Legal Updates

Part 3 – Lessons from the Ashley Madison Privacy Investigation

In Part 1 and Part 2 of these updates we have explored a number of Privacy Act related issues that were identified by the Acting Australian Information Commissioner and Privacy Commissioner of Canada (Privacy Commissioners) during their investigation of the Ashley Madison data breach. A lot of discussion about the Ashley Madison hack has focused on privacy compliance issues and the data breach itself.

In our last update on the Ashley Madison Privacy Investigation, we will discuss the issue of misleading or deceptive conduct in the context of the data security claims made by Ashley Madison.  While this issue was not directly addressed in the Privacy Commissioners’ report, we thought it would be worthwhile to briefly look at the issue.

Ashley Madison’s security claims

The Ashley Madison website included a series of security trust-marks on its front page prior to the data breach.

The trust-marks found on the Ashley Madison website are set out in Figure 1.

Figure 1: Trust-marks 1

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EEOC Convenes Meeting to Discuss “Big Data” Analytics

How, and to what extent, should “big data” analytics play a role in workforce recruitment, development, and retention?  These were some of the questions asked on October 13, 2016  at a meeting convened by the U.S. Equal Employment Opportunity Commission on the use of big data analytics in the workplace.  Based on the exchange with the panel of seven experts, it is clear that the EEOC is cautiously approaching companies’ use of big data in informing employment decisions, and is beginning to think about its role in overseeing big data analytics as applied to the workforce.

Big data analytics in the workplace (sometimes referred to as people analytics) is the pairing of large data sets, comprising information gleaned from a variety of sources, with machine learning techniques in order to make successful, efficient, and non-discriminatory employment decisions.  But panelists cautioned that big data analytics is not a panacea.  Panelist Kelly Trindel, Chief Analyst of the EEOC’s Office of Research, Information, and Planning, expressed concern that the use of big data analytics may inadvertently perpetuate discrimination if the training set on which the analytical algorithms are based comprise a group that itself was the product of discriminatory decision-making.

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Builder’s risk insurance: the Supreme Court sheds some light on the exclusion of coverage

By Justin Beeby, from our Insurance Law Practice Group.

October 13, 2016 — If you are involved in drafting or interpreting insurance policies, you should be interested in the following.

The Supreme Court of Canada, in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co., recently ruled on two key points:

  • the appropriate standard of review for standard form contracts; and
  • the interpretation of the faulty workmanship exclusion contained in a builder’s risk insurance policy.

Click here to read a summary of this decision.

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Absolut Transformation: How Agencies Are Transforming to Serve a New Generation of Clients

Earlier this year, I had a revealing conversation with three transformers. I’m not talking about characters from a summer blockbuster, but instead senior marketing executives from three iconic brands: Absolut, GE, and Google

The subject of our discussion was the ways in which advertising agencies need to transform to serve a new generation of clients. (A subject they know well, since they are driving that transformation.) Today, we get to hear more from: Afdhel Aziz, Global Brand Director for Absolut.

Absolut, always a marketing pioneer, has created something innovative with the latest project that Afdhel is leading, Absolut Labs. Described as a “marketing innovation lab,” Absolut Labs put the brand at the heart of the nightlife scene, facilitating connections among … Continue Reading

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Seventh Circuit Vacates Panel Determination That Title VII Does Not Prohibit Sexual Orientation Discrimination and Grants Rehearing En Banc

On October 11, 2016, the United States Court of Appeals for the Seventh Circuit vacated the July 28, 2016 decision of a Seventh Circuit panel holding that sexual orientation discrimination is not sex discrimination under Title VII (discussed in our August 2, 2016 article) and granted rehearing en banc.  En banc oral argument is scheduled for November 30, 2016.




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Dej-Udom & Associates business and legal update for September 2016

ASEAN Economic Community News
New Connectivity Master Plan
The Association of Southeast Asian Nations (ASEAN) adopted the Master Plan on ASEAN Connectivity 2025 (MPAC 2025) in Vientiane earlier this month. Under the MPAC 2015, five strategic areas: sustainable infrastructure, digital innovation, seamless logistics, regulatory excellence, and people mobility have been targeted for increased development. To help ensure efficient implementation of the plan, ASEAN member states will need to concentrate on six core areas: strong focus and targets, clear governance and ownership, clear and aligned plans, presence of core skills, incentives, and finance, proactive stakeholder engagement, and robust performance management.

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Hard Brexit and UK Trade: A Bold Step?

The recent Conservative Party Conference in Birmingham has served to reinforce expectations of a “hard Brexit” when the UK seeks to negotiate withdrawal arrangements with the other EU Member States. The discussions are likely to be difficult and protracted, with no guarantee of a satisfactory outcome.

In view of that situation, Charles Proctor has been reviewing the options for the UK and has concluded that there may be a more radical solution. His proposal is outlined in the attached Briefing.

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Employer Blocked from Waiving Non-Compete to Avoid $1 Million Payment

Our colleague Peter A. Steinmeyer, a Member of the Firm at Epstein Becker Green, has a post on the Trade Secrets & Noncompete Blog that will be of interest to many of our readers in the financial services industry: “Employer’s Waiver Of Non-Compete Period In Order To Avoid $1 Million Payment Held Ineffective.

Following is an excerpt:

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You Snooze, You Don’t Necessarily Lose

You Snooze, You Don’t Necessarily LoseDo retail employers really need to tolerate employees who sleep on the job??  The plaintiff in Beaton v. Metropolitan Transportation Authority New York City Transit, (S.D.N.Y. June 15, 2016), was an overnight Station Agent at a New York subway station who was terminated after he was found sleeping at his work station.  While he admitted that it appeared that he was sleeping, plaintiff denied that he was actually sleeping.  Rather, he informed his supervisor that he was drowsy due to the high dosage of anti-psychotic prescription medication that he took after he experienced severe schizophrenia symptoms at work that night.  Despite informing his employer of his disability, and presenting medical corroboration that his medication caused drowsiness, plaintiff’s employment was terminated.  Plaintiff initiated his lawsuit asserting that the termination of his employment was an act of disability discrimination in violation of the ADA and New York State Law.

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Talking Tax – Issue 52

Legislation and Government policy

New remedial power of the Commissioner of Taxation

On 14 September 2016, a new discretionary remedial power available to the Commissioner of Taxation (Commissioner) was introduced by the Tax and Superannuation Laws Amendment (2016 Measures No 2) Bill 2016 (Cth). The remedial power allows the Commissioner to provide for a more timely resolution of certain unforeseen or unintended outcomes arising from taxation and superannuation laws.

Currently it can take up to two years to resolve an unintended outcome of the operation of the law, and as such, the Commissioner will be able to make legislative instruments that modify the operation of taxation laws, thus reducing the time it takes to give effect to minor legislative corrections.

The power is intended to be a power of last resort, and is only to be used where a purposive interpretation of the law could not adequately resolve the issue.

The power can only be exercised where:

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