Mark Rosekind, chief of the National Highway Traffic Safety Administration (NHTSA), recently announced that the NHTSA will release documents to serve as a framework for national regulations concerning automated and autonomous vehicles. The documents, which are scheduled for release in July, will allow states to institute additional rules or regulations regarding self-driving vehicles.

In another appearance last week, Mr. Rosekind further explained that the NHTSA has been working on a model state policy for automated vehicles to help states develop policies consistent with other states’ and federal policies and in turn promote “a uniform nationwide framework to help enable innovation.” Mr. Rosekind also noted that the NHTSA is mindful that any regulations in this industry must evolve with the industry rather than remain static for long periods of time.

Although this model policy framework will be a resource available to states, as Mr. Rosekind put it, “What the states actually implement is their call.” With these remarks, he clarified that the NHTSA has no current intention to promote binding federal regulations as a means of achieving a consistent approach to self-driving vehicle restrictions nationwide. This is undoubtedly a disappointment to the many companies in the industry that have pushed for federal regulations to promote uniformity and avoid the substantial efforts necessary to sift through the potentially conflicting state rules.

The Hamburg Data Protection Agency (DPA) recently fined three companies for not having appropriate replacements for the Safe Harbor in place after the expiration of the permitted grace period. While the amounts of these fines are not particularly concerning, the precedent and potential for future, more burdensome fines is significant.

As we discussed in a previous post, in the landmark case Maximillian Schrems v. Data Protection Commissioner, the European Court of Justice (ECJ) ruled that the Safe Harbor program (which had dictated the conditions of the transfer of personal data from the European Union to the United States since 2000) is invalid. The European DPAs granted companies a transitory period to migrate from the Safe Harbor to other legal tools for their international data transfers, in particular by implementing Binding Corporate Rules (BCRs) or the Model Contractual Clauses. This transitory period expired in February. Since that time, some proactive DPAs, including the Hamburg DPA in Germany, have launched their own inquiries to ensure that the companies under their jurisdiction are in compliance.

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When we last discussed the application of Title III of the Americans with Disabilities Act (ADA) to websites (see our April 2015 post), the US Department of Justice (DOJ) appeared primed to propose the Web Content Accessibility Guidelines (WCAG) 2.0, Level AA as the standard required for public accommodations in the private/non-government sector. Then, in late 2015, DOJ announced that it would not finalize regulations to explain what constitutes accessible website content for public accommodations in the private/non-government sector under Title III until fiscal year 2018 at the earliest. Recent DOJ developments now bring into question this 2018 target.

As explained in our December 2015 LawFlash, “DOJ Delays ADA Regulations for the Accessibility of Private Websites to 2018,” the rationale for pushing back the Title III regulations was DOJ’s desire to move forward with its rulemaking for the corresponding website accessibility guidelines for government agencies and contractors under Title II of the ADA. DOJ explained that the Title II rulemaking would “facilitate the creation of an important infrastructure for web accessibility that will be very important” for the Title III web accessibility rulemaking. At the time, the Title II guidelines were expected to be finalized in the summer of 2016.

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The use and acceptance of electronic signatures are becoming more commonplace around the globe. One estimate has the number of transactions using electronic signatures growing from 210 million in 2014 to 700 million in 2017. In our practice, we are seeing more companies implement electronic signature solutions in their commercial contracting practices and procedures.

Given this increased usage of electronic signatures, we think it’s a good time to remind our readers that a new legal framework for electronic signatures is set to take effect in the European Union on July 1.

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In their upcoming webinar, “Landmark Trade Secret Law Establishes New Rights and Remedies,” Silicon Valley partner Mark Krotoski, San Francisco partner Christopher Banks, and Philadelphia partner John Gorman will discuss the new Defend Trade Secrets Act of 2016 (DTSA). Signed into law on May 11, the DTSA represents the most significant trade secret reform in decades.

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Contract drafting is one of those subjects that just doesn’t get the attention it deserves. Many clients seem to view drafting as a dark art learned in the basements of law schools. Worse than that, even many lawyers view it the same way.

We have all had to plod through long, boring contracts with page-long sentences that contain ideas separated by what feels like millions of commas. No wonder many people think the best contracts are the ones that stay in a drawer.

But the contracts in complex sourcing deals should play an operational role and not just be relegated to a forgotten drawer. Many times, when we get involved in disputes, we find that a major contributor to that dispute was that each party ignored the contract they worked so hard to create and just behaved the way they did in their respective prior deals. What a shame.

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Risk is an interesting topic that can (and does) take volumes to address. Still, it’s helpful to step back and take stock of how you deal with risk in complex sourcing deals.

One way to break down how you look at risk is in terms of allocation versus mitigation. Contracts tend to focus heavily on risk allocation. The limitations of liabilities clause, for example, feels like risk mitigation, but what those limits really do is determine who is going to bear the risk that already exists.

Clearly understanding risk and allocating it appropriately is extremely important and not to be taken lightly. Still, it’s a mistake to give short shrift to thinking about how to mitigate that risk in the first place. This begs the question, what can be done to get that risk level down a bit?

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Morgan Lewis and the Sourcing Industry Group (SIG) are co-hosting an Executive Immersion Program that will feature intensive workshops for sourcing leaders. Speakers include Morgan Lewis partners and industry thought leaders Ed Hansen and Vito Petretti, as well as leading industry consultants from Alsbridge.

Topics will include:

If You Build It (Right), They Will Come: 
A Master Workshop on Contracting
This contracting workshop is specially designed for practitioner sourcing leaders and in-house counsel who engage in the review, creation, and/or execution of contracted services and terms. This session is designed to enhance master competencies in contracting and negotiating. Delivered in a highly interactive format (beginning with time for networking and concluding with a set of workshops designed to drive home the material), this workshop will include direct examples and experiences from some of the most experienced and innovative practitioners in the industry with extensive backgrounds in IT-enabled transformation, as well as customer and vendor outsourcing deal management. This workshop is back by popular demand and usually fills up fast.

Buying Technology in a Time of Disruption
At a time when technology is driving a business revolution, it’s no longer sufficient to have one mode of sourcing. Traditional sourcing is focused on cost reduction, quality, standardization, compliance, and risk containment, but there are times when sourcing must instead focus on disruption, transformation, capability enablement, differentiation, and speed, while never losing sight of the basics. Strategic IT sourcing now requires adaptive multi-modal approaches to maximize value to the business. In this session, Alsbridge will outline best practices to maximize business value across hardware, software, cloud, network, outsourcing, and integrated solutions sourcing.

Register for the Executive Immersion Program.

The Defend Trade Secrets Act of 2016 (DTSA), signed into law on May 11 by US President Barack Obama, is a new law that establishes federal rights and remedies for trade secret owners. Summarized by our colleagues in a recent LawFlash, the DTSA represents the most significant trade secret reform in decades.

Among the DTSA’s key features are whistleblower protections that could require immediate changes to form agreements and policies governing the use of trade secrets and other confidential information.

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Have you ever noticed how many professional biographies mention complexity? It seems like everyone is handling “complex” litigation or “complex” commercial transactions or helping clients drive home “complex” projects.

In the sourcing world, most of us think of ourselves as handling “complex” sourcing. A fair question to ask then is, what does “complex” mean in this context? And, does it matter?

The short answer to whether the term “complex” matters in sourcing is that it should, and it is worth taking a few minutes to think about.

The University of Tennessee has adopted a model for sourcing that puts projects on a continuum from simple to complex. Adopting that model for our purposes, it is helpful to think of “noncomplex” as something that can be completely described in a contract and is supplier agnostic. The go-to product for illustrating this is the unassuming number 2 pencil. As long as you can describe the pencil completely (lead hardness and consistency, color, length, diameter, and size, etc.), it doesn’t matter where you get the pencil. All that really matters is the cost. Once you sign your supply contract, as a buyer, you can just sit back and check the boxes of pencils when they arrive to make sure they comply with their specifications.

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