Arbitration – Time to Fix a Flawed Forum: Gerald Sauer’s article for the Journal of Consumer & Commercial Law

by Gerald Sauer

Businesses have increasingly embraces arbitration because it helps them avoid the roulette-wheel outcomes of jury trials. This article originally appeared in Law 360.

Arbitration has become a hot-button issue. In September, the House of Representatives passed the Forced Arbitration Injustice Repeal (FAIR) Act, intended to ban mandatory arbitration in the workplace, and California enacted AB 51, the latest state effort to protect workers from forced arbitration. The Economic Policy Institute and the Center for Popular Democracy predict that, by 2024, almost 83% of the country’s private, non-unionized employees will be subject to mandatory arbitration, an increase of 56% since 2017.

Read full story on the Journal of Consumer & Commercial Law

Gerald Sauer quoted in The Daily Journal article on contact tracing

The Daily Journal quoted Gerald Sauer in its article, “Contact tracing orders present dilemma for businesses.”

Gerald S. Sauer, a partner at Sauer & Wagner LLP who is not involved with the case, agreed with Kernkamp that layering on the data requirement would further impact restaurants.

“What happens to the information after this is over? You’re forcing a business that’s on life support to do something extra. It’s a burden. How do they know the list won’t be compiled, sold and monetized?” he said.

Privacy concerns are why tech firms including Apple and Google backed away from partnerships with governments for contact tracing, Sauer said. Business owners are also likely worried about facing liability from patrons over data disclosure.

“The longer the pandemic goes on, the more the erosion of privacy interests,” Sauer said. “There are crises you have to take steps for public welfare but you should view it like a game of chess, not checkers. Think about moves on the board down the road so you can anticipate what happens after. There shouldn’t be a patchwork approach. California has come up with a comprehensive plan in theory that still has holes in it in the use of private information to battle this virus.”

Read full story at The Daily Journal (subscription required)

Civil court closures will have lasting impact: Gerald Sauer’s article for The Daily Journal

by Gerald Sauer

COVID-19 has turned the world as we know it upside-down, but it has done quite a number on the civil court system. In its rush to close courts to protect public health, the California Judicial Council and the Los Angeles County courts have set civil litigants back to a point from which it will be difficult to recover.

Relegated to the back of the line behind “essential” matters such as criminal, delinquency, dependency, family and mental health matters, civil trials have effectively gone into la-la land. It could be years before people who have been injured see justice. Civil cases that would have been resolved in two years will now likely drag on for more than four years. The result will be not just ongoing financial hardship for people who have suffered real injuries and deserve to be restored to pre-injury economic status, but mental and emotional trauma that we’ll see playing out into the foreseeable future: higher levels of addiction, suicide, domestic violence and self-abuse.

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COVID-19 data privacy could be a Pandora’s box

by Gerald Sauer

It has taken a global pandemic to finally move legislators in DC toward progress on consumer privacy issues. Despite an urgent need for a comprehensive legal framework to protect personal data, more than a year after it first began looking at a federal scheme, Congress has not managed to reach consensus on a framework such as the European Union’s GDPR or the California Consumer Privacy Act (CCPA). Now, calls from public health experts to implement a system of contact tracing of individuals infected with COVID-19, and a seat-of-the-pants Senate proposal, have put data protection into hyperdrive.

We’re at a critical juncture, with the health crisis driving us toward a quick fix that could jeopardize the broader public interest. It’s the perfect moment for Congress to put differences aside and enact comprehensive federal data privacy laws, while also addressing the unique challenges of data collection during the coronavirus pandemic. A powerful cure is needed for the country’s data privacy disease, not simply an interim coronavirus relief patch that could, as explained below, open a Pandora’s box of problems.

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