Insights

Significant shifts in U.S. technology policy are taking shape at the start of the new administration. This is especially true in the field of artificial intelligence (AI), where President Trump revoked President Biden’s Executive Order 14110, titled “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” as part of his flurry of Day One executive actions. The administration is now moving quickly to put its own stamp on this area in an effort to strengthen U.S. AI leadership and competitiveness and outpace other nations, particularly the People’s Republic of China.

On Saturday, October 7, 2023, California Governor Gavin Newsom signed into law two landmark bills—SB 253, the Climate Corporate Data Accountability Act; and SB 261, the Climate-Related Financial Risk Act—that will require large public and privately-held entities doing business in California to comply with sweeping disclosure requirements regarding their direct and indirect greenhouse gas emissions and their climate-related financial risks.

On May 16, 2023, the U.S. Senate Committee on the Judiciary, Subcommittee on Privacy, Technology, and the Law held a hearing titled “Oversight of A.I.: Rules for Artificial Intelligence.” This hearing is the first in a series intended to provide a forum for industry leaders to discuss and provide an understanding of the implications of A.I. with an eye toward facilitating the development of appropriate guidelines and regulations.

COVID-19 has disrupted and will continue disrupting supply chains in many important ways, as suppliers, carriers and buyers navigate the global pandemic. But does the pandemic allow activation of force majeure clauses in your contracts? If a force majeure clause is activated, what are the rights and responsibilities of each party during the pandemic? When does performance restart and how? And, what if there is a dispute?

COVID-19 likely will lead many contracting parties to consider declaring that a force majeure event has occurred when performance has become impossible or significantly more difficult. But the exact wording of the force majeure clause will matter a great deal in determining whether non-performance is legally excused. Force majeure clauses can be very different. You should consider carefully the language of a force majeure provision, and the questions below, before deciding on your response to a business disruption.

Force majeure and related doctrines may allow a contracting party to suspend or terminate performance when certain unforeseeable events that are beyond the control of the parties occur, such as a global pandemic or government action or prohibition. However, the mere existence of a force majeure clause and qualifying event may not excuse non-performance if that event is not the actual cause of the business disruption.

In responding to a business disruption caused by the COVID-19 pandemic, it is not enough to read and rely on the language of the contract. You will also need to consider the law governing contract interpretation and commercial relationships. The relevant law may excuse non-performance even without a force majeure clause, and will certainly affect the interpretation of the force majeure clause.

The COVID-19 pandemic is causing widespread business interruptions with inevitable ramifications on commercial relationships. It is tempting to focus elsewhere and plan to deal with the legal issues when the smoke clears. This could be a mistake.

If it is your counterparty that invokes force majeure to excuse its performance, it is important that you understand what your own obligations and rights are, how to enforce those rights, and how to challenge the assertion of force majeure if you do not believe it is justified. The declaring party must be able to defend the invocation of the force majeure notice and justify whether all or just part of the performance should be excused. The analysis will be highly fact and contract-specific, and this guide provides a starting point to evaluate next steps and build your strategy after a force majeure event is declared.

The Office of the National Coordinator for Health IT (ONC) at HHS released guidance today – EHR Contracts Untangled – to help health care providers select and negotiate contract terms with technology vendors.

On January 27, 2010, the Securities and Exchange Commission ("SEC") approved, by a slight majority, the issuance of guidance on how existing public company-disclosure requirements may apply to climate change. A pre-publication copy of the guidance was made available on February 2, 2010 (see below). Unlike a law or rule promulgated pursuant to legal authority, the interpretive guidance is not legally binding. It is, nonetheless, significant as the SEC's first express statement regarding how climate change issues may implicate companies' disclosure requirements.