Aug. 29, 2014

City May be Liable for Damage to Residence from Falling Tree Under Inverse Condemnation

Posted by Carr McClellan   |   Share

When is a tree a “public improvement” for purposes of inverse condemnation?  According to one court, when the tree was planted by a city as part of a forestry program and maintained over a period of time.  City of Pasadena v. Superior Court (Mercury Casualty Co.) (2014) California Second District Court of Appeal No. B254800. […] Read More

Category: ,

Jul. 10, 2014

Are Internet TV Providers Cable Companies Now?

Posted by Carr McClellan   |   Share

Last month, in American Broadcasting Companies Inc. v. Aereo, Inc., the Supreme Court ruled that Aereo’s service of streaming broadcast TV over the Internet violated copyrights in the streamed TV shows.  Although this ruling appears at first blush to threaten Internet TV’s business model, it may pave the way for Internet TV companies to participate […] Read More

Category: ,

Jul. 3, 2014

Architects May Be Sued Directly by Homeowners Association for Design Defects

Posted by Carr McClellan   |   Share

In a unanimous decision, California’s Supreme Court has ruled that the principal architects for a condominium project may be sued directly by a condominium homeowners association for design defects.  The case, decided July 3, 2014, is Beacon Residential Community Association v. Skidmore, Owings & Merrill, LLP, S208173. Skidmore, Owings & Merrill and HKS, Inc. (collectively, […] Read More

Category: ,

Jun. 30, 2014

Court Awards Sanctions Against Buyer and Attorney for Meritless Claims Against Sellers’ Agent

Posted by Carr McClellan   |   Share

In a significant victory for brokers and agents, an award of $60,000 in sanctions against a buyer and her attorney was upheld by the California Court of Appeal. Plaintiff Joanne Peake purchased a home from the Underwoods, who were represented by a real estate agent, John Ferrell.  Two years after close of escrow, she discovered […] Read More

Category: ,

Apr. 16, 2014

California’s Minimum Wage Increases Will Impact the Pay of Your Exempt Employees and Commissioned Inside Sales Employees

Posted by Carr McClellan   |   Share

Most California employers are well aware that California’s minimum wage for non-exempt employees will increase from $8 per hour to $9 per hour on July 1, 2014, and to $10 per hour on January 1, 2016.   Many employers in San Jose and San Francisco think that the state wide increase will be a non-event because […] Read More

Category:

Mar. 17, 2014

Google Books is “Fair Use” of Millions of Books

Posted by Carr McClellan   |   Share

After years of litigation and uncertainty, the United States District Court for the Southern District of New York ruled that the Google Books project fits within the “fair use” exception to copyright law and cleared Google of copyright infringement claims by book authors and publishers.  Many predicted copyright infringement lawsuits when Google announced plans to […] Read More

Category: ,

Mar. 17, 2014

Ninth Circuit Makes Bad Copyright Law from Bad Facts

Posted by Carr McClellan   |   Share

In a decision that is already being criticized as “horrific” and “judicial activism,” the Ninth Circuit created copyright protection for an acting performance in a short film for which the actress read from a script and was paid for her work.  This is the classic “bad facts make bad law” decision.  The first words of […] Read More

Category: ,

Mar. 3, 2014

Ban the Box has Come to San Francisco: Is Your Employment Recruiting Process in Compliance?

Posted by Carr McClellan   |   Share

San Francisco’s Fair Chance Ordinance.  Effective August 1, 2014, a new San Francisco city ordinance, called the Fair Chance Ordinance, will strictly limit an employer’s ability to gather and utilize information about the criminal history of an applicant or employee.  Specifically, covered employers are not allowed to ask about an applicant’s criminal history including convictions […] Read More

Category:

Feb. 24, 2014

Eleventh Circuit Holds ERISA Fiduciaries Must Consider Social Security Determinations Issued After Claim Denial

Posted by Carr McClellan   |   Share

Courts have long held that ERISA plan administrators need to consider the evidence considered and the determination made by the Social Security Administration (SSA) in evaluating disability benefits claims.  But the Eleventh Circuit in Melech v. Life Insurance Company of North America, 739 F.3d 663 (11th Cir. 2014) has now ruled that administrators must consider […] Read More

Category: ,

Feb. 20, 2014

Hearsay Statements Increase an Employer’s Risk in California

Posted by Carr McClellan   |   Share

In reversing summary judgment for an employer in an age discrimination case, the California Court of Appeal extended the statement against interest exception to the hearsay rule set forth in California Evidence Code section 1230.  The case is Cheal v. El Camino Hospital No. H036548 (Sixth Appellate District, January 31, 2014), and it is now […] Read More

Category: ,

Dec. 16, 2013

WRONGFUL DISCHARGE IN CALIFORNIA: A longer commute may mean that the new job doesn’t mitigate damages

Posted by Carr McClellan   |   Share

Most California employers (and their counsel) likely believe that an employee who obtained new employment in the same business at a higher salary with a promotion that required similar skills would have obtained employment “comparable or substantially similar” sufficient to cut off continuing damages in his wrongful termination lawsuit.  Not so, according to a recent […] Read More

Category: ,

Nov. 18, 2013

Ninth Circuit Closes Copyright Infringement Statute of Limitations Loophole

Posted by Carr McClellan   |   Share

Which statute of limitations applies to lawsuits involving both copyright ownership and infringement claims?  This was an open question in the Ninth Circuit until Seven Arts Filmed Entertainment, Ltd. v. Content Media Corporation, No. 11-56759, ____ F.3d ____, 2013 WL 592356 (9th Cir. Nov. 6, 2013).  In ordinary copyright infringement cases, each infringing act creates […] Read More

Category: ,

Nov. 14, 2013

Copyright Roulette: Is Filing Application Sufficient to Bring Infringement Suit?

Posted by Carr McClellan   |   Share

Is filing an application for a copyright sufficient basis for filing a copyright infringement lawsuit?  The answer depends on where the copyright applicant files the case.  Some federal courts, including the Ninth and Seventh Circuit Courts of Appeals, hold that filing an application is sufficient to provide the basis for a copyright infringement claim.  Other […] Read More

Category: ,

Nov. 11, 2013

Employee Arbitration Agreements in California: Employers, Don’t Put Your Thumb on the Scale

Posted by Carr McClellan   |   Share

Recent decisions by the California Supreme Court, the Ninth Circuit Court of Appeals, and the California Court of Appeal demonstrate that California courts will scrutinize and find unconscionable employee arbitration agreements that excessively tilt the playing field in favor of the employer.  These decisions collectively provide guidance on terms to avoid and those to implement […] Read More

Category: ,

Oct. 18, 2013

California Court of Appeal Clarifies the Limits of Statutory Trade Secret Displacement (Supersession)

Posted by Carr McClellan   |   Share

In a case whose facts plainly compelled the outcome, California’s Fourth Appellate District held on October 15, 2013 in Angelica Textile Services, Inc. v. Jaye Park, No. D062405 that a claim for trade secret misappropriation under California’s Uniform Trade Secrets Act does not displace claims such as breach of contract, breach of fiduciary duty, unfair […] Read More

Category: , ,

Oct. 8, 2013

California Affirms Employer Arbitration Agreement, Providing Guidance

Posted by Carr McClellan   |   Share

Providing further clarity for the enforceability of arbitration agreements in employment contracts, California’s First District Court of Appeal upheld a boilerplate arbitration clause in Peng v. First Republic Bank, No. A135503 (Cal. Ct. App. September 26, 2013). Peng, an assistant manager for First Republic Bank, signed an employment agreement requiring arbitration before the AAA of […] Read More

Category: ,

Sep. 26, 2013

Employer Wins Bankruptcy Discharge of Withdrawal Liability

Posted by Carr McClellan   |   Share

The Ninth Circuit Court of Appeals recently ruled that employers may discharge multiemployer trust withdrawal liability in bankruptcy.  Employers required to contribute to multi-employer pension trusts face growing withdrawal liability for unfunded pension liability.  Until now it has been unclear whether withdrawal liability could be discharged in bankruptcy.  This was because a number of federal […] Read More

Category:

Sep. 23, 2013

An End to Inclusionary Housing Requirements

Posted by Carr McClellan   |   Share

The California Supreme Court has agreed to review the legality of a city’s inclusionary housing ordinance (IHO). At issue is the IHO adopted by San Jose.  The IHO applies to new developments of 20 or more residential units and requires that 15% of the units be set aside for purchase at below-market rates by households […] Read More

Category: ,

Sep. 10, 2013

Landlord May Hold Open Houses Over Tenant’s Objections

Posted by Carr McClellan   |   Share

Owners who want to sell residential rental units often meet strong resistance from the tenant who occupies the unit.  This is not surprising, as the sales process is disruptive to the tenant’s daily life and the end result is usually that the tenant will have to move, with little or no compensation. California Civil Code […] Read More

Category: ,

Aug. 16, 2013

Letters of Intent Save Clients Money

Posted by Carr McClellan   |   Share

The complexity of documents for business transactions continues to grow exponentially.  In 1985, a standard lease for a 5,000 RSF space was often less than 20 pages.  In 2013, it’s not uncommon for a lease for a 2,000 RSF space to exceed 100 pages.  What is a client to do? The answer:  a clearly drafted […] Read More

Category:

Aug. 9, 2013

Adverse Possessor Of Charitable Organization’s Land Need Not Pay Property Taxes

Posted by Carr McClellan   |   Share

True cases of adverse possession are exceedingly rare.  Some of the requirements are easily met –  possession of some or all of a property, under claim of right, for a period of five years.  The final requirement – payment of the property taxes assessed against the property being possessed – is nearly impossible to satisfy.  […] Read More

Category: ,

Jul. 25, 2013

Marriage and Capacity: The Mental Competence Needed To Tie (and Untie) the Knot

Posted by Carr McClellan   |   Share

Roughly half of all marriages in the United States eventually end in divorce.  The statistics are even bleaker in California, where the divorce rate hovers at around sixty percent.  In light of these odds, getting married in this day and age (and in a community property state, no less) hardly seems rational.  Well, the California […] Read More

Category: ,

Jul. 12, 2013

The Best Defense You’ve Never Heard Of – The Federal Enclave Doctrine Restricts Wrongful Termination Remedies

Posted by Carr McClellan   |   Share

The relatively obscure Federal Enclave Doctrine is potentially a powerful arrow in the quiver of defense counsel, where the tortious act complained of occurred on federal land.  In the context of employment-related claims, the doctrine may operate to limit an allegedly aggrieved claimant to federal (ADA) remedies to the exclusion of state law (FEHA) remedies […] Read More

Category:

Jul. 8, 2013

The One Thing In-House Counsel Should Know Before Opening Office Locations Abroad

Posted by Carr McClellan   |   Share

Globalization.  It is here.  That reality brings complexity.  And, unfortunately, with complexity comes legal fees. Among the complexities facing companies that want to go global is opening offices abroad.  We have been helping our clients do this with success for decades.  Over the years, we have discovered ways to maximize legal efficiency and resources to […] Read More

Category:

Jun. 26, 2013

Think Your Tweets are Private? Think Again

Posted by Carr McClellan   |   Share

Many mistakenly believe that their tweets and other social media posts are private and are protected at least to some degree from court-ordered production.  However, that is not reality, at least for public tweets.  Recently, a New York trial court judge emphasized just how unprotected and available some social media, such as public tweets, are […] Read More

Category: ,

Jun. 7, 2013

Google Ordered to Disclose Search Terms it Used to Respond to Subpoena

Posted by Carr McClellan   |   Share

A federal judge has ordered non-party Google to disclose the search terms and custodians it used to respond to a subpoena.  The magistrate judge’s order in the Apple v. Samsung case pending in San Jose emphasized that “transparency and collaboration is essential to meaningful, cost-effective discovery.” This order continues the growing trend of courts demanding […] Read More

Category:

Jun. 7, 2013

Potential US-EU Trade Pact May Enhance US Companies’ Ability to Monetize Digital Trade in the EU

Posted by Carr McClellan   |   Share

In January 2013, President Obama announced in his State of the Union Address that the United States will begin negotiating a US-EU Transatlantic Trade and Investment Partnership later this summer.  One of the key issues that the United States will seek to address as a part of this negotiation is the significant inconsistency between EU […] Read More

Category:

Jun. 7, 2013

It’s the Hours, Stupid: California Applies Quantitative Analysis to Exempt-Nonexempt Determination

Posted by Carr McClellan   |   Share

In Heyen v. Safeway, the California Court of Appeal put the nail in the coffin of the federal approach to analyzing wage and hour issues in California.  Because of Heyen, California employers and employees need to focus on hours worked in exempt and nonexempt services to correctly classify employees.  Only if the employee spends more […] Read More

Category: ,

Jun. 7, 2013

Preparation Counts: Two Courts Reaffirm the Benefit of Identifying and Taking Steps to Protect Trade Secrets

Posted by Carr McClellan   |   Share

Two recent decisions emphasize yet again the value of defining and taking steps to protect a company’s trade secrets. On May 16, 2013, Judge England issued a preliminary injunction in Farmers Insurance Exchange v. Steele Insurance Agency, Inc., United States District Court, Eastern District of California, No. 2:13-cv-00784 MCE in a customer list misappropriation claim.  […] Read More

Category: , , ,

May. 28, 2013

Leases Don’t Last Forever

Posted by Carr McClellan   |   Share

Did you know that leases which may have been intended to be renewable in perpetuity, if at all uncertain in that regard, will be construed as importing but one renewal? In a case called Ginsberg v. Gamson, Ginsberg entered into a five year lease.  It included an “Option to Extend Term” that gave Ginsberg the […] Read More

Category: ,

May. 28, 2013

Foreign Corporations Doing Business in California Must Qualify

Posted by Carr McClellan   |   Share

You have or form a corporation in a state other than California.  If the corporation wishes to do business in California, you must determine whether or not the proposed business activities will require that you “qualify” the corporation to do business in California. A corporation formed in a jurisdiction other than California is called a […] Read More

Category:

May. 16, 2013

Energy Usage Disclosure Finally Going On-Line

Posted by Carr McClellan   |   Share

As of July 1, 2013, California Public Resources Code §25402.10 requires the owner of a non-residential building with a total gross floor area of 50,000 square feet or more in the event of a sale, lease or finance of the property to disclose the building’s energy use data for the most recent 12 months, together […] Read More

Category:

May. 2, 2013

Small and Mid-Size Companies: Beware of Increased Cybersecurity Threats of Sensitive Tax Information

Posted by Carr McClellan   |   Share

Small and mid-size companies electronically transmit an increased amount of sensitive financial information via the Internet to comply with tax compliance obligations. Small and mid-size businesses electronically transmit company and employee information throughout the year to their accountants and taxing authorities, and even more so now during income tax season.  Income tax withholding and reporting, […] Read More

Category: ,

Apr. 30, 2013

Ninth Circuit Raises the Stakes in California Anti-SLAPP Motions

Posted by Carr McClellan   |   Share

On April 17, 2013, the Ninth Circuit issued an important anti-SLAPP decision in Makaeff v. Trump University, LLC, No. 11-55016 that raises the bar for parties seeking to defeat a California anti-SLAPP motion in District Court.  Businesses, in particular, frequently confront an anti-SLAPP motion when they file a counter-claim against a dissatisfied customer who has […] Read More

Category:

Apr. 25, 2013

Creating Value for In-House Counsel with In-House Training

Posted by Carr McClellan   |   Share

Particularly with recurring transactions such as leases and construction contracts, which may be handled to some extent by the client’s non-legal members, outside counsel can create value for its corporate clients with in-house training that: (1)  provides standards for uniformity in process and work product; (2)  designates provisions for documents or policies that the client […] Read More

Category:

Apr. 25, 2013

No, You Can’t Deactivate Your Facebook Account When Litigation Is Pending

Posted by Carr McClellan   |   Share

A federal magistrate judge in New Jersey recently sanctioned a plaintiff for evidence spoliation after he deactivated his Facebook account during litigation, resulting in its permanent deletion by Facebook after 14 days passed.  The court’s order confirms that social networking accounts are just like any other form of evidence and are subject to the same […] Read More

Category:

Apr. 18, 2013

New Accessibility Disclosure in Commercial Leases

Posted by Carr McClellan   |   Share

As of July 1, 2013, California Civil Code §1938 will require all commercial leases to state whether the premises have been inspected by a “Certified Access Specialist” (“CASp”) and, if so, whether the premises has or has not been determined to meet all applicable construction-related accessibility standards per California Civil Code §55.53.  California Civil Code […] Read More

Category:

Apr. 16, 2013

Tax Storm Clouds on the Horizon

Posted by Carr McClellan   |   Share

There is a storm on the horizon for providers of cloud-based services as states determine whether and how to tax these services.  Service providers should act now to anticipate upcoming tax issues for their particular business models.  Aggressive state activity could impact a service provider’s sales tax collection responsibility and an end-user’s income tax filing […] Read More

Category:

Apr. 3, 2013

Employers Beware: Requiring Access to Employees’ Social Media Is Now Illegal

Posted by Carr McClellan   |   Share

New Labor Code section 980, effective January 1, 2013, generally precludes employers from requiring or asking employees or job applicants to disclose their user names or passwords, or to provide access to, or divulge “personal social media.”  The definition of social media is broad, and includes “videos, still photographs, blogs, video blogs, podcasts, instant and […] Read More

Category: ,

Mar. 26, 2013

A Court has Ruled that Severance May Not be subject to FICA, Therefore You and Your Company May Be Owed a Tax Refund!

Posted by Carr McClellan   |   Share

The Sixth Circuit Court of Appeals recently held that severance paid to employees in a reduction in force event is not subject to FICA taxes. United States v. Quality Stores, Inc. No. 10-1563 (6th Circuit, September 7, 2012).  The United States attempted and failed to get an en banc hearing on this ruling with the […] Read More

Category: ,

Mar. 25, 2013

Public Disclosure of Private Facts: California Court of Appeal Holds that Spoken Words Do Not Disappear Into Thin Air

Posted by Carr McClellan   |   Share

In a decision surprising only because it has taken so long, on March 18, 2013, the California Court of Appeal in Ignat v. Yum! Brands, Inc., No. G046343 held that the privacy-based tort of public disclosure of private facts is not predicated on a writing containing the disclosure; an oral disclosure is sufficient to state […] Read More

Category: , ,

Mar. 21, 2013

The California Supreme Court Provides Mixed Result in Mixed Motive Terminations

Posted by Carr McClellan   |   Share

In Harris v. City of Santa Monica, (2013) 56 Cal.4th 203, the California Supreme Court provided long-awaited clarification of the standards that apply when an employer terminates an employee for “mixed motives”—that is, when the reasons for termination include a prohibited discriminatory motive under California’s Fair Employment and Housing Act (FEHA) as well as a […] Read More

Category: ,

Mar. 9, 2013

Pregnancy Disability Leave – Sanchez v. Swissport

Posted by Carr McClellan   |   Share

A California appellate court has given employers yet another reason for caution in their handling of employees on pregnancy disability leave.  In Sanchez v. Swissport, Inc., B237761 (Feb. 21, 2013), the Second District Court of Appeal confirmed that disability discrimination laws augment employee rights under California’s Pregnancy Disability Leave Law (PDLL), which in practical terms […] Read More

Category:

Feb. 20, 2013

Holdback Escrows in M&A Transactions

Posted by Carr McClellan   |   Share

A Merger and Acquisitions (“M&A”) holdback escrow, where a portion of the purchase price of an acquisition is placed in a third party escrow account to serve as security for the buyer, is a common element in structuring business acquisitions, whether the transaction is an asset or stock sale, or a merger.  Both buyers and […] Read More

Category:

Feb. 5, 2013

Major Win for eCommerce Businesses: California Supreme Court Rules On-Line Merchants May Collect Personal Information to Verify Credit Cards for Electronically Downloaded Products

Posted by Carr McClellan   |   Share

The California Supreme Court held today in Apple v. Superior Ct. that on-line merchants may require customers to provide personally identifying information (such as home address and phone number) to purchase electronically downloaded products with their credit cards. Background In June 2011, David Krescent brought a proposed class action suit against Apple alleging that Section […] Read More

Category:

Feb. 5, 2013

Theft of Trade Secrets Clarification Act of 2012: A Powerful New Weapon for Businesses

Posted by Carr McClellan   |   Share

On December 28, 2012, the President signed the Theft of Trade Secrets Clarification Act of 2012, which significantly expands trade secret protection by extending criminal penalties to the theft of a wider class of trade secrets. The Clarification Act amends the Economic Espionage Act of 1996 (“EEA”), 18 U.S.C. §1832.  Before amendment, the EEA protected […] Read More

Category: , ,

Jan. 18, 2013

New York Enacts Broad-Reaching Law Limiting the Collection of Social Security Numbers

Posted by Carr McClellan   |   Share

On December 14, 2012, New York enacted A.8992-A/S.6608-A (the “SSN Privacy Law”) into law to help minimize identity theft.  The SSN Privacy Law is broad reaching – it applies not only to businesses operating in New York but also to entities outside New York that are doing business with entities or individuals located in New […] Read More

Category:

Jan. 15, 2013

Video Privacy Protection Act Amended for the Internet Era, Finally

Posted by Carr McClellan   |   Share

On January 10, 2013, President Obama signed into law amendments to the 1988 Video Privacy Protection Act that facilitate social media sharing of video viewing preferences when users consent to disclosure of information via the Internet.  The amendments have a number of practical implications for online video providers and their users. 1. Changes Effected by […] Read More

Category: ,

Jan. 11, 2013

California Attorney General Issues Mobile Industry Privacy Guidelines

Posted by Carr McClellan   |   Share

This week, California Attorney General Kamala Harris further built on her high-profile 2012 campaign to improve privacy protection for consumers who use mobile devices[1] by issuing a report titled “Privacy on the Go” (“Privacy Report”) which lists recommended best practices for app developers, mobile advertising networks, operating systems developers, app platform providers, mobile carriers and […] Read More

Category:

Jan. 7, 2013

The California Supreme Court Clarifies Trial Courts’ Gatekeeper Responsibility

Posted by Carr McClellan   |   Share

Until recently, California trial courts were not required to perform the rigorous expert testimony gatekeeping responsibility adopted by federal courts and a majority of state courts.  As a practical matter, California’s standards meant that juries in California could consider and rely on expert opinion testimony that would have been excluded as scientifically unreliable or speculative […] Read More

Category:

Jan. 1, 2013

Obamacare – Will the New Taxes Impact Me?

Posted by Carr McClellan   |   Share

Political debate for the past two years has focused on the future of the Patient Protection and Affordable Care Act, more recently called “Obamacare,” and the taxes enacted by Congress to help pay for it.  With the national elections last month, we achieved greater certainty surrounding the future of this legislation.  We now know that […] Read More

Category: , ,

Dec. 21, 2012

Prevailing Property Owners May Recover Attorney Fees After Defending Accessibility Lawsuit

Posted by Carr McClellan   |   Share

California Supreme Court issues more liberal rule for property owner to recover attorney fees after defending accessibility lawsuit. The California Supreme Court has issued a ruling making it easier for a commercial property owner to recover attorney fees after successfully defending a lawsuit over accessibility.  The case is Jankey v. Lee, No. S180890. The plaintiff […] Read More

Category: ,

Dec. 21, 2012

An Arbitration Clause Means I Won’t Be In Court. Maybe Not.

Posted by Carr McClellan   |   Share

Businesses choose contractual arbitration for many practical reasons: it’s seen as a cheaper, faster and more confidential alternative to traditional litigation, and it avoids the emotions of a jury.  Arbitration, of course, is not without its risks, especially where the arbitrator can fashion relief that is “just and fair under the circumstances.”  Heeding the guidance […] Read More

Category: ,

Nov. 27, 2012

Does Non-Recourse Liability Still Exist?

Posted by Carr McClellan   |   Share

About a year ago to the day, the real estate financing market took an unexpected turn.  Year after year for many years prior, we all witnessed the real estate market take a huge beating.  However, never could we have expected that after enduring such a decline, a court in Michigan would render a decision, landing […] Read More

Category:

Nov. 15, 2012

Is Your LLC Membership Interest a Security Under California Law?

Posted by Carr McClellan   |   Share

When most people think of securities, they mean corporate stock.  However, a limited liability company interest may also be a security for purposes of both federal and state securities laws.  If it is a “security,” it may be subject to registration requirements under federal securities law and qualification requirements under California securities law. Section 25019 […] Read More

Category:

Nov. 12, 2012

A New Tort Cause of Action in California Provides Limited Recourse to Protect Inheritances from Wrongdoers

Posted by Carr McClellan   |   Share

In the 2012 elections, three states (Maine, Maryland, and Washington) legalized gay marriage, and one state (Minnesota) rejected a ballot measure that would have created a state constitutional amendment prohibiting gay marriage.  This brings the total to nine states which, along with Washington D.C., recognize equal marriage rights for gay and lesbian couples.  California is […] Read More

Category:

Nov. 6, 2012

Written Commission Agreements will be Required for California Employers in 2013

Posted by Carr McClellan   |   Share

Effective January 1, 2013 all employers who have employees working in California on a commission basis are required to have written commission agreements.  The law also requires that the employer have a receipt from each commissioned employee acknowledging that they have received a copy of their respective commission agreement.  Now is the time for employers […] Read More

Category: ,

Nov. 2, 2012

New App Privacy Icons Supplement Traditional Privacy Notices

Posted by Carr McClellan   |   Share

The Association for Competitive Technology (“ACT”), an international trade organization that represents more than 5,000 small and mid-size app developers and information technology firms, recently released free app privacy icons (“App Privacy Icons”) that help developers comply with the FTC’s recommendations. The new App Privacy Icons are a useful, inexpensive tool that developers can use […] Read More

Category: ,

Nov. 2, 2012

New Decision Limits Last-Minute Submissions for CEQA Hearings

Posted by Carr McClellan   |   Share

All of us involved in land use and planning matters are familiar with the tactic of project opponents to file last-minute submissions with new factual allegations.  These “hit pieces” are filed after the staff report is in, and the project proponent has no time to respond. Finally, a court has upheld a decision by a […] Read More

Category:

Oct. 8, 2012

FTC Issues Mobile App Privacy and Marketing Guidelines for App Developers

Posted by Carr McClellan   |   Share

The Federal Trade Commission (“FTC”) stated earlier this year in its final privacy report that it is going to focus legal enforcement efforts on privacy and data security law compliance in the mobile space.  As a part of this enforcement initiative, the FTC recently published additional guidelines called “Marketing Your Mobile App:  Get it Right […] Read More

Category: ,

Oct. 1, 2012

Impact of the EU Cookie Directive on US Companies

Posted by Carr McClellan   |   Share

A number of national enforcement agencies recently indicated they are going to start actively enforcing 2009/135/EC Directive (the “EU Cookie Directive”).  If a US company has business operations in an EU member country, or if a US company has assets (including without limitation, bank accounts or employees), in an EU member country, it is likely […] Read More

Category: ,

Sep. 21, 2012

Sell Now! Avoid Taxmageddon — The Coming Tax Rate Changes in 2013

Posted by Carr McClellan   |   Share

The remainder of 2012 will bring a politically charged Presidential election, a lame duck Congress and tremendous income tax planning opportunities.  Unless Congress takes some legislative action, ordinary income and capital gains rates will increase significantly on January 1, 2013.  Prudent individual taxpayers should accelerate income transactions into 2012 to avoid paying higher taxes. Individual taxpayers […] Read More

Category: ,

Sep. 19, 2012

The Correct Answer is “Of Course We Have Agreements With Our Employees and Consultants”

Posted by Carr McClellan   |   Share

Every start-up lawyer counsels his or her client to be sure that everyone working for the company signs an agreement confirming that the company owns everything that’s developed by the company. However, when it’s time to sell the company or raise a financing round and the management team is asked to produce these agreements, it’s […] Read More

Category:

Sep. 14, 2012

California ADR Provisions: Binding Arbitration vs. Judicial Reference

Posted by Carr McClellan   |   Share

Alternative dispute resolution (“ADR”) provisions are common in contracts because they may offer a less costly and speedier resolution to disputes.  Corporate clients heavily favor ADR because it may shield them from a jury trial—a venue often not preferred by big companies.  In California, it is clear that pre-dispute waivers of the right to a […] Read More

Category: ,

Sep. 5, 2012

Federal Court Holds Video Privacy Protection Act Applies to Online Streaming Services

Posted by Carr McClellan   |   Share

Last month, a federal Magistrate Judge in In re Hulu Privacy Litigation held that the Video Privacy Protection Act (“VPPA”) applies to online video streaming services.  This ruling could have a broad impact on the video streaming services, advertisement and analytics provider industries. 1.            Background The VPPA, which became law in 1988, prohibits “video tape […] Read More

Category: ,

Aug. 27, 2012

“Earn-Outs” – The Devil is in the Details

Posted by Carr McClellan   |   Share

Earn-Outs – contractual formulas in M&A transactions generally used to give sellers the opportunity to earn additional purchase price – are often derided for their ability to disappoint sellers, or worse, create post-closing disputes.  But Earn-Outs can serve a very useful purpose in the right situations; typically, the acquired business must be allowed to continue […] Read More

Category:

Aug. 7, 2012

Will a Corporation or Limited Liability Company Protect You from Yourself?

Posted by Carr McClellan   |   Share

I am frequently asked about forming a corporation or limited liability company (“LLC”) for a sole proprietor, consultant or professional concerned with exposure to liability relating to his or her business or profession.  Shareholders of a corporation or members of an LLC are in general shielded from most liabilities of the corporation or the LLC.  […] Read More

Category:

Aug. 6, 2012

Can Employers Require Employees or Job Applicants to Provide their Private Social Networking Account IDs and Passwords?

Posted by Carr McClellan   |   Share

Clients (both employers and employees) frequently ask me whether employers may ask employees for their private social networking account user IDs and passwords.  Although this may currently be permitted in some states, there is a clear legal trend towards prohibiting this practice. Two states, Illinois and Maryland, passed laws this year prohibiting employers from asking […] Read More

Category: ,

Jul. 31, 2012

California Likely to Increase Number of Enforcement Actions Against App Developers and Owners for Privacy and Data Security Law Breaches

Posted by Carr McClellan   |   Share

California Attorney General Kamala Harris announced two major initiatives this year that indicate the California Department of Justice is likely going to increase the enforcement of both state and federal privacy and data security law breaches against app developers and owners. Mobile and Social App Platform Providers Industry Agreement             In February 2012, Attorney General […] Read More

Category: ,

Jun. 19, 2012

Stock Option and Stock Purchase Plans

Posted by Carr McClellan   |   Share

Many companies use equity compensation to attract potential employees and to reward and retain existing employees.  A brief overview of two typical equity compensation plans, the stock option plan and the restricted stock purchase plan, is provided below.  Sometimes the features of a stock option plan and a restricted stock purchase plan are combined into […] Read More

Category:

Jun. 1, 2012

Why Are There So Many Fees In University License Agreements?

Posted by Carr McClellan   |   Share

Clients who license intellectual property (“IP”) and technology from a university frequently tell us the university is asking for numerous license fees, and they ask whether this is customary.  The answer is yes, if the U.S. government funded all or part of the research that led to the development of the licensed IP or technology. […] Read More

Category: ,

May. 29, 2012

Limited Liability Companies For Contractors

Posted by Carr McClellan   |   Share

Until 2012 a California contractor wanting limited liability protection for owners of the business had to use a corporation.  The Contractors State License Board (“CSLB”) could not issue a license to a limited liability company.  That has now changed.  Senate Bill 392, which became law in 2010, required the CSLB to begin processing applications for […] Read More

Category:

May. 23, 2012

Top Ten M&A List Of Guidelines for Privately Held Companies

Posted by Carr McClellan   |   Share

Having represented privately held companies, engaged in industries ranging from food to logistics to technology, for over 30 years, I have been fortunate to have gained valuable insights into what optimizes their Merger & Acquisition (“M&A”) exits.  I have distilled those insights into my Top Ten M&A list of guidelines for privately held companies: Assemble […] Read More

Category:

May. 23, 2012

IRS Targets Middle Market and Flow-Through Entities for Audit

Posted by Carr McClellan   |   Share

Private companies – whether organized as corporations, partnerships, or limited liability companies (LLCs) – are typically focused on growing profits, expanding the business footprints, and increasing shareholder values.  Given this focus on growth, a company’s CFO or business owner is frequently caught off guard when the IRS decides to audit the business.  The likelihood of […] Read More

Category: ,

May. 23, 2012

U. S. Department of Health and Human Services 2011-2012 HIPAA Audit Program

Posted by Carr McClellan   |   Share

Companies that qualify as a “Covered Entity”[1] or “Business Associate” [2] under the Health Insurance Portability and Accountability Act (“HIPAA”) should take note of the U.S. Department of Health and Human Services (“HHS”) pilot HIPAA audit program. Background Under Section 13411 of the HITECH ACT, HHS must conduct periodic audits to ensure that Covered Entities […] Read More

Category: ,

May. 17, 2012

Start-up Equity Vesting Basics

Posted by Carr McClellan   |   Share

One of the first topics that a start-up lawyer discusses with a company’s founding team is usually the ownership and vesting of the start-up’s initial shares of Common Stock.  At the start of the discussion, some members of the founding team often don’t understand what vesting is and why it’s important.  As described below, share […] Read More

Category:

May. 17, 2012

Limited Liability Company – The Flexible Choice

Posted by Carr McClellan   |   Share

Forming a new business entity with other owners?  You have several choices.  If owners want limited liability protection, the decision often comes down to choosing between a corporation and a limited liability company.  Each offers limited liability protection for its owners.  If the owners want flexibility in structure and operation, the limited liability company is […] Read More

Category:

May. 14, 2012

Crowdfunding Under the JOBS Act

Posted by Carr McClellan   |   Share

General  The Jumpstart Our Business Startup Act (“JOBS Act”) was passed by Congress on March 27, 2012 and signed into law by the President on April 5, 2012.  The intent of the JOBS Act is to improve access to the capital markets by relaxing certain regulatory burdens for small companies, including providing securities registration exemption […] Read More

Category:

May. 14, 2012

How Has Brinker Clarified the Right to Meal Periods Under California Law?

Posted by Carr McClellan   |   Share

On April 12, 2012, the California Supreme Court issued its decision in the Brinker Restaurant case clarifying a number of issues including the responsibilities of employers in complying with California law concerning meal periods for non-exempt employees.  Below are the major holdings of the Brinker case regarding meal periods.     1.  Meal Period Police are Not […] Read More

Category: ,

Mar. 27, 2012

Restrictions on Indemnification Clauses in Commercial Construction Contracts

Posted by Carr McClellan   |   Share

Under existing law, provisions in construction contracts which allow one of the parties to use indemnification clauses to pass on to the other party liability for damages for death, injury to property, injury to persons, or other loss, damage or expense (“Damages”) is prohibited if the damages are caused by the sole negligence or willful […] Read More

Category:

Mar. 15, 2012

California or Delaware – Why Entities are Often Organized in Delaware

Posted by Carr McClellan   |   Share

When one of our clients and I talk about forming a new corporation, limited liability company (LLC) or limited partnership, we almost always spend some time discussing the state where the entity will be formed.  Usually, we talk about the advantages and disadvantages of forming the entity in the state where the entity will initially […] Read More

Category:

Recent Blog Posts

Browse Blog Posts

Email sign up

Enter your email address to subscribe to our email alerts.

Subscribe to our RSS feeds