Avoiding smart contract conflicts despite ambiguity

By Andy Foreman on October 26, 2020

A version of this article was originally published by Law360 on Oct. 21, 2020.

Depending on whom you ask, the promise of smart contracts ranges from the mundane to the fantastic—from helping to “facilitate, verify, execute and enforce the terms of a commercial agreement”^[i] to ushering in the end of contract law by providing a technological alternative to the legal system.^[ii] Smart contracts have already been used in connection with real estate transactions,^[iii] bank bonds,^[iv] interbank transfers,^[v] invoice financing,^[vi] and homeowners, renters, pet, and flight-delay insurance.^[vii] B3i Services AG, an insurance startup owned by 20 of the world’s largest insurers and reinsurers,^[viii] released an application that uses smart contracts to allow participants to “negotiate terms, agree on rates and complete contract placements.”^[ix] By February 2020, nine insurers, four major brokerage firms, and eight reinsurers had concluded 30 reinsurance contracts through the application, including, according to B3i, “some of the world’s most complex Catastrophe Excess of Loss (XoL) reinsurance treaties.”^[x]

Two new opinions address personal jurisdiction and standing under BIPA

By Karen Borg and Al Fowerbaugh on August 3, 2020

Two recent district court opinions addressed issues of personal jurisdiction and standing under the Illinois Biometric Information Privacy Act (BIPA). BIPA imposes a number of requirements on those who obtain a person’s biometric data, including those set forth in Section 15(a), requiring those in possession of biometric data to develop a publicly available written policy regarding the retention and destruction of biometric data in their possession, in Section 15(b), requiring that each person be provided with required disclosures and obtaining that person’s written release prior to acquiring that data, and in Section 15(c), which prohibits those in possession of biometric data from selling or profiting from that data, or disclosing that data to third parties.

U.S. Supreme Court says “booking dot yeah” to federal registration in Booking.com trademark case

By Porter Wright on July 6, 2020

After filing applications with the U.S. Patent and Trademark Office (USPTO) nearly eight years ago, Booking.com, the travel registration website known for its punny commercial tagline, celebrated victory on June 30, 2020. In an 8-1 decision, the U.S. Supreme Court found that the trademark BOOKING.COM is not generic, and therefore eligible for registration.

USPTO expedites review of COVID-19-related trademark and patent applications

By Emily Cunningham on June 29, 2020

With an eye toward supporting the fast-moving research and development process of COVID-19 treatments, the U.S. Patent and Trademark Office (USPTO) has announced two new programs aimed at expediting review of certain mark and patent applications. Under each program, applicants must demonstrate that the product or process is directly correlated to COVID-19.

What you need to know about Section 889 compliance as we move closer to the August 2020 implementation deadline

By Yuanyou (Sunny) Yang on June 15, 2020

A major portion of the sweeping John S. McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA) that impacts federal contracts will take effect in August 2020. Section 889 prohibits the federal government from directly procuring “any equipment, system or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as a part of any system” or entering into a contract with any entity that uses such covered telecommunications equipment or services.

Seventh Circuit’s procedural ruling under Illinois Biometric Information Privacy Act may affect substantive rights of parties

By Al Fowerbaugh on June 8, 2020

On April 24, 2020, the U.S. Court of Appeals for the Seventh Circuit held in Bryant v. Compass Group USA, Inc. that plaintiffs lack standing to assert in federal courts claims arising under Section 15(a) of the Illinois Biometric Information Privacy Act (BIPA) for failing to develop a publicly available policy for the retention and destruction of biometric data, because they do not incur actual damages as a result of the violation. Although the immediate effect of this procedural ruling is that plaintiffs cannot assert claims under Section 15(a) in federal courts within the Seventh Circuit, courts may rely on the ruling to apply Illinois’ two-year statute of limitation to state court actions asserting claims under Section 15(a), and hold that actions under this section are not insurable as a matter of law.

Think twice before hitting “record”

By Molly Crabtree and Porter Wright on May 4, 2020

It is simple enough: press record and you can easily share your internal video conference call, re-watch it later, or forget it and move on. You move on until you receive a discovery request or a subpoena for information if the company is sued. Now, your internal video call is discoverable and may be seen by those outside your intended viewership.

Q1 2020 drone law update

By Caroline Gentry on April 13, 2020

This is the first quarterly blog post identifying U.S. drone law developments of interest in the legislative, executive and judicial branches, on both the federal and state levels.

U.S. Congress

On Feb. 10, 2020, the U.S. House of Representatives passed the Protecting Critical Infrastructure Against Drones and Emerging Threats Act (H.R. 4432). The act would require the Department of Homeland Security (DHS) to establish a mechanism to report unauthorized unmanned aerial systems (UAS) activity over critical infrastructure facilities, and then use that information to develop a threat assessment regarding UAS. The U.S. Senate has referred H.R. 4432 to the Committee on Homeland Security and Governmental Affairs.

A BIPA lawsuit! Do we have coverage? Understanding West Bend Mutual v. Krishna

By Andy Shapiro on March 27, 2020

Companies doing business in Illinois are keenly aware of the recent flood of lawsuits alleging violations of the Illinois Biometric Information Privacy Act (BIPA). They know that BIPA lawsuits can be costly to defend. And they understand that if they are found to have mishandled the retention, collection, disclosure or destruction of biometric information, they could face substantial exposure.

Not surprisingly, the first question most companies ask when they learn about a new BIPA lawsuit is: Do we have coverage for that? To answer that question, companies will want to closely review the recent Illinois Appellate Court decision in West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan, Inc., 2020 IL App (1st) 191834. According to that ruling, they might have coverage.

UPDATE: Kawhi Leonard debuts new shoe amid logo dispute

By Donna Ruscitti on March 3, 2020

NBA star Kawhi Leonard debuted his new signature shoe during the 2020 NBA All-Star game on Feb. 16 in Chicago. The shoe from New Balance noticeably does not include the so-called “KL2” or “Klaw” logo because of Leonard’s ongoing legal dispute with Nike, Inc.

Rick Mescher explained Leonard’s lawsuit filed against Nike regarding that logo in his award-winning June 26, 2019 blog, “Kawhi Leonard v. Nike Inc.: How copyrights can trump trademarks.” In the lawsuit, Leonard claimed to be the sole author of the logo. This blog was such an excellent and detailed explanation of the copyright vs. trademark dispute, we are excited to share it won a Burton Award for Distinguished Legal Writing.

Rick followed up that blog with details on Nike’s response to the lawsuit, in the blog, “Kawhi Leonard v. Nike, Inc.: Copy, derivative work or distinct work?” which published on July 17, 2019.

The lawsuit was originally filed in the U.S. District Court Southern District of California. In Oct. 2019, a judge granted Nike’s request to move the suit to federal court in Oregon.