This month the EDPB shed light on the question of lead supervisory authorities. The issue arose in response to a question late last month from the French supervisory authority. Some background. As most international organizations are aware, GDPR provides for a “lead” supervisory authority where companies have their “main establishment” in that location. In the event, for example, if an investigation into a company’s violation of a particular provision of GDPR, the lead supervisory authority would be the sole authority to pursue the problem. This question can also come up when companies are trying to determine what authority to notify of a data breach. Without a lead supervisory authority, all supervisory authorities where there are data subjects would be able to participate.

Continue Reading EDPB Provides Guidance on Determining Primary Supervisory Authority

The FCC reminded companies this month that calls containing “artificial or prerecorded voices” are regulated by TCPA. And, that the FCC considers AI-generated voices to be just the kind of “artificial” that fall within the TCPA’s regulations. This announcement was made in a declaratory ruling issued by the FCC at the start of the month.

Continue Reading AI-Generated Voice Calls: New Tech, Old Rules

In a suspicious insurance claim, it is common for insurers to request that an insured answer questions about the claim at an examination under oath (“EUO”). But a new opinion from the California Court of appeal changes what an insured can record at an EUO. In Myasnyankin v. Nationwide Mut. Ins. Co., — Cal. Rptr. 3d –, 2024 WL 340287 (Jan. 30, 2024), the court held that an insured can now demand to videotape not only the person taking the EUO but also anyone else present during the proceeding. In so ruling, the court relied on California Insurance Code section 2071.01(a)(4) which states that an insured “may record the [EUO] examination proceedings in their entirety.” The court interpreted this language to mean that an insured is permitted to record “every element and part of the examination proceeding,” including the insurer’s representatives at an EUO. An insured also does not need to hire a professional videographer. The insured can record the proceeding on a smartphone which “can be placed on a tripod or otherwise propped up and left to record the insurer’s representatives, without the need for a person standing by.” 

Continue Reading New Decision Gives an Insured the Right to Videotape Examinations Under Oath

In Weber, Inc. v. Provisur Techs., Inc., Nos. 2022-1751, 2022-1813 (Fed. Cir. Feb. 8, 2024), the Federal Circuit reversed the Patent Trial and Appeal Board’s legal conclusion that Weber’s operating manuals were not prior art printed publications based on the public accessibility of the operating manuals.

Continue Reading Federal Circuit Concluded that Operating Manuals Subject to Confidentiality Restrictions are Prior Art Printed Publication

EcoFactor, Inc. is the holder of U.S. Patent No. 8,498,753, titled “System, Method and Apparatus for Just-In-Time Conditioning Using a Thermostat,” which focuses on optimizing climate control systems, particularly HVAC systems, in residential and commercial buildings. The patented technology utilizes a thermostat that considers external weather conditions and the thermal characteristics of individual structures to dynamically adjust temperature settings, aiming to improve energy efficiency and comfort. Within Claim 1, a method is outlined for decreasing the cycling time of a climate control system, comprising steps such as accessing historical temperature data, determining thermal performance values, and calculating the optimal activation time for the system based on various inputs.

Continue Reading Federal Circuit Rules on when the Patent Trial and Appeal Board is Engaging in Erroneous Claim Construction

On February 15, Senators Sherrod Brown (D-OH), Jack Reed (D-RI) and Elizabeth Warren (D-MA) sent a letter to a leading payment app seeking clarification of its reimbursement policy for victims of imposter scams. Calling its protocol for reporting fraud and scams “unnecessarily complicated,” the Senators asked the payment app to add more categories of scams for which users can be reimbursed, and to streamline its process for reporting fraud, scams, and unauthorized transactions. The Senators noted that the company’s policy did not make clear which types of scams would qualify for reimbursement or what steps consumers needed to take to exercise their rights under its policy. The Senator’s pressed the payment app to make public whether banks and credit unions are required to reimburse customers who are victims of qualifying imposter scams. The Senators asked for responses to their questions by March 13, 2024.

Continue Reading Congress Continues to Pressure Payment Apps to Change their Fraud Policies

On February 16, the CFPB issued revised rules updating its internal supervisory appeals process for institutions seeking to appeal a compliance rating or an adverse material finding. The updated rules open up new avenues for financial institutions to challenge supervisory evaluations and reflect a significant evolution from its 2015 updates

Continue Reading CFPB’s Enhanced Supervisory Appeals Process: A Potentially Beneficial Shift for Financial Institutions

In a move to bridge significant data gaps identified through its February 2023 Auto Finance Data Pilot where it sent information requests to nine large auto lenders about their lending portfolios, the Consumer Financial Protection Bureau is requesting comments for the collection of additional auto financing data. As with its prior requests, the Bureau is issuing these orders under its market monitoring authority which allows it to “gather information from time to time regarding the organization, business conduct, markets, and activities of covered persons and service providers.” 12 U.S.C. C. § 5512(c)(1) & (4). Compliance with the requests is mandatory.

Continue Reading CFPB Ramps Up Auto Finance Scrutiny: A Look at the New Data Collection Initiative

The Motor Carrier of Property Permit Act (the “MCPPA”) sets forth insurance requirements for commercial motor carriers in California. There is a dearth of legal authority interpreting the MCPPA, which was adopted in 1996. Although there is case law interpreting analogous provisions under the California Public Utilities Code, the predecessor to the MCPPA, it is unclear whether those cases are still good law. Recently, however, California courts have clarified the interpretation and application of the MCPPA in two respects. 

Continue Reading California Courts Clarify the Interpretation of the MCPPA

California’s Legislature has been busy, proposing a number of bills that may affect California food retailers and manufacturers, should they be signed into law. Some could become effective as early as July 2024. Below are the highlights of some of these bills.

Continue Reading New Bills Being Served Up That May Soon Impact Food Retailers and Manufacturers

In Murray v. UBS Securities, LLC, 601 U. S. ____, 2024 WL 478566 (2024), the United States Supreme Court (Sotomayor, J.) held that whistleblowers do not need to prove their employer acted with “retaliatory intent” to be protected under the Sarbanes-Oxley Act. Instead, all whistleblower plaintiffs need to prove is that their protected activity was a “contributing factor” in the employer’s unfavorable personnel action. The decision establishes a lower burden of proof for whistleblowers alleging retaliation and, conversely, reaffirms a greater burden on employers who must demonstrate the absence of retaliation under the heightened “clear and convincing” evidentiary standard in order to prevail.

Continue Reading United States Supreme Court Endorses Low Burden of Proof for Whistleblowers

On January 26, 2024, the State Council of China published the “Regulations of the Filing Threshold for Operators’ Concentration (2024 Revision)” (the “New Filing Threshold”), which took effect on the same day. This amendment to the filing thresholds for operators’ concentration will enhance the allocation of anti-monopoly enforcement resources, and represents another step China takes to improve its competition policy, and foster the development of a more transparent and efficient competition regulatory framework.

Continue Reading China Raises Turnover Threshold for Anti-Monopoly Filing in M&A Deals