It was dicta that launched a thousand provisions. In a 2010 decision adjudicating the leadership structure of counsel representing the plaintiff stockholder class challenging a controller stockholder merger, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery proposed that “if boards of directors and stockholders believe that a particular forum would provide an efficient and value-promoting locus for dispute resolution, then [Delaware] corporations are free to respond with charter provisions selecting an exclusive forum for intra-entity disputes.”[1] And respond they did. Facing ubiquitous, multi-forum deal litigation, public Delaware corporations began adopting so-called exclusive forum provisions to require various types of “intra-entity disputes”—typically claims that directors breached their fiduciary duties in approving a sale transaction, often made in the wake of its announcement—be brought exclusively in Delaware courts.

Over the ensuing decade-plus since Vice Chancellor Laster’s dicta, the arms race between stockholder plaintiffs and corporate defendants has shaped these provisions into a customary boilerplate form that now encompasses certain U.S. securities law claims.

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Article first published in Deal Lawyers, September – October 2021 Issue.

The post United States: Recasting a Boilerplate Provision appeared first on Global Compliance News.

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By BJ Webb, Chief Marketing Officer, HITRUST

Keeping their own organization and their business partners secure from cyber threats is a top priority for IT security teams across all industries and business sectors. If a third-party partner in the supply chain – as well as fourth- or fifth-party vendor – has a weak security posture, a breach in their IT infrastructure can impact the entire ecosystem. Plus, it goes without saying–I will anyway–the first party (your own business) needs to maintain information security protections commensurate with your organization’s risk appetite.

Solving these challenges was the main theme at last week’s HITRUST Collaborate 2021 conference. The virtual event featured two days of informative sessions attended by a variety of IT security and risk executives, managers, and practitioners.

Here’s a summary of my top five takeaways:

#1 – HITRUST is Expanding its Assessment Portfolio to Address Market Gaps in Reliability

To meet the need for varying levels of information security assurances with higher reliability, HITRUST is adding two offerings to the HITRUST CSF assessment portfolio later this year. These new assessments aid in understanding security control effectiveness as well as cyber preparedness and resilience:

  • The Basic Current State (bC) Assessment is a “good hygiene” assessment and offers higher reliability than self-assessments and questionnaires by utilizing the HITRUST Assurance Intelligence Engine™ (AI Engine) to identify errors, omissions, and deceit.
  • The Implemented One-Year (i1) Validated Assessment is a “best practices” assessment and recommended for situations that present moderate risk or where a baseline risk assessment is needed. The i1 is designed to provide higher levels of transparency, integrity, and reliability over existing moderate assurance reports, with comparable levels of time, effort, and cost.

With these two offerings coming into the CSF assessment portfolio, HITRUST is renaming the existing CSF Validated Assessment, which now will be called the (r2) Risk-Based Two-Year Validated Assessment. This tailorable assessment continues to provide the highest level of assurance for situations with greater risk exposure due to data volumes, regulatory compliance, and other risk factors.

To learn more about the enhanced CSF assessment portfolio, register for our November 9th webinar:
Addressing Market Gaps in Reliability and in the Exchange of Security and Privacy Assessments.

#2 – Results Distribution System Offers a Better Way to Exchange and Consume Third-Party Assessment Results

To meet supply chain demands for transparent IT security posture assurances, HITRUST will soon add a new offering—the Results Distribution System (RDS). The RDS will allow organizations to address the highly inefficient process of obtaining, interpreting, and analyzing assessment results from third-party vendors. RDS will allow assessed entities to deliver their HITRUST CSF Assessment results directly to business partners through a secure, centralized portal or via an API.

RDS will eliminate the need to manually review lengthy PDF files and will provide customizable dashboards to view HITRUST assessment results. The system also will integrate with relying party GRC (governance, risk, and compliance) and VRM (vendor risk management) platforms so users can fully leverage advanced analytics capabilities.

Learn More about the new Results Distribution System.

#3 – HITRUST Continues to Innovate the HITRUST MyCSF Tool

This year, HITRUST has rolled out substantial updates to the MyCSF SaaS Information Risk Management Platform and will continue to implement additional changes for the remainder of 2021.

The following five major enhancements are available today in MyCSF:

  • New workflow for all assessment types by streamlining our legacy assessment process steps and moving them into phases. This includes assigned owners for each phase to clarify ownership and reduce back-and-forth communications to generate reports.
  • Web forms that eliminate manually prepared templates that are uploaded into MyCSF. These electronic tools put data directly into MyCSF to streamline and reduce redundancies within each assessment. This enhancement includes DocuSign for e-docs — so no more manual signing and uploading.
  • Notifications that provide more information, clarity, and additional understanding of the steps required to complete the assessment.
  • Streamlined quality assurance with task ticket creation and tracking, including completed assessment action items: who is assigned to each action item; what’s left to do; and how long any action items have been left open.
  • A Kanban-style status dashboard with additional metadata and the ability to drill down into each phase of an assessment. This helps address common questions, such as how long an assessment has been in a particular phase, when the assessment was submitted, and an overview of remaining tasks.

MyCSF Screen Capture

These enhancements to MyCSF, along with the Assurance Intelligence Engine (AIE) and the MyCSF Compliance and Reporting Pack for HIPAA, all demonstrate how HITRUST is dedicated to innovating and making ongoing improvements that address the needs of the global HITRUST community.

REQUEST A MYCSF DEMO.

#4 – Shared Responsibility Streamlines Security in the Cloud

With third-party service providers implementing and migrating their IT infrastructures into the cloud, shared responsibility for security between the ecosystem of third parties and their cloud providers is increasing in importance. During the “How the Shared Responsibility Program Streamlines Security in the Cloud” panel discussion, the participants talk about their approaches to gaining sufficient and timely assurances from cloud service providers. Antiquated methods for vendor governance over third-party risk management are no longer suited to manage a “cloudy” risk posture effectively and efficiently.

This session also provided a real-world, practical perspective from a leading cloud service provider (AWS) and a HITRUST customer (Intraprise Health) who shared how joint participation in the HITRUST Shared Responsibility and Inheritance Program enables a more strategic and SLA-driven approach to cloud-based customer compliance assurances.

#5 – Not All Cybersecurity and Privacy Assurances are Created Equal

Communicating and receiving information protection assurances is a critical part of risk management, however knowing which assurance mechanisms to rely on and when to do so is easier said than done. Transparency and quality are paramount.

To help the HITRUST community understand how others are addressing this challenge, HITRUST hosted a panel, including representatives from UPMC and Schellman, that discussed how risk managers may find themselves relying too heavily on one type of assessment or unknowingly undervaluing another assessment. The panel also demystified what an appropriate level of assurance really means, discussed what makes an assessment report reliable, and explored which assessment reports are suitable for different scenarios.

Key Takeaways from HITRUST Collaborate 2021 Lead to Effective Risk Management, Compliance, and Information Protection

For IT security professionals responsible for safeguarding sensitive information, HITRUST Collaborate 2021 provided an opportunity to learn from and collaborate with colleagues to ultimately deliver more effective methods for risk management, compliance, and information protection — with transparency, quality, reliability.

We hope you plan to join us in-person at Collaborate 2022 in Dallas, TX. We’ll announce the dates later this year.


 

About the Author

Leslie WeinsteinBJ Webb, Chief Marketing Officer, HITRUST

BJ is responsible for planning, developing, and executing the HITRUST marketing strategy and elevating the brand, ensuring that HITRUST messages are clearly communicated across channels and to targeted audiences. She oversees marketing communications, product marketing, lead generation, public relations, voice of the customer, and market research.

BJ earned her MBA from the University of Illinois Gies College of Business in 2020 with specializations in Digital Marketing, Strategic Innovation, and Finance. She also holds a certificate in Design Thinking from the University of Texas at Austin, a certificate in Data Driven Marketing from Cornell University, and a BS in Business Administration from the University of Illinois. BJ is also a HITRUST Certified CSF Practitioner.

The post My Top 5 Takeaways from HITRUST Collaborate 2021 appeared first on HITRUST Alliance.

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On September 28, 2021, the US Department of Defense (“DoD”) published a notice of request for public comments.  DOD’s request relates to Executive Order 14017, (“America’s Supply Chains” or “Supply Chain EO”).  See some of our key blog posts on the Supply Chain EO for more background.  As part of requiring agency reviews of key industrial bases’ supply chains, the Supply Chain EO mandated that DoD conduct a one-year review of supply chains within the defense industrial base with the goal of identifying key supply chain vulnerabilities and opportunities to address these vulnerabilities. 

In scoping its review, DoD selected the four topics listed below and is now seeking comments about supply chain vulnerabilities and opportunities in these areas. The topics were selected based on critical vulnerabilities identified through ongoing supply chain analysis efforts.

i. Select kinetic capabilities: Includes Precision Guided Munitions (PGMs), Hypersonics, and Directed Energy (DE). Key components (e.g., critical energetics, microelectronics) are almost exclusively produced by foreign entities, including adversarial nations.

ii. Energy storage/batteries, which are critical to all kinetic capabilities, and is an evolving requirement

iii. Microelectronics, which similar to energy storage, are vital components used in nearly all defense systems.

iv. Castings and forgings, which are crucial to the manufacturing process.

In addition to the topics listed above, DoD requests input on the following five (5) systemic enablers, as they relate to the topics above. These enablers span all of the topic areas; are critical to mission success, and gaps or fragility in each can create operational and strategic risk.

i. Workforce: Includes all persons needed for a focus area, from skilled trades to specialty engineering degrees;

ii. Cyber posture: Includes cybersecurity, industrial security, and counterintelligence;

iii. Interoperability: Requirements needed to support operations with our allies, as well as the requirements to further enhance our interoperability between and among DoD’s systems and platforms;

iv. Small business: Focuses on addressing the barriers and challenges to small businesses to enter, and stay in, the defense ecosystem (both as primes and sub-contractors); and

v. Manufacturing: Includes core/traditional manufacturing modes and new manufacturing technology, such as additive manufacturing.

In regards to the four (4) topics and five (5) systemic enablers above, DoD is particularly interested in soliciting information in response to the following questions:

  • Question 1. From your perspective, how has the globalization of the supply chain improved or complicated your ability to source DoD’s requirements?
  • Question 2. What are the one or two greatest challenges your firm/association/industry faces operating in a distributed environment?
  • Question 3. Are there ways DoD can better support your efforts to mitigate such challenges?
  • Question 4. How does the federal government effectively mitigate supply chain risks?
  • Question 5. What can the government do differently to better address supply chain risks and vulnerabilities in our major weapon systems/platforms (e.g., PGMs) and critical components ( e.g., microelectronics)?
  • Question 6. What can the government do differently to successfully implement industrial base cybersecurity processes or protocols, attract skilled labor, implement standards, and incentivize the adoption of manufacturing technology?

Key Takeaways

DoD has issued a request for comments on vulnerabilities and policy recommendations related to the supply chain in strategic and critical materials.  Comments are due on October 13, 2021.  Companies participating in this supply chain should consider taking advantage of this opportunity to have a voice in US supply chain policy by assessing the vulnerabilities in their supply chains and submitting comments to the DoD.

The authors acknowledge the assistance of Ryan Orange in the preparation of this blog post.

The post United States: DoD Requests Public Comments to Assess Defense Industrial Base Supply Chains appeared first on Global Compliance News.

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On September 24, 2021, the US Department of Treasury’s Office of Foreign Assets Control (“OFAC”) issued two General Licenses—(i) General License 14, “Authorizing Humanitarian Activities in Afghanistan” (“GL 14”), and (ii) General License 15, “Transactions Related to the Exportation or Reexportation of Agricultural Commodities, Medicine, Medical Devices, Replacement Parts and Components, or Software Updates in Afghanistan” (“GL 15”)—to “support the continued flow of humanitarian assistance to the people of Afghanistan and other activities that support basic human needs in Afghanistan.”  OFAC also published four related Frequently Asked Questions (“FAQs”)—FAQs 928929930, and 931—to provide additional clarity on the scope of these General Licenses.  OFAC stated that the issuance of GL 14 and GL 15 continues the “US government’s longstanding practice of authorizing the provision of humanitarian goods and services to areas affected by US sanctions,” while upholding and enforcing US sanctions against the Taliban, the Haqqani Network, and other sanctioned entities.

GL 14 authorizes the US government, non-government organizations (“NGOs”), and certain international organizations and entities, as well as those acting on their behalf, to engage in the provision of humanitarian assistance to Afghanistan or other activities that support basic human needs in Afghanistan.  GL 14 also authorizes US persons to engage in transactions or activities that are ordinarily incident and necessary to authorized humanitarian assistance to or other activities that support basic human needs in Afghanistan.  FAQ 928 clarifies that US sanctions on the Taliban and the Haqqani network do not prohibit humanitarian assistance in Afghanistan so long as the assistance is authorized by GL 14.  FAQ 929 defines “humanitarian assistance to Afghanistan” and “other activities that support basic human needs in Afghanistan” in the context of GL 14.

GL 15 authorizes certain transactions related to the exportation or reexportation of agricultural commodities, medicine, and medical devices, as well as replacement parts, components, and software updates for medical devices as defined within GL 15.  GL 15 also covers third parties purchasing these items specifically for resale to Afghanistan, subject to certain conditions.  FAQ 930 clarifies activities and transactions covered by GL 15. 

The FAQs further clarify that GLs 14 and 15 allow non-US persons to engage in or facilitate authorized transactions without exposure to sanctions under the Global Terrorism Sanctions Regulations, 31 CFR Part 594, the Foreign Terrorist Organizations Sanctions Regulations, 31 CFR Part 597, or Executive Order 13224, as amended.  Neither GL 14 nor GL 15 authorizes any debit to a blocked account on the books of a US financial institution or financial transfer to the Taliban, the Haqqani Network, or any entity owned 50% or more by either group.

The authors acknowledge the assistance of Ryan Orange with this blog post.

The post United States: OFAC Issues New General Licenses and FAQs for Humanitarian Aid to Afghanistan appeared first on Global Compliance News.

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In brief
Welcome to this issue of the Global DR Legal Update, our quarterly newsletter which aims to bring together the most important global developments in litigation and arbitration. If you have any questions, or if we can assist further, please get in touch with Ben Roe or Steve Adams.

Contents

  1. Asia Pacific 
  2. EMEA 
  3. The Americas 
  4. Global 

Asia Pacific 

  • China: Significant reforms of arbitration legislation proposed
  • China: Hong Kong and Mainland China enhance law on mutual enforcement of arbitral awards
  • Hong Kong: Non-compliance with pre-condition to arbitration is a question of admissibility, not jurisdiction
  • India: Emergency arbitration awards enforceable in India
  • Singapore: Third-party funding extended to additional categories of legal proceedings

EMEA 

  • Benin/Iraq: Two nations ratify Mauritius Convention on transparency in investor-state arbitration
  • European Union: Intra-EU disputes cannot be arbitrated under ECT
  • Russia: ICC and SIAC licensed as permanent arbitration institutions
  • United Kingdom: Supreme Court rules on proper procedure for service of enforcement proceedings on sovereign state
  • United Kingdom: First opt-out class action approved by UK tribunal in Merricks judgment

The Americas 

  • Brazil: Brazilian Superior Court confirms limitation period for seeking annulment of arbitral awards
  • Canada: BC Court enforces foreign judgment relating to land in Canadian legal first
  • Ecuador: Ecuador rejoins ICSID Convention despite opposition from legislature
  • Honduras: Honduras ratifies Singapore Mediation Convention
  • United States: Supreme Court limits consumer lawsuits with ruling on Article III standing

Global 

  • Trends in updates to arbitral rules
  • Updates from UNCITRAL Working Group III
  • UNCITRAL publishes expedited arbitration rules
  • ICCA launches guidelines on standards of practice in international arbitration
  • ICSID releases papers on mediation in investment disputes

Read the full publication here

The post International: Global DR Legal Update | September 2021 appeared first on Global Compliance News.

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In brief

Welcome to Baker McKenzie’s new Labor and Employment video chat series for US employers. Our lawyers will provide quick, practical tips on today’s most pressing issues for US employers navigating the new normal.  The videos complement our blog, The Employer Report, which provides written legal updates and practical insights about the latest labor and employment issues affecting US multinationals, at both the domestic and global level.

Please click below to watch the video chats and be sure to let us know if there are additional topics you’d like us to address.


Speakers: Robin SamuelStephanie Priel and Autumn Sharp

Speakers: Robin Samuel and Helena Engfeldt

Speakers: Michael BrewerSusan Eandi and Robin Samuel

Speakers: Paul EvansMichael LeggieriKaitlin Thompson

Speakers: JT CharronJeff MartinoKatelyn Sprague and Billie Wenter

Speakers: Susan EandiElizabeth EbersoleMelissa Allchin and Erik Christenson

Speakers: Susan EandiRobin Samuel and Brian Hengesbaugh

Speakers: William DuganKrissy Katzenstein and Aleesha Fowler

Speakers: Susan Eandi, Emily Harbison and Robin Samuel

Speakers:  Robin SamuelJeffrey Sturgeon and Stephanie Priel

Speaker: Susan Eandi

Speakers: Melissa AllchinRobin Samuel, and Harry Valetk

Speakers:  Susan Eandi, Emily Harbison and Krissy Katzenstein

Speakers: William DuganRobin Samuel and Goli Rahimi

Speakers: Michael Brewer and Teresa Michaud

Speakers: Paul EvansBlair Robinson and Autumn Sharp

Speakers: Elizabeth EbersoleCaroline Pham and Robin Samuel

Speakers: Susan Eandi, Emily Harbison and Robin Samuel

Speakers: Anna Brown, Susan Eandi and Emily Harbison

Speakers: Caroline BurnettBlair RobinsonAutumn Sharp and Jeff Sturgeon

Speakers: Caroline BurnettBlair RobinsonAutumn Sharp and Jeff Sturgeon

Speakers: Caroline Burnett, Lara Grines and Jeff Sturgeon

If you’re looking for guidance related to the pandemic, please check out the below Reopening Playbook video chat series. It covers practical topics like masks in the workplace, expense reimbursement requirements, employee testing and screening and much more.

Reopening Playbook Video Chat Series

Speakers: Elizabeth EbersolePaul Evans and Robin Samuel

Speakers: Susan EandiPaul Evans and Emily Harbison

Speakers: Emily Harbison, Michael Brewer and Robin Samuel

Speakers: Susan Eandi, Emily Harbison and Robin Samuel

Speakers: Emily Harbison, Paul Evans and William Dugan

Speakers: Michael Brewer and Billie Wenter

Speakers: Michael BrewerSusan Eandi and Emily Harbison

Speakers: Bradford NewmanJoseph DengBillie Wenter and Robin Samuel

Speakers: Susan EandiChristopher GuldbergBetsy Morgan and Grant Uhler

Speakers: Paul EvansRobin Samuel and Billie Wenter

Speakers: Michael Brewer, Emily Harbison and Michael Leggieri

Speakers: Michael BrewerPaul EvansJeffrey Sturgeon and Billie Wenter

Speakers: Anne Batter, Emily Harbison and Benjamin Ho

Speakers: Michael BrewerJoe Deng and Susan Eandi

Speakers: Michael LeggieriTeresa Michaud and Billie Wenter

Speakers: Paul Evans, Emily Harbison and Jeffrey Sturgeon

Speakers: William Dugan, Emily Harbison and Brian Hengesbaugh

Speakers: Susan EandiBenjamin HoChristopher Guldberg and Arthur Rooney

Speakers: Melissa AllchinWilliam Dugan and Betsy Morgan

Speakers: Joseph DengRobin Samuel and Amy de La Lama

Speakers: Michael BrewerMark Goodman and Teresa Michaud

Speakers: Susan EandiPaul Evans and Emily Harbison

Speakers: Christopher Guldberg and Benjamin Ho

Speakers: Michael Brewer and Teresa Michaud

The post United States: The Employer Rapport – Quick chats for the US workplace (Video Chat) appeared first on Global Compliance News.

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Shelter-in-place or stay-at-home orders have been prevalent throughout the United States since March 2020 as state and local governments have sought to protect their citizens from the spread of the COVID-19 virus while at the same time reopen their economies in accordance with phased reopening plans. Keeping abreast of the evolving nature of these orders and plans as the spread of the virus continues to evolve is critical to the functioning of all businesses throughout the country.

Baker McKenzie has a team in place that has been advising clients real-time on these most critical issues since the first orders were enacted. We are pleased to provide this tracker, which identifies the relevant state-wide shelter-in-place orders and their related expiration dates, as well as the applicable state-wide reopening plans, in each of the 50 United States plus Washington, D.C. The “What’s Open” table on each page highlights the reopening status of four major sectors (office, manufacturing, retail and bars/restaurants).

In addition, the tracker includes links to the relevant quarantine requirements or recommendations for incoming travelers in each state plus Washington, D.C.

Key developments reflected in this week’s update to the tracker include the following:

  • The following jurisdictions extended their state-wide orders and/or the duration of the current phase of their reopening plans: Illinois, Iowa and New Mexico. 
  • Washington amended its state-wide mask mandate to require facial coverings for large outdoor events with 500 or more individual, regardless of vaccination status. 

You can also view our brochure which highlights key areas of expertise where we can support your business’s tracking and reopening plans. Please call or email your regular Baker McKenzie contact if you require additional analysis regarding these matters.

Last updated 24 September 2021

DOWNLOAD US SHELTER-IN-PLACE/REOPENING TRACKER

The post US 50 State Shelter-in-Place / Reopening Tracker appeared first on Global Compliance News.

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A key Senate committee has released legislation updating how agencies prepare for and respond to cyber attacks, including requirements for federal civilian agencies and contractors to share more information about attacks on their systems.

The Homeland Security and Governmental Affairs Committee released the “Federal Information Security Modernization Act of 2021” today. The panel will mark up the bill during a hearing Wednesday.

The legislation would update FISMA for the first time since 2014. It aims to codify the Cybersecurity and Infrastructure Security Agency’s central role in federal cybersecurity response efforts, as CISA only became an independent agency in 2018.

And it comes after major cyber attacks on federal networks in recent years, most notably the SolarWinds campaign where attackers breached the networks of at least nine U.S. agencies.

“Since Congress last addressed this critical issue, online threats have rapidly evolved and CISA had not yet been created,” Chairman Gary Peters (D-Mich.) said. “This bipartisan bill will help secure our federal networks, update cyber incident reporting requirements for federal agencies and contractors to ensure they are quickly sharing information, and prevent hackers from infiltrating agency networks to steal sensitive data and compromise national security.”

The bill would give federal executive civilian branch agencies up to 30 days after a breach has occurred to determine whether to give notice to individuals potentially affected by the hack based on “an assessment of the risk of harm to the individual,” such as whether their personally identifiable information was pilfered.

It would also require agencies to report “any information relating to any incident, whether the information is obtained by the federal government directly or indirectly,” to CISA and the White House Office of Management and Budget.

The bill would also require agencies to keep Congress apprised of any significant cyber attacks. The legislation would give agencies five days from determining that a “major incident” has occurred to provide a written report and briefing to relevant congressional committees, including both HSGAC and the House Homeland Security Committee.

Federal contractors and grantees would be required to “immediately report” to their awarding agency whether an incident or breach occurred affecting federal data or information systems. The agency would then work with the contractor to report the details to CISA and Congress, if necessary.

Peters and HSGAC Ranking Member Rob Portman (R-Ohio) released a bill last week requiring critical infrastructure owners and operators to report cyber incidents to CISA within 72 hours. The committee will also mark up that bill during Wednesday’s hearing.

In addition to incident reporting and information sharing requirements, the FISMA modernization bill would also have CISA assign its cybersecurity professionals to serve as advisors to the chief information officers of each civilian agency.

It would also give CISA 540 days — about 18 months — to establish a program providing “ongoing, hypothesis-driven threat-hunting services on the network of each agency.” The 2021 National Defense Authorization Act already provided CISA with authority to do threat hunting on federal government websites.

The bill would bolster many of the directives in President Joe Biden’s May executive order on cybersecurity, including a requirement for OMB, CISA and the National Institute of Standards and Technology to issue guidance for agencies to implement “presumption of compromise and least privilege principles” in line with the zero trust architecture concept.

The legislation would give OMB plenty of new homework, including coming up with a new “risk-based budget model” to guide cybersecurity spending at agencies. The model would consider cyber threat intelligence and the interconnectivity of agency systems to “indicate where resources should be allocated to have the greatest impact on mitigating current and future threats and current and future cybersecurity capabilities.”

It would be used to inform the acquisition and sustainment of major IT systems and cyber tools, as well as the development of personnel policies and new concepts of operations.

Source

In brief

On 14 September 2021, the US Department of Justice’s Antitrust Division (DOJ) and the US Federal Trade Commission (FTC) issued a Joint Statement (Statement) on antitrust enforcement regarding collaborative relief efforts after Hurricane Ida. The Statement recognizes that collaboration among companies ― even among competitors ― may be necessary and beneficial to assist communities with rebuilding and relief efforts. However, the Statement also makes clear that neither agency will tolerate attempts to subvert competition laws or engage in illegal conduct under the guise of disaster recovery. Both agencies will use their enforcement authority and tools to prosecute anticompetitive and fraudulent conduct taking advantage of hurricane victims or relief efforts. These tools include the DOJ’s Procurement Collusion Strike Force, which has trained 1,500 investigators and has several ongoing investigations.


Key Takeaways 

The agencies recognize that collaborative agreements may be essential to help communities affected by the disaster and to expedite rebuilding efforts. The Statement cites the Antitrust Guidelines for Collaboration Among Competitors, which provide guidance on how businesses can collaborate without violating the antitrust laws. The Statement also provides examples and describes the various benefits of certain business collaborations to respond to disasters. The US agencies issued similar antitrust guidance in the wake of Hurricane Katrina and Rita, as well as guidance for Hurricanes Harvey and Irma in 2017. Likewise, the agencies issued similar guidance during the COVID-19 health crisis.1  Even so, the US antitrust laws are not being relaxed. The Statement makes clear the agencies intend to hold accountable companies and individuals who enter into anticompetitive agreements that exploit hurricane victims or hurricane relief efforts. 

In More Detail 

The statement recognizes that the rebuilding of communities affected by the storm requires cooperation among private businesses and federal, state and local governments. It also highlights numerous business sectors that have been affected by the disaster, including health care, housing, telecommunications, and retail. The agencies acknowledge that collaborative agreements can enable businesses to recover more quickly than working alone. The guidance provides examples of permissible collaborations, including agreements to combine health care services to meet the needs of the affected communities, or to more quickly bring vital supplies to those in need.

The Statement emphasizes that US antitrust laws are sufficiently flexible to allow for these types of competitor collaborations when they are applied with proper scope and length to respond to the disaster.

Companies must not use this flexibility as cover for anticompetitive conduct. As a member of the National Center for Disaster Fraud Task Force, DOJ commits to investigate and prosecute anticompetitive or fraudulent schemes that follow the disaster. Likewise, the FTC will investigate companies or individuals engaging in conduct violating consumer protection laws that target victims of natural disasters. 

The key takeaway is that companies cannot use Hurricane Ida or other natural disasters as an excuse to break the US antitrust laws. The DOJ and FTC have made clear that they will pursue any businesses or individuals who engage in fraudulent conduct, attempt to undermine the competition laws, or disguise illegal conduct as disaster relief efforts.


1. FTC-DOJ Joint Antitrust Statement Regarding COVID-19 – 24 March 2020

The post United States: Agencies issue antitrust enforcement statement on post-hurricane relief efforts appeared first on Global Compliance News.

Source

Shelter-in-place or stay-at-home orders have been prevalent throughout the United States since March 2020 as state and local governments have sought to protect their citizens from the spread of the COVID-19 virus while at the same time reopen their economies in accordance with phased reopening plans. Keeping abreast of the evolving nature of these orders and plans as the spread of the virus continues to evolve is critical to the functioning of all businesses throughout the country.

Baker McKenzie has a team in place that has been advising clients real-time on these most critical issues since the first orders were enacted. We are pleased to provide this tracker, which identifies the relevant state-wide shelter-in-place orders and their related expiration dates, as well as the applicable state-wide reopening plans, in each of the 50 United States plus Washington, D.C. The “What’s Open” table on each page highlights the reopening status of four major sectors (office, manufacturing, retail and bars/restaurants).

In addition, the tracker includes links to the relevant quarantine requirements or recommendations for incoming travelers in each state plus Washington, D.C.

Key developments reflected in this week’s update to the tracker include the following:

  • The following jurisdictions extended their state-wide orders and/or the duration of the current phase of their reopening plans: Illinois, Iowa and New Mexico. 
  • Washington amended its state-wide mask mandate to require facial coverings for large outdoor events with 500 or more individual, regardless of vaccination status. 

You can also view our brochure which highlights key areas of expertise where we can support your business’s tracking and reopening plans. Please call or email your regular Baker McKenzie contact if you require additional analysis regarding these matters.

Last updated 24 September 2021

DOWNLOAD US SHELTER-IN-PLACE/REOPENING TRACKER

The post US 50 State Shelter-in-Place / Reopening Tracker appeared first on Global Compliance News.

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