As of 3:15 p.m. PT on 3/12/2023, please see the Joint Statement by the Department of the Treasury, Federal Reserve and the FDIC here. The below information is likely out of date.
Guidance on Emergency Bridge Loans
We have been fielding many questions from our clients (both companies and funds) regarding emergency cash infusions into companies to be able to meet their payroll and other immediate obligations this week before a portion of uninsured amounts held in Silicon Valley Bank (SVB) accounts becomes available.
Your Gunderson Dettmer team has prepared a variety of documentation for short-term bridge financing structures and is standing by to help you keep operating with as little interruption as possible.
On the morning of Sunday, March 12, 2023, the FDIC published FAQs on its website focused on the SVB closure. While we encourage you to read the complete FAQs, this alert shares key takeaways for our clients.
A significant new ruling by the National Labor Relations Board (“NLRB”) increases restrictions on employers’ ability to include confidentiality and non-disparagement provisions in employment separation agreements, which may also affect the enforceability of some past separation agreements. Employers should immediately begin using separation agreements that have been updated to tailor restrictions around certain protected rights identified in the NLRB ruling.
On March 10, 2023, Silicon Valley Bank (SVB) was closed by California regulators and placed into receivership under the control of the Federal Deposit Insurance Corporation (FDIC). For clients that have banking relationships with SVB, either as depositors or borrowers, we know that you have many questions. Unfortunately at this point, there are not many satisfying answers. Although you may already know much of the information in this alert, there are some next steps you can take while we await more information.
Gunderson Dettmer commemorates Women's History Month and International Women's Day in March 2023 with a series of events across its US offices, access to resources and tribute to this month's theme, #EmbraceEquity
Current SEC rulemaking agenda targets April 2023 for issuance of proposed amendments to Regulation D, including updates to the accredited investor definition, and Form D
In a series of bench rulings on February 20 and February 27, Vice Chancellor Will of the Delaware Court of Chancery granted petitions by Lordstown Motors Corporation and more than a dozen other public companies—all former SPACs incorporated in Delaware with dual-class share structures—seeking relief for potentially invalid share increases in connection with their de-SPAC merger transactions under Section 205 of the Delaware General Corporation Law (DGCL), which allows the court to retrospectively remedy “defective corporate acts that would otherwise be considered incurable” (including those related to the creation of stock) if they were done in good faith.
Gunderson Dettmer hosted the Updates on the FTC’s Proposed Rule Banning Employee Non-competes Webinar and provided insights to the potential impact on companies and workers.
On February 3, 2023, the California Privacy Protection Agency (“CPPA”) Board voted unanimously to approve its proposed final regulations for the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (“CPRA”).
In the face of macroeconomic volatility, many entrepreneurs, executives, and investors are carefully considering Merger of Equals (MOE) transactions for private company enterprises as a way to accelerate growth and scale, and to pool financial and operational resources in light of a challenging funding environment.
The annual deadline for filing certain initial Schedules 13G, an amendment to a previously filed Schedule 13G, an initial Form 13F filing, and an annual update to a previously filed Form 13H with the Securities and Exchange Commission (the “SEC”) for the year ended December 31, 2022 is Tuesday, February 14, 2023.
This alert briefly highlights certain reporting requirements applicable to equity-based compensation and reminds employers to proactively review option ledgers for upcoming expiration dates as we begin 2023.
On January 5, 2023, the Federal Trade Commission (FTC) formally proposed a rule banning employers from using non-compete agreements nationwide. The FTC’s proposed rule would make it an illegal and “unfair method of competition” for an employer to enter into or attempt to enter into a post-termination non-compete clause with any worker, or to maintain or threaten to enforce an existing non-compete provision against current or former workers.
Gunderson Dettmer hosted the Preparing for New State Privacy Laws: Key Requirements and Compliance Tips Webinar, discussing the California Consumer Privacy Act (CCPA) and the European Union’s General Data Protection Regulation (GDPR) and insights on how to prepare for the new laws.
As 2023 begins, employers in the innovation economy face new employment law challenges, while attempting to navigate an uncertain economic terrain. At a time when many companies are recalibrating and focused inward, the federal government and numerous states are moving forward with bold employment-related initiatives.
On December 14, 2022, the U.S. Securities and Exchange Commission (SEC), displaying a rare united front, voted unanimously to adopt the first substantive reforms to Rule 10b5-1 under the Securities Exchange Act of 1934 (Exchange Act) since its enactment more than twenty years ago, and enhanced trading-related disclosure and reporting requirements applicable to public issuers and their insiders.
Inspired by California’s landmark privacy law (the California Consumer Privacy Act or “CCPA”) and the European Union’s General Data Protection Regulation (“GDPR”), state legislatures across the U.S. have been busy trying to replicate those laws in their own states. Several states have now passed privacy laws, many of which are substantially similar to the CCPA and the GDPR. Many other states are actively considering similar privacy legislation, and we expect to see another active year in the privacy world in 2023. This alert highlights key requirements in these new laws – specifically, the California Privacy Rights Act, the Virginia Consumer Data Protection Act, the Colorado Privacy Act, the Connecticut Act Concerning Personal Data Privacy and Online Monitoring, and the Utah Privacy Act (collectively, the “2023 State Privacy Laws”), and suggests practical steps companies should take to get ready. Note that some of the 2023 Privacy Laws are still pending final regulations, which could change the requirements.
Gunderson Dettmer and Holistic AI host the Regulating Artificial Intelligence in Employment: How to Comply and Best Practices Webinar.
Companies are increasingly using automation and artificial intelligence (“AI”) to identify and hire qualified candidates more efficiently, accurately, and objectively. In response, regulators and legislators are beginning to enact laws that address AI’s potential for bias and perceived lack of transparency and accountability. New York City Council enacted Local Law 144 of 2021 (“LL 144”) in December 2021, and similar local, state, and federal efforts are on the horizon.
On September 27, 2022, California joined several other states, cities, and local governments that require increased pay transparency in the workplace. Under the new law (Senate Bill 1162) which takes effect on January 1, 2023, companies with any California-based employees (“California employers”) must share salary range information with current and prospective employees, include salary information in job postings, and maintain significant records and data relating to workforce demographics and salaries.
Gunderson Dettmer hosted the Tackling the Lifecycle of Affinivax: From Inception to Exit webinar discussing Affinivax’s $3.3 billion acquisition by GSK.
The U.S. Securities and Exchange Commission (SEC) recently adopted final rules that require public companies to disclose, in both tabular and narrative format, information about the relationship between the compensation they pay executives and their financial performance for up to five fiscal years in proxy or information statements in which executive compensation disclosures are required. More than a decade in the making, the new rules implement the so-called pay-versus-performance disclosure requirements mandated by the Dodd-Frank Act in the aftermath of the 2008 financial crisis.
On October 7, 2022, President Biden signed a highly-anticipated Executive Order implementing commitments the U.S. made under the new European Union-U.S. Data Privacy Framework (the “Framework”) announced earlier this year. The Framework is viewed as a successor to the European Union-U.S. Privacy Shield Framework (“Privacy Shield”), which was invalidated by the European Court of Justice in 2020. If ratified by the appropriate European Union (“EU”) entities, the Framework would provide qualifying companies with a legal basis to transfer personal data from the EU to the U.S. The Executive Order lays the groundwork for the European Commission (“EC”) to provide an adequacy determination for the Framework, which is expected to occur in 2023.
On October 5, Uber's former Chief Security Officer (“CSO”) was convicted of criminal felony charges for obstruction of justice and misprision (i.e. concealing) of a felony relating to his handling of a 2016 data breach that exposed the personal data of millions of Uber drivers and users. This case marks the first time a company executive has been held criminally liable for handling of a data breach in the United States and the CSO could face up to eight years in prison. In a press release announcing the verdict, the Department of Justice warned that the FBI and its government partners “will not allow rogue technology company executives to put American consumers’ personal information at risk for their own gain.”
Effective October 1, 2022, employers will face significant limitations in their ability to use non-compete agreements with employees based in Washington, D.C. (the “District”).
The office of the California Attorney General (“AG”) has sent a clear message that it is serious about enforcing the California Consumer Privacy Act (“CCPA”) and that “the kid gloves are coming off” with respect to businesses that fail to comply with the law.
On September 15, 2022, Governor Newsom of California approved the California Age-Appropriate Design Code Act (the “Act”), marking a significant shift in the regulation of children’s personal data.
Under the EU and UK General Data Protection Regulation (collectively, “GDPR”), companies that transfer personal data out of the EU to other countries must ensure appropriate safeguards are in place.
Employers face new restrictions on the use of non-compete and non-solicit agreements, and may be hit with a $5,000 penalty, injunctive relief, actual damages, and attorneys’ fees for every Colorado worker harmed by a faulty agreement.
Proposed Amendments Would Make It Harder for Public Companies to Argue for Exclusion of Shareholder Proposals That They Have Substantially Implemented, Are Duplicative of Other Proposals or Are Resubmissions of Prior Failed Proposals, Resulting in a Potentially Significant Increase in the Number of Proposals Submitted and Proceeding to a Shareholder Vote
In a ruling dated May 13, 2022, and publicly released last week, Judge Maureen Duffy-Lewis of the Superior Court of California in Los Angeles County enjoined the 2018 state law known as SB 826—the first in the nation to legally compel the representation of women on public company boards—after determining the statute was unconstitutional because it violated the Equal Protection Clause of the California Constitution. The decision followed a nearly monthlong non-jury trial that concluded in February.
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