FTC Signals New Action on Noncompetes – But Is That the Will of the People?

According to a report in the Wall Street Journal last week, the Federal Trade Commission is considering new regulations to prohibit the use of noncompetes and to target their use in individual cases through enforcement actions. Although President Biden issued a vague Executive Order early in his administration that “encourage[d]” the FTC to “consider” exercising its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility,” no concrete action has been taken to date. That is not entirely surprising given that, until last month, the Commission was split 2-2 along partisan lines. What has since changed that may now make federal noncompete regulation a real possibility, however, is the appointment last month of Alvaro Bedoya to the FTC, giving the Democrats a 3-2 majority.

Lina Khan, the 33-year-old Biden-appointed Chair of the FTC, told the Wall Street Journal, “We feel an enormous amount of urgency given how much harm is happening against the workers. This is the type of practice that falls squarely in our wheelhouse.” Other Commissioners disagree. Commissioner Noah Phillips has said the agency doesn’t have legal authority to impose such rules, and Commissioner Christine Wilson said last year it was “premature” to pass a federal rule because many states had taken their own actions to address noncompetes. Indeed, noncompete regulation has been the province of the states for over 200 years.

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Why Creators Need to Pay Close Attention to the SCOTUS Andy Warhol Infringement Case

The US Supreme Court in March decided it will revisit a dispute over pop artist Andy Warhol’s images of Prince. In taking up the case, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Court aims to more clearly define the scope of what’s known as “fair use” in US copyright law.

The suit was originally levied by photographer Lynn Goldsmith after a 2016 Vanity Fair issue brought to light a series of images that Warhol produced of Prince based on a photograph taken by Goldsmith. The photographer, who had only been aware of one of the 16 images in the series, argued that Warhol had committed copyright infringement. In 2019, a judge ruled in favor of Warhol; however, New York’s Second Circuit Court of Appeals in 2020 reversed the decision, ruling that Andy Warhol’s licensing company did not engage in fair use when it used Goldsmith’s photograph as the basis for the series.

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U.S. DOL Releases Guidance on FMLA Leave and Mental Health

On May 25, 2022, the U.S. Department of Labor announced that the Wage and Hour Division (WHD) published new Family and Medical Leave Act (FMLA) Guidance. The newly issued Fact Sheet #280 explains when eligible employees may take FMLA leave to address mental health conditions, and new Frequently Asked Questions (FAQs) offer explanations on how to address various scenarios that employers and employees could face in which use of job-protected leave available under the FMLA would be appropriate.

Reviewing FMLA Basics

Although the FMLA covers public and private employers nationwide, only those private employers who have 50 or more employees for at least 20 workweeks in a year are required to provide their eligible employees with FMLA leave. FMLA leave is unpaid but job-protected, meaning that employees returning from FMLA leave must be restored to their original job or equivalent position. Employees are eligible once they have worked for a covered employer for at least 12 months and logged at least 1,250 hours of work during the period immediately preceding leave, which may be taken for an employee’s own serious health condition or to care for a spouse, child, or parent because of their serious health condition.

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A Recently-Released “Discussion Draft” of the “American Data Privacy and Protection Act” Provides Insight into Recent Bipartisan Efforts to Pass Nationwide Privacy Law

As reported in a June 3, 2022 press release from the House Committee on Energy and Commerce, U.S. Representatives Frank Pallone, Cathy McMorris Rodgers, and Senator Roger Wicker released a “discussion draft” of a federal data privacy bill entitled the “American Data Privacy and Protection Act” (the “Draft Bill”), which would impact the data privacy and cybersecurity practices of virtually every business and not-for-profit organization in the United States.

As further described below, the Draft Bill’s highlights include: (i) a comprehensive nationwide data privacy framework; (ii) preemption of state data privacy laws, with some exceptions; (iii) a private right of action after four (4) years, subject to the individual’s prior notice to the Federal Trade Commission (“FTC”) and applicable state attorney general before commencement of lawsuit; (iv) exemptions for covered entities that are in compliance with other federal privacy regimes such as the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and Gramm-Leach Bliley Act (“GLBA”) solely with respect to data covered by those statutes; (v) exclusions from Act’s requirements for certain “employee data”; and (vi) a requirement for implementation of reasonable administrative, technical and physical safeguards to protect covered data. The Draft Bill would be enforced by the FTC, and violations treated as unfair or deceptive trade practices under the Federal Trade Commission Act, as well as by state attorneys general.

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ILN Today Post

We Are Delighted To Announce The Launching Of The Torres Talks Trade Podcast

During the podcast trade lawyers and subject matter expert guests discuss timely topics on trade and national security in an informal and informative setting. Join us for lively commentary as we dissect complex areas of the law in a podcast that attempts to bring trade to the people, or as we say “trade in plain English.”

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ILN Today Post

How the New 2022 SAG-AFTRA Commercials Contract Affects Performers and Advertisers

A new collective bargaining agreement governing the use of SAG-AFTRA (the Union) performers in commercials has been reached between the Union and the Joint Policy Committee (JPC).The new 2022 SAG-AFTRA Commercials Contract (the 2022 Contract), which is retroactively effective to April 1, 2022, appears to offer certain benefits to advertiser and agency signatories of the Commercials Contract, particularly JPC authorizers, as well as Union member performers. Read more…

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Presentations by Carly Flam and William Dion-Bernard at a Professional Development Seminar

Today, June 8, two of the firm’s partners took part in “Traps to Avoid in Estate Planning & Administration”, the yearly professional development seminar of the Jewish Community Foundation Montreal. Carly Flam discussed matrimonial regimes while William Dion-Bernard talked about estate administration.

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Sharon G. Druker Elected as Director of the Quebec Bar Foundation

Sharon G. Druker, Ad. E., was elected to the board of directors of the Quebec Bar Foundation at the organization’s annual general assembly, held today.

The Foundation is a registered charity that was set up in 1978 to contribute to the advancement of legal knowledge.

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ILN Today Post

Draft CPRA Regulations Issued by the California Privacy Protection Agency

The California Privacy Protection Agency (CPPA) released a working draft of regulations to the California Privacy Rights Act (CPRA) late last month (the Regulations). The 66-page document, which is structured as a redlined version of the existing California Consumer Privacy Act (CCPA) regulations, proposes new and revised definitions, extensive new personal information notice and collection requirements, rules for obtaining consumer consent, restraints around sharing or selling personal information to third parties, consumer opt-out request confirmations, and more. Read more…

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Katherine Duchesne Joins RSS’s Insurance Law Group

RSS is happy to announce that Katherine Duchesne, a litigator, is now part of the firm’s Insurance Law Group. Katherine’s background is quite original, since she holds a Bachelor of Law degree from the University of Leicester, in the UK. She then completed her education in Quebec law at the University of Montréal.

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