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Is Your Copyright Registration Valid? The Ninth Circuit Determines Inaccuracies in Your Copyright Application Deem Copyright Registration Invalid By Jonathan N. King

In order to enforce your copyright protections, it is necessary to avoid the willful inclusion of inaccurate information in any application seeking United States copyright protection. If you do not do so, you are risking a judicial determination that your copyright registration is invalid, which will then prevent you from enforcing your copyright ownership rights in federal court. The Ninth Circuit recently determined that a Court can invalidate copyright registration pursuant to 17 U.S.C. § 411(b) based on a knowing inclusion of inaccurate information in a copyright application that would have otherwise been a basis for the Copyright Office to deny registration.

June 24, 2019

Cybersecurity and Third-Party Vendors - Are You Adequately Protected? By J. Kyle Janecek

There is an old saying commonly attributed to Napoleon Bonaparte, "what one should really fear is not a competent enemy, but an incompetent ally." While this has held true over time in a military context, it remains painfully true as applied to data security. Recently, two more entities, Quest Diagnostics and LabCorp, have learned this lesson. They join other targets such as Best Buy, Sears, Delta, Target and Chili's in learning that in the interconnected digital economy, all it takes is one weak link to create the opportunity for a data breach. Naturally, this leaves a question – what happens next? When the third party’s data protection has failed and the breach has gone public, it may not be readily clear who is responsible for making the customers, and the entity whose data was lost, whole. A failure to account for what comes after risks being held liable for the breach, both legally and in the court of public opinion.

June 19, 2019

Conduct Business in Nevada? If So, be Aware that a New Nevada Law Gives Consumers the Right to Opt-Out of the Sal e of Their Personal Information By Casey J. Quinn, Jeffrey M. Dennis

Governor Steve Sisolak recently signed into law Senate Bill 220 (“SB 220”), which gives consumers in Nevada the right to opt-out of having the operator of a website or online service sell their personal information. Building on the Nevada data privacy law that was passed in 2017, SB 220 was introduced with the intention of cutting down on the number of robocalls and sales calls that Nevada consumers received as a result of internet searches or services. The Legislature passed the bill with a long-arm statute to create protections in Nevada law that can apply to all businesses interacting with Nevada consumers on the internet, regardless of where the business physically exists.

June 17, 2019

State Senate Sets Controversial Amendment of Consumer Privacy Law Aside for Now, But Penalties Remian By Heather Whitehead, Jeffrey M. Dennis

The California Consumer Privacy Act of 2018 (CCPA), goes into effect January 1, 2020, and is intended to protect the use, sharing and selling of consumers’ personal information, amongst numerous other requirements. The CCPA has been amended once to date, with Senate Bill 1121 (signed into law in September 2018), for clarification and to address various technical issues.

June 11, 2019

Quest Diagnostics Discloses Data Breach that May Have Exposed the Personal Information of Nearly 12 Million Patients By Daniel S. Schneider

In a recent filing with the U.S. Securities and Exchange Commission, Quest Diagnostics disclosed that nearly 12 million patients may have had their personal and financial data exposed as a result of a breach that occurred through its billing collection vendor, American Medical Collection Agency. On May 14, 2019, AMCA informed Quest that it identified “potential unauthorized activity” on its web payment page that allowed an “unauthorized user” to gain access to millions of social security numbers, credit card numbers, bank account information and other sensitive data between August 1, 2018 and March 30, 2019 according to the filing.

June 10, 2019

C-Suite Beware: Cyberattacks are Targeting Executives and Financial Departments Just Like You By Jeffrey M. Dennis, Casey J. Quinn

Verizon recently released its 2019 Data Breach Investigations Report (the “Report”) and it reveals some startling trends about the targets of cyber breaches. Based on an analysis of 41,686 security incidents, including 2,013 confirmed data breaches, the Report highlighted the increasing number of financially-motivated social engineering attacks. Instead of focusing on installing malware, these attacks focus on credential theft and personal information with the goal of getting unwitting individuals to transfer funds to the attackers. 71% of the breaches analyzed were financially motivated. Not surprisingly, a disproportionate amount of these attacks affect professional, healthcare, and financial industries. The Report is a good reminder that hackers are continuing to get at your company’s wallet in new and interesting ways, and, increasingly, are finding that the C-Suite is an easy way in.

June 7, 2019

Nearly 50 Million Instagram Users' Data Exposed, Adding to Facebook's Privacy Woes By Scott L. Satkin

A massive database containing information from more than 49 million Instagram accounts has been discovered online. The cache, which contained information from a variety of influential and popular Instagram accounts, was traced back to Chtrbox, a social media-focused marketing company. The database has since been removed, but it previously contained both public information, such as users’ profile pictures and number of followers, and also private contact information such as email addresses and telephone numbers that would not be readily obtainable from public Instagram profiles. Along with this information were Chtrbox’s calculations as to how much it would be willing to pay various Instagram users to post advertisements.

May 29, 2019

Data Dividend? California Governor Proposes Plan to Have Companies Pay Consumers for Using Their Info By Scott L. Satkin

The adage “if you’re not paying for a service, you’re not the customer, you’re the product” has been around longer than the internet, but it has never been more true than it is today. As technology has increased people’s ability to share information about themselves, the number and size of companies whose business models depend on collecting, analyzing, selling, and otherwise exploiting that information have increased proportionally. Generally, consumers give up this information in exchange for access to goods and services rather than financial compensation. But California Governor Gavin Newsom proposed changing that in his recent state of the state address.

March 27, 2019

The "Dark Overlord" Strikes the Practice of Law: What Law Firms Can Do to Protect Themselves By Ivo G. Daniele

Cybersecurity breaches involving law firms are on the rise with each passing year. Law firms are prime targets for cyber criminals seeking confidential and sensitive information because of the various types of legal work that law firms normally handle for their clients. Whether it be mergers and acquisitions, the use of intellectual property, purchase agreements, bankruptcy or even litigation involving divorce, law firms are a rich depository for highly confidential and sensitive information. As a result, law firms must employ comprehensive security measures to protect themselves from security breaches or risk being on the losing end of a costly malpractice claim, and suffer severe reputational harm.

March 26, 2019

Is Your Copyright Enforceable in Federal Court? The United States Supreme Court Reinforces the Impact of Registration By Jonathan N. King

A recent case, Fourth Estate Public Benefit Corp. v. Wall-Street.Com, is bringing to light a fundamental interpretation in copyright law – the actual registration versus seeking registration. On March 4, 2019, the United States Supreme Court held the Copyright Office must actually grant copyright registration before a claimant can file a copyright infringement suit in federal court. At the same time, however, a copyright owner can still recover for infringements that occur both before and after registration of a copyright. Business owners should be very clear of their registration status or run the risk of losing their ability to file a complaint for copyright infringement. If the United States Copyright Office hasn’t confirmed copyright registration, you may not have the ability to enforce your ownership rights after all.

March 24, 2019

Supreme Court Raises Standing Issue for Privacy Settlement, Remands Google Privacy Case for Spokeo Consideration By Scott L. Satkin, Jeffrey M. Dennis

When a challenge to an $8.5 million settlement reached in a class action against Google for revealing users’ search history was appealed to the U.S. Supreme Court, the litigants and many court watchers expected the main issue to be whether payment of the settlement to privacy groups instead of the class members was permissible. The justices, however, had other ideas. The Supreme Court focused on Article III Standing in light of the alleged privacy violations. Given the ubiquity of businesses storing consumer data and the increasing frequency of major breaches compromising that data, business owners and executives should keep a close eye on cases like these in order to better understand the scope of liability in the event of a data breach.

March 19, 2019

Embracing the Middleman - Maximizing and Protecting Brands By Michael Krueger, Jonathan N. King

Chipotle recently announced its plans to expand from ten test stores to dozens more stores featuring its Chipotlanes service. Why is this important? Because in order for Chipotle to fully embrace the middleman it understands that protecting its brand is vital to growth through the Middleman Economy.

February 28, 2019

Federal Judge's Rejection of Yahoo! Data Breach Settlement Reminds Counsel to Focus on Class Interests By Scott L. Satkin

Scott Satkin gives a status update and lessons learned from the class action litigation underway for consumers affected by the Yahoo! data breaches. California federal judge Lucy Koh recently rejected a settlement that had been agreed on by the parties and criticized the amount of attorneys' fees included in the proposed settlement.

February 28, 2019

Restrictions on Out-of-State Real Estate Brokers Being Challenged in Nevada By Aaron D. Lovaas

An international brokerage firm is challenging the Nevada Real Estate Division's ("NRED") publicly stated goal of “protecting” Nevada real estate licensees and the commissions they earn from out-of-state real estate professionals seeking to do business in the Silver State.

If they win, the outcome could have huge implications on the real estate industry in Nevada.

February 28, 2019

How One Squirrel Taught us a Surprising Amount About Insurance Investigation Lessons Learned From the Iowa Supreme Court By Graham C. Mills

A recent decision issued by the Iowa Supreme Court, City of West Liberty, Iowa v. Employers Mutual Casualty Company, highlights the importance for a policyholder to investigate a loss fully so that a wide range of evidence can be gathered and presented to show why there is coverage. The facts of City of West Liberty are a little unusual, but its lesson is not limited to Iowa insurance law...

February 28, 2019

Technical Failure Leads to Private Causes of Action Under Illinois' Biometric Information Privacy Act By J. Kyle Janecek

We love convenience. Unlocking phones or door locks at the touch of a finger or a glance. Having a fool-proof and secure way of identifying others with minimal effort or chance of error. Not having to remember the myriad of secured passwords because of biometric authentication. However, for those using a system that relies on gathering, maintaining, and using biometrics, from a fingerprint to a face, they must be careful. Even without an actual breach of biometric identifiers, failure to comply with proper standards may lead to disastrous results. Recently, the Illinois Supreme Court ruled in Rosenbach v. Six Flags Entertainment Corporation that even though no "actual injury" occurred, a technical failure to comply with Illinois' Biometric Information Privacy Act or "BIPA" would be enough to create private causes of action. This single decision is now rippling through federal courts across the United States, including those within the 9th Circuit.

February 22, 2019

Embracing the Middleman - Why Starbucks' Uber Eats Move Will Work By Michael Krueger

At some point in every food industry business’ lifetime, there will be a discussion about cutting costs and increasing profitability. That discussion will inevitably present the go-to strawman villain, the “middleman.” Theoretically, the fail-safe plan of cutting out the middleman will surely cut costs and increase profitability, except when it doesn’t. Given the increase in consumers’ emphasis on convenience of middleman delivery apps, I suggest a different approach – embrace it, fully. Just recently, Starbucks announced its launch of a joint venture with Uber Eats to get in on the coffee delivery game. Spoiler Alert: it’s going to work, and here’s why.

January 30, 2019

Massive Data Breach Means it is Time to Change Your Password. Again. By Casey J. Quinn

Once again, a massive data breach has caught the attention of the cybersecurity world. However, this data breach is different from other recent breaches that were from a single database (like the Marriott / Starwood guest database) because it brings together a collection of data across multiple sources. To avoid negative repercussions from this latest breach, it is recommended to determine whether your private information was compromised, and consider changing password habits.

January 24, 2019

PG&E Subcontractors: Here's What the Upcoming Bankruptcy Means for You By Michael Krueger, James J. Ficenec

On January 13, 2019, PG&E announced that it would be filing a petition on January 29, 2019, under Chapter 11 of the bankruptcy code. The advance notice was required pursuant to a new California law requiring 15 days’ notice to employees of a change in control (including bankruptcy) of the employer. PG&E’s impending bankruptcy will present challenges for those doing business with PG&E on a continuing basis. If that’s you, here’s what you need to know to stay informed and ahead of the curve.

January 18, 2019

Yahoo! Derivative Data Breach Suit Yields Unprecedented $29 Million Settlement By Scott L. Satkin

On January 9, the parties to a derivative suit against several former directors and officers of Yahoo! Inc., which was based on a series of data breaches in which an estimated three billion user accounts were compromised, reached a $29 million settlement. The settlement, which included approximately $11 million in attorney’s fees with the remaining $18 million going to the company, is reportedly the first of its kind – previous derivative suits had resulted in settlements that only required changes in corporate governance and relatively small fee awards. If this settlement signals the beginning of a new trend, executives whose companies experience a data breach could find themselves on the hook for a similarly sizable amount.

January 17, 2019

Cybersecurity, Privacy, and Everything In Between: How 2018 Has Changed the Landscape By Jeffrey M. Dennis, Amtoj S. Randhawa

Originally published on Thomson Reuters Westlaw, December 11, 2018. 2018 has been a pivotal year for consumer data protection and cybersecurity, with sweeping new laws being passed to ensure increased consumer data and privacy around the world. If you, like most people, have not tracked each and every development, there is no need to panic.

December 17, 2018

A Primer on Directors and Officers' Liability Insurance By Rondi J. Walsh

Directors and Officers liability insurance is one of the most important, yet least understood types of coverage. Regardless of how carefully they conduct business, directors, officers and managers make many difficult decisions that sometimes lead to accusations that they have acted wrongfully. For-profit companies, non-profit organizations, educational institutions and privately held companies purchase this type of insurance to protect the company and its directors, officers and managers by providing them with liability coverage.

November 30, 2018

Data Scraping: Theft or Fair Game? By Scott L. Satkin

In the modern information age, data has become one of society’s most valuable commodities. More and more information is being put out into the world all the time, and businesses, and even entire industries, centered on collecting and then selling data have sprung up. Others have seen more success in making data freely available to attract views and clicks and earning money indirectly, such as through ad revenue. This business model is the foundation of the social networking phenomenon, as well as many other data services. But what happens when another business collects, or “scrapes,” that freely available data and then uses it in a way that the original aggregator disapproves of, or that may even be harmful to their business? Does doing the initial work to create or collect data entitle a company to control how that data is used, or should it be expected that this type of behavior will occur when information is made freely available on the internet?

November 30, 2018

Preparing for the New California Employment Laws Brought on by the #MeToo Movement By Jasmine Shams

Last year was the year of #MeToo and the Time’s Up movements. This year, is the year California responded, by enacting ten new laws to combat harassment and discrimination in the workplace. Here is a quick overview of what companies need to know as they prepare for 2019.

November 30, 2018

The Marriott Breach: What Happened and What Should You Do About It? By Joshua B. Bevitz, Casey J. Quinn

Yet another unfortunate reminder that the threat to your privacy and your business by hackers is real and not close to abating. Marriott International Inc. announced today what may be the second largest data breach in history. If you are a consumer or a business, here is what you need to know about what happened and what steps you need to take if you are affected.

November 30, 2018

The (Avoidable) Nightmare Before Christmas: Protecting Your Data This Holiday Season By Daniel S. Schneider

The holiday shopping season is upon us, complete with carolers, shopping mall santas and cybercriminals. Bah Humbug! In 2018 alone, an estimated 8 in 10 Americans will shop online, presenting the perfect opportunity for cybercriminals to take advantage of unsuspecting retailers and consumers alike. While you might not be able to avoid Aunt Betty’s eggnog at the family party, cyber threats can be avoided by taking just a few simple steps:

November 21, 2018

Teddy Bears and Toasters- California Law Addresses Security of Connected Devices By Anne J. Kelley

California is once again on the cutting edge of internet security and data privacy laws. Governor Jerry Brown recently signed the nation’s first law regulating the Internet of Things (“IoT”) devices, SB 327, entitled “Information Privacy: Connected Devices.” Starting on January 1, 2020, manufacturers of connected devices will be required to equip them with reasonable security features to protect the devices, and any information collected through the devices, from unauthorized access, destruction, use, modification or disclosure. These measures will be mandatory for all connected devices sold in California.

November 7, 2018

Can Your Small Business Afford to Risk the Imminent Threat of a Cyber Incident? By Heather Whitehead, Jeffrey M. Dennis

Cybersecurity incidents are occurring on a daily basis and at an increasingly growing rate. Yet, many small businesses still have not obtained adequate (or any) cyber insurance to address these risks and the costly impacts to the business that will result. In a recent study completed by the Insurance Information Institute , only about a third of all small businesses polled responded that they have cyber insurance in place, with 70% of respondents replying that they have no plans to purchase a cyber insurance policy in the next 12 months. Most of the businesses indicated that they do not believe they have any need for cyber insurance, yet almost half of those same companies stated they are unprepared to handle cyber threats. A main reason for not purchasing cyber insurance was a lack of understanding about this type of insurance and coverages available.

November 2, 2018

What to Do When the Worst Happens: Responding to a Cybersecurity Breach By J. Kyle Janecek, Scott L. Satkin

Cybersecurity is a growing concern for today’s businesses. While it’s always advisable to take whatever action possible to avoid a cybersecurity breach, no security measures can be one hundred percent perfect, and malicious actors are always innovating and trying to find new security flaws. The implementation of new technology brings with it new opportunities, but also potentially new vulnerabilities. And hackers have one major advantage – those working to defend against cyber-attacks have to try to find and fix every potential exploit, whereas those on the other side only need to find one. As demonstrated by recent high-profile breaches at Google and Facebook, even massive tech companies with access to vast financial resources and top engineering talent can still fall prey to cyber-attacks. Therefore, understanding how to respond to a breach is just as critical to a company’s cybersecurity plan as attempting to prevent one. Below are a few solid tips on how to react when an organization’s cybersecurity has been compromised.

October 31, 2018

Companies: Per the American Bar Association, Here Are Your Attorney's Obligations Related to Cyberattacks By Joshua B. Bevitz

As cyberattacks begin to become more and more frequent, the American Bar Association (“ABA”) continues to issue opinions regarding the ethical duties of attorneys in relation to them. On October 17, 2018, the ABA issued yet another, Formal Opinion 483.

October 26, 2018

The Equifax Data Breach: Lessons Learned from a One-Year Look-Back By Jeffrey M. Dennis, J. Kyle Janecek

On September 7, 2017, Equifax announced one of the largest cybersecurity breaches in U.S. history. One year later, companies can protect themselves by learning valuable lessons from Equifax’s short-comings.

October 16, 2018

Builders Beware: Smart Homes Under Attack by “Hide ‘N Seek” Botnet By Scott L. Satkin, Amtoj S. Randhawa

German manufacturer eQ-3 has found itself under siege by a botnet known as "Hide ‘N Seek." This pernicious malware has infected tens of thousands of eQ-3’s smart home devices by compromising the device’s central control unit. Once a device has been infected, the malware spreads to other Internet of Things (“IoT”) devices connected to the same wireless network. IoT devices have become the prime target for botnet attacks. As opposed to computers, laptops, or other larger computing devices, the smaller storage capacity and lower processing power of IoT devices limit the amount and complexity of the security measures that can be installed—making them an easier target for botnets.

October 11, 2018

California's Bold New Data Privacy Law: What You Need to Know to Comply By Anne J. Kelley

2018 has been a pivotal year for consumer data protection, with sweeping new laws being passed to ensure increased consumer data privacy around the world. In May, Europe’s General Data Protection Law, or GDPR, took effect. In June, the California Legislature passed the California Consumer Privacy Act of 2018 (“CCPA”), a bold new digital data privacy law that is the first of its kind in the United States. The California law becomes effective on January 1, 2020, and will launch a new era of data privacy and protection in the U.S.

August 30, 2018

New Proposition 65 Warning Regulations For Businesses Effective August 30, 2018 By John Van Vlear, Jason Moberly Caruso

California’s Office of Environmental Health Hazard Assessment (“OEHHA”) has made significant changes to the regulations for Proposition 65 warnings required for certain consumer products and locations (e.g., enclosed parking facilities and hotels). These changes became effective August 30, 2018. If your business has not yet reviewed the new Prop. 65 regulations, or has never conducted a Prop. 65 audit, now is the time to do so.

August 30, 2018

Confirmed: Nevada Non-Compete Agreements Must be Limited Geographically to Areas Where Employers Have Established Business Interests By Aaron B. Shumway

It’s official. The Nevada Supreme Court recently affirmed its general rule that geographic restrictions within non-compete agreements must be reasonable. More specifically, geographic restrictions must be limited to areas where the enforcing party has “established customer contacts and good will.” Employers should take stock of the language used in their non-compete agreements with current and prospective employees that include geographic restrictions.

August 30, 2018

A Victory for Computer Fraud Policy Holders: Court Finds Insurance Coverage for Fraudulent Money Transfer Instructions By Joshua B. Bevitz

A computer fraud policy holder recently won an important victory in the United States Court of Appeals for the Sixth Circuit in a case entitled, American Tooling Center v. Travelers Casualty and Surety Co. of America. If your business has suffered or suffers a loss due to fraudulent money transfer instructions and your insurance carrier denied your claim, American Tooling Center could be your ticket to getting your insurance carrier to cover your claim.

July 21, 2018

A California Version of GDPR May Be Coming - What You Need to Know About the California Consumer Privacy Act of 2018 By Anne J. Kelley

People in the U.S. are becoming increasingly aware that their personal data is being shared in ways they never imagined as companies like Facebook, Uber, Safeway and Target are tracking and selling their personal information on a regular basis. Many people feel helpless in stopping companies from sharing their data. A coalition located in Oakland, California, right in Silicon Valley's backyard, believes it is high time for people to have more control over their own personal data.

June 25, 2018

Calif. Case Shows Propriety Of Telecom CEQA Exemptions

Newmeyer & Dillion Partner Michael Shonafelt authored an article that was published by Law360 on April 10, 2018. The article summarizes the implications of the Aptos Residents Association v. County of Santa Cruz for Telecom CEQA Exemptions.

April 10, 2018

You May Not Have the Insurance Coverage for Computer Fraud That You Think You Do By Joshua B. Bevitz

If you think you have adequately protected your company by purchasing a computer fraud insurance policy, you may be wrong. Exclusions in the policy may result in your insurance carrier being able to deny coverage for some acts of computer fraud. Recent litigation shows the issue remains important. Here is what you should know...

March 29, 2018

Aptos Residents Association vs. County of Santa Cruz: More CEQA Certainty for Vital Wireless Telecommunications Networks

On February 5, 2018, the Sixth Appellate District of the California Court of Appeal issued its decision in a case called Aptos Residents Association v. County of Santa Cruz (2018 WL 1069730). The case affirms that wireless telecommunications networks in the public rights-of-way are exempt from environmental review under the California Environmental Quality Act (CEQA). Michael Shonafelt of Newmeyer & Dillion argued the case on behalf of respondent, the County of Santa Cruz, and real-party-in-interest, Crown Castle NG West LLC. The court ordered the case for publication on February 27, 2018.

March 6, 2018

Does Your Trademark Have Relevant Artistic Expression? By Jonathan N. King

Traditionally speaking, we think of a ‘trademark’ protected under the Lanham Act as a mark used to identify and distinguish a good or service from other goods and services on the market. But what if the purported ‘trademark’ is being used to express a certain idea, statement, artistic expression, or cultural significance? The same protections do not apply. Instead, when a mark is being used for artistically relevant reasons, a higher degree of protection under the First Amendment is afforded, which means that the threshold for proving trademark infringement is somewhat higher than the ‘likelihood of confusion’ test.

March 6, 2018

You Make A Better Wall Than A Window: Why Policyholders Can Rest Assured That Insurers Should Pay Legal Bills For Claims With Potential For Coverage By Graham C. Mills, Alan H. Packer

Unfortunately, policyholders, such as manufacturers and contractors, routinely face the unnecessary challenge of how to access all of the insurance coverage which they have purchased. Frequently, the most pressing need is to get the insurance company to pay the legal bills when the policyholders have been sued. The recent Iowa federal district court opinion in Pella Corporation v. Liberty Mutual Insurance Company should help a policyholder in a dispute to require its insurance company to pay those legal bills sooner rather than later by highlighting that the duty to defend arises from the potential for coverage, and the insurer may not force the policyholder to prove the damage to obtain a defense.

March 6, 2018

WARNING: The Federal Trade Commission Will Prosecute Companies Over Consumer Data Breaches - Its Recommendations Should Be Heeded By Ivo G. Daniele, Joshua B. Bevitz

There is no comprehensive federal statutory scheme governing breaches of consumers’ private data. However, the Federal Trade Commission (“FTC”) has a history of trying to protect consumers’ private data based on its general mandate to regulate unfair business practices pursuant to the FTC Act. Importantly, the FTC’s power to do so has been upheld by at least one court.

March 6, 2018

The North Korea Gap in Your Cyber Insurance

North Korea was recently identified as the powerhouse behind the WannaCry ransomware attack that swept across 150 countries and 200,000 computers. Panicked hospitals cancelled thousands of operations, ambulances were diverted, and concerns about security of individual medical information bubbled to the surface. Businesses of all types and sizes were forced to contend with the expensive aftermath. Businesses should evaluate their business practices and insurance policies to find what ways they can offset the risk and kinds of costs arising out of these kinds of attacks.

January 22, 2018

California Supreme Court Upholds SB800 As Exclusive Remedy, Disapproves Liberty Mutual

The Supreme Court has spoken: The Legislature said what it meant, and meant what it said. In its decision in McMillin v. Superior Court (Van Tassell), the California Supreme Court confirmed that the Right to Repair Act is “the exclusive means of recovery for damages identified in [SB800] absent an express exception,” such as contract, warranty, and fraud. The Supreme Court held that even if a plaintiff tries to plead around SB800, the builder can still enforce the right to repair. The Supreme Court disapproved Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, in which a lower court had held that the Right to Repair Act was never intended to supplant common law causes of action like negligence and strict liability.

January 18, 2018

5, 4, 3, 2, 1: Happy New... List of Additional Employment Laws You Must Navigate? By Jason L. Morris

Just in case you didn’t spend your holiday down time reading through all of those new California employment laws, here’s a quick overview of six laws that became effective on January 1, 2018, that may impact your business.

January 11, 2018

Does Your U.S. Company Pull Data From European Citizens? Fall In Line with GDPR by May 2018 to Avoid Substantial Fines By Jeffrey M. Dennis, Ivo G. Daniele

The European Union (“EU”) has enacted a strict, comprehensive framework of security regulations aimed to protect its citizens. These regulations, known as the General Data Protection Regulation (“GDPR”), provide a blueprint for a combination of required legal, technological and work habits within an organization. Although this is an EU regulation, the new laws will apply to any organization within or outside the EU that collects or processes data of EU citizens. Therefore, U.S. companies must analyze their data and processes to determine whether compliance with the GDPR is necessary. A quickly-approaching deadline of May 25, 2018 must be met to avoid massive fines.

November 15, 2017

BE PROACTIVE: Steps to Preserve and Enhance Your Insurance In Light of the Recent Natural Disasters By Jacquelyn M. Mohr

Our hearts go out to those families and businesses who have suffered losses due to the recent fires, hurricanes, and other natural disasters. We hope everyone in Sonoma, Napa, Orange County, and nationwide affected by these tragic events are somewhere safe. As someone who lost a house in a fire growing up and now is an attorney who helps both residential and business policyholders, there are a few pieces of wisdom I’d like to pass along to help prepare for the worst.

October 12, 2017

AB 1701 Has Passed – Developers and General Contractors Are Now Required to Double Pay for Labor Due to Their Subcontractors’ Failure to Pay

On September 13, 2017, the California State Legislators passed a bill that would make developers and general contractors responsible for subcontractors who fail to pay their employees even though they already paid the subcontractors for the work. Assembly Bill 1701 (AB 1701), sponsored by unions who represent carpenters and other building trades, would require general contractors to “assume, and [be] liable for . . . unpaid wage, fringe or other benefit payment or contribution, including interest owed,” which subcontractors owe their employees. Despite vehement opposition from the California Building Industry Association and the Associated General Contractors of California, this bill has been submitted to the Governor and is expected to be signed into law.

September 28, 2017

Nevada Doubles-Down as a Pro-Business Leader: Officer and Director Powers, and What Every Company Must Know About SB203 By Aaron D. Lovaas

Nevada has long been hailed as one of the most business-friendly jurisdictions in the United States and one of the most benevolent to its domestic corporations. From a corporate standpoint, Nevada has been nicknamed the “Delaware of the West” for many years. Perhaps partially in an effort to shed that ostensibly complimentary comparison and move the Silver State into its own singular identity as a corporate haven, the 79th Session of the Nevada Legislature enacted Senate Bill 203, which pronounces Nevada’s intent to rely solely upon Nevada law for determining liability of directors and officers of a Nevada corporation.

September 28, 2017

Cyber Attacks Can Be Risky Business. Is Your Existing Insurance Enough Protection By Anne J. Kelley

The Equifax breach is a reminder that all companies, large or small, are at increased risk for a cyberattack. The FBI has stated that cybercrime is an issue for any company attached to the internet, and third-party vendors are being targeted through various scams to gain access to larger systems. With cyber risk as one of the hottest topics of the 21st century as cyber threats are on the rise, and because post-breach expenses and liabilities can be catastrophic and unpredictable, businesses and risk managers are increasingly looking to insurance coverage to limit risk.

September 28, 2017

Understanding California’s Data Breach Notification Law: Protecting your Company & Customers

The California Attorney General’s 2016 Data Breach Report found 3 out of 5 Californians were victims of data breaches and that data breach victims were significantly more likely to experience identity theft. Notifying consumers of a data breach promptly after it happens allows and encourages them to take proactive measures (such as cancelling susceptible credit cards, purchasing identity theft prevention services, and so forth) to prevent identity theft. When consumers affirmatively act to prevent identity theft, they also minimize the amount of damages they might otherwise have that your company may ultimately be liable for.

August 10, 2017

OSHA Updates: You May Be Affected

Cal/OSHA has increased its maximum fines for the first time in more than twenty years pursuant to legislation recently signed into law by Governor Brown. The changes nearly double the maximum fines and have brought California in line with the Federal standard. The increase in fines will not be isolated to this year, as fines will now be automatically increased annually based on the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U). Additionally, any employer who repeatedly violates any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, can no longer receive any adjustment of a penalty assessed based on the good faith or the history of previous violations. Such adjustments were previously commonplace.

July 14, 2017

Nevada’s Home Building Industry Can Breathe Easier: No Action on SB250 Leaves Current Attorneys’ Fees Provisions Intact By Aaron D. Lovaas

Construction and design professionals in Nevada’s home building industry breathed a collective sigh of relief on June 5, 2017 when the 79th Session of the Nevada Legislature adjourned without entertaining Senate Bill 250, which sought to reinstate homeowner plaintiffs’ nearly automatic right to recover attorneys’ fees, expert costs, and costs of investigation when bringing suit for alleged constructional defects.

June 20, 2017

Is Post-Judgment Discovery of a Non-Party’s Assets Allowed in Nevada? The Answer: It Depends. By Aaron D. Lovaas

After the entry of a civil judgment, the judgment creditor may proceed to execute on and collect the judgment against the judgment debtor under the framework and procedures set forth in Chapter 21 of the Nevada Revised Statutes and Rule 69 of the Nevada Rules of Civil Procedure (NRCP). NRCP 69(a) provides, “In aid of the judgment or execution, the judgment creditor … may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules.” (emphasis added). The plain language of the rule, therefore, and the use of the term “any person,” rather than “any party,” presupposes that there may be non-parties to the judgment or underlying litigation from whom the judgment creditor may need to obtain discovery in order to aid in the collection of the judgment.

June 19, 2017

The California Legislature Passes SB 496 Limiting Design Professional Defense and Indemnity Obligations By Mark S. Himmelstein

Since 2008 when the California legislature limited subcontractor indemnity obligations, the design professional community has been shouting “what about us?” Well, the legislature finally responded and a new law that limits design professional’s defense and indemnity obligations to their percentage of fault goes into effect on January 1, 2018.

June 14, 2017

Be Proactive Now: Commercial Construction Quickly Joining List of Industries Vulnerable to Cyber Attacks By Jeffrey M. Dennis, J. Nathan Owens

Commercial contractors have long faced their own unique business risks - labor and material shortages, delay claims, bonding issues, and defects in workmanship. But, in today’s ever-evolving cyber world, it is imperative that contractors understand they are vulnerable to risks beyond finishing a project on time and on budget. As we are seeing more and more each day, cyber threats impact all businesses, including the construction industry, and the failure to protect against these threats will cost your company millions in damages and reputational harm.

June 6, 2017

A Single Construction Defect Lawsuit as Multiple Occurrences: Five Reasons It Just Doesn’t Add Up By James S. Hultz

For several decades insurers and insureds alike agreed that a construction defect case involved only a single occurrence. Relatively recently, however, some insurers have reversed course and began to argue that each such case involves several occurrences. What precipitated this radical shift in approach? Did insurers alter the fundamental terms of standard general liability policies?

May 24, 2017

Female Attorneys’ Settlement of Equal Pay Dispute with Farmers Insurance Provides Little Guidance for California Employers

California’s Equal Pay Act (the “Act”), Cal. Lab. Code section 1197.5, is widely recognized as one of the most aggressive and pro-employee wage discrimination laws in the nation. The Act was intended to combat systemic wage discrimination by making it easier for employees to prevail on wage discrimination claims and by offering claimants greater protection from retaliation for bringing such claims. Recent amendments to the Act have left many employers uncertain of how to evaluate and justify wage anomalies and ensure compliance with the Act. Employers and practitioners hoped to receive additional guidance from the court in Coates v. Farmers Group Inc. et al., Case No. 15-CV-01913-LVK (“Coates”), one of the first high-profile cases addressing wage discrimination under the revised Act. As discussed below, however, the case settled before trial late last year, leaving employers still in need of judicial guidance.

May 24, 2017

Clarifying the Procedure for Claiming Loss of Business Goodwill in Eminent Domain Cases By Charles S. Krolikowski

In eminent domain cases involving the taking of property where a business is operated, the owner is entitled to compensation for the loss of goodwill. While business goodwill can often be difficult to quantify, a recent decision by the California Court of Appeal in The People ex rel. Department of Transportation v. Presidio Performing Arts Foundation, Case No. A145278 (November 3, 2016) (Presidio), may help to ease some of the burden on business owners in making such compensation claims. The Presidio court found that there is no single valuation method for quantifying business goodwill, and establishes that a business need not even be profitable in order to claim/receive compensation for its business goodwill.

May 24, 2017

Checking The Status of Your Contractor License During Contract Work is a Necessity: The Expanded “Substantial Compliance” Under B&P 7031 is Here By Ivo G. Daniele

It is paramount that a contractor diligently maintains its license prior to and during the performance of any contract work. Failure to do so could result in barring a contractor from receiving payment and/or disgorgement of profits received under the construction contract.

May 16, 2017

California Supreme Court Clarifies “One Day of Rest in Seven” Requirement In Mendoza v. Nordstrom, Inc. By Thomas H. Reilly

In Mendoza v. Nordstrom, Inc., Case No. S224611 (May 8, 2017), the California Supreme Court clarified several long-standing issues arising under California Labor Code sections 550 through 556, which regulate the number of days per week that an employer may cause an employee to work and generally require that employees receive at least “one day of rest in seven.”

May 15, 2017

Beware: Hyper-Technical Labor Code Violations May Expose Employers to Significant Claims for Penalties under the Labor Code California Private Attorneys General Act of 2004 (PAGA)

Most employers know that companywide policies or practices that do not strictly comply with applicable state or federal employment laws can expose employers to class action lawsuits by large numbers of employees seeking recovery of massive sums in damages, attorneys’ fees and costs. Unfortunately, traditional class action lawsuits are not the only representative actions employers should be concerned with. Recent litigation trends have shown that California’s lesser known Labor Code Private Attorneys General Act of 2004 (“PAGA”) can be equally, if not more harmful to employers than class actions due to steep penalties for minor violations.

May 3, 2017

It’s Time to Start Planning for Implementation of OSHA’s Silica Rule By J. Nathan Owens

Getting a notification from OSHA that your company is being investigated for a health or safety violation is an unwanted disruption to your business that could lead to a hefty monetary fine. Worse yet, if your company is found to have committed multiple violations, OSHA may categorize your company as a severe violator, which makes you subject to follow-up inspections. In the last 6 years, OSHA has added 520 companies to the Severe Violator Enforcement Program - sixty percent of which are in the construction industry.

April 21, 2017

President Trump Nullifies “Volks Rule” Regarding Occupational Safety and Health Administration (OSHA) Recordkeeping Requirements

OSHA requires employers to maintain safety records for a period of five years. The Occupational Safety and Health Act contains a six month statute of limitations for OSHA to issue citations to employers for violations. In an effort to close the gap between the five years employers are required to keep records and the six month citation window, the Obama Administration implemented the “Volks Rule,” making recordkeeping requirements a “continuing obligation” for employers and effectively extending the statute of limitations for violations of recordkeeping requirements from six months to five years.

April 13, 2017

Recovering Your Attorney’s Fees in Adjoining Property Disputes By Joshua B. Bevitz

Even though most people consider themselves to be reasonable and easy to get along with, most people also have had the uncomfortable experience of running into a dispute with one of their neighbors. Whether commercial or residential properties are involved, neighbor disputes run the gamut from loud noise, to cars parked in front of driveways, to tree roots or overhanging limbs, and to boundary line disputes. The list of things neighbors can get into fights about is endless and often emotionally charged.

April 6, 2017

Why Your Company Should Review its Insurance Policies Now in Light of Tough New Cybersecurity Regulations

New York’s new cybersecurity regulations just went into effect on March 1, 2017 and companies across the United States should take note. Inspired by the blockbuster proportion breaches that tanked stocks of massive corporations including several Fortune 100 companies, these regulations are recognized as the most stringent in civilian existence. As described by a statement released by Governor Cuomo, “these strong, first-in-the-nation protections will help ensure this industry has the necessary safeguards in place” to protect businesses and clients “from the serious economic harm caused by these devastating cyber-crimes.”

March 6, 2017

Don’t Miss a Beat – Misunderstanding Your Intellectual Property Rights Could Cost You Your Protections By Jonathan N. King

You have obtained federal trademark protection, so you should feel that all of your intellectual property rights are protected, right? What if you have not obtained the appropriate intellectual property protections? In fact, many people misunderstand the scope of the intellectual property rights they possess and it has ended up costing them significantly. A recent Ninth Circuit case illustrates this precise dilemma, and what’s at stake by not clearly understanding and differentiating between different aspects of intellectual property protection.

March 6, 2017

It’s 2017: Are You In Compliance? The Top 8 New Employment Laws That Impact Your Business Right Now! By Jason L. Morris

As the clock struck midnight on January 1st and 2016 became a distant memory, no doubt you had a glass of champagne in one hand and a stack of new employment laws in the other. What? No!? Don’t fret, we have you covered. Here’s a reminder of some of the new laws that went into effect January 1, 2017, that may impact your business.

February 3, 2017

Newmeyer & Dillion Challenges Wisconsin Coverage Decision

With ramifications for consumers, homeowners, and the entire construction industry, Newmeyer and Dillion recently submitted an Amicus Brief to the US Court of Appeals for the Seventh Circuit on behalf of United Policyholders concerning liability insurance issues. In Haley et al. V. Kolbe & Kolbe Millwork Co. Inc. et al., N&D weighed in on the review of a district court ruling, Wisconsin law, arguing that the ruling should be reversed in order to uphold the integrity of insurance coverage and protection for policyholders within the construction industry. This appeal addresses whether insurance companies may interpret a standard insurance policy to exclude coverage for construction defect claims, even though policyholders pay to obtain insurance coverage against those very same construction defect claims! If affirmed, the district court’s ruling would be directly counter to the plain meaning of a widely used insurance policy, contrary to the reasons why that policy was purchased, and against Wisconsin public policy of requiring contractors to have insurance coverage.

December 7, 2016

A Smart Approach to Accommodating Employees with Disabilities By Michael J. Studenka

As the overall U.S. population shifts, so too do workforce demographics. Based on the different ways the population is changing, employers can expect that more future employees will have disabilities covered by the Americans with Disabilities Act (ADA).

December 6, 2016

Fiduciary Duties of Managers and Members Under California’s Revised Uniform Limited Liability Company Act

When drafting operating agreements, amendments or joinders to operating agreements for limited liability companies formed in the State of California, practitioners should take note of changes to California limited liability company (LLC) law affecting the fiduciary duties of the managers and members.

December 6, 2016

How to Survive the Insurance Claim Process Before It Starts

Every day we read about fires, floods and other tragedies that occur. They seem to be so prevalent, now than ever before. The old notion that “it can’t happen to my family” is not the best approach to being ready if you are faced with a claim. Preparation is the key to readiness in the world of insurance. These five tips can easily be implemented just in case!

December 6, 2016

Symbiosis: Redefining the In-House/Outside Counsel Relationship

The legal industry has forgotten that it is a service industry. Outside counsel are missing opportunities to add value to their in-house counterparts, simply by failing to ask what the in-house attorneys want and need. In-house attorneys are missing the opportunity to receive assistance at the time and in the manner that would be most useful to them. The press of business thwarts efficiency.

December 6, 2016

Employers Be Aware: The Minimum Salary Payable to Exempt Employees Will Increase Effective on December 1, 2016 By Thomas H. Reilly

Last May, President Obama announced the Department of Labor’s new “white collar” overtime regulations, frequently referred to as the “Final Rule,” which are applicable to all employers subject to the Fair Labor Standards Act (“FLSA”). Because the threshold for FLSA coverage is quite low, the Final Rule will affect most California employers. Accordingly, before December 1, 2016, California employers subject to the FLSA must review their white collar exemptions and ensure that salaries paid to white collar employees remain compliant.

October 3, 2016

“You’re Out of Here!” -- CERCLA (Superfund) Federal Preemption of State Environmental Claims in State Courts

The Comprehensive Environmental Response, Compensation, and Liability Act, commonly referred to as “Superfund,” is a federal statute that provides funding and cost-recovery to address our nation’s worst hazardous-waste sites. While CERCLA generally vests United States District Courts with exclusive original jurisdiction over all related controversies, section 113(h) of the Act delays such jurisdiction while the United States Environmental Protection Agency supervises or undertakes environmental response action plans. What impact does this delayed federal jurisdiction have on state law claims brought in state courts? Short answer: “You’re out of here!” Litigants are precluded from bringing claims in state court that “challenge” environmental response actions under CERCLA during the pendency of those actions.

October 3, 2016

The Shadow Asset of Insurance

Many of us have purchased disability, dismemberment and life insurance policies. Senior executives, managers, doctors and lawyers often purchase these products early in their careers and then forget about them. They are reminded of the purchases only when premiums are auto withdrawn from their accounts.

October 3, 2016

Blog, But Blog Ethically

August 19, 2016

Estate Planning Is Not Just for the Rich and Famous

July 21, 2016

So You’re Starting, or Even Better, Expanding Your Business... Slow Down and Take These Key Items Into Account Before It’s Too Late

After developing a business concept and starting up a business, many small business owners decide that to grow and move to the next level it is necessary to hire employees. This is a big step for young businesses and there are key items these business owners should consider in the process, such as whether the existing business structure still makes sense and how to properly document employment relationships. By addressing these important issues early in the process, a business owner lays an important foundation for success in the future and mitigates the risk of certain pitfalls along the way.

July 5, 2016

Federal Defend Trade Secrets Act Enacted By Michael B. McClellan, Jason L. Morris

On May 11, 2016, President Obama signed the Defend Trade Secrets Act (“DTSA”) into law, creating a private federal civil cause of action for trade secret misappropriation. This landmark legislation, a product of bipartisan backing and significant support from the business community, will affect businesses and individuals operating in almost every economic sector across the country. The DTSA will potentially be at issue any time an employee with access to confidential, proprietary, and trade secret information moves on to a competitor or launches a startup that competes with the former employer. This will be true so long as the product or service that the trade secret relates to is either used in or intended for use in interstate or foreign commerce. Under present commerce clause jurisprudence, the vast majority of businesses providing products and services in the United States will be affected by this new law.

July 5, 2016

Failure to File a Statement of Information May Be More Harmful Than You Think

Recently, I received a call from the owners of one of my clients who explained the shocking news that they had apparently lost the right to their limited liability company’s (LLC’s) name. Why? They failed to timely file their required periodic statement of information with the California Secretary of State. They wondered whether I could help bring their LLC back into good standing. Quickly thereafter, I was able to confirm that in fact my client’s LLC was “SOS suspended” and that their company’s name had been taken by another party during the suspension. I called my client to confirm that they would have to revive their LLC by (1) filing a statement of information, and (2) paying the outstanding fees and penalties imposed by the Secretary of State. But first, they would need to change their LLC’s name. Because this name had deep family roots and a great deal of sentimental value, the news was understandably not well received, and they were left wondering, how could this have happened?

July 5, 2016

The Flip Side of the Housing Recovery: Resurgence of the NIMBY By Michael W. Shonafelt

If you own a home youʼve probably been keeping at least one eye on Zillow lately. Housing values have largely crawled back from 2008 lows - and in many cases have surpassed their 2006 high-water marks.

Good news for some. Bad news for many.

June 15, 2016

Independent Contractor or Employee? What Employers Can Learn From Uber’s Recent Settlements

By now, most employers are aware that misclassifying employees as independent contractors to reduce operating expenses is a bad idea. While not having to pay income taxes, Social Security, Medicare, workers’ compensation and other costs for workers may seem attractive at first, the potential consequences of misclassifying employees as independent contractors can be devastating; obligating the employer to pay for unpaid wages, meal and rest breaks, and business expenses, in addition to hefty statutory fines. Sometimes, however, whether a worker should be classified as an employee or independent contractor is not entirely clear, especially given the rise of the gig economy. In hope of greater guidance, many people have closely followed the string of legal challenges that have plagued Uber Technologies Inc.’s (“Uber”) practice of classifying its drivers as independent contractors rather than employees. Those of us observing the battle from the side line will have to wait for a clear determination, however, because Uber recently settled two class actions brought by California and Massachusetts’ drivers claiming that Uber of misclassified them as independent contractors rather than employees. Yet, employers can still glean several important tips from examining Uber’s suits and settlements.

May 5, 2016

Reconciling Prompt Payments and Withholding of Retention Payments By Eric J. Rollins

It is common in California for the owners of a project to make monthly payments to a contractor for work as it is completed, but withhold a certain percentage as a guarantee of future satisfactory performance. Contractors almost always pass these withholdings on to their subcontractors. Unsurprisingly, disputes can arise regarding when the withheld retentions must be paid.

March 29, 2016

Buyer Beware: Primary and Excess Insurance Coverage is not Always Coextensive By Graham C. Mills

In Haering v. Topa Insurance Company, Case No. B260235 (Feb. 3, 2016), the Second District Court of Appeal examined which provisions of a primary insurance policy were incorporated by reference in an excess insurance policy, and which provisions were not. This question is often significant because excess policies tend to be brief and incorporate by reference the key terms of an underlying primary policy, which is a separate document often written by a different insurer. In theory, when an excess policy incorporates by reference the terms of a primary policy, both policies should work together to provide a continuous layer of coverage for the insured. Unfortunately, that is not always the case.

March 29, 2016

Fed OSHA Issues Final Rule Protecting Workers from Crystalline Silica Exposure By Thomas H. Reilly, Michael J. Studenka

On March 25, 2016, the U.S. Department of Labor, Occupational Safety and Health Administration (Fed OSHA), issued its long-awaited final rule on “Occupational Exposure to Respirable Crystalline Silica,” 29 CFR sections 1910, 1915 and 1926. The new regulations, which go into effect within the next 90 days, significantly reduce the permissible amount of silica dust that workers may be exposed to, and require employers to implement controls and practices that reduce silica exposure.

March 29, 2016

The Sky Is Falling! -- Or Is It? Impacting Lives through Addressing the Fear of Environmental Liabilities By John Van Vlear

Six months ago, a couple anxiously relayed to N&D lawyers how the sky was falling - with environmental liabilities at the center of their seemingly real Chicken Little fears. The couple owned two properties in a central California town, one being a former gas station which an oil company had abandoned alleging the lease was void given partial eminent domain actions. Before interviewing us, the couple had spent in excess of $100,000 in legal fees with another law firm trying to force the oil company to take responsibility for potential environmental impacts under the disputed lease.

March 24, 2016

Strict Liability Or Negligence? The Proper Legal Standard For Inverse Condemnation Caused By Water Damage To Property By Charles S. Krolikowski

Filing a lawsuit against a government entity can be a daunting task given the complexities of tort claims requirements and governmental immunities. A recent decision by the Court of Appeal in Pacific Shores Property Owners Association v. Department of Fish & Wildlife, Case No. C07020 (Jan. 20, 2016) provided welcome clarification as to the proper legal standard for an inverse condemnation action based upon activities of a government entity which cause water damage to private property.

March 24, 2016

Should You Form a Corp or an LLC?

February 19, 2016

Boundary Disputes and Prescriptive Easements - Non-Exclusive or Exclusive? By Rhonda K. Kreger

Boundary disputes between property owners are one of the more contentious and well-litigated areas of real property law. These disputes often involve prescriptive rights under which an adjacent property owner will claim rights over another owner’s real property that do not derive from an express grant of easement. Prescriptive rights arise from the specific facts relating to the adjacent property owner’s history of the use of the claimed easement. Part of the determination of those facts includes whether the use establishes an exclusive easement or non-exclusive easement. In order to understand when prescriptive easement rights may arise and whether they are exclusive or non-exclusive, it is necessary to understand the basics of interests in real property.

January 5, 2016

Subcontractor Must Pay for General Contractor's Defense, Including its Litigation Mistakes, After Ignoring General Contractor's Tender Under Express Indemnity Provision By Graham C. Mills

A recent decision by the Court of Appeal, Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido (2015) 238 Cal.App.4th 468, reinforces the right of a general contractor to defense and indemnity by a subcontractor when the parties have contractually allocated risk to the subcontractor. To ensure compliance with that right, the Valley Crest court imposed a strong penalty against a subcontractor that defaulted on its obligation.

December 16, 2015

Building and Landscape Standards Enacted in Response to the Governor's Mandatory Water Restrictions Dealing with the Drought and Possible Effects of El Niño

Earlier this year, with California facing one of the most severe droughts on record, Governor Edmund G. Brown, Jr. issued Executive Order B-29-15 (the “Executive Order”) aimed at conserving water supplies and reducing water waste throughout the State of California.[1] For the first time in California’s history, this Executive Order directed state agencies to implement immediate measures to save water, increase enforcement against water waste, invest in new technologies, and streamline government response to ongoing drought conditions.

December 16, 2015

FBI Warns Against Business E-mail Fraud By Susannah M. Eichele

Business Email Compromise (“BEC”) is a new type of fraud scheme that has become increasingly common, targeting businesses that regularly make wire transfers. BEC scammers contact employees responsible for wiring money by posing as executives or vendors and instruct the employees, under false pretenses, to wire large sums to fraudulent accounts. BEC scams have been increasingly successful, resulting in organizations being defrauded of significant sums. The Federal Bureau of Investigation estimates that more than 7,000 U.S. companies have been victimized, resulting in losses totaling nearly $740 million since October 2013.

December 16, 2015

Leveraging Metadata in Electronic Discovery (Orange County Lawyer, Oct. 2015)

How many times has the modern lawyer been informed, and even warned, of his or her obligation to preserve clients’ electronically stored information (ESI)? Countless. In this day and age, every lawyer has heard of the latest Sedona Principles, Rules of Civil Procedure, and Rules of Professional Conduct pertaining to ESI- not to mention the eminent Zubulake opinions that jumpstarted it all.

November 6, 2015

Redevelopment Agency Redux? By Jane M. Samson

Governor Brown and the legislature did away with California's redevelopment agencies over three years ago, in a rough-and-tumble battle that ultimately ended with the California Supreme Court upholding the Governor's plan. Even as the dismantling process has been playing out, however, efforts have been ongoing to bring back redevelopment -- at least in some form. Last week, another step was taken along this road, when the Governor Brown signed AB 2 into law.

September 29, 2015

Represent Athletes? Be Certain You're Complying with Miller-Ayala By Michael B. McClellan, Eric J. Rollins

Most sports agents in California are familiar with the Miller-Ayala Athlete Agents Act (“Miller-Ayala” or “the Act”). Among other things, they know they must refer to the Act in their representation agreements with athletes and keep disclosures required by the Act on file with the California Secretary of State. However, many agents do not understand how badly failure to comply with the Act can affect their businesses.

September 29, 2015

The Mechanics of Paying Employees and Providing Wage Statements: How to Ensure Compliance and Avoid Costly Penalties By Jason L. Morris

Most business owners and Human Resources advisors are acutely aware of employers’ obligations regarding accurately and timely paying employees. Problems can arise, however, with the method of delivering wages and providing wage statements. As with other wage and hour violations, California imposes costly penalties on non-compliant employers. Ensuring your company is squared away regarding the method of paying employees and providing them with wage statements can save you significant time and money. This article reviews basic principles under California law regarding the method of paying employees and delivering wage statements.

September 29, 2015

Likelihood of Confusion Determination in Federal Court Trademark Infringement Lawsuit Is Subject to Issue Preclusion Based on a Prior TTAB Adjudication By Jonathan N. King

In B&B Hardware, Inc. v. Hargis Industries, Inc. 135 S.Ct. 1293 (2015), the United States Supreme Court held that so long as the other ordinary elements of issue preclusion are met, when the usages adjudicated by the Trademark Trial and Appeals Board (“TTAB”) are materially the same as those before a District Court, issue preclusion should apply.

September 29, 2015

SB800 Confirmed as Exclusive Remedy for Construction Defect Claims By Jeffrey R. Brower

In McMillin Albany LLC v. Superior Court (Cal. Ct. App., Aug. 26, 2015) 2015 Daily Journal D.A.R. 9931 (“McMillin”), the Fifth Appellate District Court of Appeal in California published a resounding win for builders, general contractors, and others entities seeking the protections of the Right to Repair Act, Civil Code sections 895, et (“SB800”). The McMillin Court firmly rejected the reasoning and outcome of both Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98 (“Liberty Mutual”) and Burch v. Superior Court (2014) 223 Cal.App.4th 1411 (“Burch”.)

September 28, 2015

Employee vs. Independent Contractor Status: A Critical Decision for California Employers By Thomas H. Reilly

The days are over when employers could use the independent contractor classification
indiscriminately as a “catch all” for agents who do not fit within existing job
classifications. Independent contractor classifications are scrutinized carefully by
plaintiff’s attorneys and by state and federal regulators. The author of this article
provides a brief history of the independent contractor classification, reviews the factors
courts consider when determining independent contractor status, and explains
the potential warning signs of misclassification.

June 4, 2015

Misclassifications of Non-Exempt Employees and Some Ways to Avoid Them By Thomas H. Reilly

Misclassification of non-exempt employees continues to be a vexing problem for many employers, especially in California. In some cases, misclassifications result from ignorance of the law, such as an assumption that paying an employee a salary is, by itself, sufficient to exempt the employee from entitlement to receive overtime premiums. In other cases, misclassifications result from subtle legal distinctions, such as the Fair Labor Standards Act’s limitation of the inside sales exemption to employers who meet the esoteric requirements of a traditional retail sales or service establishment.

April 30, 2015

Easement, License or Both? By Rhonda K. Kreger

The terms easements and licenses are sometimes used interchangeably by laypersons and lawyers alike. Easements and licenses, however, represent very different and distinguishable rights.

April 29, 2015

Beware Design Professionals- Construction Defect Litigation Is Not Just for Subcontractors Anymore

In Beacon Residential Community Assn v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, the California Supreme Court issued a broad ruling creating potentially extensive liability for architects who are the principal designers of residential projects. The Court held that such design professionals owe a duty of care to purchasers and can be liable for negligence even when they do not build the project and do not exercise control over construction decisions.

April 29, 2015

How the Amended California Family Rights Act Regulations Will Impact Your Business By Jason L. Morris

In March 2015, the Office of Administrative Law approved amendments to regulations promulgated by the Fair Employment & Housing Council (FEHC) interpreting the California Family Rights Act (CFRA). The updated CFRA regulations will take effect on July 1, 2015. When the FEHC announced its proposed changes to the regulations, its stated objectives were to supplement existing CFRA regulations, clarify confusing rules, and adopt some of the parallel Family and Medical Leave Act (FMLA) regulations. This article reviews basic principles under the CFRA and then summarizes the changes that will go into effect on July 1.

April 29, 2015

Court of Appeal Clarifies Indemnitee's Right to Present New Evidence After Settling with Injured Party By Alan H. Packer

When a claimant advances a damage claim based on one causation theory, but the defense investigation reveals a different cause of the damage, what evidence can be used in an indemnity or insurance trial regarding causation?

April 29, 2015

The California Environmental Quality Act: Reform Remains Elusive By Michael W. Shonafelt

Next year will mark the 45th anniversary of the enactment of the California Environmental Quality Act (known more commonly by the acronym “CEQA”), which was signed into law by Governor Ronald Reagan in 1970.

April 10, 2015

New Rule on Wireless Towers May Frustrate City Planners By Michael W. Shonafelt

FCC's new guidelines adopted in December 2014 set some new guidelines to be aware of under Section 6409.

February 14, 2015

Changing Business Entity Forms? By Alan H. Packer

Complications arising from state licensing laws can jeopardize a construction contractor’s ability to get paid...

January 6, 2015

Agreement to Subordinate Mechanic's Lien Enforceable

Contractors are routinely compelled by lenders to sign agreements to subordinate mechanic’s liens as a condition to fund construction loans. Such agreements memorialize the contractor’s assent to subordinate its mechanic’s lien rights to the lien of the deed of trust securing the lender’s construction loan.

January 2, 2015

CLM Around the Nation: Employee Error Corrected in Duty to Defend By Graham C. Mills

..."notes made by an insurer's employee are evidence..."

December 15, 2014

Be careful how aggressive you are with homeowners' counsel, you may actually get what you want. By J. Nathan Owens

In March of 2010, Developer received a SB 800 notice covering 134 homes...

December 2, 2014

Ensuring a Silent Night: Reducing the Risks of the Office Holiday Party By Michael J. Studenka

November 28, 2014

Getting the Most Out of Due Diligence Period by Jane M. Samson

A well-conducted diligence process identifies surprises (for good or ill) before too much time and money have been sunk into a transaction.

November 11, 2014

What's So Different About Healthcare Leasing Transactions? By Jane M. Samson

Over the past decade, healthcare real estate has come to be viewed as a new asset category, ...

November 3, 2014

Delays & Disruptions

In recent cases involving no-damages-for-delay clauses ...

October 9, 2014

California Legislature Amends Insurance Requirements For LLC Contractor Licenses

The Contractor's State License Law was amended, effective January 1, 2014, to revise the insurance requirements for limited liability companies seeking to obtain or renew contractor licenses. Limited liability companies will be able to obtain liability insurance from either admitted carriers or surplus line carriers to satisfy the insurance requirements imposed by the law.

September 17, 2014

Shifting Fees And Costs In Nevada Construction Defect Cases

In Nevada, homeowners who sue a builder for residential constructional defects may recover attorneys fees and costs caused by the defect. Many times, the request for attorneys fees can outpace the size of the actual claim for defects. However, Nevada provides builders with two ways to potentially shift the right to recover attorneys fees and costs away from the homeowner and to the builder.

September 17, 2014

Unsteady Ground: Corps of Engineers Denies Contractor's Type I Differing Site Condition Claim On Iraqi Project

Site conditions that differ from what the contractor expects

September 17, 2014

Navigating Employee Use Of Social Media In The Worldplace

With over one billion people on Facebook and over 200 million on Twitter, social media is a booming force that has worked its way into the employment sphere. Reconciling employee and employer rights in this sphere is a new and developing area of law that creates uncertainty for employers. In 2010, the National Labor Relations Board (NLRB) began investigating complaints related to employee social media activity, at times involving very public complaints and embarrassing anecdotes regarding places of business.

September 17, 2014

Expanding The Scope Of Wage And Hour Claims

Wage and hour disputes just became more expensive for California employers. In Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819 [166 Cal.Rptr.3d 242], the California Court of Appeal held that employees may, in certain circumstances, allege that violations of the Labor Code resulted in their constructive discharge.

September 17, 2014

Beware Of Changes To California's Uniform Limited Liability Company Act

If you are contemplating forming a limited liability company in California or are a member or manager of an existing limited liability company doing business in California, you should take note of recent changes in California limited liability company law. These changes may affect your business.

September 17, 2014

Beware: The Indemnity Clause in Your Nevada Contract Likely Does Not Provide The Protection You Think You Have

Sophisticated businesses include indemnity clauses in their contracts to protect against costs and liability in the event a lawsuit arises out of the transaction. What may surprise you is that the Nevada Supreme Court has made rulings over the last several years that have eviscerated the protections those indemnity provisions were supposed to provide.

September 17, 2014

Navigating The Confusion In Competitive Bidding

One of the first hurdles contractors face when they get involved in a construction project may be the bidding or contracting process. Under California law, a contractor's approach toward this process will vary greatly depending on whether the project is private or public.

September 17, 2014

Getting the Most Out of the Due Diligence Period

The due diligence period is a buyer's opportunity to 'kick the tires' of a property it is considering acquiring by performing a variety of investigations and studies. A well-conducted diligence process will yield benefits by identifying surprises (for good or ill) before too much time, money and effort have been sunk into a transaction.

September 17, 2014

All Good Things Must Come to an End: When You Should Consider Terminating Your Residential Development Single Purpose Entity

Nothing in real estate development creates more confusion or poses the potential for more future problems than the decision of when to terminate a single purpose entity (SPE) used with the development of a residential project. While terminating an SPE should be straightforward, deciding when to terminate is more complex than one may think.

September 17, 2014

The Perils of Recruiting Employees to Relocate

The bleak economy of the past six years touched nearly every individual and business in California and the country. As the housing market recovers and the economy begins to grow, optimism seems to be taking hold.

September 17, 2014

Statements Made By An Insurance Company's Employees Can Be Used As Evidence That It Must Provide a Defense

The Court of Appeal in North Counties Engineering, Inc. v. State Farm General Insurance Co. recently issued a significant opinion finding that statements and notes made by an insurance company's employee can be used as evidence that an insurance company has a duty to defend its policyholder in a lawsuit.

September 17, 2014

Brian Morrow was published in Better Roads Magazine:

September 10, 2014

Alan Packer was published in Builder Magazine this month, find the article at:

September 10, 2014

Brian Morrow was published in Better Roads Magazine:

August 1, 2014

Authenticating Web Evidence (California Lawyer, Aug. 2014)

August 1, 2014

Newport Beach / Corona Del Mar Patch

Newmeyer & Dillion, LLP Announces Pro Bono Program to Support Local Communities

June 21, 2014

Newport Beach Independent

Newmeyer & Dillion Announces Pro Bono Program

June 19, 2014

Orange County Register

Leadership: Friend for Fragile X

June 2, 2014

Rancho Canyon News

"Friends for Fragile X names new board members"

May 30, 2014

Orange County Register

"PEOPLE: Friends for Fragile X names new board members"

May 28, 2014

Orange County Bar Association

"Newmeyer & Dillion Hires Jonathan Terry as Partner"

May 21, 2014

"Executive Moves"

May 16, 2014

Orange County Business Journal

"You Are Not Out of the Woods Yet!"

May 12, 2014

OC Register Metro

"Movers & Shakers - Jonathan Terry"

May 6, 2014

Orange County Register

"On the Move"

May 1, 2014

Jury Verdict Review & Analysis

"$921,500 Verdict Eminent Domain"

April 30, 2014

Human Resources Executive

"Still Unclear on ADA Accommodations?"

March 17, 2014

Orange County News

"A heartfelt effort for a good cause"

March 11, 2014

The Navy Reservist

"Navy Reserve Legal: Support, Assistance and Expertise"

March 1, 2014

Law Crossing

"Why are some attorneys better negotiators than others?"

February 17, 2014

San Francisco Business Times

"Karl Foster - Bay Area People"

February 13, 2014

Better Roads

"The cheaper the better?"

February 10, 2014

"CRE Law Firm Continues Bay Area Expansion with New Hire"

February 7, 2014

The Registry

"Top California Business And Real Estate Law Firm Newmeyer & Dillion Expands Its Walnut Creek Branch"

February 5, 2014

"Executive Moves"

January 31, 2014

Construction Today

"How Clean are Your Contracts?"

January 31, 2014

Newport Beach Independent

"Newmeyer & Dillion Hires Three Attorneys"

January 24, 2014

San Francisco Business Times

"Brandon Clouse - Bay Area People"

January 23, 2014

The Registry

"Newmeyer & Dillion Hires Transaction Specialist Karl Foster For Walnut Creek Office"

January 22, 2014

OC Metro

"Movers & Shakers

January 16, 2014

Los Angeles Daily Journal

"Day of Reckoning for Securities Class Actions"

December 19, 2013

Day of Reckoning for Securities Class Actions (Los Angeles Daily Journal, Dec. 19, 2013)

December 19, 2013

When Smartphones Are Not Smart For Your Employees: The Risks of Remote Access in Your Workforce By Michael J. Studenka

September 2, 2013

Whose Streets? California Public Utilities Code Section 7901 in the Wireless Age By Michael W. Shonafelt

When the fledgling California State Legislature convened for its first session in the old State Capital of San Jose in the year 1850, it enacted legislation to open the roads of the state to a new form of communications technology: the telegraph. The new law was titled “an Act concerning Corporations.” Among other things, it conferred on telegraph corporations “the right to construct lines of telegraph along the public roads” throughout the width and breadth of the new state.

March 4, 2013

The Role of Wireless in the New Economy By Michael W. Shonafelt

These days itʼs easy to fixate on the wreckage of the last economic order. Maybe itʼs time to look
to the future. By many accounts, the New Economy will arise from the Information Age

January 30, 2012

California Supreme Court Ruling Backs Developers By Jeffrey M. Dennis

The recent Crawford v. Weather Shield Mfr., Inc., ruling provides further support for builders forced to defend themselves in lawsuits arising out of trade contractor errors.

November 1, 2008

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