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Changes to the ADR Local Rules in the N.D. Cal.

By Litigation Tips

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.

Lewis & Llewellyn Files Amicus Brief in Support of Oracle in Oracle America, Inc. v. Google LLC Appellate Victory

By Announcements

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.

Lewis & Llewellyn Secures Victory at Trial

By Announcements

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.

Lewis & Llewellyn Honored by Benchmark Litigation

By Announcements

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.

Lewis & Llewellyn in the Community

By Speaking Engagements

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.

Not all Competition is Lawful in California

By Litigation Tips

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.

Employers Beware of Onerous Choice of Law Clauses

By Litigation Tips

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.

Beware the Pitfalls of CCP Section 664.6

By Litigation Tips

Most litigators are generally familiar with Section 664.6 of the California Code of Civil Procedure, which provides a summary procedure to enforce a settlement agreement after dismissal of a lawsuit.  Without such a provision, a non-breaching party would have to file a new lawsuit for breach of contract (the settlement agreement itself), which could then take months or even years to resolve, and thus frustrating the purpose of the underlying settlement.  Many settlement agreements therefore contain a provision specifically providing for the Court to retain jurisdiction under Section 664.6.  However, the California Court of Appeal clarified last week that such a provision is likely insufficient.

In Sayta v. Chu, an opinion issued on November 29, 2017 by the California Court of Appeal, the First Appellate District set forth clear and express requirements for invoking Section 664.6.  The underlying dispute, which arose from the termination of a tenancy, was subsequently resolved by written settlement agreement, and the lawsuit dismissed.  Following an alleged breach by defendant, plaintiff brought a motion to enforce the settlement agreement pursuant to Section 664.6.  The trial court denied the motion, a decision which was affirmed by the Court of Appeal.  This is because the parties failed to request, before dismissal, that the trial court retain jurisdiction to enforce the settlement, or alternatively, seek to set aside the dismissal.

Settlements are very often reached in confidence and therefore there may not be the opportunity to request that the Court retain jurisdiction.  It remains to be seen how the impact of Satya will be addressed in practice.  However, if there is any risk that the opposing side may breach the settlement agreement, the practitioner would be well advised to request that the Court retain jurisdiction on the record or in a minute order.

Lewis & Llewellyn Secures Unqualified Victory in Arbitration

By Announcements

At Lewis & Llewellyn, we routinely engage in all forms of alternative dispute resolution, including arbitration.  Paul Llewellyn and Nick Saenz recently secured an arbitration victory on behalf of the firm’s client, one of Silicon Valley’s leading technology companies.  The claimant, a logistics supply company, alleged that the firm’s client was contractually obligated to use its services for a certain amount of time.  Following discovery, we moved for summary disposition, arguing the claimant’s allegations failed as a matter of law.  The arbitrator agreed, dismissing the claim entirely.