On May 23, 2018, the Supreme Court issued a new California Rule of Court which requires most active California attorneys to be re-fingerprinted. This requirement is part of an effort by the State Bar to come into full compliance with statutory mandates that require the Bar to receive notifications of attorney arrests and convictions from the California Department of Justice. The new rule came into effect on June 1, 2018, but attorneys have until April 30, 2019 to come into compliance. For anyone who has yet to do so, you can find the necessary information here. Don’t wait until the last minute, as LiveScan locations can become crowded and fingerprints aren’t always accepted the first time. Failure to comply with these new requirements can result in monetary penalties, and if new prints haven’t been taken by the final deadline of December 1, 2019, you may face a suspension of your license.
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Any working parent knows the struggle of balancing family time and work responsibilities. In an article reflecting on what this balance means for lawyers, Law360 featured the story of Lewis & Llewellyn partner and father-of-three, Ryan Erickson. At Lewis & Llewellyn, we recognize the importance of both work and family, and we are committed to supporting our attorneys in their effort to be great parents while still providing the highest possible quality of work to our clients.
Lewis & Llewellyn is pleased to announce that partners Marc Lewis, Evangeline Burbidge, and Ryan Erickson have all been named to Benchmark Litigation’s 40 & Under Hot List, which honors partners age 40 or younger who have been deemed the most promising emerging talent in their litigation communities by peers and clients. Benchmark selected only 38 attorneys in California for this award, and the firm is honored that three of their partners were recognized this year.
If you are filing a new case in the Northern District of California, and your case is assigned to the ADR Multi-Option Program, be advised that the initial case management scheduling order will no longer set a deadline by which the parties must either file a Stipulation and Proposed Order Selecting an ADR Process or a Notice of Need for ADR Phone Conference. Instead, the scheduling order will set a deadline regarding when the parties must file a new form of ADR Certification. This new form will include a space for parties to indicate if (1) they will be filing a Stipulation and Proposed Order Selecting an ADR Process or (2) if they need to discuss ADR at the case management conference.
In short, while ADR phone conferences may be requested or required in individual cases, they are no longer required in the standard scheduling order, effective May 1, 2018.
This new change aligns the ADR Local Rules with Civil Local Rule 16 and should streamline the process for litigation and the ADR. As a firm that utilizes all tools in federal litigation, we look forward to following this new process.
In March, the Federal Circuit Court of Appeals released its decision in Oracle America, Inc. v. Google LLC, reversing a jury verdict and holding that Google’s unauthorized use of certain aspects of Oracle’s Java software did not qualify as “fair use” under copyright law. Lewis & Llewellyn filed and amicus brief on behalf of Ralph Oman, the former Register of Copyrights of the United States, analyzing the definition of “fair use” in support of Oracle’s appeal. The Federal Circuit’s decision will have a far-reaching impact and Lewis & Llewellyn is proud to have been involved in this case.
A Lewis & Llewellyn team led by Nick Saenz, and co-counsel at Wilson Sonsini Goodrich & Rosati, recently represented a group of defendants at trial in a hotly contested dispute over the composition of a board of directors. After the plaintiffs rested their case, we moved for nonsuit, arguing the plaintiffs had failed to present sufficient evidence to sustain their burden of proof. The Judge granted our motion and dismissed the plaintiffs’ case without our clients having to present any evidence.
Benchmark Litigation recently released its 2018 rankings, and it ranked Lewis & Llewellyn one of the few “recommended” law firms in California. In order to compile the list, Benchmark undertakes an exhaustive process which includes client, peer and partner interviews. As Benchmark notes, every firm that achieved the “recommended” status was deemed a leader in its respective market. It further commented that since its opening six years ago, the firm “has generated a significant level of buzz.” You can read Benchmark’s full analysis of the firm here.
Our attorneys are actively involved in the legal community, lecturing frequently on all aspects of civil litigation. Last month, partner Evan Burbidge spoke alongside Casey O’Connor, Associate General Counsel at Stitch Fix, and Neil Pai, General Counsel at Founders Fund, on”Things Start-Ups Should Know.” This well-attended CLE included a discussion of common legal mistakes start-ups make and guidance on how to avoid them. Also in February, partner Ryan Erickson served as a panelist at the BASF’s Annual Solo & Small Firm Conference, where he discussed “How to Level Up Your Law Practice.” And in March, Evan Burbidge served as part of the faculty presenting on “Mastering the Deposition” with Pincus Professional Education.
While California law promotes lawful competition, individuals cannot violate agreements with their former employer with impunity. This was illustrated last week when a California jury awarded AeroVironment, Inc. $2.4 million after finding three former employees of the drone technology company engaged in fraud and breached patent and confidentiality agreements with their prior employer. See Aerovironment, Inc. v. Gabriel Torres, et al., County of Ventura Superior Court Case No. 56-2015-00465460.
AeroVironment hired the three defendants to work in its engineering department where the company was developing drone technology for military use. All three defendants signed agreements to keep AeroVironment’s proprietary information confidential and not to engage in any competing activities during their employment. Notwithstanding these agreements, and while still employed by AeroVironment, defendants began planning a competing business and went so far as to found the drone sensor company for which they would all eventually work after their resignations. AeroVironment filed suit soon after discovering such conduct.
The verdict in AeroVironment’s favor demonstrates that even in California, juries will hold former employees accountable for misusing protected information and actively competing with their current employers. In general, California employees may prepare to compete as long as they are not actually pursuing competitive enterprises while employed, or using their employer’s resources to do so. However, these defendants went too far in the jury’s view. The case is a reminder that employers should ensure that their employees sign basic confidentiality agreements as well as agreements that they will not compete during employment. Such agreements can be complemented with strong written policies, including handbooks that prohibit conflicts of interest and describe the employer’s expectations for maintaining confidences.
As with most things, an ounce of prevention is worth a pound of cure. California employers who wish to remain competitive should take these simple steps, as AeroVironment had done, to protect their technologies. The existence of standard agreements was key to AeroVironment prevailing at trial.
Lewis & Llewellyn has extensive experience litigating and advising clients on the myriad issues that can arise when an employee transitions from one company to another. Click here to read more about our practice areas in the field of employee mobility.
In a recent Litigation Tip, we explored the perils that employees face when changing jobs. But at Lewis & Llewellyn, we represent employers in high-stakes litigation as often as we represent plaintiffs. And employers face their own unique concerns in the complex and ever-changing world of employee mobility.
It is very common for contracts, including employment contracts, to contain a choice of law clause, a forum selection clause, or both. These clauses dictate both the venue for any future litigation between the parties, and which state’s law should apply. In 2017, California enacted Labor Code section 925 which has a direct impact on employment contracts for employees who live and work primarily in California. In broad terms, the new provision prevents such employees from being bound to a contractual provision that would force the employee to litigate outside of California, or litigate under another state’s laws, on claims that arose in California. The provision applies to contracts entered into, modified or extended on or after January 1, 2017, and applies to both litigation and arbitration. Not only that, the provision allows for the recovery of attorneys’ fees and injunctive relief for employees having to enforce their rights under the new section. There is, however, a carve out for employees represented by counsel during the negotiation of the contract.
Employers with California employees would be well advised to review their employment agreements for compliance with the new provision, and should keep the new provision in mind when extending or modifying existing agreements, or entering into new agreements with California employees. Where applicable, employers may also want to memorialize the presence of counsel during the negotiations when seeking to avoid the impact of the new section.