San Diego, CA

The U.S. Supreme Court on January 13, 2022, halted the Biden Administration’s vaccine mandate for the nation’s largest employers, and allowed a more limited mandate to go forward that requires vaccinations for healthcare workers at the facilities that receive Medicaid and Medicare funds.

Federal regulators, like their state counterparts, are keenly mindful of the impact of a privacy incident and see alternative paths to protect personal information and generate revenues for their governmental bodies. The SEC has stepped into the breach, initiating a number of cybersecurity disclosure proceedings, the most recent being a civil penalty of $1 million on Pearson plc, a London-based multinational educational publishing and services company, for misleading investors about a 2018 data breach that involved the theft of millions of student records.

The U.S. Supreme Court is poised to issue a decision under which astute defense counsel must be prepared to encounter a potentially changed landscape. For if the “generic statements” at issue in the case before them ‒ statements made by most issuers ‒ merit certification of a securities class action, then class certification will likely be granted in any case where stock price declines on the heels of negative news.

Nearly a year and a half after issuing its proposed regulations in support of the FDCPA, on October 30, 2020, the CFPB issued its Final Rule, which will become Regulation F, 12 CFR Part 1006. The Final Rule addresses concerns of unfair practices, misleading representations or otherwise abusive debt collection communications, and clarifies the application of the FDCPA to newer communication technologies.

Our Q&A document reviews laws and local guidance, discusses workplace safety and other issues that may arise when workers return from furlough & addresses “frequently asked questions” from the employer perspective.

The document answers questions posed by employers who are navigating an uncertain business environment and advises on new state and federal regulations.

Whatever one’s position on California Section 5032, there is no disputing it will serve to disrupt the current California cannabis market and cause many existing business relationships to change or cease. While the industry waits for clarity, the prudent course is to embrace full disclosure.

A federal district judge issued a nationwide preliminary injunction that blocks DOL’s new overtime regulations from taking effect on December 1, 2016. This nationwide injunction stays the effective date for the new regulations until further action by the courts.

The Federal Circuit recently reaffirmed the patent exhaustion rules that provide (1) even when no reservation of U.S. rights attaches to an authorized foreign sale, such sale will not trigger the patent exhaustion doctrine and (2) a patentee who sells a patented article under a clearly communicated, otherwise proper restriction on resale and reuse does not exhaust its rights to charge with infringement downstream buyers having knowledge of the restrictions. 

In a recent decision, the Ninth Circuit Court of Appeals said that a restaurant located in the Court’s jurisdiction may no longer impose a tip pool that allows employees who are not directly in the line of service to be a part of a tip-pool arrangement. Back of the house employees such as cooks, kitchen staff and dishwashers who have no contact with customers are barred from sharing in a tip pool going forward.  

The San Francisco Board of Supervisors has passed two ordinances, codified as Hours and Retention Protections for Formula Retail Employees, San Francisco Police Code Article 33F, and Fair Scheduling and Treatment of Formula Retail Employees, San Francisco Police Code Article 33G. Under the designation “Retail Workers’ Bill of Rights,” the new legislation will regulate employee hours, scheduling and retention and the treatment of part-time employees at certain standardized retail establishments in San Francisco.    

In an opinion issued on January 22, 2015, the Fourth District Court of Appeals left the door open for an insured in a multi-carrier insurance coverage case to attempt the allocation of settlement monies away from defense costs and essentially “pocket” settlements – attributing them to Brandt fees – while continuing its efforts against non-settling carriers.

On July 3, 2014, the California Supreme Court held that, based on common law principles, an architect owes a “duty of care” to future homeowners in the design of a residential building. To what extent the design professional must assume a role of principal architect or become involved in the construction phase before a duty will run to the ultimate purchaser of the condominium remains an open question.

An insurer is not liable under California law for failing to settle a liability claim when no settlement demand has been made and there was no evidence that the insurer knew or should have known the claimant was interested in settlement.

A recent California Court of Appeal case confirms the limited duty of an insurance broker only to use reasonable care, diligence and judgment in procuring the insurance requested by an insured. The court rejected arguments that the duty of an insurance broker to its client should be expanded for policy reasons.

While a recent decision by the California Court of Appeal is unfavorable to defendants, it does not completely close the door to the viability of the “sophisticated intermediary” defense. The Court says it is not enough for a supplier defendant to simply show the plaintiff was an employee of a sophisticated intermediary to avoid liability. The supplier must also show it had sufficient reason to believe the ultimate user knew or should have known of the hazards.

The California Court of Appeals (Fourth District) has held that the Right to Repair Act does not provide the exclusive remedy to homeowners in cases where actual damage has occurred because of construction defects, thereby upholding a homeowner’s common law rights and remedies to seek actual damages despite noncompliance with the terms and conditions required for relief under the Act.

California’s First District Court of Appeal finds common law and statutory duties extend from design professionals to ultimate purchasers of residential construction. Despite the extensive analysis by the court, there remain open questions regarding the extent of the duty of care of design professionals to ultimate purchasers.

While a California Appellate Court extended the “completed and accepted” doctrine to architects’ field operations, it limits application of the doctrine to patent defects and activities in the field – the doctrine does not apply to claims of error in the development of plans and specifications.

California’s governor has signed Assembly Bill 1875, which limits the length of depositions in civil cases. The new law will go into effect on January 1, 2013.

In Pinnacle Museum Tower Association v. Pinnacle Market Development, the California Supreme Court’s opinion demonstrates a strong public policy in favor of the mandatory arbitration of disputes. This case has clear implications regarding the enforceability of mandatory arbitration provisions in many other areas as well.

A recent California Supreme Court decision reaffirmed the need for clients to communicate with counsel early concerning the investigation conducted after an accident. The attorney can then direct the necessary investigation and analyze the manner in which witness information should be obtained to provide the necessary work product protection should the matter result in litigation.

The San Diego County Bar Association recently published an article by Patrick Kearns for its online periodical, Ethics Corner, entitled “Beware the Frivolous Appeal.”

In Pacific Rim Mechanical Contractors, Inc. v. Aon Risk Insurance Services West, Inc., a case of first impression, the court held that an insurance broker, after procuring a policy of insurance for a developer on a construction project, does not owe a duty to apprise a subcontractor that was later added as an insured under that policy of the insurance company’s subsequent insolvency, absent the assumption of a contractual duty to do so.

The California Supreme Court held that the doctrine of strict liability was never intended to impose absolute liability, which would place an excessive and unrealistic burden on product manufacturers who should not be required to insure and warrant against the potential risks involved with another manufacturer’s product.

Legal Insights has published two articles by California-based Wilson Elser attorneys in its winter 2012 issue.

SB 474, recently signed into law by Governor Edmund G. Brown, Jr. bans so-called “Type I” indemnity agreements that require subcontractors to assume liability for general contractors’ negligence.

On August 22, 2011 the California Supreme Court made claims by injured workers against general contractors more difficult when it held in Seabright Insurance v. U.S. Airways that the hirer of a subcontractor presumably delegates to the subcontractor any duties that arise regarding a safe workplace for the subcontractor’s employees.

Today, the Supreme Court of California held that unpaid medical expenses are not economic damages and therefore not recoverable. Plaintiffs may be awarded no more than the amount the medical providers accepted as full payment for their services.

The chapter, entitled "Privacy, Discrimination, and Establishment of NLRB Authority: Recent Decisions in Employment Law," examines four U.S. Supreme Court decisions, pending U.S. Supreme Court cases, and trends in labor law.

Manufacturers will need to keep on top of reports of product safety issues posted on a new government website. The U.S. Consumer Product Safety Commission will give companies a chance to challenge complaints made on its website, but response needs to be rapid, especially when there is a concern about the accuracy of a complaint.