News

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.

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

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.

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”). 

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.

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.

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.

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.

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.

Gunderson Dettmer hosted the Tackling the Lifecycle of Affinivax: From Inception to Exit webinar discussing Affinivax’s $3.3 billion acquisition by GSK.

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.

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”). 

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.

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.