of California’s McGill Rule
California’s McGill rule is often invoked by plaintiffs to invalidate arbitration agreements that purport to waive the right to seek public injunctive relief in any forum. But the Ninth Circuit’s decision in Hodges v. Comcast Cable Communications, LLC, 2021 WL 4127711 (9th Cir. 2021), limits the impact of the McGill rule by narrowly defining the…
Ninth Circuit Upholds California’s Limitation on Using Arbitration Clauses in Employment Agreements
In Chamber of Commerce v. Bonta, 2021 WL 4187860 (9th Cir. 2021), the Ninth Circuit held, in a 2-1 decision, that the Federal Arbitration Act does not preempt a California Labor Code provision prohibiting employers from requiring any applicant or employee “to waive any right, forum, or procedure” for certain claims. According to the majority,…
Task Force Releases Guidance on New COVID-19 Vaccine Mandate for Federal Contractors
On September 24, the Safer Federal Workforce Task Force released guidance on workplace safety protocols for federal contractors and subcontractors related to COVID-19 (“the Guidance”). The Guidance was issued pursuant to President Biden’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.
As expected, the Guidance covers a broad range of contract…
Ninth Circuit Narrowly Defines “Public Injunctive Relief” in Privacy Case, Limiting Plaintiffs’ Ability to Circumvent Arbitration Agreements.
In putative privacy class action Hodges v. Comcast Cable Communications, LLC, involving Comcast’s privacy and data-collection practices, Comcast moved to compel arbitration based on its subscriber agreement. The district court denied the motion based on California’s McGill rule, which may invalidate arbitration agreements that purport to waive the right to seek public injunctive relief in…
COVID-19: Legal Considerations and Best Practices for Employers Processing Vaccination Data
With the rollout of the COVID-19 vaccine, more and more businesses are planning to reopen their physical office spaces. They are confronted with ensuring a safe workplace and minimizing the risk of exposure to COVID-19. As employers consider health screening measures, ranging from temperature checks to vaccine mandates, they must navigate complex privacy issues.…