Saghar Esfandiarifard

Calling all process nerds!! Big things are happening in California Civil Procedure. So many cases, perhaps most, already live or die by fealty to required process or the lack of it. Wiemond and I are excited to share insights and expectations about the new requirements and their impact on litigation in California. #processmatters #civpronerds #hansonbridgett #cadiscoveryact

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In a split opinion that “rather obviously invites a grant of review,” the Second District Court of Appeal in Hernandez v. Sohnen Enters. (D2d5 May 22, 2024 No. B323303) [cert. for pub.] held that, unless parties expressly invoke the California Arbitration Act, the Federal Arbitration Act preempts the CAA rule that deems any late fees to be a waiver of arbitration. The CAA, and specifically Code of Civil Procedure section 1281.97, creates a special waiver doctrine that applies only to arbitration agreements. When an employer fails to pay arbitration fees within 30 days, the statute deems the employer to have materially breached and thus waived its contractual right to arbitration. That special legislative innovation of judicial doctrines of material breach and waiver are inconsistent with the “equal-treatment” principle under the FAA. Dissenting, Justice Baker says that the Legislature can impose a “time is of the essence” policy upon obligations to timely pay arbitration fees. Which is true, but doesn’t really matter because even a “time is of the essence provision” “does not always make untimely performance a breach.” This leads to what is, to me, the most interesting point in the case. Justice Baker says: “The majority also appears to hint that the Legislature has somehow impermissibly invaded a judicial function to determine what constitutes "minor" or "inadvertent" delay.” This is the hint I took as well, and it strikes me as sound. But not Justice Baker, who says he is not aware of any authority suggesting such a limitation. Me, I think “material breach” and “waiver” are juridical concepts, meaning they are based on weighing evidence and common-law principles. They may not be substituted by Platonic declaration. The Legislature may impose penalties. But it can’t just make things up—”waiver” is a finding of fact, and findings of fact are not made, as statutes are, in a vacuum. Fact findings are the court’s province. Not the Legislature’s.

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I was very fortunate to attend the Sacramento County Bar Association’s  “Power Imbalance and Ethics” luncheon at Judicate West last week, hosted by Dispute Resolution section chair Melissa Blair Aliotti. International expert mediator Daniel Yamshon presented a very informative and thought provoking session on mediators' duty, if any, to address any “power” imbalances (eg, economic, education, strategic, cultural, etc) that might exist between the parties.  Standard VI A. of The Model Standards of Conduct for Mediators requires mediators to facilitate, among other things, a safe, respectful, and fair mediation process.  As a result, the mediators’ responsibility to minimize any such imbalances would seem clear.  At the same time, though, Section II A. of those same Standards also holds that mediators must be impartial, ie “free from favoritism, bias or prejudice.”  So, the challenge becomes whether and how a mediator assesses any power imbalances while, at the same time, maintaining their impartiality. Or, as Yamshon effectively stated: I) Do mediators have an obligation to identify instances where an agreement, while achievable, can lead to injustice?    II) Do mediators have an obligation to seek to avoid injustice although they were invited to facilitate an agreement (as opposed to rendering a decision on the merits of an issue)? Yamshon illustrated many of the ethical considerations, but refrained from providing his answer to either question. In doing so, he deftly equipped the attendees to be mindful of the issues, but to come to their own conclusions about how best to maintain impartiality but also “hold in care” the parties to their processes. Timing is everything: I also just had the chance to watch Aaron Casteel, Executive Director of Placer Dispute Resolution, very capably address a potential imbalance of power.  Aaron astutely identified the potential issue, and took steps to neutralize the concern. Seeing his adroit practical application of Yamshon’s important concept was a terrific lesson!

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On May 1, 2024, the Senate Judiciary Committee of the California legislature passed a heavily amended Senate Bill 940 aimed at regulating both arbitration and mediation services in California. According to a Los Angeles Daily Journal article published on May 2, 2024 (subscription only), the arbitration provisions may well run into issues of federal preemption: that is, run afoul of the Federal Arbitration Act, the mediation provisions are a different story. The bill, if passed, would create a voluntary certification program for both mediators and arbitrators to be administrated by the State Bar of California. It would add Section 6173 to the California Business and Professions Code: Article 10.1. Alternative Dispute Resolution Certification Program 6173. (a) The State Bar may create a program to certify alternative dispute resolution firms. (b) If the State Bar creates a program pursuant to subdivision (a), the State Bar shall establish procedures for a firm to become a certified alternative dispute resolution firm that include, but are not limited to, a requirement that the firm verify all of the following: (1) The firm requires, at a minimum, its arbitrators to comply with the Ethics Standards for Neutral Arbitrators in Contractual Arbitration as adopted by the Judicial Council pursuant to Section 1281.85 of the Code of Civil Procedure. (2) The firm requires, at a minimum, its mediators to comply with ethical standards that are equivalent to the Rules of Conduct for Mediators in Court-Connected Mediation Programs for General Civil Cases as provided in Rules 3.850 to 3.860, inclusive, of the California Rules of Court. (3) The firm has procedures in place for persons to make complaints regarding the failure of an arbitrator or mediator of the firm to comply with the standards described in paragraph (1) or (2), as applicable. (4) The firm has procedures to remedy failures of arbitrators or mediators to comply with the standards described in paragraph (1) or (2), as applicable. (c) If the State Bar creates a program pursuant to subdivision (a), the State Bar may charge a fee to cover the reasonable costs of administering the program. The author of the bill- Senator Tom Umberg, D-Santa Ana- notes both that the program is voluntary and that the State Bar does not have authority over non-lawyer mediators. ( Id. at Daily Journal article) On April 26, 2024, the Senate published its latest legislative analysis. At the end of the analysis, it quotes comments from several organizations opposing the bill, one of which is the California Dispute Resolution Council. It makes the very valid point that the “certification” will be misleading: ... Please read my full blog post: https://lnkd.in/gFT8ZKjs Phyllis Pollack, Esq Expert Mediation and Conflict Resolution Services for Southern California www.pgpmediation.com #mediation #adr

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Probably 70% of my recruiting practice is for BigLaw. That may be lower than many of my MLA colleagues. Why do I do so much work with mid-sized and smaller firms? A few reasons. In California we are spoiled for choice when it comes to boutiques -- both subject matter focused firms, and full-service boutiques are local institutions here. So, there are a lot of options! A lot of people don't want to work in BigLaw anymore/again/ever. My job is candidate-focused, so it's my job to find a role that matches what people want. It's definitely not my job to wedge them back into BigLaw because I don't have other options to offer them. In the last week MLA has begun a relationship with 3 new boutiques in Northern California, and the list grows all the time. Smaller firms allow associates to broaden out their practices -- their litigation teams do ALL kinds of work, because they don't have critical mass to have specialist strike teams. This model exists across corproate too - smaller firms' corporate teams may include M&A, ECVC, funds, tech trans... Being a generalist is appealing on its face but is also a great path to an in house role. Many, but not all, smaller firms offer better work/life balance. They may also be a more comfortable format for lawyers who want to know their colleagues more closely. So, don't rule out a smaller firm -- you may be surprised if you speak to them at just how much it sounds like the right fit.

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***CIPA Pen-Register/Trap-and-Trace Update*** The trend of filing in California CIPA pen-register / trap-and-trace class actions against media companies continues. Last week, another was filed, this time by a plaintiffs' counsel who, thus far, has not been involved in this type of litigation. It will be interesting to see whether additional Plaintiffs' counsel get involved, or whether they are waiting to see how these types of claims play out in court. Thus far, defendants have been relatively successful in nipping these claims in the bud. But it only takes one bad ruling for the flood gates to open.

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As an update to the most recent article I wrote for Consumer Attorneys of San Diego's Trial Bar News (https://lnkd.in/gJxVEw_7), I wanted to share that the Biden-Harris Administration has taken historic action to establish first-ever federal nursing home staffing standards. These standards will require nursing homes participating in Medicare and Medicaid to comply with the following nurse staffing standards: * Provide residents with a minimum total of 3.48 hours of nursing care per day, which includes at least 0.55 hours of care from a registered nurse per resident per day, and 2.45 hours of care from a nurse aide per resident per day.  * Have a registered nurse on site 24 hours per day, seven days per week to help mitigate against preventable safety events and deliver critical care to residents at any time.   * Conduct a stronger annual facility assessment than is currently required to improve the planning and identification of the resources and supports that are needed to care for residents based on their acuity during both day-to-day operations and emergencies. This process will need to include participation from direct care workers and others. * Develop a staffing plan to maximize recruitment and retention. The Fact Sheet on the final rule (CMS 3442-F) can be found here: https://lnkd.in/gBmHQusf

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🏛️California Court’s Decision Re: Are Stock Options Wages?💰 🔍 Anyone know the editor of WIRED Magazine? Just kidding, kinda. The recent decision in Shah v. Skillz Inc. does have wide-reaching implications for employers in the tech sector 🖥️🚀 or any employer who uses stock options as an important component of their competitive benefits-package. 📈 If you’re here, you know I’m a wage and hour geek, who loves getting into the intricacies of California law. And I’ve been watching this case for a while… 🫣 👨‍⚖️📊 Had this decision gone the other way, with stock options considered as “wages,” it would have introduced sweeping and challenging compliance implications for employers. Once something is defined as a “wage,” numerous legal obligations attach—including those around payment at termination and listing on pay stubs—making it a prime target for litigation. TL;DR - Ultimately, the Shah v. Skillz Inc. decision reassures employers across all sectors that they can use stock options without them being treated as wages under California law, allowing for more strategic flexibility in compensation planning. 🏢 The court also provided a thoughtful analysis on how to value such options, and why. This was a separate aspect of the opinion that provided clarity on the valuation complexities of fluctuating-value-assets (i.e., stock options). 🙏 Special thanks to my co-author Gabriel Mendoza, whose contributions helped shape this analysis. 📣 From your friendly neighborhood wage and hour attorney: if you know anyone at Wired Magazine, give them a holler. 😉

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I’m joining a great panel this Weds to talk about how AI has impacted IP, and what it means for companies looking to innovate. Hope you can join us for a great conversation!

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The California Court of Appeal's new, short decision Balderas v. Fresh Start is potentially very significant. (My colleagues and I requested publication; the published status of the decision was changed earlier today, from unpublished to published.) The Balderas court held that a plaintiff can file a PAGA action without an "individual" component. This means that the defendant could not force the plaintiff to arbitrate her "individual" PAGA claim while her "non-individual" claims grew stale in court waiting to be restarted. A defendant facing a PAGA claim that lacks an "individual" component must face the entire PAGA claim in some forum, *right now*, whether it be in court or in arbitration. This is what the Supreme Court intended in Iskanian--that PAGA function as a law enforcement supplement allowing for aggregate civil penalties to be pursued. Viking River seemingly undercut Iskanian to the extent it held that a PAGA plaintiff loses her statutory standing without an "individual" claim. The California Supreme Court rejected this misreading of state law in Adolph v. Uber. And now the full implications of Adolph are taking shape. Notwithstanding arbitration agreements, California employers will have to face PAGA claims in some forum. #arbitration #californialitigation #wageandhour #PAGA

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After a string of decisions from California state and federal courts uniformly holding that California's CCP section 1281.97, 98 and 99 are all not preempted by the Federal Arbitration Act, finally in Hernandez v. Sohnen Enterprises, a published appellate decision went the other way and held it is preempted. As a refresher, CCP 1281.97, 98, and 99 are California statutes providing that California employers and consumer litigation defendants must pay all arbitration-related fees required of them within 30 days of the deadline imposed by the arbitration provider. The statutes were meant to prevent defendants from cynically using arbitration to avoid class actions, and then refusing to pay the fees owed for the arbitration they required. In Hernandez, a split panel held that the California statutes are preempted because they pose an obstacle to the the FAA's objectives. Which is surprising, given that the FAA's objectives are supposedly facilitating arbitration, which is precisely what CCP 1281.97 does. The court's decision includes a strong dissent from Justice Baker, making review by the California Supreme Court appear likely. #arbitration #classaction #appellatelaw #appellatelinkedin #californialitigation #wageandhour

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Major changes to PAGA (California's Private Attorneys General Act), including the law's penalty structure. Read more below! #PAGA #PAGAReform #ClassActions #CaliforniaEmploymentLaw

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Two nights ago, NACD Northern California Chapter and Foley & Lardner LLP welcomed a group of globally-focused board directors to a private dinner. My partners Christopher Swift, who runs our firm’s national security team, and freshly joined Brian Wheeler, led a discussion around geopolitical threats, enforcement trends, and practical consequences to the phenomena relating to “securitization” of international trade and investment. Dr. Swift set the stage with three key paradigm shifts: 🔸 Economic: globalization to regionalization 🔻 Political: integration to fragmentation 🔺 Sociological: comprehension (fact-based decision making) to apprehension (emotion-based decision making) The practical consequences, as we see them, are that: 🔷 There are increasing restraints on cross-border trade and investment 🔵 More decisions are based on perceptions and posturing rather than facts (subjective vs. objective decision making) ☑ There is a growing tendency to turn commercial issues into security issues (that do not actually implicate national security) Our discussion highlighted the necessity for directors to prompt management to evaluate the potential risks and vulnerabilities stemming from geopolitical threats and regulatory enforcement actions. This process includes actively identifying areas of exposure, assessing the likelihood and impact of different scenarios, and creating strategies to mitigate risks and strengthen resilience. Here are several questions to consider asking at your next board meeting: ❓ How does the company gather and analyze intelligence on geopolitical developments?   ❔ What crisis planning has been done to manage various worst-case scenarios and how often is management reviewing this?   ⁉ How is management staying apprised of regulatory changes or compliance requirements related to geopolitical risks and international trade?    ⭕ How are we ensuring that our operations remain compliant in volatile markets? ❌ How resilient is our supply chain when it comes to geopolitical disruptions? Do we know who our suppliers' suppliers are? Do we have alternate suppliers on standby in the case of a geopolitical crisis?   ✖ How can the board support management in addressing these geopolitical challenges?   ✴ How may geopolitical issues affect the culture of the business and the employees/offices worldwide? Thank you 🙏 to Brian Wheeler for co-hosting the event with me, and Christopher Swift for leading the night's discussions. Special thanks 🙏 to our NACD directors Lisa Spivey 史白薇 and Kate Azima for bringing us all together. They do such an incredible job for us! 🙌 #techlaw #boardofdirectors #corporategovernance #venturecapital #foleyforward #garage2global #internationaltrade, #internationalsecurity, #doingbusiness, #china, #russia, #europeanunion, #unitedstates

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Tips for Efficient Legal Research in California When it comes to legal research in California, staying organized and strategic is key. Here are some practical tips I've found helpful: 1. Define your research question: Before I start my search, I always clarify the specific legal issue I'm tackling. This helps me choose the right search terms and sources. 2. Utilize online legal research tools: I often rely on platforms like Fastcase or CaseText for free access to primary law in California, such as statutes and court opinions. For more in-depth resources, paid services like Westlaw offer comprehensive tools and secondary sources like analysis and commentary. 3. Start with primary sources: I focus on relevant California codes and court opinions available on official state websites or through legal research platforms. These platforms help refine searches and ensure I find the latest cases. 4. Shepardize or KeyCite your cases: After finding relevant cases, I make sure to Shepardize or KeyCite them to verify their legal standing. This shows whether a case has been overturned or modified by later decisions. 5. Explore secondary sources strategically: While secondary sources like legal treatises and law review articles provide valuable insights, I use them to understand the law and analyze cases—not as standalone legal authority. 6. Take advantage of free librarian resources: Public law libraries often offer free legal research assistance and workshops. Librarians are pros at navigating legal databases and finding relevant materials. 7. Bonus Tip: Leverage technology for efficiency: Online research platforms offer advanced search features that help narrow down results. Additionally, exploring legal research AI tools can suggest relevant content and predict your research needs. Have more tips to share or questions about legal research? Let's discuss in the comments! #californialaw #employmentlaw #labourlaw #legal #law #legalinsights #legalassistance #legalresearch #legalupdates

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Check out our latest alert explaining how the California Supreme Court is poised to rule on whether a pharmaceutical manufacturer can choose not to market a potentially safer version of an already safe and effective drug or whether a new duty to market will take effect.

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Happy Wednesday everyone. Today, the U.S. Supreme Court heard arguments in the consolidated cases of Moyle v. U.S. and Idaho v. U.S. (https://supremecourt.gov) regarding an Idaho state law that bans abortion. Issue: Whether Idaho's 'Defense of Life Act', which bans abortions unless necessary to save the life of the mother, is preempted by federal law and therefore invalid. The federal 'Emergency Medical Treatment and Labor Act' (EMTLA), in 42 U.S.C. § 1395dd, was passed in 1986 and signed by President Reagan to require hospital emergency rooms to provide emergency stabilizing care for a qualifying emergency medical condition, regardless of a person's ability to pay or his or her citizenship. This requirement is a condition for hospitals that accept Medicare as payment (through the U.S. Constitution's spending clause), and the participating hospital must not transfer or discharge the patient, unless an exception exists such as there being another hospital that is better equipped to administer the stabilizing treatment. The statute does not specifically mention abortion, although it does consider the health of a pregnant woman or the health of her unborn child within the definition of "emergency medical condition". In part, the parties argued whether the state law could be read in conjunction with the federal law and whether the Idaho law (through interpretation) permits doctors to consider significant health factors of the mother, other than solely death. #scotus #idaho #law #supremecourt

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