Dynamex Applies Retroactively Says 9th Circuit: Businesses Now at Risk Back to 2014 The US Court of Appeals for the Ninth Circuit recently held that the Dynamex decision applies retroactively. See news report here. Dynamex was decided in April 2018 and changed the rules on how California businesses are [...]

Protect Your Company's Twitter/Social Media Accounts With "Claim and Delivery" (Replevin) Clauses When an employee separates from a business — voluntarily or involuntarily — one of the thornier problems crops up if the employee exits with a Twitter handle or social media account. Speed is of the essence in [...]

Assemblymember Lorena Gonzalez (D., San Diego) Introduces Bill to Codify Dynamex Decision State Assemblymember Lorena Gonzalez, elected from here in San Diego, has recently introduced a bill -- known as AB 5 -- that would convert the Dynamex decision into statutory law. See news report here. As we have [...]

"No" to Implied Class Action Arbitrations Says SCOTUS In another sure-to-be-controversial decision, the US Supreme Court, by a 5-4 margin, recently held that class action arbitrations cannot be compelled unless explicitly agreed to. The case is Lamps Plus, Inc. v. Varela, Case No. 17-988 (US Supreme Court April 24, [...]

San Diego Mergers & Acquisitions: Are No-Shop Clauses Valid in California? In a merger and/or acquisition agreement, often the parties agree to what is called a "no shop" clause. A typical "no shop" clause prohibits a seller from soliciting or considering new or alternative bids for the business for [...]

Thoughts on Legal Risks Re: Your CCPA Data Collection and Use Notices The California Consumer Protection Act ("CCPA") is going into effect at the beginning of 2020. There are various statutes being proposed right now in the State Assembly intended to make the CCPA even more protective of consumers. [...]

Mergers and Acquisitions: Attention to Detail is Essential During Due Diligence A recent California Court of Appeals decision gives a good illustration of the importance of paying close attention to every detail of important contracts during merger and acquisition due diligence. See Triyar Hospitality Management, LLC. v. WSI (II) [...]

What is a Suit for “Trade Contract Price” When your San Diego business delivers goods, but you are not getting paid, you have several options in terms of filing a lawsuit. First, you can sue for breach of contract — hopefully, a lawsuit based on a written contract. Here [...]

False Advertising/Labeling: Ninth Circuit Holds That Standard for "Literally False" is Lenient Two recent opinions handed down by the US Ninth Circuit in San Francisco have clarified that the summary judgment legal standard for "literally false" labeling and advertising is a lenient standard -- preponderance of the evidence. See [...]

Confidentiality and Nondisclosure Agreements: Three San Diego "Must-Use" Circumstances Confidentiality and nondisclosure agreements are essential to any San Diego business. A confidentiality and nondisclosure agreement is an agreement that protects the confidentiality of your company's data and trade secrets. These agreements are not just for inventors or for those [...]

The Importance of Checking Corporate Status Before Contracting If your San Diego business is entering into a contract with another business, it is important to investigate the status of the corporation or other entity form with which you are about to enter a relationship. An experienced San Diego corporate [...]

Lessons From FTC v. UrthBox: Do Not Use Undisclosed Paid Online Reviews If your San Diego business is currently using online endorsers and is offering some sort of free trial, seek counsel and advice from an experienced San Diego corporate attorney to ensure compliance with federal and California statutes. [...]

More on the Doctrine of Standing: Ninth Circuit Says Inaccurate Credit Reporting Not Sufficient for Standing In good news for San Diego businesses, the US Ninth Circuit Court of Appeals up in San Francisco recently held that, without more, a claim that credit information was inaccurately reported was not [...]

Low Cost, Finality, and Speed: The Three Main Advantages of Arbitration For San Diego businesses, there are many advantages to using arbitration as the dispute resolution mechanism in business contracts. The three most prominent advantages are low costs relative to court litigation, finality, and speed. These advantages are connected; [...]

Websites Must be Accessible to the Blind, Says US Ninth Circuit: Robels v. Domino's Pizza The US Ninth Circuit recently issued its opinion in Robels v. Domino's Pizza, Case No. 17-55504 (US 9th Cir. January 15, 2019), holding that websites and mobile phone apps must be accessible to the [...]

San Diego Business Contracts and Unjust Enrichment There is a legal doctrine here in California called "unjust enrichment." This is a cause of action that can be brought in a San Diego court where the plaintiff — the person suing — claims that he or she has incurred some [...]

What if You Receive a Text Message as "Written Notice" Under a Contract? Recently, we discussed some of the legal implications of sending a text message to deliver a notice that is required under a contract. As we discussed in part I of this series, unless notice-via-text-message is listed [...]

San Diego Business Contracts: What is a Mutual Release Agreement? A "mutual release agreement" is an agreement by which two or more parties agree to settle a dispute and to release each other from any future legal liability going forward. An experienced San Diego corporate attorney should be consulted [...]

Due Diligence and Business Divorces Business divorces happen all the time. A business divorce has three things in common with a personal divorce: The divorce can span the spectrum from hostile and acrimonious to cordial and peaceable; The divorce can be caused by simply losing interest or because of [...]

Good News for San Diego Not-For-Profits: Expressive Trademarks Protected by First Amendment A federal court here in the Golden State recently held that expressive trademarks are protected by the First Amendment of the US Constitution. In general, trademarks and service marks are considered commercial — a designation of the [...]

California Court Says Business Cannot Use Sham Lawsuit to Defeat Fraudulent Transfer Action Under California law, a San Diego person or business cannot avoid paying its creditors by transferring property or items of value to someone else. Such transfers are voidable — that is, the creditor can file a [...]

San Diego Business Law: Legally Speaking, What is Standing? Recently, the U.S. Supreme Court reversed the U.S. federal Ninth Circuit Court of Appeals in San Francisco in the case of Frank v. Gaos, No. 17-961 (US Supreme Court Mar. 20, 2019). The case involved an allegation by various plaintiffs [...]

San Diego Securities Fraud: Disseminating a Statement That You Know is False is Fraud Says SCOTUS San Diego companies and those involved in the offer and sale of securities know that making false statements will create potential legal risk — both the risk of civil and criminal liability. Making [...]

San Diego Employers: Do I Have to Pay Workers Who do Company-Sponsored Volunteer Work? A recent employment and social activism trend is to encourage workers to participate in volunteer and non-profit work programs. Many San Diego employers have jumped on the bandwagon. An example would be an accounting or [...]

San Diego Vehicle Dealerships and the Doctrine of Unclean Hands Like many jurisdictions, California has a legal doctrine called "unclean hands." This doctrine applies as a defense to a lawsuit filed by another. The doctrine requires that, in the lead-up to a lawsuit, the plaintiff act fairly in the [...]

Of Sour Gummies and Starbucks: California Federal Court Dismisses Misleading Labeling Case Any San Diego or California company that makes or sells any consumer product must be very careful with packaging and labeling. A massive number of false advertising and improper labeling cases have been filed over the last [...]

Merger & Acquisition Data Issues: What Data Does the Target Have and What About Consents and Notices? The California Consumer Protection Act ("CCPA") becomes effective January 1, 2020. See Cal. Civ. Code, § 1798.100 et seq. The CCPA imposes on businesses that collect personal data a long list of [...]

Slack Fill Update: Chicago Federal Judge Dismisses Junior Mints Case Slack fill laws are in the news again. A federal judge in Chicago has just dismissed a claim by an Illinois woman that her box of Junior Mints was not full enough. See news report here and here. The [...]

San Diego Mergers and Acquisitions: Real Estate and Title Insurance Issues If real estate is a component of a San Diego merger and/or acquisition, then special and careful attention must be paid to title insurance issues. Retaining an experienced San Diego corporate attorney is essential. As most know, title [...]

Another Case Nullifies a Non-Solicitation-of-Employees Agreement A few months ago, we wrote about the case of AMN Healthcare, Inc. v. Aya Healthcare Services, Inc., Case No. D071924 (Cal. App. 4th Dist. November 1, 2018). See here. In that case, we discussed how the court found an employee non-solicitation agreement [...]

San Diego Copyrights: Careful How You Register Photos When a San Diego business registers photographs for copyright, there is a choice between registering them as individual photos or as a compilation. The most common issues are cost, as fees are charged per registration, and practicality, as one registration form [...]

San Diego Mergers and Acquisitions: What is a Reasonable Termination Fee? A typical merger purchase agreement will contain various termination rights and will also include termination fees (also called "breakup fees"). The idea behind termination fees is to protect both parties to the merger agreement if the merger is [...]

Employees are a Huge Threat to Your Data: Strategies for Reducing Risk Recently, Verizon published a report on cybersecurity and data breaches. See full report here. It is an interesting report focusing on the threat to data posed by insiders such as employees and third-party "partner organizations." According to [...]

The Case of Elon Musk: Securities Fraud and Being Careful with Your Tweets Last year, Elon Musk, the CEO of Tesla, Inc., got himself in hot water with the Securities and Exchange Commission ("SEC") about some statements he made and some tweets he sent. The SEC regulates securities in [...]

San Diego Employers: Do We Have to Allow Emotional Support Squirrels? San Diego and California employers are familiar with the idea that "reasonable accommodations" are necessary when an employee claims a disability. Under the Americans With Disabilities Act (ADA), "disability" includes an emotional disability. A recent trend in treating [...]

Can a Text Message be Considered "Written Notice" Under a Contract? Many business contracts have what are generally called "notice provisions." These generally state that, for some particular issue related to the contract or breach of the contract, one party must notify the other side. Examples include a "notice [...]

Franchising News: FTC Proposes New Franchisor Disclosures The Federal Trade Commission (“FTC”) recently requested public comments on its proposed changes to what is known as the FTC's “Disclosure Requirements and Prohibitions Concerning Franchising” (the “Disclosure Requirements"). Here in San Diego, franchising is regulated by both the federal government and [...]

San Diego Online Retailers: Paying for False Online Reviews Will Bring Legal Trouble The Federal Trade Commission Act prohibits businesses from engaging in unfair and deceptive business practices including deceptive and false advertising. FTC Act, 15 U.S.C. § 41 et seq. Here in the Golden State, there is a [...]

How the California Courts Evaluate Liquidated Damages Clauses When required to interpret a liquidated damages clause, California courts use a two-part test. A liquidated damage clause is a provision whereby the parties to a contract agree, in advance, on the amount of damages that one party will receive in [...]

New Overtime Rules from the Feds: Little Impact for San Diego Employers The federal Department of Labor ("DOL") recently proposed new regulations with respect to overtime payment obligations under the Fair Labor Standards Act ("FLSA"). If ultimately adopted, the proposed standards would make over a million workers eligible for [...]

Caution With "Pay-If-Paid" Contract Clauses With respect to construction contracts and contracts between a general contractor and a subcontractor, the California Supreme Court has long ago declared that "pay-if-paid" clauses are unenforceable. Back in 1997, the court held a "general contractor's liability to a subcontractor for work performed may [...]

San Diego Business Law: Demand Letters and the Litigation Privilege Occasionally, a San Diego business will find itself confronted with a potential breach of contract. When this happens, one of the first steps to take is to send a "demand letter" asking that the other party perform its obligations. [...]

San Diego Business Law: Three Key Differences Between Breach of Contract and Tort There is often much confusion about the difference between legal liability based on breach of contract and liability based on tort. In this article, we offer a brief discussion of three key distinctions. Obligations Founded on [...]

San Diego Breach of Contract: Reliance Damages If there has been a breach of a contractual obligation, under California law, the non-breaching party is entitled to recover damages. Among the several types of recoverable damages are "reliance damages." These are monetary amounts or their equivalents that have been paid [...]

More on the Frustration of Purpose Doctrine: Brexit Not Sufficient Grounds The legal doctrine of Frustration of Purpose has been in the news lately. We wrote about the doctrine recently. Under California law, frustration of purpose will excuse performance of a contract if there is some unforeseen event or [...]

Copyright Law Update: Your Copyright Must be Registered Before You can Sue The US Supreme Court recently issued its opinion Fourth Estate Public Benefit Corp. v. Wall-Street.com, No. 17-571 (US Supreme Court March 4, 2019). The Court reaffirmed the Copyright Act's requirement that a copyright must be registered before [...]

San Diego Businesses: Not So Fast on Cashless Retailing In the news lately are a multitude of cities and states that are banning cashless retailing. Philadelphia just passed a city law prohibiting most retailers from refusing to take cash or charging cash-paying customers a higher price. Fine of $2,000 [...]

Employees Must be Paid When Required to Call-in for Shifts Under California labor laws and applicable Wage Orders issued by the Department of Industrial Relations, if an employer requires an employee to “report for work” that employee must be paid. See Wage Order 7; Cal. Lab. Code §§ 200-203, [...]

Fraud as a Defense to Breach of Contract: Capacity to Act Otherwise Required If a contract is breached, the party breaching the contract will likely be sued. Once in the courthouse, there are many defenses that can be asserted that, if proven, will allow the breaching party to avoid [...]

Tips for Avoiding Pitfalls of Two-Step Acquisitions Two-step acquisitions (or two-step mergers) are common in the business world, particularly when there are significant uncertainties as to cost/valuation, the "fit" between acquiring company and target, potential market directions, and other issues. A two-step acquisition can be a solution, but can [...]

Causation and Insurance Liability: Of Squirrels and Electrical Arcing With respect to drafting San Diego business and insurance contracts, special attention should be paid to drafting clear and comprehensive definitions of causation particularly because causation is one of the more difficult concepts to understand in the law. Indeed, causation [...]

San Diego Franchise Law: Ideas on Handling the Ostensible Agency Doctrine This article will discuss what is known in franchise law as the "ostensible agency" doctrine. Ostensible agency is a legal doctrine used by courts to decide who is considered the "employer" with respect to employees of the franchisee. [...]

McDonald's Loses its "Big Mac" Trademark in Europe: Three IP Lessons In case you had not heard, McDonald's lost its trademark registration for the "Big Mac" in the European Union (“EU”). See CNBC report here. This was big news and, as a result, industry competitors immediately sought to capitalize [...]

San Diego Businesses: Is it Time to Say "No" to Biometrics? In our modern world, businesses have a tendency to think that every new technology is the "wave of the future" and the "key" to efficiencies, profits, and success. But, occasionally, certain technologies are just too fraught with legal [...]

Consumer Privacy Act Updates: Senate Seeks to Remove Protections for Businesses California State Senator Hannah-Beth Jackson (D-Santa Barbara) recently introduced a bill to make the California Consumer Privacy Act even tougher. See report here. Of particular note, Sen. Jackson's bill would remove a 30-day cure period for businesses and [...]

San Diego Commercial Leases: Avoid Arguing Over What is a Trade Fixture or a Leasehold Improvement One of the more confusing aspects of commercial real estate law is distinguishing between what is a trade fixture and what is a leasehold improvement. However, dealing with these issues up front as [...]

Deceased Judge's Vote Does Not Count Much ado has been made in the news recently about the US Supreme Court's decision in Yovino v. Rizo, No. 18-272 (February 25, 2019). In Yovino, the Supreme Court vacated a decision by the US Ninth Circuit in San Francisco because the decision [...]

San Diego Businesses: Thoughts on Employee Handbooks and "Standalone" Disclosures Businesses are increasingly required to provide disclosures here in San Diego and across the country. As we have discussed here, the California Consumer Privacy Act was passed in 2018 and contains many disclosure requirements. Warning labels on packaging is [...]

California Business Contracts: The Right to Adequate Assurance of Performance Every San Diego business has had it happen: A contracting partner fails to perform or fails to deliver on time, and there is worry about why and whether the other party can meet its obligations. These situations can be [...]

Tips for Ensuring Your Automatic Renewal Clauses are Enforceable Many San Diego businesses, particularly online and service businesses, use automatic renewal clauses in their consumer contracts. As the name implies, automatic renewal clauses typically state that the contract extends for additional terms automatically unless the customer takes some active [...]

Can "Data Dividends" Make the Consumer Privacy Act Workable for San Diego Businesses Governor Gavin Newsom recently proposed what he called a “data dividend” that all California consumers should be paid when their personal data is collected. The Governor believes that consumers should "share in the wealth that is [...]

San Diego Gas Station Franchises: The Petroleum Marketing Practices Act When we hear the word "franchise," most of us probably think of a fast food restaurant. As we have discussed in previous posts, franchising is an enormous component of the American consumer marketplace and franchises are common in all [...]

San Diego Businesses: Do I Have to Worry About Climate Change Litigation? Climate change litigation is becoming an increasing threat to businesses here in San Diego and throughout California. At the moment, the targets of climate change litigation are big publicly held companies. Just last summer, the federal court [...]

San Diego Employers: Act Now to Avoid Class Action Arbitration As we have discussed, there are many good reasons why San Diego employers want to use arbitration provisions in their employee agreements and want to have their employees agree to waive their right to bring class action lawsuits as [...]

Tips for Handling the Legal Dangers of Workplace Romance Dating and romances between coworkers is common. Aside from lost productivity and lost efficiencies created by both successful and unsuccessful romantic entanglements, the behavior generates many legal dangers and challenges to the employer, including the following: Perceptions by others of [...]

Goonewardene v. ADP, Inc.: Workers Not Covered by Third-Party Beneficiary Doctrine A unanimous California Supreme Court recently issued an opinion providing further guidance on California's third-party beneficiary doctrine. The third-party beneficiary rule relates to contract law and is important for San Diego businesses. In general, parties can agree to [...]

Mixed Signals from Federal Courts on How Employers May Implement Mandatory Arbitration for Employees Of late, mandatory arbitration for employees has been a hot legal topic. As we have discussed on this blog, employers have good reasons for seeking to implement arbitration. Arbitration helps reduce the litigation costs and [...]

San Diego Trademark Use: Use Caution When "Blanding-Down" There has been a recent trend in marketing called "blanding-down" with respect to trademarks and trade dress. Blanding-down is when someone in the marketing department redesigns the company logo or trademark or trade dress by removing complicating elements like a background [...]

San Diego Mergers and Acquisitions: "Arbitration" Versus "Expert Determination" Contract law truly has infinite flexibility and complexity. Indeed, these are two of the greatest attributes of contract law. Since contracts are creatures of intent, the only limits are the creativity and desires of the parties. One example is the [...]

“Fiji Water Girl” and Contract Formation If you watched the recent Golden Globe Awards (or saw photos after the fact), you probably saw the "Fiji Water Girl." As an advertising promotion, Fiji Water Company, LLC, the company that bottles and sells Fiji Water, hired a model named Kelly Steinbach [...]

Free Speech and Commercial Speech: Ninth Circuit Strikes Down San Fran Billboard Warnings Labels With respect to warning labels and similar types of business regulations, there is an ongoing tension in the law between free speech and the interests of consumers and the public. Free speech is implicated because [...]

San Diego Commercial Leases: To Assign or Sublease? If you have commercial space in San Diego, you more than likely have a lease with the property owner. For various reasons — many quite legitimate business reasons — your company may need to be out from under the obligations of [...]

Mergers and Acquisitions: Three Strategies for Dealing With #MeToo or "Weinstein" Situations If your San Diego business is contemplating a merger or making an acquisition, it is increasingly important to include sexual harassment and good behavior representations and warranties in the early part of the process and to provide [...]

How California Courts Determine the Severability of Contracts Often, people think of a "contract" as some unified whole; a singular "thing." But, in truth, contracts are generally complex and involve a collection of obligations that are agreed to by both parties. Even a simple contract to deliver product contains [...]

To Initial or Not? Thoughts on Requiring Initials for Contract Provisions Among business executives and corporate lawyers, there is an ongoing and long-running debate about the value of requiring a party to a contract to initial various provisions and clauses in addition to signing the agreement. It is common, [...]

Employee BYOD: Compliance with California Reimbursement Laws BYOD is an acronym for "bring your own device." It is increasingly common for employers and businesses to allow or require that their employees use their own devices for business purposes. The most common device is, of course, employee-owned cellphones. But BYOD [...]

Five Reasons for Using In-Writing-Only Contract Amendment Clauses At their core, contracts are merely agreements between persons. There is nothing too mysterious about a contract. Contracts can be written out, can be made orally ("with a handshake"), or can be made via actions like "course of dealings." This is [...]

California Franchise Law: No Franchise if No Franchise Fee In California, franchise relationships are governed by statute. See Cal. Bus. & Prof. Code § 20001 et seq. Under the law, for a franchise relationship to exist, there must be an agreement — either in writing or an oral agreement [...]

Establishing Your Business Credit Rating: What is A DUNS Number? Many successful businesses at some point have incorporated and operate via some corporate entity like a C corporation, an S corporation, a limited liability company, or some other limited liability business entity. Using a corporate entity protects your personal [...]

Franchising News: National Labor Relations Board Reinstates "Entrepreneurial Opportunity" Factor One of the more vexing problems facing San Diego employers is a myriad of overlapping laws, regulations, and jurisdictions. This is readily apparent when considering how to classify a worker as an "employee" or as an "independent contractor." Among [...]

Ignore the Looming Fad of the So-Called "Smart Contract" With the rise of bitcoin and other blockchain currencies, there has been a smaller boom of "news" about so-called "smart contracts." San Diego Corporate Law suggests that you ignore this looming fad. The only thing "smart" about these so-called "contracts" [...]

San Diego Businesses: Prepare to Protect Biometric Data For several years now, Illinois has been on the forefront of protecting biometric data. Biometric data encompasses any sort of personally identifying biological information like a fingerprint or a retinal print or biometric information like the manner in which you walk. [...]

California Consumer Privacy Act Will Apply to Employees and Job Candidates As many know, California recently enacted the California Consumer Privacy Act. On its face and by its name, this Act is intended to protect the privacy of consumers with respect to various personal information. The California Consumer Privacy [...]

San Diego Small Businesses: Take Caution When Using Credit Reports in Hiring Walmart suffered a major defeat recently involving claims that it improperly used credit reports with respect to applications for employment. Access and use of credit reports for hiring purposes have long been subject to federal and California [...]

Regulation D: "Accredited Investor" Determination Must be Made Before the Sale In a recent decision from the Securities and Exchange Commission ("SEC"), the SEC has held that the determination of whether investors are "accredited" must be done before the sale, not after. The administrative proceeding was captioned In The [...]

Study: Merger and Acquisition Activity Strong in 2018 and Promising for 2019 Mergermarket.com recently released its 2018 study of merger and acquisition trends for 2018. Merger and acquisition activity was strong in 2018 despite political uncertainties, market volatility, and international trade tensions. Merger and acquisition globally activity exceeded $3.5 [...]

Avoiding Three Common Gray Rhino Events in Running Your Business Many of us have heard of "black swan" events in the business world. The hallmark of a black swan event is that it is surprising and shocking at the moment that it occurs, but in hindsight, everyone begins to [...]

Using the Trademark Registry as an "Idea Generator" for Expanding Your Business A solid business is one that has a "core business" that is done well and done profitably. That being said, every San Diego business should be on the constant lookout for ways to expand into new markets [...]