finding the perfect site #metoo and the workplace ... · and storm water manage - ment ordinances....

78 MAY p JUNE 201878 MAY p JUNE 2018

they should. Policy and training remain vitally important. However, it is up to you to ensure that these measures are effective for your workforce.

Now is the time to review and assess your company’s anti-harassment policies. You should also evaluate the effectiveness of employee training on recognizing and reporting workplace harassment and of your company’s investigation procedures when internal concerns are raised. The key question is whether the components of your workplace harassment- prevention program are both comprehensive and effective.

Your Discriminatory Harassment PolicyWhen evaluating an anti-harassment policy, consider the following questions:X Is the policy compli-

ant with the law? That is, does it cover harassment based on all protected char-acteristics under federal and applicable state and local law? X Does the policy

explain in an accessible way what types of conduct are prohibited? Does your policy provide employees with more than one contact, including someone who is not the employee’s imme-diate supervisor, for raising concerns of harassment? X Does the policy explain

the company’s commitment to investigating concerns and the prohibition against retaliation for raising con-cerns or participating in an investigation?

X A comprehensive policy, inclusive of a multiple-contact reporting structure, which allows employees to raise concerns of harassment without fear of reprisal. X Periodic anti-

harassment training for employees.X Procedures that pro-

vide for investigation and resolution of any complaints of harassment raised under the employer’s policy.

Sound familiar? It should. Preventive mea-sures such as policy and training allow employers to raise an affirmative defense to claims of unlawful hostile work environment harass-ment. But in the #MeToo era, workplace harassment education and preventive measures must be more than perfunctory exercis-es designed to “check the box” on the company’s legal obligations.

What Should My Company Be Doing Now? The continuing #MeToo/Time’s Up dialogue sends the clear message that even though the letter of the law has not changed, it is more important than ever that employers’ workplace harassment-prevention measures are working as

KELLEY E. KAUFMANMCNEES WALLACE & NURICK

IN THE CURRENT climate of #MeToo and the Time’s Up movement, many employers are

scrambling to answer a variety of questions relat-ing to harassment in the workplace. Chief among these are what’s changed, and what changes do we need to make now?

The answer to the first question is that nothing has changed, at least in terms of the laws prohibit-ing discrimination, which include sexual harassment. Employers have long had an obligation to prevent and remedy all forms of un-lawful harassment in their workplace. This means that when they are on notice about harassing conduct, they must take prompt, appropriate action that is reasonably calculated to en-sure that the conduct stops and does not recur.

Typically, employers discharge this obligation by maintaining a work-place harassment-pre-vention program that includes:

In the #MeToo era, workplace

harassment education and

preventive measures must

be more than perfunctory

exercises designed to

“check the box” on the company’s legal obligations.

Kelley E. Kaufman is a mem-ber at McNees. She regularly defends clients before the Equal Employment Opportunity Com-mission, the Pennsylvania Human Relations Commission and the Pennsylvania Unemployment Compensation Board of Review, as well as in employment-related litigation in federal and state court. Reach her at [email protected].

3 Today’s headlines point to why it is critical to review and strengthen company harassment programs.

#MeToo and the Workplace: What’s Changed – and What Needs to Change

May p June 2018ccbjournal.com

F INDING THE PER-FECT location on which to build a facility to house op-

erations may seem like the most challenging part of a project. After all, selecting and acquiring the right property can be difficult, particularly in today’s market, where many of the sites that remain avail-able have features that make them problematic to develop.

Finding the right proper-ty, however, is only the first step in the process. Once that’s done, it will be important to overcome vari-ous barriers before achieving the ultimate goal: receipt of all of the state and municipal approvals necessary to pull a building permit and begin construction. So, once the ideal site for a project has been found, you can then take the following five steps to help ensure that the en-visioned facility can quickly become a reality.

1. Assemble the right team Having the right profes-sionals to support the project is paramount to its success. Nearly every

project team will include a real estate broker, a land-scape architect, a building architect, a contractor and an experienced land use at-torney. Some projects may require specialists in other fields, such as transporta-tion planning or environ-mental engineering. When selecting the team, make sure to look for profession-als who work regularly in the region where the property is located. For example, in south-central Pennsylvania, karst geol-ogy, which often results in the formation of sinkholes, is prevalent. Local land-scape architects are fa-miliar with this condition and know how to design around it, particularly with respect to managing storm water. Likewise, local land use counsel will have relationships with the municipal officials who will be reviewing and approv-ing your project, and will be able to anticipate and maneuver through local “hot-button” issues.

2. Identify land use restrictionsLand use restrictions primarily emanate from

two sources: the property’s chain of title and municipal ordinances. A thorough review of each is essential to ensure that all possible barriers to development are identified early in the land planning process. When reviewing the title search, pay particular attention to any easements affecting the property or any use restrictions noted in a deed or on a subdi-vision plan (e.g., that the property may be used and conveyed for residential purposes only). While there are ways to eliminate either type of restriction if necessary, doing so can be a lengthy and cost-inten-sive process. In addition, these types of restrictions, if undiscovered, can give a foothold to objectors for use in challenging a con-troversial project.

If adjustments to the land development plan need to be made, it is ben-eficial to make the changes as early in the process as possible, preferably before plans have been shared publicly. With respect to municipal ordinanc-es, make sure you have engaged in a thorough and complete review of munic-ipal zoning, subdivision and land development, and storm water manage-ment ordinances. Many projects require some type of zoning relief, whether

MARK STANLEY AND CLAUDIA N. SHANKMCNEES WALLACE & NURICK

FINDING THE PERFECT SITE IS JUST THE START

3 Five steps to help you turn a land development vision into a reality.

Mark Stanley is a member in McNees’s Real Estate practice group. He is an active member of the Lancaster, Pennsylvania, legal community, practicing in the area of real estate law, with a particular focus on zoning, land use and land development matters. He represents local, re-gional and national development clients in south-central Pennsyl-vania. Reach him at [email protected].

If adjustments to the land develop-ment plan need to be made, make the changes as early as possible, preferably before plans have been shared publicly.

Corporate Counsel Business JournalMay p June 2018

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Navigating the Intersection Of Tech and Law

3 Seizing opportunities and meeting challenges in the digital revolution.

E VERY DAY, Clifford Chance attorneys ad-vise clients on the opportunities and risks posed by rapidly advancing technology. No matter the practice, no matter the in-

dustry, they are helping clients confront change so fast that it outpaces the law and customary business practices. This approach is not by hap-penstance. As their attorneys point out, “Every company is a tech company. Every business is a tech business. No sector is sheltered from the digital storm.”

Clifford Chance’s Tech Group has been pur-posefully shaped to help clients cope with today’s tech revolution. Positioned at the in-tersection of law, business and technology, this integrated global team crosses traditional prac-tice lines with ease to shape and deliver hybrid advice on tech-related issues. It is the right team in the right place at the right time.

Guiding the team is a core leadership group that includes U.S. partners Anand Saha and Megan Gordon, who are joined by colleagues from New York, Washington, D.C., and across the globe. Together, and in close collaboration with their clients, they are engaged in an ongoing dialogue about the impact of rapid technological developments on corporate legal departments. The array and complexity of the issues they confront is staggering – from antitrust to AI, FinTech to IP, competition to cybersecurity, data to disputes. For clients, the need for coherent counsel and deliberate direction now is critical.

The following is designed to advance the tech conversation beyond the law to the bigger picture. Please visit http://bit.ly/CliffordChanceTech to join the discussion.

Corporate Counsel Business Journal

Anand Saha is a partner in Clifford Chance’s Corporate practice and is a leading member of the firm’s global Tech Group. Reach him at [email protected].

A LAW FIRM FLUENT IN TECH AND LAWANAND SAHA

NOT LONG AGO, the word “technology” often referred to an industry – a business sector made up of tech com-panies. Today, however, digital technology is perva-sive, and it plays a growing role in every industry, from consumer products to insurance, manufacturing, aviation – you name it. It is driving a comprehensive shift in the way companies do business, and as more and more CEOs will tell you, every company is now a tech company.

Law firms need to evolve to adapt to that reality. For example, at Clifford Chance, we have a growing number of attorneys who focus specifically on technology- related issues. Their expertise can be applied across many traditional legal areas, such as mergers and acquisitions, capital markets, finance and regu-latory.

At the same time, we are working to ensure that all of our lawyers, regardless of their practice area, are fluent in the key techno-logical trends that our clients are facing. To that end, Clifford Chance has launched its global “Tech Academy” to build on our existing strengths in training lawyers in topics ranging from e-commerce and connected vehicles to artificial intelligence, blockchain, data privacy and cybersecurity. The goal is to stay on top of the issues and remain in

tune with our clients as they grapple with rapidly changing technologies.

To enhance the tech-nology conversation with clients, the firm’s Tech Group produces a range of publications focusing on technology. We also have a dedicated website called “Clifford Chance Talking Tech.” The site provides a focal point for the firm’s knowledge at the intersec-tion of technology and the law, and provides another way to deepen clients’ un-derstanding of the risks and opportunities presented by evolving technology.

Through all these efforts, we are making technology as pervasive in our firm as it is in the business world. And we are helping to ensure that our clients can keep up with the acceler-ating technology-driven change that is reshaping their companies and the business world. ■

and what are the risks and benefits associated with those activities? How are they protecting data? Just as important, they need to determine how the com-pany will respond in the event of a breach, which can have a significant impact on how any ensuing litigation unfolds.

At the same time, com-panies need to take a global view of litigation risk, as technology-related laws often differ from country to country.

Case in point: The Euro-pean Union’s new General Data Protection Regulation (GDPR), a sweeping change to data privacy rules, in-cludes broad requirements for collecting data, gaining consent for data usage, the processing of data and the infrastructure needed to protect data. While this is an EU rule, it applies to any company marketing products in Europe – which includes most large U.S. companies.

Overall, the general counsel will need to put in place policies and proce-dures that help ensure com-pliance with technology-re-lated regulations and the security of data. However, technology- enabled change is moving fast and becom-ing critical to business success. That means that companies will need to find the right balance between control and flexibility in order to meet the dual man-dates of mitigating risk and enabling innovation. ■

Companies will need to find the right balance between control and flexibility to meet the dual mandates of mitigating risk and enabling innovation.

AS TECHNOLOGY BECOMES more deeply woven into business, general counsel at tech companies – and for that matter, companies in general – need to be alerted to new litigation risks. These might include, for example, potential civil suits for liability involving devices that can be hacked, antitrust litigation stem-ming from the use of algo-rithms in pricing or issues with export controls. In addition, governments are becoming more savvy about

new technology, and as that continues, we can expect more technology-related enforcement action.

Perhaps the greatest area of potential risk is the data that companies collect and use. Data breaches exposing sensitive infor-mation can lead to actions from federal and state reg-ulators as well as litigation risks. Thus, general counsel need to pay special atten-tion to the handling of data. How are their companies gathering and moving data,

Megan Gordon co-heads Clifford Chance’s U.S. Cybersecurity and Data Privacy group and is a lead-ing member of the firm’s global Tech Group. Reach her at [email protected].

TECH RAISES NEW LITIGATION RISKSMEGAN GORDON

firm’s own products; a po-tential example of this could arise within the context of voice shopping).

Antitrust Enforcement of IP RightsThe current head of the DOJ’s Antitrust Divi-sion, Makan Delrahim, comes from a strong IP background, and he has expressed concern over the standard-set-ting process, noting the tension between innova-tors (patent holders) and standard-setting organi-zations (SSOs, the technol-ogy implementers). Thus, companies should expect enforcement of IP rights to be pro-innovation, and should take care to ensure that any SSO they are part of observes robust anti-trust compliance policies

WITH RAPID DEVELOPMENTS shaping an increasingly dig-ital era, antitrust regulators around the world are run-ning bold test cases against tech giants, exploring new theories of harm and obtaining record-breaking fines for anticompetitive sales practices. Unlike regu-lators in other domains, the antitrust regulators in the U.S. are not waiting on any changes to existing legisla-tion in order to effectively regulate emerging technol-ogy practices.

Artificial Intelligence and Anticompetitive PracticesBusinesses that utilize algo-rithms in offering services or products should steer clear of any risk of being viewed as enabling price collusion (such as when competitors jointly use the same algorithms to facilitate a price agree-ment), or dominance (where the algorithm operates as a search engine and unfairly prioritizes the

and avoids information sharing. Indeed, Delrahim has warned that SSOs can be rife with opportuni-ties for anticompetitive activity.

Increased Enforcement and Self-EducationThe scrapping of Obama-era net neutrality regulations in December reinstated the Federal Trade Commission’s jurisdiction over broadband services, meaning it will be up to the regulator to bring antitrust enforcement action to protect free and open competition on the internet. In stating their views on competition in the American technology sec-tor, all four of the recently confirmed FTC commission-ers expressed intentions to closely monitor the tech

Corporate partner Tim Cornell heads up Clifford Chance’s U.S. Antitrust practice. Reach him at Timothy.Cornell@clifford chance.com.

ANTITRUST ENFORCEMENTTIM CORNELL AND KIRAN GILL

Kiran Gill is a law clerk in Clifford Chance’s Antitrust practice. Reach her at Kiran.Gill@clifford chance.com.

Unlike regulators in other domains, antitrust regulators in the U.S. are not waiting on any changes to existing

legislation in order to effectively regulate emerging technology practices.

giants and ensure that the agency builds the talent and capability needed to understand the unique dynamics of technology- driven markets. These com-ments also suggested that the FTC likely will be more receptive to the concerns of smaller competitors and consumers. ■

DATA HAS BECOME a “force unto itself” in our digital world, with the potential to offer great benefits while also threatening to cause tremendous mis-chief. For example, with regulatory and enforce-ment agencies imposing bigger and bigger demands on corporations for infor-mation about their opera-tions, advances in technol-ogy – including intelligent artificial intelligence – can make the lives of the corporate compliance and legal departments easier. Indeed, AI may even be better than humans, and certainly cheaper and more efficient, when it comes to some types of data exam-ination and production.

At the same time, the more corporations rely on data to conduct their operations, the more those operations are at risk from cyberattacks. Moreover, regulators are increasingly demanding that corporations shore up their defenses to ward off attacks proactively – and it’s not just the corpora-tion’s own defenses, but also those of third-party service providers that require scrutiny. New York State’s Department of Financial Services, for example, explicitly requires, as part of its cybersecurity regulations, that its regulated entities take steps to protect data held by third-party service providers.

DATA SECURITYCELESTE KOELEVELD

THE CYBERSECURITY regulatory landscape in the United States is rapidly evolving. Recently, prose-cutors and regulators have stepped up efforts to com-bat cybercrime and ensure that companies adequately manage cybersecurity risk and disclose breaches and other material information.

In February, the Depart-ment of Justice created a cybersecurity task force to review current criminal enforcement efforts and suggest areas for improve-ment. As they often require assistance from victimized companies, prosecutors and law enforcement agents are continuing efforts to strengthen information sharing between govern-ment and private industry. Corporate entities, however, are sometimes reluctant to involve law enforcement au-thorities for fear of inviting regulatory scrutiny.

Regulators, in turn, are increasingly focused on making sure companies actively manage their cyber risks. The Commodity Futures Trading Commis-sion requires regulated entities to conduct periodic cybersecurity testing.

The New York State Department of Financial Services also requires DFS- licensed entities to adopt a cybersecurity program and undertake monitoring and testing. DFS-licensed enti-ties must submit an annual certification of compliance – the first of which was due

CYBERSECURITYDANIEL SILVER AND DANIEL PODAIR

Daniel Silver co-heads Clifford Chance’s U.S. Cybersecurity and Data Privacy group. Reach him at [email protected].

in February – and must no-tify DFS of any material risk of imminent harm arising from a cyber incident with-in 72 hours of the incident.

Also in February, the Securities and Exchange Commission issued in-terpretive guidance that emphasizes the importance of maintaining adequate cybersecurity policies and procedures and disclosing material cyber risks and incidents to the investing public.

These enhanced regu-latory requirements will likely lead to increased enforcement activity. In February, the CFTC initiat-ed an enforcement action for failure to properly safe-guard information security systems, which allegedly led to a breach of customer information and records. The SEC and other regula-tors are likely to continue this trend.

Now more than ever, companies must adequately assess their cybersecurity risks and adopt policies and procedures that respond to those risks. They should regularly monitor compli-ance and conduct exercises so they can respond to a cybersecurity incident rapidly and effectively. ■

Regulators are increasingly focused on making sure companies manage their cyber risks.

Daniel Podair is an associate in Clifford Chance’s Litigation & Dispute Resolution practice. Reach him at Dan.Podair@ cliffordchance.com.

that history after all partic-ipants reach a consensus on the validity of each update. Now, the technology has the potential to replace tradi-tional performers of certain payment processing, clear-ing, trade settlement and transfer agent functions.

However, finance is a regulated industry, so technological innova-tion takes place within a framework of rules set by the relevant authorities. For instance, for a blockchain securities trading platform or settlement system, the Securities Exchange Act of 1934 and SEC rules require registration for securities exchanges, alternative trading systems, broker dealers, clearing agencies and transfer agents.

States ranging from Delaware to Wyoming have enacted varying forms of enabling legislation for blockchain and smart con-tracts. Tech companies such as Amazon and Google may attempt to enter banking by having a subsidiary obtain an Industrial Loan Company (ILC) charter. As parent, the tech company would not be subject to regulation by the Federal Reserve Board as a bank holding company would.

As the waves of techno-logical change wash over the financial sector, the law will ultimately have no choice but to adapt. In the meantime, however, like it or not, all market participants – insurgents and incumbents alike – will have to comply with, and innovate within, “legacy” statutory and administra-tive frameworks. ■

THE FORCES OF techno-logical change, enabled by breakthroughs in com-puting and multiplied by the network effects of the internet, are shrinking the borders of time and space and transforming every facet of modern life around the globe. We stand on the brink of a Fourth Industri-al Revolution – driven by artificial intelligence and machine learning, cloud computing, the extraction of value from big data using predictive analytics soft-ware, the Internet of Things – and machines are quickly replacing human intellect and power.

Finance is not sheltered from the digital storm. Traditional financial intermediaries risk disin-termediation by peer-to-peer technologies that use the internet to connect untapped pools of capital to those seeking funding, while traditional methods of doing business may not survive in a world where every consumer carries a supercomputer in their pocket. People can use a smartphone to sell Bitcoin from a digital wallet at an online cryptocurrency exchange, or text their robo-advisor’s chatbot for more conventional investment recommenda-tions. Bitcoin’s blockchain introduced the concept of “distributing” the storage of a transaction history to each participant in a network and synchronizing updates to

Jesse Overall, an associate at Clifford Chance, works on a variety of transactional and regu-latory areas, primarily in the Capital Markets group. Reach him at [email protected].

David Felsenthal is a partner in Clifford Chance’s Capital Markets group and a member of the firm’s global Fintech practice. Reach him at David.Felsenthal@clifford chance.com.

FINTECH: NOT SHELTEREDDAVID FELSENTHAL AND JESSE OVERALL

It’s a lot to stay on top of. Whether a company is facing the need to conduct internal reviews of cyber-security policies and pro-cedures or to review those of outside vendors, the goal should be to ensure that it is well- positioned to take full advantage of tech-nology and data, without suffering the potentially devastating consequences of a cyber breach and its aftermath. ■

Celeste Koeleveld, former GC of the New York State Department of Financial Services, is a partner in Clifford Chance’s Litigation & Dispute Resolution practice. Reach her at [email protected].

Regulators are increasingly demanding that corporations shore up their defenses – including those of third-party service providers – to ward off attacks.

Finance is a regulated industry, so

technological innovation takes

place within a framework

of rules set by the relevant authorities.

finding the perfect site #metoo and the workplace ... · and storm water manage - ment ordinances....

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