Last week, the Massachusetts Supreme Judicial Court (SJC) issued a decision (Kauders v. Uber Technologies, Inc.) with serious implications regarding the enforceability of online agreements in the Commonwealth. This decision represents the first time the SJC has considered a substantive contract formation issue within the context of online agreements. By concluding that online contracts must meet the same standards of formation that exist for traditional contracts under MA law, the SJC’s decision will effectively require companies to reevaluate the way they present terms of service on website and mobile applications, if they wish for them to be enforceable in MA.

In December, Congress convened to discuss the federal government’s 2021 operating budget, resulting in the passage of the Consolidated Appropriations Act, 2021 (the “Act”) on December 27th. Nestled within its nearly 6,000 pages was a second COVID-19 stimulus package providing approximately $900B in pandemic aid, including a renewal of the Paycheck Protection Program (PPP) that was originally established under the CARES Act last Spring.

Many technology-related service agreements between providers and their customers now include terms beyond the four corners of the document. Specifically, certain contract terms are incorporated as mere hyperlinks to a URL where the provider’s standard terms and provisions are maintained.

Just as the ink had dried on what we thought was the CA Attorney General’s final set of regulations for the California Consumer Privacy Act (CCPA), a new, fourth draft set was submitted earlier this month, building upon the third draft set issued in October. Both sets of regs have yet to be finalized.

For those of you who are fans of Bill Maher or Dua Lipa, the idea of “New Rules” is a familiar one: identifying issues and committing to a new way doing things to improve outcomes. As we near the end to a challenging year, I have been thinking about my personal “rules” for being an effective General Counsel, and how they’ve evolved over time to reflect an ever-changing professional landscape. These “GC rules” have helped me whether working full-time or part-time, internal or external, as a newbie or a lifer. And because the whole purpose of developing rules to live by is to evolve and grow, I hope this list encourages you to reflect on your own rules (and maybe even share them with us!). So here goes, my current Top 10 GC Rules:

It has become fairly commonplace for companies of all sizes and industries to tout a commitment to ethical and socially-conscious business practices as a key differentiator in their respective markets. For example, a clothing company might distinguish itself by its commitment to sustainable manufacturing practices that include waste recycling and efficient water usage systems. Aside from being a means of establishing brand identity, this promise also may help a company attract capital from investors who share a similar sense of social responsibility. Regardless of the reason, companies who choose to adopt standards which exceed basic government guidelines must take appropriate steps to ensure the fulfillment of such promised social and ethical obligations.

If you are a private-sector company with employees in California, please take note of the following new laws which go into effect as of January 1, 2021 (or earlier, as indicated below). Businesses impacted by these changes should review and update existing policies and procedures, including employee handbooks and records retention policies, independent contractor agreements, and arbitration agreements.

Online agreements, often referred to as “Terms of Use” or “Terms of Service,” have increasingly become standard practice for most companies doing business through a website. Although these agreements are designed to insulate companies from liability with respect to customers and users, not all online agreements are created equal. In fact, even the most detailed agreements can fail to protect companies from liability if the provisions are found to be unenforceable. A recently published white paper on the enforceability of online agreements actually found a direct correlation between form and enforceability[1].