New Business Guidance to Address Supply Chain Risks and Considerations

The Departments of State, Treasury, Commerce, and Homeland Security issued guidance on July 1, 2020 titled “Risks and Considerations for Businesses with Supply Chain Exposure to Entities Engaged in Forced Labor and other Human Rights Abuses in Xinjiang” (the “advisory”).  The advisory broadly recommends that businesses with potential exposure in their supply chain to the Xinjiang Uyghur Autonomous Region of China (“Xinjiang”) be aware of the reputational, economic, and legal risks involved with conducting business in the region and implement human rights due diligence policies and procedures to address the risk.  The advisory highlights that since March, 2017, more than one million ethnic Uyghurs, Kazakhs, Kyrgyz, and other Muslim minorities have been held in internment camps designed to eradicate the detainees’ cultural and religious identities and to indoctrinate them with Chinese Communist Party ideology.  Detainees have been subject to overcrowding, sleep and food deprivation, medical neglect, physical and psychological abuse, forced labor, sexual abuse, denial of religious practices, and forced studying of Communist Party propaganda.

The advisory recommends businesses and individuals remain aware of these abuses and urges them to evaluate exposure to risks, implement due diligence policies, procedures, and internal controls to ensure compliance practices are appropriately accounting for potential risk throughout supply chains.  The advisory identifies three primary areas of risk: (1) assisting in developing surveillance tools for the Chinese government in Xinjiang; (2) relying on labor or goods sourced in Xinjiang in their supply chains, given the prevalence of forced labor and other labor abuses in the region; and (3) aiding in the construction of internment facilities or manufacturing facilities in close proximity to them.

A number of potential indicators of forced labor are laid out in the advisory.  Of note for businesses are lack of transparency among firms operating in Xinjiang and factory location.  These firms often use shell companies to hide the origin of their goods, use contracts with opaque terms, and conduct financial transactions that make it difficult to determine where the goods were produced or by whom.  Factories built near internment camps, within their confines, or in industrial parks nearby are often additional indicators that forced labor may be utilized.

Businesses are recommended to collaborate with each other and with industry groups to exercise leverage in conducting human rights due diligence.  Businesses should examine the end users of their products, technology, research, and services to reduce the likelihood that they are being used to advance the human rights abuses in Xinjiang.  Furthermore, businesses providing construction materials to Chinese entities that may be operating in Xinjiang are encouraged to conduct due diligence practices to reduce the likelihood that internment camps are the ultimate beneficiaries of their business.  These due diligence efforts should be well-documented in the event that businesses inadvertently engage in sanctionable activity or activity that violates U.S. law.

Despite the importance of due diligence efforts, the advisory points out the challenges presented with doing so.  In particular, third-party audits may not be as reliable a source of information in Xinjiang as they typically are.  At issue are repeated instances of auditors facing detention and harassment, the use of government translators who convey misinformation, and interviews with workers that may be unreliable.  The advisory suggests that businesses pool and share information to better identify and assess indicators of forced labor.

While the penalties for the use of forced labor are varied, the advisory focuses on the use of Customs and Border Protection prohibitions against importing and benefitting from supply-chain related use of goods produced with forced labor.  Penalties may include civil or criminal actions, including denying entry to goods produced with or benefitting from forced labor, seizure and forfeiture of such goods, and the issuance of penalties against the importer and other parties.  Criminal investigations may be opened to prosecute individuals and/or corporations for their roles in the importation of goods into the U.S. in violation of U.S. law.

Uyghur Human Rights Policy Act of 2020

Prior to the issuance of the guidance, on June 17, 2020, President Trump signed the Uyghur Human Rights Policy Act of 2020 (the “Act”).  The Act aims to address human rights violations and abuses by the Government of the People’s Republic of China (“China”) through the mass surveillance and internment of over 1,000,000 Uyghur and other minority ethnic groups in Xinjiang.  The Act was passed with broad bipartisan support, passing the Senate unanimously and clearing the House in a 413-1 vote.

The Act requires the President to submit a number of reports to Congress providing detailed information on the scope and perpetrators of human rights abuses in Xinjiang.  In particular, the Act requires the President to submit a public report to Congress within six months and annually thereafter identifying any foreign person and official of the Government of China that is responsible for the denial of human rights in the Xinjiang Uyghur Autonomous Region.  Sanctions will then be imposed against each individual identified in the President’s report.  Such sanctions shall include blocking the property of identified individuals and denying admission to the United States.  Importantly, these sanctions shall not include the authority or a requirement to impose sanctions on the importation of goods into the U.S.

In addition to sanctions, the Act requires the Secretary of State to submit a public report, within six months, on human rights abuses in Xinjiang Uyghur Autonomous Region to Congress.  The report must include detailed information regarding the number of individuals detained in internment camps; a description of the conditions in such camps, including an assessment of methods of torture, efforts to force individuals to renounce their faith, and other human rights abuses; the number of individuals in forced labor camps; methods used to reeducate detainees in the camps, including identification of government agencies in charge of reeducation; an assessment of the use of forced labor and a description of foreign industries and companies benefitting from such labor; an assessment of the level of access to the Xinjiang Region granted by China to foreign diplomats and consular agents, independent journalists, and representatives of nongovernmental organizations; an assessment of the mass surveillance, predictive policing, and other methods used to violate the human rights of persons in Xinjiang; a description of the frequency with which foreign governments are forcibly returning refugees and other asylum seekers to Xinjiang; a description of U.S. diplomatic efforts to address human rights abuses in Xinjiang and to protect asylum seekers from the region and the identification of the Department of State offices responsible for leading these efforts.

A number of additional reports must also be submitted to Congress to report on issues related to the treatment of Uyghurs.  For example, within 90 days, the Director of the Federal Bureau of Investigation shall submit a report to Congress that outlines all of the efforts taken to protect U.S. citizens and residents, including Uyghurs and Chinese nationals, legally studying or working in the U.S. who have experienced harassment or intimidation within the U.S. by officials or agents of the Government of China.

Lastly, within 6 months, the Director of National Intelligence shall submit a public report to Congress outlining an assessment of the national and regional security threats posed to the U.S. by China’s policies in Xinjiang; a description of the acquisition or development of technology by China to facilitate internment and mass surveillance in Xinjiang, including technology related to predictive policing, large-scale data collection and analysis, and threats the acquisition, development and use of this technology poses to the U.S.; and a list of Chinese companies involved in the construction or operation of internment camps in Xinjiang or in providing mass surveillance technology.  The Director of National Intelligence shall also submit a classified report to Congress that assesses the ability of the U.S. to collect and analyze intelligence related to the scope and scale of detention and forced labor in Xinjiang, the gross violations of human rights perpetrated in the internment camps, and other Chinese policies in Xinjiang that constitute gross violations of human rights.

The Act comes on the heels of increased scrutiny related to the use of forced labor, both in Xinjiang and more generally.  On June 5, 2020, the Department of Commerce’s Bureau of Industry and Security (“BIS”) designated nine Chinese entities to its Entity List for their involvement in forced labor and mass surveillance in Xinjiang, prohibiting their participation in an export transaction.  And, on May 1, 2020, a Withhold Release Order was issued by Customs and Border Protection against Hetian Taida Apparel Co., Ltd. for its use of forced or prison labor in Xinjiang, prohibiting imports of its goods into the U.S.

Prior to the Act, a March 2020 report by the Congressional-Executive Committee on China outlined the difficulty of receiving reliable information about Chinese supply chains, stating that audits are not likely to be effective tools to identify forced labor in a company’s supply chains.  As a result, some suggest that the only viable solution for companies seeking to avoid sanctions by the Act is to consider the entire region of Xinjiang as “tainted” with different forms of forced labor.  Furthermore, some reports have indicated that Uyghurs and Kazakhs from Xinjiang have been relocated to other parts of China for forced labor, potentially tainting supply chains that do not touch Xinjiang.  As a result, the report recommends U.S. companies do not source materials or products from within Xinjiang or from companies that work with the government in Xinjiang.

The immediate impact of the law and the advisory is to increase visibility of the forced labor issues; some see implementation linked to the US-China trade negotiations in the short-term, but in the longer term the reports required by the law will increase pressure for designations by OFAC in addition those already made by BIS.  It is, however, also another opportunity for anyone sourcing from China to take additional steps to evaluate suppliers.  Just as KYC has become the rule for banks and exporters, “know your supplier” is increasingly carrying the same weight.

On June 29, 2020, the United States District Court for the Southern District of New York dismissed a challenge by several landlords to quash New York Governor Andrew Cuomo’s Executive Order 202.28 (the “Executive Order”), issued on May 7, 2020.

The Executive Order, among other things, imposed a moratorium on commercial and residential evictions during the COVID-19 pandemic.  The court found that the eviction restrictions imposed by the Executive Order do not violate landlords’ rights under federal law and that the court has no jurisdiction over state law questions they may raise.

Background

Plaintiffs are three residential landlords who sought an injunction prohibiting the enforcement of two provisions of the Executive Order: (i) the “Eviction Moratorium,” which temporarily suspends both commercial and residential landlords’ ability to commence eviction proceedings for nonpayment of rent against commercial or residential tenants facing financial hardship until August 19; and (ii)  the “Security Deposit Provisions,” which temporarily permitted residential tenants to apply their security deposit funds to rents due and owing, provided the tenants replenish those funds at a later date.

Landlords argued the Executive Order violated their rights under the United States Constitution’s Contracts Clause, Takings Clause, Due Process Clause, and Petition Clause. Landlords also argued that Governor Cuomo “effectively legislated new laws” in violation of the New York Executive Law and the New York Constitution.

The parties cross-moved for summary judgment on the pleadings.  In granting defendant’s motion for summary judgment and dismissing the action, the court held that it lacked jurisdiction to adjudicate the New York state law arguments and rejected each of the landlords’ constitutional challenges.

A. Takings Clause Challenge

The court rejected landlords’ argument that the Executive Order violates the Takings Clause because suspending evictions forces landlords to provide their property for use as housing without just compensation.  The court determined that the challenged provisions of the Executive Order were neither a “physical” nor a “regulatory” taking.

The court explained that a physical taking only occurs when “a government has committed or authorized a permanent physical occupation of property.”[1]  The Supreme Court has ruled that “a state does not commit a physical taking when it restricts the circumstances in which tenants may be evicted.”[2]  Relying on this precedent, the court held that no physical taking occurred because Landlords have retained control of their properties and their rights to collect rent, even if those rights have been temporarily impacted by the Executive Order.

In evaluating whether a regulatory taking occurred, the court analyzed the Executive Order under the three relevant factors set forth in Penn Central Transportation Co. v. New York City: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.[3]  The court found that all three factors weighed against landlords.  Under the first factor, landlords failed to provide evidence that the Executive Order “effectively prevented Plaintiffs from making any economic use of their property.”[4]  Second, the court held that “because landlords understand that the contractual right to collect rent is conditioned on compliance with a variety of state laws, their reasonable investment-backed expectations cannot extend to absolute freedom from public programs adjusting the benefits and burdens of economic life to promote the common good.”[5]  The third factor also weighed against the landlords, primarily because the Executive Order’s “reallocation of resources” was “purely temporary,” and “such burden shifting does not, without more, amount to a regulatory taking.”

B. Contracts Clause Challenge

The court likewise rejected landlords’ argument that the Executive Order violates the Contracts Clause by allowing security deposit funds to be disposed contrary to the terms of the parties’ leases, and by denying the landlords a forum in which to commence eviction proceedings for nonpayment of rent.

The court explained that the Contracts Clause “does not trump the police power of a state to protect the general welfare of its citizens.”[6]  The Contracts Clause has its own three factor test:  (1) whether the contractual impairment is substantial; (2) whether the law serves a legitimate public purpose such as remedying a general social or economic problem; and (3) whether the means chosen to accomplish this purpose are reasonable and necessary.  The court found that the Executive Order did not substantially impair the landlords’ contract rights, primarily because the Executive Order only postponed and did not deprive landlords of their contractual remedies for the nonpayment of rent and eviction.  The court therefore held that the Executive Order was consistent with the states’ “wide berth to infringe upon private contractual rights when they do so in the public interest.”

C. Procedural Due Process Challenge

The court dismissed landlords’ procedural due process claim for failure to satisfy the requisite elements.[7] The court found that no due process violation occurred because landlords did not identify any property interest other than those dealt with in the court’s analysis under the Takings Clause and the Contracts Clause.  And for the same reasons that the court found no substantial impairment of landlords’ contract rights, it also found no deprivation of any property interest.

D.  Petition Clause Challenge

Landlords claimed that the Eviction Moratorium violates the Petition Clause because it denies them access to the courts to initiate eviction proceedings.  To prove a “denial of access” claim, the plaintiff must show that the government “took or was responsible for actions that hindered a plaintiff’s efforts to pursue a legal claim.”[8]  The court found landlords were unable to show that the Eviction Moratorium “had the actual effect of frustrating their efforts to pursue a legal claim”[9] because they will be able to bring eviction proceedings when the Executive Order expires, and they are able to bring breach of contract actions in New York state court even while the Executive Order is in effect.

Implications for Commercial Landlords and Tenants

Although the court’s decision is instructive, its analysis of the constitutionality of the Executive Order Eviction Moratorium is limited to the impact on residential landlords.  There are material differences in how this and other Executive Orders have impacted commercial landlords and tenants that may lead to a different result when analyzed in the commercial context.

The decision also does not shed light on judicial approaches to private disputes between landlords and tenants.  Commercial leases include conditions, covenants, and obligations with respect to landlord’s and tenant’s rights and obligations, including with respect to the payment or abatement of rent during the COVID-19 pandemic.  Disputes regarding these rights are governed principally by leases rather than the constitutional provisions evaluated in this case.

For more information, please contact the professional(s) listed above, or your regular Crowell & Moring contact.

 

References

[1] Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 92-93 (2d Cir. 1992).

[2] Yee v. City of Escondido, 503 U.S. 519, 527 (1992).

[3] 438 U.S. 104 (1978).

[4] Sherman v. Town of Chester, 752 F.3d 554, 565 (2d Cir. 2014).

[5] Penn Central, 438 U.S. at 124.

[6] Buffalo Teachers Fed’n v. Tobe, 464 F.3d 362, 367 (2d Cir. 2006).
[7] To establish a procedural due process claim plaintiffs must:  (1) identify a property right; (2) show that the state deprived that right; and (3) show that the deprivation was made without due process.
Progressive Credit Union v. City of New York, 889 F.3d 40, 51 (2d Cir. 2018) (citations omitted).

[8] Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003).

[9] Oliva v. Town of Greece, 630 Fed. Appx. 43, 45 (2d Cir. 2015).

Recalls in Review: A monthly spotlight on trending regulatory enforcement issues at the CPSC.

In the past year, the Commission has significantly ramped up its monitoring of products for compliance with special packaging safety standards (16 CFR § 1700), resulting in a jump in recalls for failure to meet those standards.  The CPSC has conducted at least 62 recalls for failure to meet the child-resistant packaging requirements since 2011—including 23 recalls in 2020 alone.  There appears to be a recent enforcement focus on essential oils containing methyl salicylate.

A review of the recalls shows that the recalls tend to focus on products involving a few specific substances which trigger the child-resistant packaging requirements.  Most of the recalls from 2020 involved products containing methyl salicylate, commonly used to treat muscular pain, while most recalls between 2017 and 2019 involved products containing lidocaine, commonly used as a numbing agent.

All but one of the products recalled in 2020 that contain methyl salicylate are essential oils.  The other products recalled this year contain iron, lidocaine, and sodium hydroxide.  Twenty-two of the twenty-three recalls were conducted despite having no reported incidents involving consumers.

About Recalls in Review: As with all things, but particularly in retail, it is important to keep your finger on the pulse of what’s trending with consumers.  Regulatory enforcement is no different – it can also be subject to pop culture trends and social media fervor.  And this makes sense, as sales increase for a “trending” product, the likelihood of discovering a product defect or common consumer misuse also increases.  Regulators focus on popular products when monitoring the marketplace for safety issues.

As product safety lawyers, we follow the products that are likely targets for regulatory attention. Through Recalls in Review, we share our observations with you.

On June 22, 2020, the Federal Trade Commission (FTC or “Commission”) issued its staff report on the Made in USA workshop, held in 2019, and its long-awaited proposed Made in USA (MUSA) rule (“Rule”). Under the Rule, advertisers would be prohibited from making unqualified Made in USA claims unless:

  • Final assembly or processing of the product occurs in the United States;
  • All significant processing that goes into the product occurs in the United States; and
  • All or virtually all ingredients or components of the product are made and sourced in the United States.

The proposed Rule would grant significant enforcement latitude to the Commission. The FTC takes the position that the proposed MUSA Rule, adopted under 15 U.S.C. §45a, will not impose any new substantive requirements on advertisers and states in the Notice of Proposed Rulemaking (NPRM) that the Rule would make it easier for businesses to comply with the law “by codifying the existing standards applicable to MUSA claims.” The Rule defines “Made in the United States” to broadly encompass any term that the FTC determines represents United States-origin. Specifically, the Rule defines “Made in the United States” to mean “any unqualified representation, express or implied, that a product or service, or a specified component thereof, is of U.S. origin, including, but not limited to, a representation that such product or service is ‘made,’ ‘manufactured,’ ‘built,’ ‘produced,’ ‘created,’ or ‘crafted’ in the United States or in America, or any other unqualified U.S.-origin claim.” (emphasis added.)

The FTC’s enforcement of the Made in USA advertising standards, thus far embodied in a Guide, has been consistently aggressive during this and previous administrations. The FTC routinely receives trade complaints submitted by activists and competitors regarding allegedly unsupported MUSA claims. Many such complaints are resolved informally with closing letters. However, when and if the current rule goes into effect, the stakes for violating the rule will go up dramatically. The Rule will authorize the Commission to seek civil penalties of $43,280 per violation. With this change, the Commission will be able to more quickly and easily obtain financial penalties without the litigation risks of Section 13(b) of the FTC Act. Until now, the FTC has struggled to obtain financial penalties even from the advertisers that knowingly falsely labeled imported products as “Made in the USA” and has been criticized for its weak enforcement. But, if the MUSA Rule is adopted, we can expect to see more and steeper penalties for unsubstantiated, unqualified Made in USA advertising claims.

We also expect some controversy regarding the scope of the Rule. The proposed Rule defines “labels” to include making unqualified MUSA claims appearing in mail order catalogs or mail order advertising, which it defines to include online advertising. However, the Commissioners disagree on this scope, foreshadowing likely challenges that defendants may raise if the Rule is finalized and the FTC initiates enforcement activity. Commissioners Noah Phillips issued a dissenting statement and Commissioner Christine Wilson issued a statement dissenting in part, arguing that the proposed Rule exceeds the scope of the FTC’s authority because the “plain language” of Section 45a references only “labels on products”—verbiage that does not include online advertising.

Given the significant potential impact of the proposed MUSA Rule, advertisers currently making Made in USA claims that have concerns about the proposal’s wording or scope should consider filing a public comment. Comments on the proposed Rule can be submitted through https://www.regulations.gov for sixty days after the publication of the NPRM and all comments must include “MUSA Rulemaking, Matter No. P074204.” In addition, the FTC’s rulemaking procedures are designed to be more rigorous and complex than standard APA notice and comment rulemaking, and require the appointment of a Presiding Officer and a live “informal hearing.” If requested by commenters, this may even include live testimony and cross examination. One can expect the applicability of this proposed rule to online advertising to be a subject of comment and debate in the ongoing proceedings.

Retail tenants are experiencing unprecedented difficulties stemming from the COVID-19 pandemic, including government shutdown orders for non-essential businesses and shelter-in-place rules that have virtually stopped all in-person shopping. Even as these restrictions are finally being relaxed to a limited degree, the dramatic effects of the pandemic will long be felt in the retail industry. This alert addresses just one of the consequences in the wake of COVID-19: the expected rise in bankruptcy filings by commercial landlords and, as a corollary, what retail tenants should do to protect their rights and seek available remedies when faced with a landlord’s bankruptcy.

When a landlord files for bankruptcy, it has the right under the Bankruptcy Code to “assume” (to keep in place) or “reject” (to elect to breach the lease as of the date of the bankruptcy) its unexpired tenant leases (see 11 U.S.C. § 365(a)). Neither of these options under the Bankruptcy Code changes the terms of a lease. But a tenant who is unaware of the operation of bankruptcy law, or who is unfamiliar with the rights provided under its lease, risks losing or impairing its lease rights. The unprepared tenant could also lose potential opportunities unique within bankruptcy to improve the position of its lease viz-à-viz other tenants and creditors of a landlord. A summary of a bankrupt landlord’s options, and a retail tenant’s responses to protect and even improve its lease position, are discussed in turn below.

When the Bankrupt Landlord Wishes to Keep a Retail Lease: Tenant Has Full Rights to Require a Landlord to Cure Breaches if the Landlord Seeks to “Assume” the Lease

Most landlord bankruptcies begin with the debtor-landlord seeking to reorganize (as opposed to liquidate). The landlord thus will desire to assume and retain existing retail leases with terms favorable to it. Retaining rent-paying tenants is the lifeblood of every commercial landlord, especially those tenants under leases commencing prior to the COVID-19 shutdown that now may have an above-market rental rate.

To assume and retain a lease, a bankrupt landlord must cure all breaches, with monetary breaches paid 100 cents on the dollar.

The prospect of being tied to an above-market lease is considerably less appealing to a retail tenant. Fortunately, the Bankruptcy Code requires that prior to lease assumption the landlord must promptly cure all existing defaults. These would include non-payment of a tenant’s improvement allowance or failure to maintain the property to the required standard. Perhaps most significantly, a landlord could not assume a lease in the face of breaches of conditions regarding tenant mix, shopping-center occupancy, and other obligations regarding quality of the leasehold.

Some lease defaults that cannot, as a practical matter, be cured, such as a landlord’s failure to provide cleaning services or building security prior to assumption, are not required to be cured. But even in regard to these breaches, the tenant is entitled to a monetary payment for resulting losses. And, finally, the landlord can assume a lease only after it demonstrates “adequate assurance of future performance,” meaning that the landlord will not default in the future.

Any monetary cure payment is not paid as a pre-petition unsecured claim, which type of claim typically only receives pennies on the dollar. In order to keep the lease, landlords will need to pay in full any monetary damages that are established. If those payments cannot be made, or if conditions to the effectiveness of the lease cannot be satisfied, a tenant’s objection in the bankruptcy court will prevent the landlord from keeping the lease until damages are paid or conditions satisfied.

A tenant with a full understanding of the provisions of its lease may, by objecting to assumption, create powerful leverage for negotiations to obtain affirmative recoveries or rent concessions on the lease.

That the landlord is required by law to cure breaches presents an excellent opportunity for a retail tenant to renegotiate its existing lease on more favorable terms. The tenant may accomplish this by carefully analyzing its existing lease and preparing a detailed and documented list of the landlord’s past and ongoing breaches. This analysis should include not only “pecuniary loss” stemming from defaults but crucial non-monetary breaches that negatively affect the value of the leasehold to a tenant.

The prepared retail tenant will be armed with hard data to back up its request to the bankruptcy court that the landlord be required to cure its breaches and pay all monetary losses before it is allowed to assume the lease. In the face of such a detailed objection by the tenant, the landlord will be compelled to come to the table. In contrast, if a tenant fails to prepare and instead opposes assumption by relying on general allegations of a landlord’s noncompliance, then it is more likely the bankruptcy court may permit assumption based on nothing more than the landlord’s general assurances to cure. Such assurances are of course worth little.

When the Bankrupt Landlord Wishes to Rid Itself of a Retail Lease: Tenant Has the Right to Remain in Possession Even Upon “Rejection” of the Lease

Where a retail lease contains terms unfavorable to the bankrupt landlord, it may elect to reject the lease. Fortunately for tenants, the Bankruptcy Code contains special protections so that a landlord cannot reject a lease in order to simply evict a tenant.

A landlord cannot remove a tenant from its leasehold premises by rejecting the lease; instead, it is the tenant’s choice whether to stay or go.

Section 365(h) of the Bankruptcy Code provides that if a debtor-landlord rejects a real estate lease, the tenant has two choices. First, the tenant may treat the lease as terminated and vacate the premises (and file an unsecured claim in the bankruptcy case for damages caused by the landlord’s termination). Second, so long as the lease term has commenced, the tenant may elect to remain in possession at the same rental rate for the remaining term, including any renewal or extension period, as provided in the lease and permitted by state law.

If the tenant elects to remain in possession, then it must continue to pay rent and perform all its other obligations under the lease. The landlord, however, will no longer be required to perform its lease obligations, such as repairs, maintenance, or building security, thus potentially compelling the tenant to perform the landlord’s obligations. The tenant is entitled to offset its expenditures in performing the landlord’s duties, as well as damages related to the landlord’s failure to meet lease conditions such as tenant mix and shopping-center occupancy, against future rent. These requirements are expressly protected by the Bankruptcy Code. Notably, the rent offset is the tenant’s sole recourse against a rejecting landlord.

Even where a bankrupt landlord seeks to reject a lease, and the tenant’s rights appear assured by the Bankruptcy Code, the tenant must be vigilant to ensure that the landlord does not take steps in the bankruptcy to eliminate those rights.

A tenant’s rights upon landlord rejection should be preserved by law. Nevertheless, debtors in bankruptcy frequently take advantage of the willingness of some bankruptcy courts to allow a debtor to take acts that are beyond the written powers of the law itself. In practice, many proceedings in bankruptcy are done on what is colorfully called a “scream or die” basis. The debtor mails (or sometimes merely emails) a short notice to what might be thousands of creditors, seeking court authorization to act in furtherance of the debtor’s reorganization. Unfortunately, where creditors have not been diligent in reviewing such notices and therefore fail to “scream,” they may find that their rights have effectively “died.” A landlord might, for example, ask the court to set a deadline for all tenants under rejected leases to elect to keep their lease and stay on the premises, with a tenant’s failure to object on a short timeline constituting an abandonment of the tenant’s leasehold. Tenants must remain vigilant throughout a bankruptcy proceeding to avoid being caught in such a trap.

When the Bankrupt Landlord Seeks to Sell the Property in which a Retail Tenant has a Leasehold

Along with assumption of leases by a reorganizing landlord, a retail tenant may find that its landlord intends to raise needed cash by selling the property in which its leasehold exists. This sale would occur to a new entity, such as a different commercial landlord. The purchaser might even be a newly created entity that looks very much like the old landlord, but which is not burdened by the bankrupt landlord’s debt incurred prior to the COVID-19 crisis. Courts dealing with this scenario have developed case law that is far less clear on whether a tenant has the right to remain in possession of the premises, and of the benefits of its existing lease.

A tenant must be alert to the possibility that its landlord may seek to strip off its lease rights by selling the property to a different landlord.

The sale of a property subject to a retail lease would occur as a “363 sale” in bankruptcy. Section 363 of the Bankruptcy Code allows a debtor, under certain circumstances, to sell its assets “free and clear” of existing liens and interests. See 11 U.S.C. § 363(f). This provision was used, for example, to allow “new General Motors” and “new Chrysler” to acquire the working assets of their predecessor companies while shedding original liabilities. The “interests” that may be affected by such a bankruptcy sale include retail leases. Consequently, an apparent conflict arises between Sections 363(f) (which appears to allow the sale of real property free of leases) and 365(h) (which preserves a tenant’s rights).

Federal courts are split on which section trumps the other. See In re Spanish Peaks Holdings II, LLC, 872 F.3d 892, 898 (9th Cir. 2017) (citing cases taking the “majority” approach and “minority” approach). The majority view holds that the possessory interests of tenants under Section 365(h) are superior to the rights of asset purchasers under Section 363(f), which means the retail tenant can continue to possess and operate its business even after a 363 sale. The minority view says that a 363 sale can be free and clear of tenant interests if the leases are not rejected under Section 365(h). Even the minority position, however, allows for tenants to protect themselves by demanding adequate protection under Section 363(e) in response to a proposed sale free and clear. Adequate protection may include the right to remain in possession of the leased premises.

A timely objection in the landlord’s bankruptcy is necessary for a tenant to have any chance of preserving its lease rights in a 363 sale.

So how does the retail tenant avoid this potential trap? Simple answer: be vigilant! In Spanish Peaks, for example, the Ninth Circuit (governing nine western states including California) adopted the minority view that disfavors tenants. But even worse for the tenant, the Circuit declined to address what adequate protection would be due the tenant (which is available under the minority view) because it had failed to ask for adequate protection at the bankruptcy court level. The bottom line is simple but critical: before your landlord files for bankruptcy, know your lease terms and the rights created therein, and as soon as your landlord files for bankruptcy ensure you are on the electronic notice list in order to receive immediate notification of all filings by the debtor-landlord. Read the notices to stay abreast of any activity in the case which could interfere with your leasehold rights, such as a motion to assume or reject under Section 365 or motion to authorize a 363 sale. The retail tenant who is not actively aware of developments in its landlord’s bankruptcy risks losing its lease, possession of the premises, and other rights it may have against the landlord.

Conclusion

The retail industry has been among the hardest hit by the COVID-19 pandemic. As society moves through the shutdown stage and begins reopening, if only gradually, economic suffering will remain. Thus, in COVID-19’s wake, retail tenants must be prepared to know and pursue their rights and remedies in a landlord’s bankruptcy proceeding. This requires knowledge not only of the Bankruptcy Code’s treatment of assumption and rejection of an unexpired lease, but, critically, a detailed understanding of rights granted in the unexpired lease itself. Where threat of landlord bankruptcy exists, retail tenants should be preparing now to face a potential rapid onslaught of actions in a bankruptcy proceeding which likely will affect their leasehold rights. Forewarned is forearmed.

Stung by repeated criticisms of content moderation decisions in which it either acted or refused to act to remove controversial content such as obviously-doctored political videos, Facebook has developed a new Independent Oversight Board to hear petitions to appeal from those decisions brought by platform users and Facebook itself.  The Oversight Board has been set up and funded by an independent trust, which is designed to allay concerns that Facebook might interfere in its decisions.

As many retailers rely on content creation for their marketing efforts, Facebook’s news is worth noting. For content creators, an adverse Facebook decision to take down content can be disastrous to their livelihood which depends on monetizing that content.  Such a potential adverse business impact is part of the reason why due process on Facebook is long overdue.

Last month, Facebook announced its initial Board composition and published the long awaited bylaws, which detail how the Oversight Board will be operated.

Facebook Oversight Board Procedures

  • The Oversight Board will be made up of an independent, international panel, reportedly selected to reflect a diverse set of viewpoints, expertise, and languages. There will, at peak, be 40 members who will serve 3-year terms.  The Board currently includes three prominent law professors from the United States, including co-chair Michael McConnell, who is currently a Stanford Law Professor and formerly a Judge on the Tenth Circuit.
  • The right to appeal will not be automatic. The Board will constitute a rotating Case Selection Committee that will develop criteria for selecting among the most meritorious among what are expected to be thousands of petitions for review.  It “will prioritize cases that potentially impact many users, are of critical importance to public discourse, or raise questions about Facebook’s policies.”  Some content decisions, such as assessments of copyright concerns or involving clear violations of law, will not be appealable to the Board.
  • Upon acceptance of the case, the Board will forward it to a 5-member board panel. The case submission will include:
    • A statement by the person who submitted the case (and/or who posted the original content);
    • A case history (from Facebook);
    • A policy rationale (also from Facebook);
    • Clarifying information (also from Facebook) if requested by the board; and
    • All additional outside information, if requested by any member of the panel.
  • In reviewing individual cases, the panel will seek to determine whether the content complies with Facebook’s “content policies and values.” It will draft a decision for full Board review.
  • Once approved for release, the administration will approve the publication of the final decision on the board’s website and promptly notify the persons involved and Facebook.
  • The board will publish its decision as soon as it is complete and will translate it into the board’s official languages

Implications

We have yet to see any published decisions from the Board, so the real operational standards and quality of the Board decision-making have yet to be assessed.  Some of the most difficult issues that could arise may stem from allegations of systematic bias that are often leveled against social media platforms, and in the leadup to the United States Presidential Elections, the Boards’ decisions regarding political content are certain to receive significant attention.

Facebook needs this experiment in independent oversight to succeed.  The drumbeats for reform, or even repeal, of Section 230 of the Communications Decency Act is growing louder every day – attracting proponents from both sides of the political spectrum.  An effective and independent Oversight Process might calm the political waters, much as the creation of the industry self-regulatory National Advertising Review Program did in the 1980s.

On June 3, 2020, the United States Bankruptcy Court for the Northern District of Illinois issued one of the first decisions to apply a force majeure clause to a commercial tenant’s rent obligations in the wake of a COVID-19 government-mandated shutdown. Pursuant to an Illinois executive order, restaurant operations were limited to curbside pickup.

The court ultimately concluded that the force majeure clause in the parties’ lease supported a 75% reduction in rent. The decision in In re Hitz Restaurant Group, No. BR 20 B 05012, 2020 WL 2924523 (Bankr. N.D. Ill. June 3, 2020), suggests that courts may be increasingly receptive to arguments tying rent to tenant’s actual and/or permitted operations under “shelter in place” orders.

Background

The tenant debtor, Hitz Restaurant Group (“Hitz”), leased space from landlord creditor Kass Management Services, Inc. (“Kass”). The force majeure provision in the lease provided:

Landlord and Tenant shall each be excused from performing its obligations or undertakings provided in this Lease, in the event, but only so long as the performance of any of its obligations are prevented or delayed, retarded or hindered by . . . laws, governmental action or inaction, orders of government . . . . Lack of money shall not be grounds for Force Majeure.

On February 24, 2020 (prior to the issuance of any COVID-19 “shelter in place” orders), Hitz filed for bankruptcy. It also did not pay rent for March or subsequent months. In March, Illinois Governor J. B. Pritzker issued Executive Order 2020-7 in response to the growing COVID-19 pandemic. Section One of that order required restaurants such as that operated by Hitz to “suspend . . . on-premises consumption” effective March 16, but permitted such businesses to use delivery, “drive-through, and curbside pick-up.”

Hitz argued that this executive order, as well as subsequent orders extending the limitation on restaurant activity, triggered the force majeure clause in the lease such that Hitz did not owe rent from March onward. Kass moved the bankruptcy court to order Hitz to pay post-petition rent and “to timely perform all future rent obligations.” In re Hitz Rest. Grp., 2020 WL 2924523, at *1.

Force Majeure “Unambiguously Applies”

The court found that Governor Pritzker’s order “unambiguously triggered” the force majeure clause in the lease and that the clause “unambiguously applies” to rent payments that became due thereafter (April, May, and June). Id. at *2.

The executive order triggered the force majeure clause because the order (1) “unquestionably” constitutes “governmental action” or “order of government” as enumerated in the provision; (2) “unquestionably ‘hindered’”—pursuant to the clause—Hitz’s ability to perform under the lease by proscribing on-site food consumption; and (3) was “unquestionably” the proximate cause (a requirement for the analysis of force majeure provisions under Illinois law) of Hitz’s inability to pay rent because “it prevented [Hitz] from operating normally and restricted its business to take-out, curbside pick-up, and delivery.” Id.

To determine whether—and to what extent—Hitz was obligated to pay rent for the duration of the executive order and its extensions, the court scrutinized the uses expressly permitted and encouraged by Governor Pritzker’s directive. The court relied on Hitz’s estimation that 75% of the restaurant’s square footage, including the dining room and bar, was “rendered unusable” by the order. Id. at *4. Hitz conceded that the 25% of the premises occupied by the kitchen “could have been used” for activities permitted by Governor Pritzker’s order: namely, carry-out, curbside pick-up, and delivery. Id. The court determined that Hitz’s rent obligation was “reduced in proportion to its reduced ability to generate revenue due to the executive order” and ultimately concluded that Hitz owed 25% of the rent due for April, May, and June. Id. at *3-4.

Kass made three arguments to support its claim that the force majeure clause should not apply, each of which the court quickly rejected. First, Kass argued that Governor Pritzker’s executive order did not prohibit the continued functioning of banks or the post office, making payment of rent physically possible. The court summarily rejected this “specious” argument. Id. at *3. Second, Kass argued that the force majeure provision, by its express terms, did not apply to Hitz’s inability to perform based on “lack of money.” The court rejected this characterization by emphasizing that Hitz argued that it was the government-mandated prohibition on its business—and not lack of money—that was the proximate cause of its inability to pay rent. Third, Kass argued that Hitz could have applied for a Small Business Administration loan to cover its rent, which the court rejected given that there was no affirmative duty of Hitz to do so.

The court also considered the “lack of money” exclusion “general” language, and that the more specific inclusion of governmental orders controlled. Id. at *3 n.2.

The court cited authority that force majeure clauses supersede the common law doctrine of impossibility. The parties and court did not address other legal theories raised by commercial tenants, such as frustration of purpose.

Implications for Future Cases

As one of the first decisions to appraise the effects of force majeure provisions on rent obligations during the COVID-19 pandemic, the decision could serve as important persuasive authority for other disputes. The key takeaways include the following:

  • A proportionate rent reduction may be appropriate if limited uses are allowed. The In re Hitz Restaurant Group court found that a tenant’s “obligation to pay rent is reduced in proportion to its reduced ability to generate revenue due to the executive order.” Id. at *3. The concept of tying rent amounts to allowable tenant use could prove to have increased purchase as courts confront the practical effects of shelter-in-place orders on restaurants, retail, and services.
  • Tenant’s invocation of force majeure may prevail. The court rejected the landlord’s attempt to re-frame Hitz’s argument as an inability to pay rent due to a “lack of money,” which would have been excluded as a viable excuse pursuant to the force majeure provision. In doing so, the court embraced Hitz’s argument that the proximate cause of its inability to pay rent stemmed from the executive order and its effects on Hitz’s business. This should give tenants confidence in making arguments based on force majeure provisions. That said, it will be interesting to see if other courts will follow the court’s reasoning in minimizing the impact of the “lack of money” exception.
  • Unclear impact on force majeure clauses that exclude rent payment. Unlike many force majeure provisions, the clause at issue in this case did not expressly exclude payment obligations from performance excused pursuant to a force majeure event. This made it easier for the tenant to argue that its rent obligation should be suspended because of its inability to operate fully as a result of governmental mandates. It remains to be seen how a court would interpret a clause that expressly carves out rent obligations.
  • Uncertain what affect—if any—landlord counterarguments regarding partial use may have. The court acknowledged that the landlord’s counterarguments were weak and that the landlord did not make an argument regarding the square footage that the tenant could have used while remaining within the terms of the order. The degree of use by a tenant will likely prove a serious point of contention in future disputes.

 

In March, we wrote about President Trump’s nomination of Dr. Nancy Beck to serve as Commissioner and Chairman of the U.S. Consumer Product Safety Commission (CPSC). Yesterday, Dr. Beck moved one step closer to assuming the chair of the agency as the Senate Committee on Commerce, Science and Transportation held a hearing to consider Dr. Beck’s nomination.

As expected, the hearing became contentious at times as committee Democrats criticized Dr. Beck’s experience and expressed opposition to the nomination.  They questioned Dr. Beck extensively on her background, in particular her most recent service in EPA’s Office of Chemical Safety and Pollution Prevention and at the White House’s National Economic Council (NEC).  Ranking Member Maria Cantwell (D-WA), along with Tom Udall (D-NM), Richard Blumenthal (D-CT), and Jon Tester (D-MT), pressed Dr. Beck on her role in important regulatory matters involving PFAS chemicals, TCE, methylene chloride, asbestos, and even COVID-19, and proceeded to criticize her for, in their view, disregarding science and siding with the chemical industry over public health and safety.

Chairman Roger Wicker (R-MS) asked Dr. Beck how, if confirmed, she would prevent unauthorized releases of confidential business information by CPSC in violation of Section 6(b) of the Consumer Product Safety Act.  Dr. Beck responded that she would ensure all staff and managers were appropriately trained in how to handle confidential business information.

When provided the opportunity, Dr. Beck expressed her priorities for the Commission if confirmed.  She stated that she will ensure that:

  • CPSC takes appropriate and timely action to protect the public from risks, consistent with statutory mandates;
  • CPSC has effective communication and outreach tools — in particular, to address the changing ways consumers purchase products and receive important information; and
  • CPSC has the full confidence of the American public. Dr. Beck emphasized that CPSC programs must be run as effectively as possible to provide the highest level of protection to consumers and families.

On this last point, Dr. Beck’s written testimony emphasized her support for hiring a Chief Technologist, as recommended by the Senate, to make certain that CPSC decisions are informed by the best available data and information.  Interestingly, however, the CPSC has already posted a job announcement seeking a Chief Data Analytics Officer with the capabilities to query data, create reports, dashboards and data visualizations for reporting to the Commission on emerging hazards.

Dr. Beck stated multiple times during the hearing that she believes that public safety should be promoted through policy supported by “objective and transparent science.”  She claimed not to have enough knowledge to answer specific questions on safety threats such as the threat of furniture tip-over and the death of children.

Dr. Beck’s confirmation is hardly a done deal.  Senate Democrats are expected to block Dr. Beck’s nomination, which may necessitate roll call votes before the Commerce Committee and eventually the full Senate.  In the coming weeks, all eyes will be on a small handful of Senate Republicans, some up for re-election, to see if they throw their support behind Dr. Beck.  For example, at yesterday’s hearing, Senator Shelley Moore Capito (R-WV) questioned Dr. Beck about her involvement in the regulation of PFAS chemicals while at EPA and on detail at the NEC.  Senator Capito’s questioning suggested some doubts on the nomination.  Other Republican Senators to watch include Lisa Murkowski (R-AK), Susan Collins (R-ME), and Tom Tillis (R-NC).

3:30pm ET Update: Both Sen. Shelley Moore Capito (R-WV) and Sen. Susan Collins (R-ME) have since gone on the record voicing opposition to Dr. Beck’s nomination.

Cheri Falvey contributed to this article.

On May 14, 2020, the U.S. Senate unanimously passed the Uyghur Human Rights Policy Act of 2020 (the “Act”). Introduced by Sen. Marco Rubio (R-FL), the Act aims to direct U.S. resources to address human rights violations and abuses, including forced labor, in the Xinjiang Uyghur Autonomous Region in Northwestern China. Credible research and investigations have pointed out that more than 1,000,000 ethnic minorities, including Uyghurs, ethnic Kazakhs, Kyrgyz, and Muslim minority groups have been detained in internment camps where they face political indoctrination, torture, beatings, food deprivation, forced labor, and other human rights abuses.

If passed by the House of Representatives and signed by the President, the Act would require the President to submit a report to Congress identifying any official of the Government of China that is responsible for the denial of human rights in the Xinjiang Uyghur Autonomous Region. Sanctions will then be imposed against each individual identified in the President’s report. Such sanctions shall include blocking the property of identified individuals and denying admission to the United States. Importantly, these sanctions shall not include the authority or a requirement to impose sanctions on the importation of goods into the U.S.

In addition to sanctions, the Act would require the Secretary of State to submit a report on human rights abuses in Xinjiang Uyghur Autonomous Region to Congress. The report must include detailed information regarding the number of individuals detained in internment camps; a description of the conditions in such camps, including an assessment of methods of torture and other human rights abuses; the number of individuals in forced labor camps; methods used to reeducate detainees in the camps, including identification of government agencies in charge of reeducation; and an assessment of the use of forced labor and a description of foreign industries and companies benefiting from such labor.

The Act differs in substantial ways from a prior bill, also introduced by Sen. Rubio that was introduced in the Senate on March 12, 2020. The Uyghur Forced Labor Prevention Act would have gone further to create a rebuttable presumption that goods produced by labor occurring in Xinjiang China, or by persons working with the Region’s government under poverty alleviation, or mutual pairing assistance programs, are prohibited for entry into the U.S. This bill would have flipped the burden of proof under Section 307 of the Tariff Act of 1930. Normally, before prohibiting entry of goods into the U.S due to suspected use of forced labor, the U.S. Government must demonstrate that information reasonably indicates that the goods were produced using forced labor. The Forced Labor Prevention Act would flip this burden, requiring importers to demonstrate that goods produced in Xinjiang, China were not produced using forced labor before entry into the U.S. would be permitted. In addition, the Forced Labor Prevention Act would have required the imposition of sanctions as required under the Act.

Whether or not either of these bills is signed into law, it is likely that Customs and Border Protection (CBP) will be more diligent in its forced labor enforcement activity, which may have broad implications for goods imported from China and other regions suspected of using forced labor.

 

On April 8, 2020, the Federal Trade Commission (FTC) published a blog post titled, “Using Artificial Intelligence and Algorithms,” that offers important lessons about the use of AI and algorithms in automated decision-making.

The post begins by noting that headlines today tout rapid improvements in AI technology, and the use of more advanced AI has enormous potential to improve welfare and productivity. But more sophisticated AI also presents risks, such as the potential for unfair or discriminatory outcomes. This tension between benefits and risks is a particular concern in “Health AI,” and the tension will continue as AI technologies are deployed to tackle the current COVID-19 crisis.

The FTC post reminds companies that, while the sophistication of AI is new, automated decision-making is not, and the FTC has a long history of dealing with the challenges presented by the use of data and algorithms to make decisions about consumers.

Based on prior FTC enforcement actions and other guidance, the FTC post outlines five principles that companies should follow when using AI and algorithms, while adequately managing consumer-protection risks. According to the post, and as expanded upon below, companies should (1) be transparent with consumers about their interaction with AI tools; (2) clearly explain decisions that result from the AI; (3) ensure that decisions are fair; (4) ensure that the data and models being used are robust and empirically sound; and (5) hold themselves accountable for compliance, ethics, fairness, and nondiscrimination.

It should be noted that the FTC and state attorneys general already look at whether companies give clear and conspicuous disclosures to consumers in order to evaluate regulatory compliance and some state attorneys general are already looking at issues related to AI. This FTC guidance emphasizes the importance of transparency even further. The guidance’s principles – especially those related to ensuring data accuracy and preventing discriminatory outcomes – will also be important as companies deploy AI to respond to COVID-19. For example, a recent article in The Hill highlighted how companies are working with hospitals to establish patient-monitoring programs that use AI-powered wearables, like smart shirts, that continuously measure patients’ biometrics (e.g., cardiac activity) so that hospital staff can better monitor patients and possibly limit the number of required visits to infected patients.. Although these wearables are promising, companies must make sure that these devices are also effective and that they satisfy principles outlined in this guidance (as well as patient-privacy and HIPAA concerns). Thus, companies will want to pay attention to the FTC’s actions here as these AI technologies are being created and improved.

Summary of the FTC’s Guidance

(1) Be transparent: Companies should be clear about how they are using AI to interact with customers. For instance, if a company uses an AI chatbot to interact with consumers, the company should be transparent to the consumers that they are interacting with a chatbot, not a person. If the company’s use of such a technology misleads consumers, the company could risk FTC enforcement. Companies must also be careful about how they collect sensitive data that will be used in their algorithms: for example, secretly collecting audio or visual data to feed an algorithm could also give rise to an FTC action.

Further, using AI-modelled information may lead to obligations under the Fair Credit Reporting Act (FCRA). That is, if a company makes automated decisions based on information from an AI-enabled third-party vendor (e.g., denies someone an apartment because of an AI model’s credit report), the company may need to provide the consumer with an “adverse action” notice, which explains the consumer’s right to review the credit report and correct any mistakes.

(2) Clearly explain decisions: Companies using AI tools that deny customers access to credit should explain the reasons for the denial. It may not be good enough for companies to give general reasons for the rejection (e.g., simply telling the customer “you don’t meet our criteria”); instead, companies should be specific (e.g., explaining that “you have an insufficient number of credit references”). As a result, companies using AI should know what data is used in its model and how that data is used to arrive at a decision. And if a company changes the terms of a credit agreement based on an automated tool (e.g., reducing a consumer’s credit limit based on his or her purchasing habits), the company should tell the consumer that the terms have changed. Failing to do so can lead to enforcement.

The FTC could potentially apply this guidance to Health AI as well. For example, as mentioned above, AI-powered wearables would allow clinicians to make better decisions regarding which COVID-19 patients to visit or not visit. This FTC guidance suggests that health-care providers utilizing these wearables must be able to explain why these devices required one patient to be seen but not another patient. Further, these devices could be considered subject to U.S. Food and Drug Administration (FDA) enforcement. Thus, enabling the user to independently validate the recommendations made by these devices is an important factor in considering whether FDA oversight is required as well.

(3) Ensure that decisions are fair: Companies should make sure that their algorithms do not result in discrimination against protected classes. For example, the FTC enforces civil-rights laws like the Equal Credit Opportunity Act (ECOA), which prohibits credit discrimination on the basis of race, sex, or income. Thus, if a company makes a credit decision based on consumers’ zip codes, resulting in a “disparate impact” on particular groups, the FTC may challenge that practice under the ECOA. Further, when evaluating an algorithm for illegal discrimination, the FTC will analyze the AI tool’s inputs (e.g., whether the model includes ethnically-based factors) and outputs (e.g., whether the model resulted in discrimination on a prohibited basis). Consequently, companies should rigorously test their algorithms, both before using them and periodically afterwards, to ensure that their AI tools do not discriminate against people.

(4) Ensure that the data and models being used are robust and empirically sound:As previewed above, companies that compile and sell consumer information that is used for credit, employment, or insurance may be subject to the FCRA. Compliance under FCRA means that companies have an obligation to implement reasonable procedures to ensure the accuracy of consumer reports and provide consumers with access to their own information.

In the health-care context, there could be significant liability risk if algorithms, using inaccurate data, lead to improper health-care decision-making. For example, Stanford Health researchers who are focused on AI-assisted in-home elder care are designing AI technology that could potentially be used in the homes of patients to monitor COVID-19 symptoms. Researchers are investigating the use of devices that can collect data (e.g., a patient’s body temperature or mobility) that can be analyzed to monitor up to seventeen activities of clinical relevance, including eating, sleeping, fluid intake, and immobility. Clinicians can then review this information in order to make decisions to help patients. While this research is promising, companies and clinicians that eventually create and use this technology must make sure that the technology’s models are sound and patients’ data are accurate to ensure that the best health-care decisions are made.

To ensure accuracy and soundness, the FTC advises that AI models must be validated and revalidated – using accepted and appropriate statistical principles and methodology – to confirm that they work as intended.

(5) Be accountable for compliance, ethics, fairness, and nondiscrimination: Companies should also hold themselves accountable to be compliant, ethical, fair, and nondiscriminatory when analyzing large amounts of data. To do this, algorithm operators should ask four questions:

  • How representative is our data set?
  • Does our data model account for biases?
  • How accurate are our predictions based on big data?
  • Does our reliance on big data raise ethical or fairness concerns?

Further, companies that develop AI to sell to other businesses should ensure that appropriate controls are put in place in order to prevent the misuse and abuse of sensitive data. Finally, companies should consider using third-party experts as objective observers to ensure that their AI tools do not unintentionally discriminate against classes of people.

Conclusion

This FTC guidance is significant because it is broad and will impact a number of legal areas (e.g., consumer protection and privacy) as AI continues to be used in so many different kinds of products – from credit-reporting services to online-retail sites to health-care products. And as mentioned above, since more sophisticated algorithms are being used in Health AI to address COVID-19, the FTC’s guidance will take on even greater importance. Thus, companies should take heed of these principles and pay attention to how the agency applies them in the years ahead.