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06.21.19
Changes in Convertible Instruments for Early Stage Financings
By Procopio Partner Roger Rappoport and Senior Associate Aaron Sokoloff There are currently two main types of convertible instruments that are in widespread use for pre-Series A and other “bridge” financings: convertible promissory notes and SAFEs (Simple Agreements for Future Equity). Each of which are alike in that the amounts invested under the applicable instrument convert into shares of the issuing company in question, upon the happening of certain events, which is most often a s...
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05.31.19
Next Steps for Companies Following the Latest U.S. Government Export Ban
By Procopio Partner Miku H. Mehta and Senior Associate Michael C. Jones A recent change in U.S. export control regulations requires all U.S.-based entities (including subsidiaries of foreign-headquartered companies) to immediately stop exporting most technologies to Huawei and several of its related entities. Violations of these regulations can result in fines and/or imprisonment. U.S.-based entities that export technology and products, as well as overseas companies that receive U.S.-base...
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05.23.19
What Will the California Consumer Privacy Act Actually Bring in 2020?
By Procopio Senior Counsel Elaine F. Harwell, CIPP/US California’s passage of a landmark data privacy and protection law, the California Consumer Privacy Act (CCPA), has rightly drawn significant attention. You may be aware that this sweeping new privacy legislation has its fair share of ambiguities, drafting errors, and contradictions, and has already been amended once. The law, which will become effective January 1, 2020, with enforcement delayed until the following July, grants...
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05.07.19
New California Independent Contractor Test Applies Retroactively According to the Ninth Circuit
By Procopio Partner Tyler M. Paetkau As we have previously reported, the California Supreme Court last year set forth a revolutionary new “ABC test” for determining whether workers are properly classified as employees or independent contractors, making it dramatically more difficult for California employers to lawfully retain independent contractors. On May 2, 2019, in Vazquez v. Jan-Pro Franchising Int’l, Inc., the Ninth Circuit Court of Appeals determined that the Supreme Cour...
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04.30.19
Where do Patent Owners Fit in the Current Federal Circuit-USPTO Patentability Divergence?
By Procopio Partners Miku H. Mehta and Robert H. Sloss Intending to bring more clarity and consistency to the patent examination process, the U.S. Patent and Trademark Office (USPTO) has been issuing new examiner guidelines over the last year focused on 35 USC 101. These include the so-called Berkheimer memo of April 19, 2018 (relating to step 2B analysis) and new subject matter eligibility guidelines announced on January 4, 2019 (relating to step 2A analysis). A Procopio colleague recent...
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04.24.19
Software is Patent-Eligible, But it's All About the Claims
By Procopio Associate Eric A. Bernsen Apps, computer- or smartphone-enabled processes, smart devices, and IoT solutions, often center on the same core element: software. Is your software, app, or process patentable? Well, to provide the stereotypical lawyer answer, it depends. But, at least in the near term, it seems easier now than it was before January 2019. The definition of patent-eligible subject matter is codified in 35 U.S.C. § 101: “Whoever invents or discovers an...
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04.17.19
Developing an Incident Response Plan for a Cyber Attack
By Procopio Partner and General Counsel Carole J. Buckner Every attorney’s ethical duty of competence requires a lawyer to provide competent representation to a client, applying the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. This in turn requires that a lawyer keep abreast of technology, including associated risks and benefits, including continuing study and education. As a matter of best practice and preparation, lawyers should pro...
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04.04.19
California Adopts Wetlands Definition and Expands Requirements for Dredge or Fill Applicants
By Procopio Partner John J. Lormon and Legal Assistant Miranda C. Barfield After more than a decade of work, the California State Water Resources Control Board (State Board) approved on April 2, 2019, a common definition for California wetlands and a regulatory program that amends and expands the permit requirements for the discharge of dredge or fill materials that impact or could impact state waters. We forecast coming changes and their importance for development in the state in a previ...
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03.19.19
Key Elements to an Effective Export Control Compliance Program
By Senior Associate Michael C. Jones One billion dollars: That was the fine ZTE agreed to pay in 2018 in order to lift a denial order issued by the United States government in response to export control violations. Similarly, Huawei’s CFO was indicted in December 2018 for alleged export control violations with respect to Iran. As these cases indicate, penalties for violating export control regulations can be high and include criminal charges. Further, as discussed in my previo...
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03.13.19
Should You Consider a Phantom Equity Plan?
By Procopio Senior Associate Aaron Sokoloff Whether you’re a brand-new startup or a veteran of several funding rounds, every emerging growth CEO wants to find the right path to incentivizing employees while conserving capital. One creative approach that might be right for you is a phantom equity plan. Phantom Equity – what is it? Phantom equity is essentially a cash bonus plan that is designed to mimic the effects of having an ownership interest in a company. While the terms v...
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