Category Archives: Uncategorized

Nondisclosure agreements serve an important purpose, but the time has come to reign them in, writes Gerald Sauer, a founding partner at Sauer & Wagner LLP in Los Angeles. When drafted too broadly NDAs can cause harm to those who sign them, and may even violate laws or be unconstitutional, he says.

by Gerald Sauer

The nondisclosure agreement is as American as apple pie. Lawyers can recite Nondisclosure Agreement (NDA) terms in their sleep, and nobody would, until recently, have done anything of substance without one.

We now seem to be in NDA free fall. Ex-administration officials write tell-all books; former business partners openly talk about their experiences; and family members air dirty laundry. All of them signed nondisclosure agreements.

Read full story on Bloomberg Law

by Sonya Goodwin

The state of California, along with the rest of the country, is reopening – in fits and starts. Those who still have jobs face the prospect of returning to unsafe workplaces. Companies still in business are trying to figure out how to stay above water financially while complying with ever-changing health and safety mandates.

Even though law firms have suffered along with the rest of the business world – many have downsized substantially during the pandemic – there is no shortage of work for employment attorneys. The list of potential actions by workers against their employers is growing to unprecedented levels. But there are strategies that can forestall the avalanche of claims.

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by Gerald Sauer

Contact tracing is universally recognized as a key weapon in the fight against the spread of the coronavirus pandemic, and it has been successfully implemented in countries around the world. In the United States, however, contact tracing is presently more concept than reality. People just don’t trust the government with their personal information, and for good reason. Despite being protected by the nation’s most stringent data privacy laws, Californians continue to witness a haphazard approach to their privacy by the vary entities entrusted with their data.

How then can they be expected to feel sanguine about having their real- time location and health information tracked and shared with others? Proposed federal legislation introduced in the U.S. Senate on May 7 was ostensibly designed to protect personal data collected for purposes of contact tracing, but it is full of holes. S.3663, the COVID-19 Consumer Data Protection Act of 2020, would actually impose few meaningful restrictions on the use of collected data, would afford no private right of action for abuse, and would supersede state laws such as the California Consumer Privacy Act with respect to contact tracing data.

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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

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)