Sidley Ranked in Chambers Global 2021

We are proud to announce that Sidley received 83 practice area rankings and 119 lawyer rankings in the 2021 edition of Chambers Global. Of these, 16 practice area rankings and 14 lawyer rankings were in Band 1.

Sidley’s Privacy and Cybersecurity practice received two honors. Partner Alan Raul is ranked Band 1 for Privacy & Data Security (USA). The practice is also newly ranked in the Data Protection category.

The annual Chambers Global guide provides analyses of legal practitioners around the world based on in-depth interviews with clients and in-house counsel.

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With Veto Override, Maryland Becomes First U.S. State to Enact Digital Advertising Tax

Amidst significant economic and legal concerns, on February 12, 2021, the Maryland Senate joined the House in voting to override Republican Gov. Larry Hogan’s veto of House Bill 732 (HB 732) to adopt a Digital Advertising Gross Revenues Tax (Tax), the nation’s first tax targeting digital advertising. The override was successful despite significant pushback from a coalition of more than 200 businesses and Republican legislators who sought to sustain the veto. HB 732 is intended to provide significant revenues to support education reforms in the state.

The Tax is likely to affect large technology-based and online companies that derive revenue from advertisements on their websites and platforms (rather than companies deriving their revenues entirely from subscription services). Thus such companies, as well as their owners and sponsors, should carefully consider the information below and the impact of the Tax on their business models.

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European Commission Publishes Draft UK Adequacy Decisions

On February 19, 2021, the European Commission (EC) published two draft implementing decisions to enable the continuing free-flow of personal data from the EU to the UK (the Draft Adequacy Decisions) i.e., post-Brexit: (i) for transfers of personal data under the EU General Data Protection Regulation (EU GDPR); and (ii) for transfers of personal data under the Law Enforcement Directive (LED). This will come as a huge relief to companies across all industries who are in parallel already grappling with the repercussions of Schrems II. In fact, the Draft Adequacy Decisions (which collectively run to almost 140 pages) are the first of their kind in a post-Schrems II world and will likely be closely reviewed—including by privacy advocate Max Schrems who has promised his Twitter followers to “take a look at” the Draft Adequacy Decisions in particular with regard to the LED (i.e., which addresses UK government surveillance activities).

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European Medicines Agency Issues Updated Good Clinical Practice Q&A

On February 17, 2021 the European Medicines Agency (EMA) published an updated version of its good clinical practice questions and answers (GCP Q&A).  The updated section relates to access to patient medical records by GCP inspectors from European Economic Area (EEA) Member States.  It stresses the importance of sponsors conducting studies in countries outside the EEA obtaining the prior explicit consent of a clinical trial participant for the review of their medical records by EEA GCP inspectors.

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UK Supreme Court: Serious Fraud Office Cannot Compel Foreign Companies to Produce Documents Held Abroad

Case: R (on the application of KBR, Inc) (Appellant) v Director of the Serious Fraud Office (Respondent) [2021] UKSC 2

On February 5, 2021, the UK Supreme Court ruled that the Serious Fraud Office (SFO) cannot compel foreign companies with no presence in the jurisdiction to produce documents held abroad using its powers under Section 2(3) of the Criminal Justice Act 1987 (CJA 1987).

After losing its ability to use European Investigation Orders to obtain evidence located in other EU member states due to Brexit, the judgment is a further setback for the SFO in terms of the extraterritorial reach of its investigative powers and may in certain circumstances affect its ability to investigate fully cross-border serious fraud cases. When seeking documents or electronic data held abroad from foreign companies that are not registered in the UK or do not carry on business there, the SFO will now have to rely on mutual legal assistance or an overseas production order (where such mechanisms are available).

However, the Supreme Court’s ruling will provide foreign companies with greater certainty regarding documents that may have to be produced to the SFO, particularly where production could be resisted in their own jurisdiction on grounds of privilege.

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New York Department of Financial Services Issues First Guidance by a U.S. Regulator Concerning Cyber Insurance

On February 4, 2021, the New York Department of Financial Services (NYDFS) issued Circular Letter No. 2 announcing a Cyber Insurance Risk Framework (the Framework) that describes industry best practices for New York-regulated property/casualty insurers. Issuance of the Framework is notable as it represents the first official guidance by a U.S. regulator concerning the increasingly critical issue of cyberinsurance. And while circular letters do not establish new legal requirements or have the force of law, they do set forth the department’s interpretation of the requirements of existing laws and regulations.1

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FINRA Issues 2021 Report on its Examination and Risk Monitoring Program

Released on February 1, the Financial Industry Regulatory Authority (FINRA) 2021 Report on its Examination and Risk Monitoring Program (Report) provides a roadmap for member firms to use to prepare for examinations and to review and assess compliance and supervisory procedures related to business practices, compliance, and operations. The Report replaces two of FINRA’s prior annual publications: (1) the Report on Examination Findings and Observations, which provided an analysis of prior examination results, and (2) the Risk Monitoring and Examination Program Priorities Letter, which highlighted areas FINRA planned to review in the coming year.

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