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Impact of Invalidation of US-EU Privacy Shield on Share-Based Incentive Programs

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On 16 July 2020, the European Court of Justice (“ECJ”) ruled that the EU Commission’s 2016 decision regarding the adequacy of data protection in the United States and the EU-US Privacy Shield (“Privacy Shield”)* are invalid. As a result, companies in the EU and United States relying on the Privacy Shield program are scrambling to determine the impact on their operations. 

Many US companies grant share-based awards to employees of their subsidiaries in the EU as a discretionary incentive separate from the employees’ local compensation and employment relationship with the respective EU subsidiary.

To administer such awards, companies have to collect, process and transfer employees’ personal data, including transferring such data to the United States. The transfer of personal data from the EU to the United States is permissible only if a valid justification exists, and one of such justifications was Privacy Shield. 

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Lothar has been helping companies in Silicon Valley and around the world take products, business models, intellectual property and contracts global for nearly 20 years. He advises on data privacy law compliance, information technology commercialization, interactive entertainment, media, copyrights, open source licensing, electronic commerce, technology transactions, sourcing and international distribution at Baker McKenzie in San Francisco & Palo Alto.

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Cristina focuses her practice on regulatory and transactional issues in global privacy and data protection, including data security, data breach notification, global privacy, website privacy policies, behavioral advertising, cross-border data transfers, and comprehensive compliance programs.

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Nicole Calabro is a partner in Baker McKenzie’s Employment & Compensation Practice, with a focus on global equity services. She advises multinational companies on all facets of employee equity plans. She regularly assists public and private companies in offering their employee equity plans around the world. Nicole is currently a member of the National Association of Stock Plan Professionals and the Global Equity Organization.

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Barbara Klementz is the managing partner of Baker & McKenzie's Los Angeles, Palo Alto and San Francisco offices in California. She is the chair of Baker McKenzie’s Compensation Sub Practice Group. She has practiced in the area of global equity and executive compensation for 20 years. Barbara has authored several articles on global equity issues for the BNA Executive Compensation Journal, Journal of Corporate Taxation and San Francisco and Los Angeles Daily Journal, among others, and she is the author of a blog on global equity related topics called the Global Equity Equation. She is also a frequent speaker on a variety of global equity topics. Barbara is recognized as a ranked practitioner by Chambers USA. Chambers states that she "consistently delivers top-notch assistance and work product, and is a true expert in the field." Barbara is admitted to private practice in California and Düsseldorf, Germany.

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