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Gold Divider

Avoid Setting Off Alarm Bells When Switching Jobs

By Litigation Tips

When departing a company to join a competitor, employees should proceed with caution before downloading “personal” information saved on their work computer.  While this material is not a company trade secret, downloading it shortly before departing the company can unnecessarily expose the employee to a legal headache.  After the employee has departed, the former employer will likely forensically examine her work computer, which will reveal whether and when external storage devices were connected.  But the exam will rarely determine what materials were actually transferred—meaning the former employer doesn’t know whether the employee downloaded family photos or key business documents.  So, connecting an external device to a work computer in the days/weeks before the employee’s departure can set off alarm bells, often resulting in the former employer sending a cease and desist letter to the departed employee and her new company.  The new company will then be concerned about liability for knowingly acquiring and/or using trade secrets, which leads to investigation, legal fees, and a less than stellar first impression of the new employee.

Lewis & Llewellyn has extensive experience advising individuals and companies on the myriad issues that can arise when an employee transitions from one company to another.  Click here to read more about this practice area.

PAUL LLEWELLYN AND MARC LEWIS ON “WHAT MAKES JURORS TICK?”

By Speaking Engagements

Bridgeport, one of the country’s leading providers of continuing legal education, has again turned to Lewis & Llewellyn for one of its featured programs.  On April 28, Bridgeport will present What Makes Jurors Tick?, and all-day seminar for both civil and criminal lawyers.  The faculty for the program, which includes Marc Lewis & Paul Llewellyn, has collectively over 10,000 hours in trial, and hail from elite firms such as Keker, Van Nest & Peters and Gibson, Dunn & Crutcher.  If you are interested in attending, please visit http://www.bridgeportce.com/bridgeportce/live-programs/what-makes-jurors-tick.html.

MARC LEWIS NAMED ONE OF CALIFORNIA’S TOP ATTORNEYS UNDER 40

By Announcements

The Daily Journal has selected Marc Lewis as one of California’s top 40 lawyers under the age of 40.  In the selection process, the Daily Journal considered candidates throughout the state, spanning numerous practice areas, and selected the top 40 based on the impact of the lawyer’s work on the legal community.  As the article noted, “Lewis & Llewellyn was built from the ground up to provide its clients with the tenacity and sophistication of biglaw practice, while maintaining the agility necessary to efficiently resolve legal disputes.”  With over 60,000 lawyers in California under the age of 40, the Daily Journalnoted that the individuals selected represent some of the best legal talent in the world.  In receiving this distinction, Marc joins Paul Llewellyn, who was named to the same list in 2016.

CALIFORNIA SUPREME COURT HOLDS CONSUMER CLAIMS FOR INJUNCTIVE RELIEF CANNOT BE WAIVED IN AN ARBITRATION AGREEMENT

By Litigation Tips

On April 6, 2017, the California Supreme Court handed down a unanimous decision that will likely become a seminal case on the subject of class-action waivers and arbitration clauses in consumer contracts.  In McGill v. CitiBank, N.A., No. S224086 (Apr. 6, 2017), the Court held that an arbitration clause in Citibank’s credit card agreement purporting to waive a plaintiff’s right to seek public injunctive relief in any forum was contrary to California public policy and therefore unenforceable.  The Court further held that the Federal Arbitration Act does not preempt California’s consumer protection statutes.

In 2011, McGill brought a putative class action against Citibank based on alleged violations of three well-known California consumer-protection statutes—the Consumers Legal Remedies Act (CLRA), the False Advertising Law (FAL), and the Unfair Competition Law (UCL)—each of which provides injunctive relief as a remedy.  Citibank responded by seeking to compel arbitration of each of these claims.

The trial court declined to force McGill to arbitrate her public injunctive relief claims, finding that agreements to arbitrate claims for public injunctive relief under the CLRA, FAL, or UCL are unenforceable.  The Court of Appeal, however, disagreed and ordered all of McGill’s claims to arbitration, reasoning that the Broughton-Cruz rule was preempted by the Federal Arbitration Act.  The California Supreme Court reversed, holding that the contractual waiver of McGill’s right to seek public injunctive relief in any forum was unenforceable.  The Court side-stepped the issue of whether the Broughton-Cruz rule was preempted by the Federal Arbitration Act, focusing instead on the fact that the arbitration clause at issue purported to prevent McGill from seeking public injunctive relief in any forum, be it a court of law or arbitration.  By agreeing to submit her claims to arbitration, therefore, McGill was in effect also agreeing to limit the remedies to which she would have been entitled if she prevailed on her claims, reasoned the Court.  Because the public injunction remedies are intended to benefit the public, the Court held that their waiver is invalid.

Two takeaways from the Court’s decision are apparent.  First, savvy companies should review their consumer contracts to ensure that they do not contain the arbitration language at issue in McGill, and should consider adding carve-outs for public injunctive relief, or else they risk a finding that an agreement to arbitrate is “permeated by unconscionability” and therefore unenforceable.  Second, given that the U.S. Supreme Court has repeatedly ruled against California’s High Court in recent cases centered on arbitration—most notably AT&T Mobility v. Concepcion in 2011—it is almost certain that Citibank will petition the Court to review this decision.  And with the recent confirmation of Judge Neil Gorsuch to the long-vacant ninth seat on the Court, efforts to limit what rights consumers may waive through arbitration agreements are entering treacherous waters.

PAUL LLEWELLYN ON MASTERING THE DEPOSITION

By Speaking Engagements

For over five years, continuing legal education providers have turned to Paul Llewellyn as a trusted authority and compelling speaker on the art of taking and defending a deposition.  Paul will be back in action on January 19, speaking at Bridgeport’s Mastering The Deposition Workshop.  This is an in-depth, all day mastery course designed for both the novice and experienced litigator to take his or her deposition skills to the next level.  The other presenters come from firms including Keker & Van Nest, and Munger, Tolles & Olson.

The panel will cover a wide range of topics, including:

  • Fundamentals of Taking Depositions
  • Deposition is Trial: Taking Jury-Focused Direct and Cross Examination Depositions
  • Preparing Witnesses for Depositions
  • Deposing Expert Witnesses: Promoting Expertise and Limiting Exposure
  • Defending Depositions
  • How Deposition Testimony Plays Out at Trial

Differences between depositions in state and federal courts

LEWIS & LLEWELLYN PRESENTS A PANEL ON ADVANCED DEPOSITION TECHNIQUES

By Speaking Engagements

On February 23, Marc Lewis will speak on a panel featuring several federal judges and high-profile advocates.  The title of the panel is Storytelling in IP Litigation: How to Talk To Judges And Juries In Technology Trials.  Marc will be joined by Judge James Donato and Magistrate Judges Elizabeth LaPorte and Laurel Beeler, along with Robert Van Nest of Keker & Van Nest and Jennifer Seraphine of Turner Boyd.

The panel will discuss how to distill complex technical issues for effective advocacy, ways to avoid common pitfalls in complex technology litigation, and consider recent high-profile federal jury trials involving technical subject matter.  The intended audience is the experienced technology litigator.  Attendees can expect to receive practical tips on an array of matters, including discovery disputes involving complex technology issues, confidentiality concerns, the utility of independent court experts, and how parties can cooperate on undisputed technical issues.

CALIFORNIA COURT OF APPEAL EXTENDS TORT CLAIM EXEMPTION IN CHILD SEXUAL ABUSE CASES

By Litigation Tips

A few weeks ago, in A.M. v. Ventura Unified School District, et al., 2016 WL 5936851 (Cal. Ct. App. Oct. 12, 2016), the Court of Appeal overturned a trial court decision limiting the ability of childhood sexual abuse victims to file suit.  The Court of Appeal found that California Government Code section 905(m), which waives the requirement that a tort claim be filed before suing a public agency for childhood sexual abuse, is not limited to cases in which the alleged abuser was employed by the public agency.  In other words, if a child files suit alleging that he or she was abused by his or her fellow students, no tort claim form is required.

The underlying complaint in A.M. alleged that the victim was bullied, battered, and sexually abused by some of her fellow students.  Even though her mother complained to the school district, no action was taken.  The trial court granted summary judgment in favor of the student defendants, finding that the plaintiff had failed to file a claim form and, therefore, was barred from filing suit against them.  The Court of Appeal rejected this narrow interpretation of the statute and reversed the trial court’s decision.

This decision is a welcome development for victims of childhood sexual abuse, and removes another barrier for victims seeking recourse through the courts.

LEWIS & LLEWELLYN PRESENTS A PANEL ON ADVANCED DEPOSITION TECHNIQUES

By Speaking Engagements

On December 12, Evan Burbidge will be co-moderating a Bar Association of San Francisco panel on advanced deposition techniques.  Seasoned attorneys, including Paul Llewellyn and attorneys from Latham & Watkins LLP and Walkup, Melodia, Kelly & Schoenberger, will be providing tips and tricks on the art of the deposition, including how to get trial-ready soundbites, the best ways to deal with expert witnesses, and methods for taming an evasive witness or argumentative opposing counsel.  It’s a can’t-miss for any litigator.  Lunch will be provided.

In recognition of the firm’s long-standing relationship with the BASF, the firm is sponsoring five complimentary tickets to the program.  If you would like one of those places, please send an email to Amanda Jarvis.