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Gold Divider

Major Change to Mandatory Arbitration Agreements

By Litigation Tips

Many employers insist that their employees sign mandatory arbitration agreements as a condition of employment.  However, on October 10, 2019, California Governor Gavin Newsom signed a bill into law that will prohibit employers from requiring mandatory arbitration agreements for nearly all types of employment claims.  The bill adds a new Section 432.6 to the California Labor Code prohibiting any person (including employers) from requiring an applicant or employee (as a condition of employment, continued employment, or the receipt of any employment-related benefit) to “waive any right, forum, or procedure” for alleged violations of the Fair Employment and Housing Act (FEHA) and the California Labor Code.  

In light of the sweeping reach of the new law, many anticipate a successful legal challenge on the ground that it is preempted by the Federal Arbitration Act.  This could lead to years of litigation, and ultimately, the issue may need to be resolved by the U.S. Supreme Court.  Given the current uncertainty, employers would be well-advised to consult with experienced employment counsel when considering whether to continue to use mandatory arbitration agreements or whether existing agreements need to be modified.

Lewis & Llewellyn in the Community

By Speaking Engagements

Our attorneys were busy last month presenting on all aspects of civil litigation.  Ryan Erickson and Evan Burbidge returned to the California Superior Court Boot Camp Conference hosted by Pincus Professional Education, giving presentations on “Mastering Oral Argument” and “How to Prepare for Trial.”  Becca Furman moderated a panel for the Bar Association of San Francisco on best practices for working with in-house counsel.  Paul Llewellyn presented at Bridgeport CLE’s trial preparation program on preparing witnesses for trial.  And Ryan Erickson and Nick Saenz traveled to UCLA to speak to law students about prosecuting and defending trade secret disputes.

Also in October, Marc Lewis spent two intensive days at NPR’s How I Built This Summit, a gathering of successful entrepreneurs.  Marc met with many groundbreaking builders and innovators including the founders of Instagram, JetBlue, Bliss, Slack, Away, Urban One, and others.  Programming included several small sessions where Marc discussed business fundamentals, personal and organizational leadership, and innovation with other entrepreneurs.

Lewis & Llewellyn Recognized as One of California’s Top Boutique Law Firms by The Daily Journal

By Announcements

Each year the Daily Journal, California’s leading legal publication, selects 20 law firms across the State as a “Top Boutique.”  This year, Lewis & Llewellyn earned a spot on the coveted list—the only firm selected in Northern California for complex litigation.  The Daily Journal recognized Lewis & Llewellyn’s success in handling complex business disputes, as well as the firm’s niche practice bringing civil lawsuits on behalf of survivors of sexual abuse.  This is the second time the firm has been included on the elite list, the first being in 2017.

See the Daily Journal’s full article on the firm below.

Lewis & Llewellyn Recognized by Benchmark Litigation

By Announcements

Last week, Benchmark Litigation, the definitive guide to America’s leading litigation firms and attorneys, released its 2020 rankings.  Lewis & Llewellyn is pleased to have once again been recognized as one of the few “Recommended Firms” in both San Francisco and California—meaning Benchmark deems the firm a “leader” in both markets.  Additionally, Marc Lewis was named as a Labor & Employment Star, with an emphasis on his burgeoning employee mobility practice.  And Paul Llewellyn was named as a Benchmark Litigation Star, a category which Benchmark identifies as the preeminent litigation practitioners in the U.S. 

Lewis & Llewellyn in the Community

By Speaking Engagements

Last week, Lewis & Llewellyn partner Paul Llewellyn was a featured speaker at the Practising Law Institute’s Pocket MBA 2019 program.  This two-day intensive course was designed for non-accountants, in-house and law firm attorneys looking to improve their understanding of business strategies and accounting fundamentals taught by a faculty from elite accounting and law firms, private equity investors, bankers, consultants and academics.

And on November 1, 2019, Lewis & Llewellyn partners Evangeline Burbidge and Ryan Erickson will be speaking at Pincus Professional Education’s Superior Court Boot Camp in San Francisco on “Mastering Oral Argument” and “How to Prepare for Trial.”  This full day program will focus on the nuts and bolts of litigating in California State Court from the filing of a complaint to post-trial motions and appeals.  To learn more about the program, or to register, click here.

How to Avoid Accusations of Trade Secrets Theft

By Litigation Tips

Lewis & Llewellyn partner Nick Saenz is a regular contributor to Tech Crunch, one of the web’s leading publications focused on the technology industry.  In a recent article, Nick cautioned readers on how to avoid accusations of trade secrets theft, when either leaving for a competitor or onboarding new employees.  You can read the article, which includes Nick’s sage advice, below or on TechCrunch’s website.

Lewis & Llewellyn Attorneys Recognized as Leaders in their Field

By Announcements

Lewis & Llewellyn is pleased to announce that seven of its attorneys were recently selected for inclusion in the 2019 edition of Super Lawyers.  Super Lawyers is a rating service of outstanding lawyers who have attained the highest degree of peer recognition and professional achievement.  The selection process includes independent research, peer nominations and peer evaluations.  Ryan Erickson, Evangeline Burbidge, Nick Saenz, Becca Furman and Nathalie Fayad were all selected as Rising Stars, limited to just 2.5% of California attorneys.  And Marc Lewis and Paul Llewellyn were named as California Super Lawyers, a recognition limited to just 5% of the profession.

Additionally, Benchmark Litigation, the definitive guide to America’s leading litigation firms and attorneys, recently selected partners Ryan Erickson and Evangeline Burbidge to be part of its 40 & Under Hot List.  Based on extensive peer and client review, and case evaluation, the list seeks to identify the country’s most talented litigators under the age of 40.

Lewis & Llewellyn in the Community

By Speaking Engagements

As a firm, Lewis & Llewellyn is committed to fighting the epidemic of sexual abuse in America.  Last month, Becca Furman spoke at the The Worldwide #MeToo Movement: Global Resistance to Sexual Harassment and Violence Conference, hosted by Berkeley Law.  The conference brought together legal scholars and practitioners from around the world to examine the systemic issues that permit sexual harassment.  Becca spoke about the effect of non-disclosure agreements on the #MeToo movement, including 2019 changes to California law that limit the confidentiality provisions in settlement agreements. 

Additionally, last month Becca Furman and Ryan Erickson spoke at a Bar Association of San Francisco panel on Civil Litigation of Sexual Assault Cases in the #MeTooEra.  Joined by Deputy Attorney General Missy Kendra, the panel focused on how to bring a civil lawsuit on behalf of men, women, and children who have survived sexual abuse. 

Availability of Attorneys’ Fees in Defending Against Employee Non-Solicitation Claims

By Litigation Tips

In the previous litigation tip we discussed several recent cases that concluded employee non-solicitation provisions in employment agreements are per se invalid under California law.  It is axiomatic that parties in litigation generally pay their own attorneys’ fees.  Section 1021.5 of the California Code of Civil Procedure is an exception to this rule.  It allows a court to award attorneys’ fees to a litigant if (1) he or she is a “successful party,” (2) the action has resulted in the enforcement of an important right affecting the public interest, (3) the action has conferred a significant benefit on the public or a large class of persons, and (4) an attorney fees award is appropriate in light of the necessity and financial burden of private enforcement.  In AMN Healthcare, Inc. v. Aya Healthcare Servs., Inc., 28 Cal. App. 5th 923 (2018), the Court of Appeal affirmed the award of attorneys’ fees to the prevailing defendant who had successfully argued that an employee non-solicit provision contained in a contract was invalid.  The practitioner would be well-advised to keep this in mind when defending against claims involving employee non-solicit provisions.  The threat of attorneys’ fees could prove to be a powerful weapon in the litigator’s armory and could lead to a quick resolution of the dispute, or at least increase the stakes for the plaintiff.

Enforceability of Employee Non-Solicits in Doubt Following Several Recent Decisions

By Litigation Tips

At Lewis & Llewellyn we routinely advise and represent clients regarding all facets of employee mobility.  California businesses commonly include employee non-solicitation provisions in their employment agreements.  But several recent cases have concluded these provisions are per se invalid under California law, resulting in significant potential consequences for companies statewide.  It is well-established that California law favors employment mobility and does not recognize non-compete agreements restraining employees from leaving one job to work for a competitor.  This policy is codified in Business & Professions Code section 16600.  Unlike non-competes, however, courts have long held that employee non-solicit provisions barring individuals or companies from poaching company talent do not violate section 16600 because the restraint on employee mobility is minimal.  Until now:  in AMN Healthcare, Inc. v. Aya Healthcare Services, Inc., 28 Cal. App. 5th 923 (2018), the Court of Appeal cast significant doubt on the enforceability of employee non-solicits.  This analysis soon gained traction—federal courts in Barker v. Insight Glob., LLC, No. 16-CV-07186-BLF, 2019 WL 176260, at *3 (N.D. Cal. Jan. 11, 2019) and Weride Corp. v. Kun Huang, No. 5:18-CV-07233-EJD, 2019 WL 1439394, at *10 (N.D. Cal. Apr. 1, 2019), relied upon AMN Healthcare to conclude employee non-solicits were unenforceable under section 16600.  While it is too early to say whether these rulings will become the majority view, companies now face significant risk that former employees can legally raid the company’s talent pool.  Moreover, as with non-competes, companies can face liability for wrongful termination for firing an employee who refuses to agree to an employee non-solicit provision.  Accordingly, both company and outside counsel should closely monitor these developments to determine whether these cases are the new norm or a string of outliers.