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Beware Confidentiality Provisions in Settlement Agreements

By Litigation Tips

When a case settles, most settlement agreements include a confidentiality provision for key terms.  Attorneys often believe they are bound by such terms either when they approve the settlement as to form or even when the agreement has broad language regarding its application to the client’s attorneys.

However, a recent ruling by the California Court of Appeal threw that assumption into doubt.  In Monster Energy Company v. Schechter, the parents of a 14-year old girl sued Monster Energy after she consumed two Monster brand energy drinks, went into cardiac arrest and died.  Thereafter, the parents’ attorney negotiated a settlement agreement which included a confidentiality provision purporting to bind him and his firm.  The attorney subsequently gave an interview in which he said the case had settled for “substantial dollars for the family.”  Monster Energy then sued the attorney and his firm alleging that they had breached the settlement agreement’s confidentiality provision.

The attorney and his firm then filed a special motion to strike under section 425.16 of the California Code of Civil Procedure (an anti-SLAPP motion) arguing that Monster Energy could not show a probability of prevailing on its breach of contract claim because the attorney and his firm were not parties to the settlement agreement.  The trial court denied the motion and an appeal followed.

The Court of Appeal held that “when a settlement agreement provides that the ‘[p]laintiffs and their counsel agree’ to keep the terms of the agreement confidential, and when the plaintiffs’ counsel signs the agreement under the words, ‘Approved as to form and content,” the plaintiffs’ counsel could not be liable to the defendant for breach of the confidentiality provision.  The Court noted: “The only reasonable construction of this wording is that they were signing solely in the capacity of attorneys who had reviewed the settlement agreement and had given their clients their professional approval to sign it.  In our experience, this is the wording that the legal community customarily uses for this purpose.”

Because confidentiality is often a key term of a settlement agreement, attorneys would be well-advised to keep this recent opinion in mind when drafting settlement agreements.  As the Court noted, one way to avoid this issue, and bind attorneys to a confidentiality provision, is “to draft a settlement agreement that explicitly makes the attorneys parties to the agreement (even if only to the confidentiality provision) and explicitly requires them to sign as such.”

Lewis & Llewellyn Honored In Benchmark Litigation’s 2019 Edition

By Announcements

Benchmark Litigation, the definitive guide to America’s leading litigation firms and attorneys, recently published its 2019 edition.  Lewis & Llewellyn received top billings across the board.  Benchmark selected us as one of the few “recommended” law firms in California, and one of just a handful of litigation boutiques selected.  Additionally, Benchmark ranked Marc Lewis as one of only 24 “Noted Stars” in California for his Labor & Employment practice.  Similarly, Benchmark named Paul Llewellyn a “San Francisco Litigation Star” for his general commercial litigation practice.

After interviewing our clients, Benchmark summarized our practice in a nutshell: “The firm is responsive, efficient, and skilled.  The attorneys at Lewis & Llewellyn are of the highest quality, and their work product is unsurpassed by larger firms.  In fact, their responsiveness and client service orientation far surpass that of larger firms, and their fee structure and case staffing result in better representation at a lower cost than that available from larger firms.”

Lewis & Llewellyn Obtains $2.75 Million Settlement For An Alleged Sexual Assault

By Announcements

At Lewis & Llewellyn, we understand what is required to prevail against a powerful and well-funded institution or corporation.  As a firm, we have also chosen to put our litigation expertise toward a cause that we feel passionately about: the epidemic of sexual abuse and assault.  Through our agile and aggressive litigation tactics, we have recovered millions of dollars on behalf of our sexual abuse clients and, in the process, driven changes at institutions and corporations throughout the country that will help protect others from sexual abuse.  As part of those efforts, we recently obtained a settlement of $2.75 million in connection with an alleged sexual assault.  Lewis & Llewellyn will continue to advocate vigorously on behalf of survivors of sexual abuse.

New Fingerprinting Requirements For California Attorneys

By Litigation Tips

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.

Law360 Features Lewis & Llewellyn’s Family-Friendly Culture

By Announcements

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.

Marc Lewis, Evangeline Burbidge, and Ryan Erickson Named to Benchmark Litigation’s 40 & Under Hot List

By Announcements

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.

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.