Arbitration and Mediation
Recent legislation passed in California, SB 766, is seeking to increase California’s appeal as a destination for international arbitrations. If, as expected, Governor Brown signs the measure into law, any “qualified attorney” will be able to act in an international arbitration in California, provided the services rendered by that attorney have a sufficient nexus to the lawyer’s home jurisdiction or the lawyer is associated with a California lawyer. Many lawyers from foreign jurisdictions would likely meet the test of “qualified attorney” under SB 766. Most international disputes are also likely to have the requisite nexus for the qualified attorney to represent their clients in international arbitrations in California.
Labor & Employment
“There are only two categories of companies affected by trade secret theft—those that know they’ve been compromised and those that don’t know it yet.” (Attorney General Eric Holder, speaking at the Administration Trade Secret Strategy Rollout on Feb. 20, 2013). Five years later, has anything changed? Of course, the most significant change in the law since former U.S. Attorney General Eric Holder’s speech was the enactment of the federal Defend Trade Secrets Act in 2016, which largely federalized the Uniform Trade Secrets Act and provided some new enforcement tools, including ex parte seizure. But with constant development of new, valuable trade secrets and evolving technology, there is no reason to think Holder’s warning carries any less weight today. Given this reality, do companies do enough to proactively protect what often is their most valuable asset—their trade secrets?
The California Supreme Court’s Dynamex v. Superior Court decision on April 30 was a game changer. The impact for established business using an independent contractor model and solo entrepreneurs contemplating creation of service businesses is significant, though incapable of full measurement. This is an evolving story and Dynamex has requested a rehearing.
On Monday, April 30, 2018, the California Supreme Court issued its long-awaited ruling in Dynamex Operations West v. Superior Court. The new ruling adopts a new worker classification test and makes it easier for independent contractors to be found to be employees under California Industrial Welfare Commission (IWC) wage orders, which impose obligations relating to minimum wages, maximum hours, overtime, and a number of very basic working conditions such as minimally required meal and rest breaks. Whether it will impact compliance issues beyond the Wage Orders remains to be seen. This decision will impact employers who rely on independent contractors to conduct their business.
On May 21, 2018, in a 5-4 decision, the United States Supreme Court issued a long-awaited decision in Epic Systems Corp. v. Lewis, 584 U.S. ____ (2018), holding that mandatory employer-sponsored arbitration agreements do not offend the National Labor Relations Act (NLRA). Justice Gorsuch, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito, delivered the opinion.
What's Different About Early Assessment in Trade Secrets Cases (Daily Journal)
Litigants value early case assessment by their law firms for obvious business reasons. This exercise is uniquely important in trade secret cases, in which goals and strategies should be carefully defined at the outset to best protect the client’s business and, sometimes, its most valuable asset. This article discusses the value of early case assessment for trade secret plaintiffs.
Intellectual Property & Technology
Governor Brown has just signed the California Consumer Privacy Act of 2018. The new law, which has numerous similarities with the EU General Data Protection Regulation (GDPR), will take effect on Jan. 1, 2020. The law was passed on an expedited schedule to block a similar initiative that had garnered enough signatures to qualify for the ballot. While the two measures have similar terms, it will be much easier for the California Legislature to amend the statutory measure than its initiative counterpart. It is expected that legislation proposing changes to the new law will be introduced early next year as part of the next two-year legislative session.
On July 5, 2018, a 303-223 majority of the Members of the European Parliament, (with 29 abstentions), voted, in a non-binding vote, to suspend the EU-US Privacy Shield (Privacy Shield) if the United States does not meet specific requirements by Sept. 1, 2018. The vote approved a Motion for a Resolution that was presented by the LIBE Committee, the Committee of Civil Liberties, Justice and Home Affairs, which deals with the protection of personal data, among other things.
Colin W. Fraser interviews Tealium CLO, Phil Maynard
Data privacy matters more than ever. Big data is revolutionizing the way we do business, as organizations leverage valuable insights to improve services and develop products. At the same time, international privacy laws are taking effect at staggering speed, requiring multi-faceted compliance strategies by organizations engaged in an increasingly global economy. This year is especially important for data privacy because the European Union (EU) will be implementing the new General Data Protection Regulation (GDPR) with wide-ranging consequences even for U.S. companies. I was able to speak about these new challenges with Phil Maynard, the Chief Legal Officer of Tealium, Inc., a San Diego company with a data-driven business that is ramping up its own compliance with the GDPR and helping customers do the same.
Why Cybersecurity Matters in High-Stakes Litigation (GT Advisory)
You’re a skilled general counsel embroiled in high stakes litigation, perhaps even a “bet the company” case. You’ve dotted your i’s and crossed your t’s, all in preparation for the ensuing battle. You’ve issued appropriate litigation hold letters, you’ve backed-up case-critical electronically stored information (ESI), you’ve taken steps to ensure that potentially relevant ESI is preserved, and that nothing is modified, deleted or “rolls off the system” without you knowing about it first. You go to sleep believing that you’ve taken all reasonable steps to preserve the data that may one day be necessary for your lawsuit.
On April 24, 2018, in SAS Institute Inc., v. Iancu, 585 U.S.__(2018), the U.S. Supreme Court issued a 5-4 decision that ends the practice at the Patent Office of instituting inter partes review (IPR) with respect to fewer than all claims or fewer than all grounds. Justice Gorsuch delivered the opinion of the Court, which was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito.
Inter partes reviews are alive and well. On April 24, 2018, the Supreme Court issued its long-awaited decision in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, et al., 584 U.S. ___ (2018), relating to the constitutionality of inter partes reviews. The Court held that the practice of conducting inter partes reviews does not violate Article III of the constitution or the Seventh Amendment.
How New Tax Law Affects Tax Deductions for White-Collar Clients (The National Law Journal)
White-collar defense attorneys and their clients should pay attention to the tax consequences of monetary awards in criminal and civil enforcement cases. This may potentially prevent a company discovering from its accounting firm that none of the payments is deductible due to the failure to allocate.
Food and Beverage
Prop 65 Ruling Based on Old Science (Tea and Coffee Trade Journal)
A Los Angeles judge recently ruled in a California Proposition 65-related case that both RTD and bagged coffee sold in California must be accompanied by a warning that soon will say, “consuming this product will expose you to a chemical known to the State of California to cause cancer.” One would assume that the science must have been clear, uncontroversial and proven, beyond doubt, that coffee in fact contains a chemical that is known to cause cancer in humans. There had to have been no other alternative. Well, not exactly.
On May 24, 2018, President Donald Trump signed into law the Economic Growth, Regulatory Relief, and Consumer Protection Act (the 2018 Financial Reform Act or the Act). The Act rolls back certain provisions of the Dodd-Frank Act of 2010, providing relief to all but the largest banking organizations in the United States.
This GT Alert provides a high-level overview of the following key provisions of the 2018 Financial Reform Act: Amending Mortgage Rules; Regulatory Relief for Community Banks; Consumer Protection; Regulatory Relief for Large Banks; Capital Formation.
The Third Circuit held earlier this month that, where a credit card issuer bills a consumer for an unauthorized credit card charge, withdraws the charge, and then later reinstates it, the consumer’s dispute of the unauthorized charge under the Fair Credit Billing Act (FCBA) is timely if made within 60 days of the charge’s reinstatement, not 60 days from the date the charge originally appeared.
In recent months, the United States has implemented a number of high profile trade-related sanctions measures. While the new U.S. tariffs imposed on a variety of Chinese goods have received much attention in the media, the United States has also subjected Chinese companies to fines and other penalties for alleged violations of separate U.S. sanctions and export laws. These actions highlight the extent to which even wholly Chinese companies must consider complex and extraterritorial U.S. sanctions and export control laws and regulations in their own operations.
Awards and Mentions
The Chambers USA 2018 Guide recognized the following eight California attorneys: Charles S. Birenbaum, Jay L. Cooper , Richard F. Davis , G. Michelle Ferreira, Bruce Fischer, Sanford C. Presant, Howard J. Steinberg, and Daniel J. Tyukody.
The Legal 500 United States 2018 Guide recognized the following 13 California attorneys: Ellen Berkowitz, Gregory A. Fishman, Robert J. Herrington, Mark D. Kemple, Brady R. McShane, Rick L. Shackelford, Daniel J. Tyukody, Susan L. Heller, Kurt A. Kappes, G. Michelle Ferreira, Bradley R. Marsh, Ian C. Ballon, and Magan Pritam Ray.
Mark D. Kemple was named as a “Top Labor & Employment Attorney” for 2018 by The Daily Journal.
Anthony J. Cortez was quoted in an article titled, “State Agency Clarifies Warning Label Law After Coffee Ruling,” published by The Daily Journal.
Carolyn Fitzhugh McNiven was interviewed by Health Law Daily regarding the Travel Act and her recent chapter in the 2018 Health Law and Compliance Update.
Greenberg Traurig San Francisco’s band “Attractive Nuisance” took home the Judges Choice Award for the second year in a row at an annual attorney battle-of-the-bands fundraiser. The event entitled “Banding Together to End Domestic Violence” benefits the Family Violence Appellate Project (FVAP).
G. Michelle Ferreira was a winner ofEuromoney Legal Media Group’s annual “Americas Women in Business Law Awards.” Francoise Gilbert was shortlisted for “Technology” and Susan L. Heller, for “Trademark.”
Natassia Kwan was awarded the 2018 American Bar Association’s “On the Rise – Top 40 Young Lawyers” by the American Bar Association’s Young Lawyers Division.
Susan L. Heller was appointed to the board of Orange County’s Human Options, a non-profit organization devoted to breaking the cycle of domestic violence. Heller was also honored as “IP Lawyer of the Year” for 2018 by Corporate LiveWire.
Eric V. Rowen was named chair of Los Angeles County Economic Development Corporation.
Kurt A. Kappes was quoted in an article titled, “After two years, federal trade secrets law has not changed much, lawyers say,” published by The Recorder.
Nicholas A. Brown and Jeff Joyner were listed in the 2018 edition of Intellectual Asset Management’s (IAM) Patent 1000 , which also recognized Greenberg Traurig for its litigation capabilities in California.
2018 Trends & Important Legal Developments in Consumer Products
Class Action Litigation
The seminar is set for September 20, 2018.
Greenberg Traurig, LLP
1840 Century Park East, Suite 1900
Los Angeles, CA 90067
This is part of a series of class action lunch seminars GT LA is offering throughout 2018. To reserve a place, please email Julie Hummer: firstname.lastname@example.org