Greenberg Traurig launched the Trade Secret Law Evolution Podcast, offering comprehensive summaries and concrete takeaways on the latest developments and trends in trade secret law. Created by Los Angeles Litigation Practice Co-Chair Jordan Grotzinger, the podcast is available on the Greenberg Traurig website, as well as on Apple Podcasts, Stitcher, and Spotify. Episodes to-date include:
- Agency, Statute of Limitations, Inevitable Disclosure and More
- Trade Secret Identification, Irreparable Harm and More
- Sovereign Immunity from Trade Secret Theft and What Courts Consider When Ruling on Trade Secret Status
- Choice of Law, Trade Secret Identification, Supporting Independent Economic Value and More
- What Trade Secret Identification Really Means, Consent to Disclosure, and Sufficiency of Evidence
- Soaring Litigation Costs, What to do About it, Proving That Your Asset is a Trade Secret, and Keeping it That Way
- Preemption, Proving Likelihood of Success After Unauthorized Mass Download, Federal Subject Matter Jurisdiction and Pre-DTSA Misappropriation
- Trade Secrets or Patent Protection?
- The Fact-Intensive Nature of Trade Secret Cases
- Major Decision on Statute of Limitations, the Continuing Evolution of Trade Secret Identification, and Protecting Your Trade Secrets in Public Proceedings
- Focusing Trade Secret Identification and Whether After-the-Fact Protections Work
- Lettuce, Baseball, and Circumstantial Evidence
The DTSA and the China Initiative (Daily Journal)
For the last several years, there has been an increased focus on trade secrets, especially over its more commonly asserted intellectual property cousin, patents. The Defend Trade Secrets Act was signed into law in May 2016 as an amendment to the Economic Espionage Act. The DTSA created the first federal civil cause of action for trade secret misappropriation and provided some novel remedies, including ex parte seizure provisions targeted largely at importers. Before 2016, trade secrecy was governed by state law, which in almost all instances (49 states) implemented some version of the Uniform Trade Secrets Act.
Labor & Employment
Gov. Newsom signed 870 bills into law and vetoed 172. Fortunately, not all of them were labor and employment related. This GT Alert provides an overview of the new employment-related laws, which will likely create additional challenges for California employers. As always, we focus here on what is likely to be important.
The enforceability of restrictive covenants, particularly non-compete agreements, can be very difficult for employers to navigate, especially for companies in their “start-up” phase. Technology companies in particular face challenges in structuring non-competes that balance their need to attract talent with their need to protect confidential and sensitive information, while preventing unfair competition by former employees. Many states have developed common law precedent as to what constitutes a permissible non-compete, while others have enacted statutes. Emerging technology companies must be aware of the laws in their jurisdictions in order to draft enforceable restrictive covenants that adequately protect business needs. The chart in this GT Alert presents a summary of employee non-competition laws and applicable standards in four states where emerging technology companies often do business: California, Massachusetts, New York, and Texas. Notably, the chart addresses the enforceability of pure non-competes, and does not focus on non-solicitation or non-disclosure agreements, which can also be utilized to accomplish the goal of protecting a company’s business interests in appropriate circumstances. Of course, in addition to the four states covered in this alert, emerging technology companies do business all over the United States, and internationally.
On July 3, 2019, California Gov. Gavin Newsom signed Senate Bill 188, the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act, into law. The state then became the first to ban discrimination based on appearances traditionally associated with people of certain races, including natural hairstyles like braids, dreadlocks and twists. This article provides a brief overview of the law, explains the suggested steps employers should take to ensure compliance, and discusses open issues.
On Sept. 12, 2019, the California Supreme Court in ZB, N.A. v. Superior Court of San Diego County (Lawson) delivered a victory for California employers, clarifying that a plaintiff bringing a Private Attorneys General Act (PAGA) action may not recover as a “civil penalty” the “wages” referenced in Cal. Labor Code section 558, and thereby limited the monetary recovery workers can seek under PAGA.
ERISA Reclassification of Independent Contractors (ABA Employee Benefits Committee Newsletter)
ERISA-governed plans define the participants who are eligible to participate in the benefits they provide. Whether a worker is classified as an employee or a contractor is often determinative of eligibility. This article will appear in two parts. In Part I, the author explores the constitutional concerns regarding independent contractor reclassification under ERISA in general. Part II – to appear in a future issue – will explore the scope of the underlying authority for reclassifying workers on a class-wide basis under Fed. R. Civ. Pro. 23 and the Rules Enabling Act, as applied.
Rejecting multiple Court of Appeal decisions requiring that plaintiffs provide an administratively feasible method to identify putative class members, the California Supreme Court has held that a proposed class is “ascertainable” when it is defined “in terms of objective characteristics and common transactional facts” that make “the ultimate identification of class members possible when that identification becomes necessary.” Noel v. Thrifty Payless, Inc., (Cal. 2019) (No. S246490). The Court emphasized that a plaintiff does not need to present evidence showing that class members can “be readily identified without unreasonable expense or time by reference to official records” and that decisions imposing this requirement are no longer good law. The Noel decision substantially weakens the ascertainability requirement in California and may lead to more decisions granting certification.
This report provides an overview and summary of recent class action decisions from across the United States. Highlights from this issue include:
- The U.S. Supreme Court’s decision that ambiguous arbitration provisions do not permit class arbitration.
- The Supreme Court’s holding that Rule 23(f)’s deadline to seek to appeal is not tolled by a motion for reconsideration.
- Massachusetts and Illinois courts reaching different conclusions on whether an unaccepted offer of judgment can moot a class action.
- The Third Circuit’s decision that cy pres settlements are not per se unreasonable.
- Sixth, Seventh and Eleventh Circuit opinions addressing whether a statutory violation is enough to show standing under Spokeo.
- Decisions by the Illinois Supreme Court and Ninth Circuit on whether a plaintiff must show actual injury to assert claims under the Biometric Information Privacy Act.
- A decision by the Eighth Circuit holding that a billion-dollar statutory damages award under the TCPA violated due process.
- The Ninth Circuit’s decision that the Federal Arbitration Act does not preempt California’s rule allowing plaintiffs to seek public injunctive relief.
- The D.C. Circuit’s opinion holding that a class should not be certified where it includes a material number of uninjured class members.
Data, Privacy & Cybersecurity
Greenberg Traurig launched the Data Privacy Dish blog, providing updates on the evolving data protection landscape.
By Adam Snukal
On Nov. 12, Greenberg Traurig Tel Aviv office Shareholder Adam Snukal, in conjunction with NICE, led a webinar on the California Consumer Protection Act (CCPA), due to be enforced in January 2020. The most stringent privacy regulation to be enforced in the United States is bound to trigger changes in the way U.S. contact centers process data and make privacy a customer experience differentiator. From control, to access, and through knowledge management, this webinar examined the legal implications of the regulation and presented real-life cases based on our customers’ approach.
On Nov. 5, California Congresswomen Anna G. Eshoo and Zoe Lofgren introduced the Online Privacy Act of 2019, H.R. 4978, to balance the actual needs of businesses with users’ fair privacy rights and expectations. The proposed privacy bill seeks for the United States to adopt many of the requirements of the California Consumer Privacy Act (CCPA), which is effective Jan. 1, 2020, and that exist under the EU’s General Data Protection Regulation (GDPR). Below is a brief summary of the main components of the Act. A copy of the Online Privacy Act can be found here, and a section-by-section analysis by the Congresswomen can be viewed here.
On Oct. 10, the California Attorney General’s Office issued the California Consumer Privacy Act Proposed Regulations. Stakeholders have until Dec. 6 to submit comments, and there will be four public hearings prior to that date. On the same day, the Attorney General’s Office also published the Initial Statement of Reasons describing the basis for each provision in the proposal. The ISOR includes a Standardized Regulatory Impact Assessment because the economic impact of the CCPA is estimated to exceed $50 million annually once fully implemented. The California Department of Finance estimates the cost of CCPA compliance will range from $50,000 to over $2 million, depending on the size of the business and its data processing operations.
Intellectual Property & Technology
California SB 1001, Cal. Bus. & Prof. Code § 17940, et seq., took effect July 1, 2019. The law regulates the online use of “bots” – computer programs that interact with a human being and give the appearance of being an actual person – by requiring disclosure when bots are being used. The law applies in limited cases of online communications to (a) sell commercial goods or services, or (b) influence a vote in an election. Specifically, the law prohibits using a bot in those circumstances, “with the intent to mislead the other person about its artificial identity for the purpose of knowingly deceiving the person about the content of the communication in order to incentivize a purchase or sale of goods or services in a commercial transaction or to influence a vote in an election.” Disclosure of the existence of the bot avoids liability.
By Ian C. Ballon and Ranika Morales
In HomeAway.Com v. City of Santa Monica, 918 F.3d 676 (9th Cir. 2019), the U.S. Court of Appeals for the Ninth Circuit unanimously upheld a Santa Monica ordinance that would force online home-sharing platforms like HomeAway.com and Airbnb to police third-party users’ listings for compliance with city registration laws. Santa Monica’s Ordinance 2535, as amended in 2017, restricts most short-term rentals, with the exception of licensed home-shares. It further requires hosting platforms to refrain from, among other things, completing booking transactions involving properties not licensed and listed on the city’s registry. Violations of the ordinance are punishable by a fine of up to $500 and/or imprisonment for up to six months.
If you are currently disposing of pharmaceuticals, including dietary supplements, into the dumpster or down the drain, you may want to reconsider that practice. New regulations promulgated by the Environmental Protection Agency (EPA) under the Resource Conservation and Recovery Act (RCRA) impact how health care facilities must dispose of unused pharmaceuticals. The new regulations treat some dietary supplements as pharmaceuticals and therefore regulate them as hazardous waste. Additionally, as of Aug. 21, 2019, health care facilities may be prohibited from disposing of pharmaceuticals and dietary supplements into the sewer, etc. This is in addition to RCRA already prohibiting disposal into the garbage or in some instances by recycling. Noncompliance comes with hefty fines.
Pharmaceutical, Medical Device & Health Care
4 ways medical device manufacturers can reduce product liability risks (Medical Design & Outsourcing)
Medical device manufacturers have many goals, but central is the ability to improve or extend life, to add value to or improve medical treatment and/or be a benefit to patients. In our world of litigation and exposure to potential company-ending liability, it is not only good intentions or successful execution of concept that win the day in court. To survive, to innovate and keep valuable products on the market means understanding and using the protections afforded by the regulatory framework and case law interpreting how prescription medical devices are to be treated in tort litigation. While there are many ways to help mitigate or reduce risk, here are four keys to keep in mind.
American Indian Law
By Troy A. Eid
“Tribal consultation” refers to the federal government’s legal obligation to consult with Native American tribes on energy and infrastructure projects, such as highways and railroads, pipelines, telecommunications towers and systems, and electrical transmission lines. Whenever a given project requires some sort of federal approval – a water-crossing permit from the U.S. Army Corps of Engineers, for instance, or a certificate from the Federal Energy Regulatory Commission to build a new natural gas pipeline – the tribal consultation requirement kicks in.
Marketing, Advertising, Sweepstakes & Promotions Law
How To Protect Your Own Name Brand (Corsearch)
Although it may seem unlikely that fashion designers who use their own names or aliases as their brand could ever lose the right to do so, it is fairly common. While eponymous branding has become a classic marketing tool in the industry, the practice comes with a number of inherent risks: Numerous designers, such as Helmut Lang, Jil Sander, Hervé Léger, and Joseph Abboud, have lost their right to do business under their own names due to business decisions and contractual issues.
Select Awards and Mentions
The California offices of Greenberg Traurig, LLP had 29 attorneys ranked in the 2020 Best Lawyers in America guide. The firm also received the most overall first-tier rankings in the U.S. News – Best Lawyers 2020 “Best Law Firms” report, marking the ninth consecutive year that the firm has achieved this honor.
The Orange County office relocated to a new office space at The Boardwalk in Irvine, CA. The office hosted an event to commemorate its move and celebrate its 15-year presence in Orange County. Covered in the Daily Journal, the event was attended by clients, attorneys, firm leadership, and local government officials.
Shareholders Michelle Ferreira and Martha A. Sabol were selected as 2019 “Women Worth Watching” by Profiles in Diversity Journal. Ferreira serves as the co-managing shareholder of Greenberg Traurig’s San Francisco and Silicon Valley offices.
Sacramento Shareholder Timothy Long and Associate Alicia R. Intriago were recognized for serving on the Eastern District of California's Voluntary Dispute Resolution Program (VDRP) and Pro Bono Panel, respectively.
Karin Bohmholdt, co-chair of the Los Angeles Litigation Practice, was recognized as one of Los Angeles’ “Women of Influence” by L.A. Biz and Bizwomen. Bohmholdt was one of 28 Los Angeles women honored with the prestigious award.
Three litigators from Greenberg Traurig’s Sacramento office were recognized on Sacramento Magazine’s prestigious “Top Lawyers” list for 2019: Kurt A. Kappes, James M. Nelson, and Jeremy A. Meier.
Los Angeles Shareholder Jeffrey A. Chester was among the attorneys selected for inclusion in The Legal 500 “Private Practice Powerlist.” The publication recognizes the leading U.S. based lawyers whose practice includes a specialist focus on Mexico.
Greenberg Traurig San Francisco Shareholder Howard Holderness and Mortimer H. Hartwell of Vinson & Elkins, LLP, led a multi-firm team that secured a $75 Million appeal victory, among the largest ever victories for a Chinese national in U.S. Court.
Managing Intellectual Property Magazine recognized 32 Greenberg Traurig attorneys as ‘IP Stars’ including: Ian C. Ballon (Silicon Valley/Los Angeles– Trademark Star); Vincent H. Chieffo(Los Angeles – Trademark Star); Susan L. Heller (Orange County/Los Angeles, Trademark Star); Valerie W. Ho (Los Angeles – Patent Star & Trademark Star)
Daniel J. Tyukody was quoted in an article in Chubb titled “From Nuisance to Menace: The Rising Tide of Securities Class Action Litigation.”
Los Angeles Shareholder Robert J. Herrington and Philadelphia Shareholder James N. Boudreau were recognized as ‘Legal Lions’ in the Law360 article, "Law360's Weekly Verdict: Legal Lions & Lambs." Both were also mentioned in the Law360 article titled “Spokeo Wipes Class Cert. In Walmart Background Check Row.”