What Lawsuits and Disneyland Have In Common: The Emotional Costs of a Lawsuit
Whether you came to the decision to look for an attorney because you’ve been served with a lawsuit and have no choice but to defend yourself, or if you have reached an impasse in a dispute and have no choice but to say “see you in court,” what happens after this point is likely a mystery for you. If that’s the case, this is what a lawsuit looks like. But there’s also an emotional part of a lawsuit. Therefore, in addition to the obvious considerations of finding a capable attorney that you like and trust and the financial costs, you should also prepare for the emotional costs of a lawsuit. Since Disneyland’s just up the freeway, I’ll liken it to a day at Disneyland. It’s a Long Process If you’re traveling into town specifically to visit Disneyland with the kids, you expect to get there when the park opens, stay for the parade and fireworks, and even until the park closes. You may expect to do that for 3 days in a row. Why? The Lines are Long If Disneyland … Continue reading
Do I Need a Written Contract?
You may have been in the situation where you had an agreement with someone else to do something. It may have been a family member, a friend, a customer, or a service provider. You or the other person didn’t want to go through the formal process of putting it in writing because you have a close relationship, don’t want to offend the other person, or don’t want them to think you don’t trust them. Then something goes wrong. You discuss it with the other person and now there’s a dispute as to what you both actually agreed to, or you never talked about what you two would do if x, y, z happens. Do you have a breach of contract claim? Maybe. In this scenario, your first and most difficult hurdle in prevailing in a breach of contract lawsuit is the lack of a written contract. There are multiple reasons why you would want a written contract. Here are a few: It gives clarity regarding each person’s rights and duties. The process of creating a contract forces the parties to … Continue reading
Help! What Are My (Immediate) Defenses to a Federal Trade Secret Claim?
[Originally published without image as Help! What Are My (Immediate) Defenses to a Federal Trade Secret Claim?, by Lily Li and Andrea Paris, in Orange County Lawyer Magazine, September 2016, Vol. 58 No.9 on page 52.] The Defend Trade Secrets Act of 2016 (DTSA), signed into law by President Obama on May 11, 2016 creates a new federal cause of action for trade secret theft. Not only does the DTSA open the doors of the U.S. district courts to trade secret plaintiffs, it weaponizes complaints. Now, upon a showing of immediate and irreparable injury, plaintiffs in trade secret cases can request extraordinary relief: court-ordered seizure of the misappropriated trade secrets without notice to the defendant. This relief is above and beyond what is provided for by the Uniform Trade Secrets Act (UTSA), the trade secret law adopted by most states, including California, and copies many of the civil seizure remedies previously available to copyright, trademark, and patent plaintiffs for infringing and counterfeit goods. This extraordinary relief comes with several safeguards. Defendants, faced with the prospect of a U.S. Marshal knocking on (or down) … Continue reading
Pretext and Age Discrimination
A California Court of Appeal recently upheld an award of $16 million against Staples for age discrimination in a case called Nickel v. Staples. The majority of that award ($13 million to be exact) was in the form of punitive damages, which are meant to punish the defendant for its wrongful conduct. I found the court’s analysis in this case particularly interesting because many employers have a false sense of security that terminating older employees because they generally have higher salaries and cost the company more is a legitimate business decision. However, it’s evidence of that reasoning that justified the large punitive damages award. Workers Who Are Over 40 Years Old Protected from Discrimination Employers with over 5 employees are subject to the Fair Employment and Housing Act’s (“FEHA”) anti-discrimination laws. Government Code Section 12940(a) makes it a wrongful employment practice to discriminate against someone in the terms and conditions of their employment because they are over 40 years old. An easy rule of thumb for employers to remember is: whenever age the motivating factor for an employment decision, you … Continue reading
Arbitration Agreement: Do I Want It?
You probably signed an arbitration agreement at your last doctor’s visit, when you signed up for your gym or yoga studio membership, or when you signed a listing agreement with your realtor. The ubiquity of these agreements makes it especially important for us to understand them as consumers, business owners, employers, and employees. What is an arbitration agreement? Arbitration is one of the alternative means of resolving disputes (alternative to filing a lawsuit that is). Thus, an arbitration agreement is an agreement to take disputes out of the court system to be decided by a private arbitrator (or a panel of arbitrators) usually following a different set of procedural rules than the court. People and companies choose to arbitrate for various reasons. The process is generally more streamlined and allows for a quicker resolution of disputes. It is often times cheaper than litigating in court, and the proceedings are typically not part of the public record. Lastly, the conventional wisdom is that you reduce the risk of a run-away-jury. Do you want to arbitrate? Whether agreeing to arbitrate potential disputes … Continue reading
What to do Before You Sign a Contract
Congratulations! You made a deal, reached an agreement, or resolved a dispute and now you’re ready to sign a contract to make it all official. If this contract is important enough to you, pause for a minute, read it carefully, and ask an attorney to review it. Why? There are 2 reasons: Whoever drafts the contract will include terms and provisions that are in their favor. They have no obligation, duty, or interest (generally) in watching out for your interest. But your lawyer does. Every time I review a contract and explain the various clauses to my clients, there are a few clauses that my clients did not understand or was against their interest and invariably had to be negotiated and revised. You may have an engineering degree from MIT and be the smartest person in the room but unless you’ve seen the same clauses day in and day out and have seen their implications in the litigation context, you may not have an accurate understanding of the contract. Contract pitfalls to look out for. This is by no means an all-inclusive list. … Continue reading
Support Animal as a Reasonable Accommodation
New regulations related to the Fair Employment and Housing Act (FEHA) went into effect on April 1, 2016. Among the various additions, which touch on a broad range of discrimination issues in employment, is a discussion about support animals as a reasonable accommodation in the workplace. As a servant to my 3 dogs and lawyer who has worked on dog bite cases, this was of particular interest to me. The new regulations specifically discuss assistive and support animals in the area of disability accommodation and provides that an assistive animal, including support animals, may constitute a reasonable accommodation in certain circumstances. What is an “Assistive Animal”? According to the new regulations, an “assistive animal” is defined as an animal that is necessary as a reasonable accommodation. These include: guide dogs for the visually impaired, signal dogs for the hearing impaired, and trained service dogs that meet the requirements of the Civil Code related to training and licensing. Additionally, a “support dog” or other animal that provides emotional, cognitive, or other similar support to a person with a disability, including, but … Continue reading
Disability Accommodation
Here’s a common situation, an employee calls in sick and a couple of days later you receive a doctor’s note taking the employee off work for 2 weeks. If you are an employer with 5 or more employees in California, you are subject to the anti-discrimination provisions of the California Fair Employment and Housing Act (“FEHA”). If you have 15 or more employees, you are also subject to the Americans with Disabilities Act (“ADA”). Both laws require employers to find a reasonable accommodation for an employee who suffers a physical or mental disability so that the employee could return to work. California employers have the added duty to engage in the interactive process in good faith. The interactive process is simply engaging the employee in a dialogue to understand their restrictions and available accommodations. Why does it matter? From a management perspective, truly engaging in the interactive process and making the appropriate efforts to accommodate a disabled employee shows all your workers that they are valued beyond being merely disposable workers. From a legal/monetary standpoint, doing it right will prevent … Continue reading
Politics in the Workplace: Navigating the Landmines
This year’s heated election cycle and last week’s shootings have left nerves raw. I see evidence of this on Facebook every day as “Friends” express their anger, fear, and criticism in memes, status updates, and comment wars. With the parallel existence of our virtual and real lives, these same sentiments are just under the surface in conversations at work and will undoubtedly bubble to the surface, if not explode, at work. As an employer, how do you maintain a cordial work environment, ensure that your employees feel safe and are productive, and also protect yourself from a lawsuit? To help navigate through the rest of this year, California employers should be mindful of 3 main principles when it comes to politics in the workplace. Beware of forcing your politics on your employees. Yes, at this point there is no question that corporations have the right to free speech. However, California law prohibits employers from “[c]ontrolling or directing, or tending to control or direct the political activities or affiliations of [their] employees.” (Cal. Lab. Code § 1101.) Additionally, Section 1102 of the Labor … Continue reading
What to Do When a Client Doesn’t Pay
This is the first post in a new series called “What to Do” where I will discuss “what to do” in various common situations that come up in small and medium sized businesses. Feel free to send me your “what to do” question. Today’s topic is what to do when a client doesn’t pay. This is a common problem that businesses big and small face and if you’re in business, you’re selling services or products in exchange with the expectation that you will be paid for those services or products. The cost to your business of unpaid invoices is not just the dollar amount on each invoice but the opportunity cost of the investment you could make in your business from that income. Additionally, it costs your business time and money to collect on unpaid balances. Thus, the cumulative effect of multiples unpaid invoices, even for small outstanding amounts, is detrimental to your business’s viability and growth. Before starting work: For the proactive business here are some tips to help you avoid or minimize the change of having a client … Continue reading