Business Law Section E-News

Current News and Events from the State Bar of California Business Law Section.

Here is your July 2016 E-News from the Business Law Section ("BLS"):

Business Law News Feature Article: Binding Arbitration Agreements With Class Action Waivers In the Gig Economy

By the year 2025, many experts predict 40% of workers will not fit into the traditional employment model as we currently know it.  Many individuals seeking more control or independence from the traditional employer-employee relationship have turned to the “gig economy” as a long-term viable alternative to traditional employment models.  Gig economy companies have built their entire business models on the expectation that in this new business relationship, the gig workers would all be mini-entrepreneurs running their own micro businesses as independent contractors. 

Unfortunately, the traditional concepts of “employee” and “independent contractor” that these gig companies and many gig workers had been relying on were created almost one hundred years ago, long before the concept of the gig economy had ever been visualized.  And as gig economy companies grow from start-ups into major employers, their labor practices have been subject to increasing litigation.  For example, Uber recently agreed to a $100 million settlement with its drivers who were seeking traditional employee style protections.

In a feature article entitled The Benefits of Mandatory Binding Arbitration Agreements With Class Action Waivers In the Gig Economy – They Are Not Just For Employees Any More, scheduled for publication in October, Robert Yonowitz and Danielle Garcia explain why the distinction between an employee and independent contractor is vital to the gig economy business model and assert that binding arbitration agreements with class action waivers may help stem the tide of litigation lawsuits roiling the gig economy. 

To read the entire article, subscribe to the Business Law Section today by clicking HERE.

Recent Articles of Interest, California Business Law Practitioner

The Spring 2016 issue of the California Business Law Practitioner, includes the following articles of interest to business lawyers:

  • Regulation A+: A Summary of the New Rules and a Survey of its Use, by Christina A. Pearson, Pillsbury Winthrop Shaw Pittman LLP, Palo Alto.  This article provides an overview of the requirements of the SEC’s new Regulation A+, including the “bad actor” provisions, the dollar limitations, the offering documents required, and the offering process.

  • Once More Unto the Breach: How Counsel Should Help Clients Prepare for and Respond to Data Incidents, by Sharon R. Klein and Alex C. Nisenbaum, Pepper Hamilton LLP, Orange County.  This article provides guidance for attorneys counseling clients before, during, and after a data breach, including a review of breach notification laws and potential liability for failure to maintain data security safeguards.

  • Nothing in Life is Guaranteed: The Impact of Bankruptcy on Enforcement of Personal Guaranties, by Ashley M. McDow and Michael T. Delaney, Baker & Hostetler LLP, Los Angeles.  This article reviews the effect of bankruptcy on personal guaranties and outlines a number of strategies for a lender seeking to enforce a guaranty in the face of a bankruptcy filing.   

The California Business Law Practitioner is a quarterly law journal published by Continuing Education of the Bar — California (CEB). To obtain a copy of this issue, call CEB’s Customer Service, 1-800-232-3444. To subscribe, click HERE.

Financial Institutions Committee Held Two Successful MCLE Programs In July

On July 12, 2016, the Financial Institutions Committee held its monthly meeting, which included 2 MCLE programs.  The first, entitled “Mediation: Ethical and Confidentiality Issues”, was presented by Wesley Hurst, a partner with Polsinelli LLP, and mediator Mark Loeterman, and covered codes and cases concerning the obligations of attorneys and mediators in the mediation process.  The second program, entitled “The Changing Landscape of Americans with Disabilities Act Compliance and Litigation: What Bank Counsel Need to Know”, was presented by Martin Orlick, a partner with Jeffer Mangels Butler & Mitchell LLP, and surveyed accessibility issues and requirements that need to be addressed by financial institutions.  The Financial Institutions Committee will not meet in August, and its next meeting will be September 13, 2016.

Cyberspace Law 101: Representing Clients on the Internet

The Internet and Privacy Law Committee will present a program at the 2016 Annual Meeting entitled “Cyberspace Law 101: Representing Clients on the Internet.” This program will provide information on issues relevant to providing legal advice to clients offering business online. For more information on the Annual Meeting, see below.

Online businesses have unique needs, and their attorneys must be versed in a variety of topics, including: the ethical considerations related to the attorney-client relationship; the ethical issues related to offering services online and on social media; myriad intellectual property issues ranging from the development of a portfolio based on use online, international protection, the distinctions between copyright and trademark protection when dealing with websites, copy, design, and branding, and DMCA matters; and of course privacy and user agreements -- ranging from the privacy issues related to the collection and retention of data, cross-border privacy issues, terms of use and other agreements your client has with its website users, viewers, and its customers.  Because internet-based businesses continue to present cutting edge legal issues, the panel will spend some time discussing the internet-based issues presented by California's most emerging industry: the cannabis industry.  Panelists will discuss case study style, the key issues faced by cannabis businesses that either offer goods or services online or have a presence online or both. Cannabis companies now face FDA compliance issues, difficulties with online transactions, and delivery and distribution challenges, all while trying to build business and build brands using traditional and online systems.  Come hear how these challenges and more are being faced by some of the leading businesses online today.  Panel speakers include the following members and past-chairs of the Internet and Privacy Law Standing Committee: Phil Green, Bob Hawn, Shabnam Malek, and Raffi Zerounian.

The Expectation of Privacy: The Roles and Responsibilities of Businesses

The Corporations Committee will present a program at the 2016 Annual Meeting entitled “The Expectation of Privacy: The Roles and Responsibilities of Businesses.” This panel is co-sponsored by the Public Law Section, and will discuss privacy laws and issues faced by businesses, the government, and the general public.

Specific topics will include the collection of personal data by businesses/private entities vs. the expectation of privacy, the government’s ability to access a business’s collection of personal data, the public’s right to request government data, a corporation’s right to privacy, and international privacy laws and considerations. There will also be a discussion of the latest privacy cases and decisions. The panel is comprised of an exciting group of speakers with a broad range of expertise in the privacy arena that will be sharing their invaluable insights into the challenging and evolving issues surrounding privacy. The speakers include Andy Serwin (Partner and Co-Chair of Morrison & Foerster’s Global Privacy and Data Security Group), Jill Bronfman (Program Director of the Privacy and Technology Project at UC Hastings College of Law), Jennifer Small (Senior Attorney, Data Privacy at Microsoft), an agent/attorney from the FBI, and moderator Jerry Yen (Corporate Fraud Section, California Department of Justice). The panel is scheduled for Sunday, October 2 from 8:30 a.m. to 10:00 a.m.

"The Effective and Ethical Use of Expert Witnesses": Business Litigation Committee to present at the 2016 Annual Meeting in San Diego

On September 30, 2016, at 1:30 pm, members of the Section’s Business Litigation Committee will present “The Effective and Ethical Use of Expert Witnesses.” This program will explore the use of expert witnesses in litigation. Topics include: how to effectively use an expert; the ethical and practical constraints on use of expert witnesses, including when the expert is an attorney; evidentiary rules that govern expert testimony; and key considerations the expert should address with retaining counsel before the scope of his or her testimony is even discussed. This program will also help litigators maximize the value of their experts by providing insights into how experts often view their own role and how early interactions can help, or hurt, your case.

Panelists include Jon Pfeiffer, an entertainment trial attorney with over 30 years of trial experience, who often utilizes expert witnesses in his practice; and Neil Wertlieb, a corporate attorney and UCLA Law Professor who has served as an expert witness in a number of cases. Neil is also a former Chair of the Business Law Section, the Corporations Committee, and the State Bar’s Committee on Professional Responsibility and Conduct Peter Bronson, the Co-Chair of the Business Litigation Committee and also a former Chair of the Business Law Section will introduce the panel.

This program provides 1.5 hours of MCLE credit, including .5 hours in Ethics.

Health Law Committee will present “Medical and Health Care Privacy and Data Breach Compliance for Non-Health Care Clients and Their Attorneys” at the State Bar Annual Meeting

In 2015, the Office of Civil Rights (“OCR”) for the U.S. Department of Health and Human Services entered six settlements for violations of the Health Insurance Portability and Accountability Act (“HIPAA) , totaling $5,100,000. As of July 18, 2016, the OCR had entered eight HIPAA settlements, totaling $12,014,800, more than double its settlements in 2015, and the year is only half-over. This trend towards enforcement promises to continue. For attorneys representing non-healthcare companies who may receive protected health information (PHI), it is critical to be aware of the myriad duties and obligations imposed under HIPAA, HITECH, CMIA, the California Health and Safety Code, and the California Administrative Code, as well as foreseeable contractual duties regarding the security and confidentiality of health information.

Attorneys, and particularly those who represent downstream and other non-healthcare businesses who may not typically find themselves involved in PHI transactions, are encouraged to attend an important continuing education program, entitled “Medical and Health Care Privacy and Data Breach Compliance for Non-Health Care Clients and Their Attorneys.” The program will be offered on Saturday, October 1, 2016 from 10:30-12:00 as part of the 2016 Annual Conference of the State Bar. The presenters will include Linda Mullany, RN, JD, who chairs the Healthcare Practice Group of the San Diego Office of Gordon & Rees LLP; David Leatherberry, JD, also a partner with Gordon & Rees LLP; and Matt Soskins, JD, of Dignity Health. Mr. Soskins previously served as in-house counsel with the Tri-City and Palomar Healthcare Districts. This program will provide an overview of the many sources of PHI including personal electronic devices, the requirements and circumstances of the laws and regulations that govern those - including law firms - that handle PHI, and reporting obligations that may be triggered upon the wrongful use or disclosure of PHI.

Insolvency Law Committee Announces Series of Programs at the State Bar Annual Meeting

At the State Bar Annual Meeting, the Insolvency Law Committee will present the following series of informative and thought provoking programs on September 30, 2016:

8:30 a.m. – 10:00 a.m.: Bankruptcy Judge Charles Novak (Northern District of California), Bankruptcy Judge Louise Adler (Southern District of California) and M. Jonathan Hays (of Simon Resnik Hayes LLP) will present a panel titled “Ninth Circuit Bankruptcy Year in Review.” The panel will cover recent bankruptcy decisions issued by the Ninth Circuit Court of Appeal, the Bankruptcy Appellate Panel for the Ninth Circuit, and the United States Supreme Court.

1:30 p.m. – 3:00 p.m.: Insolvency Law Committee members Michael O’Halloran (of the Law Office of Michael O’Halloran) and Reno F.R. Fernandez III (of Macdonald Fernandez LLP) will present a panel titled “10 Things Not to Do When Insolvent.” The panel will be geared toward pre-bankruptcy planning for non-bankruptcy practitioners, and will discuss which actions should be taken when planning a restructuring or future bankruptcy filing and which actions can actually harm your case.

3:30 p.m. – 5:00 p.m.: Insolvency Law Committee member Michael T. Delaney (of BakerHostetler) will present a panel on “Managing Expectations: Understanding the Roles of the Main Actors in a Bankruptcy Case.” The presentation will include a judge and a panel trustee, and explore the different roles and responsibilities of important players in a bankruptcy case and what motivates them to take action, from the court itself to the official unsecured creditors’ committee, the chapter 7, 11 and 13 trustees, the U.S. Trustee’s Office and the U.S. Attorneys’ Office.

State Bar Annual Meeting Program Preview! BLS Standing Committees to Present At The State Bar of California 89th Annual Meeting

You can now REGISTER ONLINE for the State Bar of California’s 89th Annual Meeting. 

The State Bar of California returns to San Diego for the 2016 Annual Meeting on September 29, 2016 – October 2, 2016. Mark your calendars for this event, which blends business, education, entertainment and the opportunity to meet and engage with law professionals from throughout California. 

The four-day meeting will showcase an education agenda consisting of MCLE seminars covering a variety of substantive topics, including legal technology, ethics, bankruptcy, business litigation, and other key areas of interest.  Many of the BLS Standing Committees will be presenting at the Annual Meeting. A complete list of BLS presentations at the Annual Meeting is provided as follows.

The following Business Law Section Committees will make presentations at the Annual Meeting as follows:

Insolvency Law Committee

Program 22 - Ninth Circuit Bankruptcy Year in Review
Friday, September 30 - 8:30 a.m. - 10 a.m.

Program 42 - 10 Things Not To Do When Insolvent
Friday, September 30 - 1:30 p.m. - 3 p.m.

Program 53 - Managing Expectations: Understanding the Roles of the Main Actors in a Bankruptcy Case
Friday, September 30 - 3:30 p.m. - 5 p.m.

Business Litigation Committee

Program 43 - The Effective and Ethical Use of Expert Witnesses
Friday, September 30 - 1:30 p.m. - 3 p.m.

Health Law Committee

Program 73 - Medical and Health Care Privacy and Data Breach Compliance for Non-Health Care Clients and Their Attorneys
Saturday, October 1 - 10:30 a.m. - 12 noon

Internet Law Committee

Program 82 - Cyberspace Law 101: Representing Clients on the Intern
Saturday, October 1 - 1:30 p.m. - 3 p.m.

Corporations Committee

Program 102 - The Expectation of Privacy: The Roles and Responsibilities of Businesses
Sunday, October 2 - 8:30 a.m. - 10 a.m.

BLS Annual Breakfast Meeting, Keynote Address and Lifetime Achievement Award—October 1, 2016, 7:30 a.m.—limited seats available

Join fellow BLS members as well as past and present leaders of the Business Law Section and its 15 Standing Committees at the annual BLS breakfast meeting at the State Bar of California’s 89th Annual Meeting in San Diego, California on Saturday, October 1, 2016 at 7:30 a.m. Keynote speaker for the event, author and economist Alan Nevin, will explore the unique economic and demographic attributes of the State of California and how they set us apart in our nation and the world as a whole. Mr. Nevin will focus on California’s resources, businesses and industries, as well as its demographics, including our population’s aging patterns, ethnicity, and future employment and housing needs. These issues are all explored in depth in Mr. Nevins' latest book, The Great Divide, reporting how demography defines and determines the economic health of nations and states. The BLS will also honor an outstanding member of the business law community at the breakfast meeting by awarding the Section’s Lifetime Achievement Award. Seats are limited at this popular ticketed event (cost is $35 per person, breakfast included). Be sure to sign up for the BLS breakfast meeting when you REGISTER ONLINE for the State Bar Annual Meeting.

Reach a State-Wide Audience by Publishing in the Business Law News

The Business Law News (BLN) is seeking articles of general interest to practitioners for its next publication.  With approximately 8,200 members, the BLS has a wide-ranging audience.  The BLN is not only circulated to BLS members in print every quarter, it is also available to BLS members on the internet at www.calbar.ca.gov.  Please submit your articles to Everett L. Green, Everett.L.Green@usdoj.gov.

A subscription to the BLN is one of the most significant membership benefits of the BLS.  Publishing in the BLN is a terrific opportunity both to influence the discourse in the areas in which you practice and to market yourself and your skill set. Now is your chance to participate! 

You can find the BLN’s submission guidelines HERE.  Finally, have you been interested in getting involved in the BLS but don’t know where to start?  BLN is now seeking enthusiastic section members to join its Editorial Board.  You can find more information about the BLN Editorial Board HERE and the application to join BLN HERE.

Keep Up With Current Legal Developments by Receiving eBulletins Specifically Tailored for Your Field

The 15 BLS Standing Committees publish eBulletins announcing developments in their area of law and upcoming events open to BLS members. Click HERE to sign up to receive these eBulletins from any BLS Standing Committee completely free of charge

Showcase Your Knowledge:  Follow the BLS on Social Media and Contribute to Discussions

We all know that social media can help drive new business. Did you know that the BLS maintains a presence on LinkedInTwitter and Facebook where it posts regular updates about new cases, new regulations, key legislative developments, and news and events from the BLS’s Standing Committees? What you may not know is that you can not only send items to the BLS to post or tweet, but also suggest items from your own social media pages for the BLS to re-post, re-tweet, or like. Doing so expands the reach of what you have to say to everyone who likes or follows the BLS on its various social media platforms, and may result in the BLS following you! Please submit your suggested items for consideration or direct any questions to BLS Social Media Subcommittee Chair, Sarah DeDiego (sarah@dediegolaw.net); BLS Vice-Chair of Member Services, James P. Hill (hill@sullivanhill.com); or BLS Chair, Rob Harris (rob@bindermalter.com), and join the ever expanding discussion!

Amplify Your Professional Reputation by Joining a Standing Committee

Standing Committees continue to accept applications to fill vacant seats. Practitioners and other legal professionals who are members of the BLS and who have at least five years of experience are eligible to apply. Membership on a committee affords unique opportunities to participate in the creation of law in your practice area, to get to know and be known by other practitioners, to work with the recognized leaders in your field, and to stay on the cutting edge of developments and practice techniques. Membership is a rewarding experience that keeps one ahead of, and in touch with, business law developments.  Most committees meet once a month, often by phone. A full list of the Standing Committee meeting dates for May are listed below. A description of the required commitment and application process, along with a link to the application, can be found HERE.

Attend a Standing Committee Meeting and Participate in Your BLS

The BLS achieves its goals through the work of its 15 Standing Committees. You are invited to attend the regular monthly meeting of any BLS Standing Committees (see below for meeting dates). These monthly meetings provide attendees an excellent opportunity to chat with committee members and other lawyers with a similar expertise.  Some committees even offer free MCLE credit! Please see the contact person listed below to RSVP or request more information. Follow us on Twitter @calbarbuslaw. Use a Standing Committee’s hashtag to search for tweets by that committee in its designated field and to re-tweet.

Standing Committee Meeting Dates for August

For a list of upcoming meeting dates and contact persons, see Standing Committee Meetings HERE.

Editors

Diana D. Herman, Editor-in-Chief
Monique Jewett-Brewster, Contributing Editor
Peter M. Menard, Contributing Editor
Kristina Del Vecchio, Contributing Editor
Jim Hill, BLS Vice Chair, Member Services
Rob Harris, BLS Chair

For contact information, see the Executive Committee Roster HERE