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Recent Blog Posts

Dynamex Update: Not a Passing Fancy

In previous blogs we have discussed the California Supreme Court’s seminal decision in Dynamex Operations West, Inc. v. Superior Court, which established a new and extremely limiting test for determining whether a worker is an employee or independent contractor.  Initially, there was some debate over how expansive it might prove to be, and how much […]

California’s New Standard For Determining Workers’ Status Widens

Last year, the California Supreme Court abruptly changed the standard for determining whether a worker is an employee or independent contractor of the hiring company.  In Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 4 Cal.5th 903 (2018), a case involving delivery drivers for a package company, the Court unanimously held that a […]

Duty to Preserve Text Messages in Anticipation of Litigation

Under federal law, a party anticipating litigation has an affirmative obligation to preserve relevant documents and other tangible evidence.  With today’s prevalence of electronic data and devices, the scope of that duty as applied to electronically stored information (or “ESI”) is a frequently litigated issue and can give rise to sanctions if a party “fail[s] […]

Uncertainty in California over Forum Selection Clauses

In international business transactions, contracting parties from different countries often select a neutral third country to supply the applicable governing law as well as the exclusive forum for resolving disputes.  The reason for this is obvious:  each party is wary of agreeing to litigate disputes in the adverse party’s home country or governed by the […]

A Potentially Disruptive Ruling for California Employers

On April 30th the California Supreme Court issued an opinion that almost certainly will cause significant changes in how many businesses, particularly those which rely on independent contractors, will conduct their California operations in the future.  The 82-page ruling in Dynamex v. Superior Court is predicted to seriously impact the business model of many companies […]

A Practical Guide to the Anti-SLAPP Statute: How to Avoid Litigation Purgatory (or Shorten Your Stay)

In 1992, California enacted the anti-“SLAPP” (strategic lawsuits against public participation) statute to combat “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”[1]  By definition, a SLAPP suit is an abuse of the judicial process — the plaintiff does not expect […]

Awarding Attorneys’ Fees (Or Not)

A contractual clause requiring an award of attorneys’ fees to the prevailing party in litigation can have a significant impact on the parties’ decisions to file or pursue a case.  On the one hand, a potential plaintiff who believes he has a valid claim may be emboldened to sue.  On the other hand, the prospect […]

Expert Retention and Summary Judgment

Summary judgment motions play an important role in business disputes; they can create settlement leverage, narrow trial issues or, if granted for an entire case, achieve a favorable judgment without a trial.  As its name suggests, a motion for summary judgment asks a court to “summarily” adjudicate a claim or lawsuit without the need for […]

California Supreme Court Invalidates Arbitration Clause

Once again, the California Supreme Court has waded into the arbitration thicket.  This time, the Court found unenforceable an arbitration clause that prohibited a consumer from seeking injunctive relief on behalf of the public, not just in the arbitration, but in any forum whatsoever.  If nothing else, this latest decision highlights the dangers of over-reaching […]

Jurisdiction Over Corporations Quietly Restricted – Probably For Good

In a major, although widely unappreciated shift, the United States Supreme Court has significantly restricted the ability of courts to exercise jurisdiction over corporations.  This change reduces the likelihood that a corporation has to appear in a court to answer for alleged conduct that has little to do with their operations in that state.  No […]