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Jeffrey Neuburger

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Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law discipline, Jeff continues to lead on a range of business-critical transactions involving the use of emerging technology and distribution methods. For example, Jeff has become one of the foremost private practice lawyers in the country for the implementation of blockchain-based technology solutions, helping clients in a wide variety of industries capture the business opportunities presented by the rapid evolution of blockchain. He is a member of the New York State Bar Association’s Task Force on Emerging Digital Finance and Currency.

 

Jeff counsels on a variety of e-commerce, social media and advertising matters; represents many organizations in large infrastructure-related projects, such as outsourcing, technology acquisitions, cloud computing initiatives and related services agreements; advises on the implementation of biometric technology; and represents clients on a wide range of data aggregation, privacy and data security matters. In addition, Jeff assists clients on a wide range of issues related to intellectual property and publishing matters in the context of both technology-based applications and traditional media.

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As part of the response to the outbreak of COVID-19, many organizations are working on contingency and business continuity plans that include an all-employee “work-from-home” scenario.  If it becomes necessary to implement such a plan, all employees of the organization will access the organization’s networks and systems remotely. Unfortunately, many organizations that are testing these plans are discovering that that their remote access technologies may not be able to handle, without significant degradation in performance, the volume of activity this will generate.  Indeed, given the complex host of business applications and collaboration tools that many businesses employ, many entities may not be fully ready for their entire workforce to access their systems remotely without first checking in with their vendors and IT personnel.

This is understandable. Except for the case of those businesses that always operate “virtually” — without any fixed offices — most organizations build their remote access infrastructure (including the related telecommunications, security, videoconferencing, collaboration and other software tools that are involved in remote access) based on an assumption that only a portion of an organization’s employees will use remote access at any given point in time.  For example, contractual service level commitments (in which vendors promise certain levels of performance of their systems) often assume a simultaneous user base being a subset of all employees of the organization.  Further, SaaS-based services that are priced based on a specific number of “simultaneous users” may not anticipate all, or substantially all, of the company’s employees using the service at the same time.

Organizations should be reviewing their agreements with the myriad set of vendors that provide software related to remote access. These reviews should evaluate what commitments, if any, are included in those agreements that may be helpful in what may be this unprecedented “100% work-from-home” effort.  To the extent contractual deficiencies or other issues are identified, early engagement with vendors can be helpful.  For example, in the event service level commitments appear insufficient to meet anticipated demand, an early discussion with the vendor may result in an increased allocation of the vendor’s resources to that customer.  And while some SaaS service agreements priced by the number of simultaneous users may allow customers to exceed simultaneous user limits (with a premium true-up at a later date), others impose hard blocks on usage in excess of contract limitations.  To the extent these issues are identified in an agreement, customers are best served by engaging with the vendor in advance – to avoid premium true-ups or interference in service.

In continuing its push to enforce its terms and policies against developers that engage in unauthorized collection or scraping of user data, Facebook brought suit last month against mobile marketing and data analytics firm OneAudience LLC. (Facebook, Inc. v. OneAudience LLC, No. 20-01461 (N.D. Cal. Complaint filed Feb. 27, 2020)). Facebook alleges that OneAudience harvested Facebook users’ profile data and device data in contravention of Facebook’s terms and developer policies. OneAudience purportedly gathered this data by paying app developers to bundle OneAudience’s software development kit (SDK) into their apps and then harvesting data for those users that logged into those apps via Facebook credentials.

Beyond the human toll of the current global health crisis, the coronavirus outbreak is having serious economic repercussions to the global economy and the supply chains on which it depends. Dun & Bradstreet reported, “at least 51,000 (163 Fortune 1000) companies around the world have one or more direct or Tier 1 suppliers in the impacted regions, and at least five million companies (938 Fortune 1000) around the world have one or more Tier 2 suppliers in the impacted region.” Factory closings, transportation restrictions and general concerns about a potential pandemic are causing shortages of critical supplies and employees, and are testing the bounds and obligations of various contracts entered into between vendors and customers.

As a result of this disruption, many businesses are assessing their contracts to understand the extent of their rights, remedies and obligations with respect to their business partners. Suppliers of goods and services unable to deliver on contractual obligations are looking to see what provisions, if any, may protect them from a default. And in turn, recipients encountering delays from suppliers unable to deliver goods and services in a timely manner (or at all) are also looking to their agreements to see what rights, obligations, and remedies they may have in these circumstances.

Epic Games, Inc. (“Epic”) is the publisher of the popular online multiplayer videogame Fortnite, released in 2017. In recent years, Fortnight has gained worldwide popularity with gamers and esports followers (culminating in July 2019 when a sixteen-year-old player won the $3 million prize for winning the Fortnite World Cup).  Players, in one version of the game, are dropped onto a virtual landscape and compete in a battle royale to survive.  In the real world, Epic recently survived its own encounter – not with the help of scavenged weapons or shield potions – but through its well-drafted end user license agreement (“EULA” or “terms”).

Earlier this month, the District Court for the Eastern District of North Carolina granted Epic’s motion to compel individual arbitration of the claims of a putative class action.  The action arose in connection with a cyber vulnerability that allowed hackers to breach user accounts. The court concluded that the arbitration provision contained in the EULA was enforceable in this case, even where a minor was the person who ultimately assented to the terms. (Heidbreder v. Epic Games, Inc., No. 19-348 (E.D.N.C. Feb. 3, 2020)).   

In 2018, Congress passed the Foreign Investment Risk Review Modernization Act (FIRRMA) to modernize the Committee on Foreign Investment in the United States (CFIUS). CFIUS is chaired by the Secretary of the Treasury and is empowered to review certain transactions involving foreign investment in the U.S.…

Last week, Democratic Senators Ron Wyden and Sherrod Brown and Congresswoman Anna Eshoo sent a letter to FTC Chairman Joseph J. Simons urging the agency to investigate whether analytics firm Envestnet, Inc. (which operates Yodlee) was violating the FTC Act.

According to the letter, Yodlee is the largest consumer financial data aggregator in the United States.  It aggregates financial information from banks, credit card companies and other financial services providers with consumer consent, and maintains a database of credit and debit card transactions of tens of millions of consumers. The letter asserts that Yodlee is used by over 1,200 companies to offer online personal finance tools to consumers.  Yodlee offers its software and platform to fintech providers, banks, financial apps, consumers and others to help process financial data from various sources.

The crux of the letter claims that Envestnet sells access to such consumer data without meaningful notice to consumers of such sale.  The members of Congress reject Envestment’s position that consumer privacy is protected because the data it sells is anonymized, and claim that Envestnet does not inform consumers that their personal financial data is being sold, but rather relies on its partners to make such disclosures in privacy policies or terms of service. The letter asserts that this is not sufficient, as Envestnet does not appear to take any steps to ensure that its partners give such notice, and even if they did, such practices place the burden on consumers to find such a notice “buried in small print” and then search for a way to opt out of such data sharing.