Vol. 2005, Nos. 7-8
•
July/August 2005
Michael C. Sullivan, Editor-in-Chief
Inside This Issue
California’s “Reasonable Particularity”
Requirement in Trade Secret Litigation
TYLER PAETKAU ........................................................... 253
California’s “Reasonable
Particularity” Requirement in
Trade Secret Litigation
A New Approach For Responding To New
Communicable Illnesses In The Workplace
JEFFREY M. TANENBAUM.............................................. 267
By Tyler Paetkau
CAPITOL RECAP – WASHINGTON
Hot Time, Summer in the City
HAROLD P. COXSON .................................................. 269
Among the 44 states1 that have adopted the Uniform
Trade Secrets Act (“UTSA”),2 California is the only
state that, by statute, requires an identification of the
alleged trade secret before “commencing discovery
relating to the trade secret.”3 The California
Legislature added this requirement, which is not
contained in the UTSA,4 based upon a pre-UTSA
decision by the California Court of Appeal in
Diodes, Inc. v. Franzen.5
Unfortunately,
California’s unique “reasonable particularity”
standard is unclear, and the case law interpreting it
has developed slowly and inconsistently.6
CAPITOL RECAP – SACRAMENTO
Employment Bills Loom as Legislative
Term Comes to a Close
MIKE BELOTE ............................................................ 272
Personality Tests – Are They Vulnerable to Legal
Challenge When Used in the Workplace?
MICHAEL R. MINGUET .................................................. 274
Supreme Court Nominee John G. Roberts
and the Confirmation Process
HAROLD P. COXSON ...................................................... 276
PROFILE: Anne Celentino
LISA HIRD...................................................................... 279
CASE NOTES.............................................................. 281
Wage and Hour ......................................................... 281
Family Leave............................................................. 283
Retaliation................................................................. 284
Sexual Harassment.................................................... 285
Disability Discrimination.......................................... 286
Arbitration................................................................. 286
Public Sector............................................................. 287
Miscellaneous............................................................ 288
Introduction
This article discusses the factors California courts
have considered in determining whether a plaintiff
alleging trade secret misappropriation has
adequately described its claimed “trade secret.” It
argues for concise definitions, made in good faith,
_______________________________
1
The District of Columbia also adopted the UTSA in
1989.
2
In 1984, the California Legislature adopted the 1979
version of the UTSA and codified the statute at Cal. Civ.
Code §§ 3426-3426.11 (2005).
3
TALES FROM COUNSEL TABLE
JOE CONNAUGHTON .................................................. 291
4
CUMULATIVE SUBJECT INDEX........................... 293
5
TABLE OF CASES ..................................................... 294
EDITORIAL & AUTHOR CONTACT
INFORMATION ......................................................... 296
Cal. Code Civ. Proc. § 2019(d) (2005).
California Assembly Bill 501 (1983-1984 Regular
Session).
260 Cal. App. 2d 244 (1968).
6
This is due in part to the fact that it is a discovery
ruling subject to a deferential abuse of discretion standard
of appellate review.
(Continued on page 255)
CA Labor & Employment Bulletin
254
July/August 2005
EDITORIAL BOARD
REPORTERS
Michael C. Sullivan, Editor-in-Chief
Joseph L. Beachboard
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Los Angeles
Michelle C. Doolin
Cooley Godward LLP
San Diego
Sandra L. McDonough
Paul, Plevin, Sullivan & Connaughton LLP
San Diego
Jennifer J. Walt
Littler Mendelson, P.C.
San Francisco
Deborah S. Weiser
Paul, Hastings, Janofsky & Walker LLP
(Of Counsel)
Los Angeles
William V. Whelan
Sheppard, Mullin, Richter & Hampton LLP
San Diego
Paul, Plevin, Sullivan & Connaughton LLP
San Diego
Nancy L. Abell
Paul, Hastings, Janofsky & Walker LLP
Los Angeles
Joseph L. Beachboard
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Los Angeles
Lynn Matityahu Frank
Gregorio, Haldeman, Piazza, Rotman & Matityahu
San Francisco
Lynne C. Hermle
Orrick, Herrington & Sutcliffe LLP
Menlo Park
Phil Horowitz
San Francisco
Laura P. Juran
Altshuler, Berzon, Nussbaum, Rubin & Demain
San Francisco
Tyler M. Paetkau
Winston & Strawn LLP
San Francisco, CA
Michelle A. Reinglass
Orange County
William B. Sailer
V.P. & Senior Legal Counsel; QUALCOMM Incorporated
San Diego
Charles D. Sakai
Renne, Sloan, Holtzman & Sakai
San Francisco
Stacy D. Shartin
Seyfarth Shaw LLP
Los Angeles
Jeffrey M. Tanenbaum
Nixon Peabody LLP
San Francisco
Jeffrey K. Winikow
Los Angeles
M. Kirby Wilcox
Paul, Hastings, Janofsky & Walker LLP
San Francisco
COLUMNISTS
Mike Belote
California Advocates, Inc.
Sacramento
Harold P. Coxson, Jr.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Washington, DC
Dan Stormer
Hadsell & Stormer Inc.
Pasadena
EDITORIAL STAFF
Aileen Jenner
Practice Area Director
Wendi Reed
Practice Area Editor
Doug Walker
Editor
A NOTE ON CITATION: The correct citation form for
this publication is: 2005 Bender’s Calif. Lab. & Empl. Bull.
253 (July/August 2005)
This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is
provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional
service. If legal or other expert assistance is required, the services of a competent professional should be sought.
From the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of
Publishers and Associations.
Copyright © 2005 LexisNexis Matthew Bender. LexisNexis, the knowledge burst logo, and Michie are trademarks of Reed Elsevier Properties Inc.,
used under license. Matthew Bender is a registered trademark of Matthew Bender Properties.
255
CA Labor & Employment Bulletin
July/August 2005
California’s “Reasonable Particularity” Requirement
in Trade Secret Litigation
By Tyler Paetkau*
* Tyler Paetkau is a partner in the San Francisco office of Winston & Strawn. Mr. Paetkau represents employers in all facets of
labor and employment law, including misappropriation of trade secrets and unfair competition matters.
(Continued from page 253)
separating the alleged trade secret from matters known
generally to those in the trade or business, without the
typical “catch-all” phrases such as “all information
relating to [the employer’s] business.”
As trade secret practitioners know, the very early
stages of trade secret litigation are critical, particularly
if the plaintiff seeks an immediate temporary
restraining order and/or preliminary injunctive relief to
prevent the misappropriation. First, California law7
7
By contrast, some non-California jurisdictions have
held that a certain degree of discovery and case development
are necessary before a plaintiff can identify the
misappropriation or trade secret in question. See Ray v.
Allied Chemical Corp., 34 F.R.D. 456, 457 (S.D.N.Y. 1964)
(deferring issue of disclosure of confidential processes until
trial “to be resolved by the Trial Judge who would be in a
better position to evaluate plaintiff’s claim”); AutoMed
Techs., Inc. v. Eller, et al., 160 F. Supp. 2d 915, 921 (N.D.
Ill. 2001) (“Without access to [defendants’] records, [the
plaintiff] has no way of knowing what information their
former employees disclosed and are using in their current
research”); Microtech Int’l, Inc. v. Fair, 1992 Conn. Super.
LEXIS 2754, *8 (Conn. Super. Ct. Sept. 18, 1992) (“[I]n
order for the plaintiff to demonstrate any wrongdoing on the
part of the defendant, the plaintiff must first discover the
very information which the defendant seeks to preclude”).
Struthers Scientific & Int’l Corp. v. General Foods, Corp.,
51 F.R.D. 149 (D. Del. 1970), expounds on this issue:
Of course, Struthers will have the burden at trial of
proving the secrecy of its alleged trade secrets at
the time of disclosure but the cases have not yet
reached that point. They are still in the discovery
stage with the parties attempting to define and
sharpen the issues for trial. The Court is unable on
the present record to determine whether the
separate items of information set forth in
Struthers’ answer to interrogatory 119 are trade
secrets, as sworn to by Struthers, or whether they
consist of information in the public domain, as
contended by General Foods. These are ultimate
issues which cannot be resolved until after the
presentation of evidence at trial. The Court cannot
on any valid basis, from its own knowledge or
otherwise, at this time determine whether or not
the 103 separate items of information listed in the
answer are bona fide trade secrets of Struthers. To
rule on these questions now would require a full
blown hearing on each separate item. No such
requires that a trade secret plaintiff present what might
be called a prima facie showing or description of the
trade secret allegedly misappropriated before he or she
can start any discovery “relating to the trade secret,”
e.g., subpoenas for hard drives and emails from the
defendants, or depositions of the departing employees
and the defendant’s management. Specifically, under
Section 2019(d) of the California Code of Civil
Procedure, the plaintiff must first identify the alleged
trade secret with “reasonable particularity” before
requiring the production of any document, information
or material from the defendant in discovery.8
Unfortunately, Section 2019(d) provides no further
definition, explanation or clarification of the
“reasonable particularity” standard. Accordingly, trial
courts have struggled in exercising their discretion
under the fact-specific circumstances of each case to
determine whether the plaintiff’s disclosure satisfies
this statutory requirement, resulting in seemingly
inconsistent results and standards. Scant legislative
history and the developing California case law
nevertheless provide some guidance regarding the prediscovery, Section 2019(d) “reasonable particularity”
trade secret description.9
burden was intended to be placed on the Court
during discovery. (Id. at 152).
But see Magnox v. Turner, Del. Ch. LEXIS 140 (Del. Ch.
Sept. 10, 1991) (denying plaintiff’s motion to compel
discovery because “the relevance of [its] requests cannot be
determined until [plaintiff] identifies the trade secrets that it
claims to have been misappropriated by defendants”).
8
Cal. Code Civ. Proc. § 2019(d) (2005).
9
The UTSA defines “trade secret” as:
[I]nformation, including a formula,
pattern, compilation, program, device,
method, technique, or process that:
(1) Derives independent economic value,
actual or potential, from not being
generally known to the public or to other
persons who can obtain independent
economic value from its disclosure or
use; and
CA Labor & Employment Bulletin
California’s “Reasonable Particularity” Standard
California Code of Civil Procedure section 2019(d)
establishes the “reasonable particularity” requirement:
In any action alleging the misappropriation of
a trade secret under the Uniform Trade
Secrets Act (Title 5 (commencing with
Section 3426) of Part 1 of Division 4 of the
Civil Code), before commencing discovery
relating to the trade secret, the party alleging
the misappropriation shall identify the trade
secret with reasonable particularity subject
to any orders that may be appropriate under
Section 3426.5 of the Civil Code. 10
Not surprisingly, given the inherent vagueness of this
“reasonable particularity” requirement, California
courts have not uniformly interpreted it. Moreover,
limited legislative history does not shed much light on
this standard.
Legislative History of CCP § 2019(d)
California adopted the UTSA in 1984, setting forth the
general parameters of trade secret litigation and
available remedies. Significantly, Section 2019(d)
was not part of the UTSA. Rather, the legislative
history11 makes clear that the “reasonable
particularity” requirement of Section 2019(d) derives
from the court of appeal’s holding in Diodes, Inc. v.
Franzen.12 In fact, according to the California
Legislature, Section 2019(d) expressly was “intended
to codify Diodes and afford a measure of protection
against the procedure of initiating an action to pursue
extensive discovery without revelation of the trade
secret or secrets.”13
Diodes, Inc. v. Franzen: The Precursor to § 2019(d)
The Diodes case, decided sixteen years before
California adopted the UTSA, first articulated the
“reasonable particularity” standard. The facts of
Diodes are familiar to many trade secret litigation
practitioners. In Diodes, the plaintiff’s design and
manufacturing company brought an action against the
(2) Is the subject of efforts that are
reasonable under the circumstances to
maintain its secrecy.
256
July/August 2005
defendants alleging misappropriation of trade
secrets,14 and sought to enjoin the defendants from
disclosing or using a “secret process.”15
The
defendants “were directors and officers, respectively
president and vice president, of Diodes from its
formation through about September 1960, and at the
same time were salaried employees in complete
control of Diodes’ research and development
program” before leaving the plaintiff corporation to
form their own company to compete directly with the
plaintiff.16
The third amended complaint alleged that while the
defendants were working for the plaintiff, they
developed a “secret process” for manufacturing
diodes,17 which they did not share with the other
officers and directors, and which the defendants
subsequently used in their newly formed corporation.18
The court dismissed the plaintiff’s complaint on
demurrer without leave to amend, on the ground that
the plaintiff had failed
to plead facts showing that it ever had any
trade secret to protect. The plaintiff’s third
amended
complaint
speaks
in
circumlocutions and innuendoes. The subject
matter of the so-called “secret process” is not
stated, except to hint that it had something to
do with the manufacture of diodes.19
The court acknowledged, however, that the party
seeking to protect its trade secrets need not “spell out
the details of the trade secret to avoid a demurrer … .
To so require would mean that the complainant would
have to destroy the very thing for which he sought
protection by making public the secret itself.”20
Nevertheless, the Diodes Court stated:
14
Prior to California’s adoption of the UTSA, California
followed the Restatement of Torts § 757 for
misappropriation of trade secrets actions, which broadly
defines “trade secret.” See Vacco Industries, Inc. v. Van
Den Berg, 5 Cal. App. 4th 34, 49-50 (1992).
15
See Diodes, 260 Cal. App. 2d at 249-50.
16
See id.
17
See California Assembly Bill 501 (1983-1984 Regular
Session).
A “diode” can be either (1) a device that restricts
current flow chiefly to one direction; (2) an electron tube
having a cathode and an anode; or (3) two-terminal
semiconductor device used to convert alternating electrical
current to direct current. The American Heritage Dictionary
of the English Language (4th ed. 2000, Houghton Mifflin
Company).
12
Diodes, Inc. v. Franzen, 260 Cal. App. 2d 244 (1968).
18
Diodes, 260 Cal. App. 2d at 249-50 n.1.
Computer Econs., Inc. v. Gartner Group, Inc., 50 F. Supp.
2d 980, 985 n.6 (S.D. Cal. 1999) (citing Memorandum from
Messrs. John Carson and Greg Wood to Assemblyman
Harris regarding Assembly Bill 501).
19
See id. at 251 (emphasis added).
20
Id. at 252-53.
Cal. Civ. Code § 3426.1(d).
10
Id. (emphasis added). As of July 1, 2005, the
Legislature renumbered § 2019(d) as § 2019.210.
11
13
CA Labor & Employment Bulletin
Before a defendant is compelled to respond to
a complaint upon claimed misappropriation
or misuse of a trade secret and to embark on
discovery which may be both prolonged and
extensive, the complainant should describe
the subject matter of the trade secret with
sufficient particularity to separate it from
matters of general knowledge in the trade …
and to permit the defendant to ascertain at
least the boundaries within which the secret
lies.21
The above language from Diodes, though arguably
dicta, differs markedly from the final wording of
Section 2019(d) enacted by the state legislature. First,
the Diodes opinion states that a plaintiff “should
describe the subject matter” and “boundaries” of the
trade secret with “sufficient particularity.”22 Diodes
also required that the trade secret description
differentiate the alleged trade secret “from matters of
general knowledge in the trade.”23
Conversely,
Section 2019(d) requires a plaintiff to “identify the
trade secret with reasonable particularity.”24 Thus,
Section
2019(d)
replaces
“sufficient”
with
“reasonable” and excludes the “general knowledge in
the trade” requirement of Diodes. The limited
legislative history of Section 2019(d) provides no
explanation for the statute’s deviation from the
wording in Diodes. The legislative history does,
however, identify the public policy reasons for the
enactment of Section 2019(d).
257
July/August 2005
Inc. v. Gartner Group, Inc.,26 discussed the intent and
purpose behind Section 2019(d) in detail.
In Computer Economics, the defendant appealed an
order by a magistrate judge granting the plaintiff’s
motion to compel discovery and imposing monetary
sanctions against the defendant for failing to provide
adequate discovery responses.27
The plaintiff,
Computer Economics, Inc., propounded document
requests and interrogatories on the defendant.28 The
defendant, Gartner Group, Inc., served timely
objections, but it refused to provide substantive
responses based on Section 2019(d).29
After
reviewing the legislative history, purpose and effect of
Section 2019(d), the court first determined under the
Erie Doctrine that the statute was a substantive state
law applicable in diversity cases pending in California
federal courts.30
The Computer Economics court observed that the
California Legislature enacted Section 2019(d) to
advance four public policies:
1) to promote well-investigated claims and
dissuade the filing of meritless trade
secret complaints;
2) to prevent plaintiffs from using discovery
as a means of obtaining defendant’s trade
secrets;
3) to assist the court in framing the
appropriate scope of discovery and in
determining whether plaintiff’s discovery
requests fall within that scope;
and
A Judicial Interpretation of § 2019(d): Computer
Economics
Nearly twenty years after the court of appeal decided
Diodes, the California State Legislature adopted the
UTSA and separately enacted Section 2019(d) of the
California Code of Civil Procedure.25 Fifteen years
later, a federal district court, in Computer Economics,
21
Id. (emphasis added). The court passed on the
sufficiency of plaintiff’s first complaint, which specifically
alleged the type of process, and why and how the defendants
had allegedly misappropriated the plaintiff’s trade secret.
See id. at 253, n.2.
22
Id. (emphasis added).
23
Id.
4) to enable defendants to form complete
and well-reasoned defenses, ensuring
that they need not wait until the eve of
trial to effectively defend against charges
of trade secret misappropriation.31
The purpose of Section 2019(d) is the prevention of
“meritless trade secret complaints.” As the Computer
Economics court stated:
The statute was enacted to curb unsupported
trade secret lawsuits routinely commenced to
harass competitors and former employees.
The California legislature understood that
24
Both “sufficient” and “reasonable” suggest that the trial
court enjoys substantial discretion in determining what
degree of detail in the trade secret description is necessary
before the plaintiff can start discovery.
26
50 F. Supp. 2d 980 (S.D. Cal. 1999).
27
Id. at 982-83.
25
28
Id. at 981-82.
29
Id.
30
Id. at 992.
31
Id.
See Computer Econs. v. Gartner Group, 50 F. Supp. 2d
980, 984-85 (S.D. Cal. 1999), for a discussion. Interestingly,
the legislature codified UTSA in the Civil Code §§ 3426
through 3426.11, but Section 2019(d) is part of the
Discovery Act, which is in the Code of Civil Procedure.
CA Labor & Employment Bulletin
plaintiffs in trade secret cases are often
unable to identify any trade secrets, even
after months of extensive discovery. Trade
secret claims are especially prone to
discovery abuse since neither the court nor
the defendant can delineate the scope of
permissible
discovery
without
an
identification of plaintiff’s alleged trade
secrets. By restricting a plaintiff’s ability to
engage in discovery until it identifies its trade
secrets “with reasonable particularity,” CCP §
2019(d) strikes a balance between a
plaintiff’s right to protect its trade secrets and
a defendant’s right to be free from the
burdens associated with unsupported trade
secrets claims.32
California Courts’ Interpretation And Application
Of Section 2019(d)
The California courts that have interpreted and applied
Section 2019(d) since Diodes do not provide clear
guidance in interpreting the “reasonable particularity”
standard under Section 2019(d). Many simply repeat
the definition in Diodes.33 Further, because the
32
Id. (emphasis added).
33
See, e.g., Pixion, Inc., v. Placeware Inc., No. C 0302909 SI, 2005 U.S. Dist. LEXIS 11356, at *21 (N.D. Cal.
Jan. 13, 2005); Systems Am., Inc. v. Softline, Inc., No. C9620730 RMW PVT n.1, 1996 U.S. Dist. LEXIS 22415, at *2
(N.D. Cal. Oct. 30, 1996) (reiterating Diodes standard:
“This court’s interpretation of a ‘reasonable
particularity’ requirement is consistent with the
application of the ‘reasonable particularity’
requirement in California state courts under
section 2019(d) of the California Code of Civil
Procedure.
The requirement of reasonable
particularity must provide the defendants with
sufficient particularity to separate the trade secret
from matters of general knowledge and to permit
the defendant to ascertain the boundaries within
which the secret lies. [Citing Diodes.] As such,
the disclosure must provide the plaintiff with
reasonable guidance in ascertaining the scope of
appropriate discovery. [¶] Plaintiff’s designation
is insufficient.
The designation conceivably
includes every non-technical aspect of plaintiff’s
business. Although the disclosure limits discovery
to non-technical areas, the disclosure remains
extremely broad. Although the disclosure centers
on sufficiently particular categories including
clients and pricing strategies, the disclosure also
includes a ‘catch-all’ provision including
information concerning ‘relevant business
activities.’ Such a disclosure is too broad for
purposes of discovery. Plaintiff must either limit
the disclosure further or more clearly define the
first category.”)
(emphasis added).
258
July/August 2005
California decisions applying Section 2019(d) diverge
and tend to be very fact-specific, a misappropriation
plaintiff cannot rely upon a single decision or holding
for guidance when identifying its trade secret for
Section 2019(d) purposes.
Forro vs. IBM: Pre-UTSA, Sufficient Particularity
In cases involving product or engineering designs, it is
unclear whether the plaintiff alleging misappropriation
must specify the exact dimensions and tolerances
claimed as trade secrets before it can start discovery
relating to them.34 In Forro Precision, Inc. v.
International Business Machines Corp.,35 which
predated the enactment of Section 2019(d), the
defendant, IBM, filed a counterclaim against the
plaintiff,
Forro
Precision,
Inc.,
alleging
misappropriation of trade secrets.36 A jury awarded
IBM $260,777 on its misappropriation claim. The
plaintiff, Forro, appealed the award, and the Ninth
Circuit Court of Appeals affirmed the judgment.37 On
appeal, Forro argued that IBM made only “vague
references to the dimensions and tolerances” of the
trade secrets allegedly misappropriated.38 The court
found that IBM had introduced sufficient evidence at
trial by which a jury could find that Forro had
misappropriated its trade secrets.39 Forro argued that
IBM was “obligated to make direct comparisons
between IBM and Forro drawings” in identifying its
claimed trade secrets.40 The court of appeal rejected
Forro’s argument, finding that IBM had produced
sufficient information regarding the specific design
drawings and blueprints allegedly misappropriated by
Forro.41
On the other hand, in Imax Corp. v. Cinema
Technologies, Inc.,42 decided after the Legislature
codified Section 2019(d), the district court held that
the plaintiff’s use of the “catch-all” phrase “including
every dimension and tolerance that defines or reflects
34
See Imax Corp. v. Cinema Techs., Inc., 152 F.3d 1161,
1166–67 (9th Cir. 1998); Forro Precision, Inc. v. Int’l Bus.
Mach. Corp., 673 F.2d 1045, 1057 (9th Cir. 1982).
35
673 F.2d 1045 (9th Cir. 1982).
36
Id. at 1056-57.
37
Id.
38
Id.
39
The evidence at trial tended to show that the plaintiff
wrongfully acquired the defendant’s drawings, used those
drawings to manufacture parts of a particular product that
the defendant was developing, and offered such parts before
the defendant had even shipped the product. Id.
40
Id.
41
Id.
42
152 F.3d 1161 (9th Cir. 1998).
CA Labor & Employment Bulletin
259
July/August 2005
that design,” without describing the exact
specifications, was insufficient to state a claim for
trade secret misappropriation.43 On this ground the
district court granted the defendant’s motion for
summary judgment.44 The plaintiff unsuccessfully
argued that the court’s holding in Forro Precision
established that “dimensions and tolerances” were
sufficient to describe a trade secret.45 The Ninth
Circuit acknowledged its holding in Forro Precision
but rejected the plaintiff’s argument because the mere
use of the words “dimensions and tolerances,” without
providing the actual numerical dimensions and
tolerances, did not sufficiently describe the trade secret
in question.46 Although neither the Imax Corp. nor the
Forro Precision cases mentioned Section 2019(d), the
former did require the plaintiff to “describe the subject
matter of the trade secret with sufficient particularity
to separate it from matters of general knowledge in the
trade or of special knowledge of those persons …
skilled in the trade.”47 Further, the Forro Court
specifically found that the defendant produced
“sufficient evidence to allow the jury to identify the
secrets claimed to be misappropriated.”48
Survey of Recent § 2019(d) California Case Law
In Systems America, Inc. v. Softline, Inc. et al.,49 a case
with analogous facts, the plaintiff’s Section 2019(d)
disclosure included a similar “catch-all” purporting to
include as trade secrets any information concerning
the plaintiff’s “relevant business activities.”50 The
court found the description overly broad and granted,
in part, the defendant’s motion for more specific
identification of trade secrets under Section 2019(d).51
Relying upon Diodes, the court stated:
This court’s interpretation of a “reasonable
particularity” requirement is consistent with
the
application of
the
“reasonable
particularity” requirement in California state
courts under section 2019(d) of the California
Code of Civil Procedure. The requirement of
reasonable particularity must provide the
defendants with sufficient particularity to
separate the trade secret from matters of
general knowledge and to permit the
defendant to ascertain the boundaries within
which the secret lies. [citing Diodes, 260
Cal. App. 2d at 253.] As such, the disclosure
must provide the plaintiff with reasonable
guidance in ascertaining the scope of
appropriate discovery.
Plaintiff’s designation is insufficient. The
designation conceivably includes every nontechnical aspect of plaintiff’s business.
Although the disclosure limits discovery to
non-technical areas, the disclosure remains
extremely broad. Although the disclosure
centers on sufficiently particular categories
including clients and pricing strategies, the
disclosure also includes a “catch-all”
provision including information concerning
“relevant business activities.”
Such a
disclosure is too broad for purposes of
discovery. Plaintiff must either limit the
disclosure further or more clearly define the
first category.52
In Canter v. West Publishing, Inc.,53 the district court
held that the plaintiffs did not identify their trade
secret with “reasonable particularity,” as required by
Section 2019(d).54 In Canter, the plaintiffs brought a
misappropriation of trade secrets claim against West
Publishing, alleging that West had developed a
program based on a project proposal that the plaintiffs
submitted and West rejected.55 In an attempt to
comply with Section 2019(d), the plaintiffs identified
the alleged trade secret as “a natural language
processor which, among other attributes, formulates
queries and enhances the ease of electronic document
retrieval … described with reasonable particularity in
52
43
152 F.3d at 1166 (emphasis in original).
*3.
44
Id. at 1164.
53
45
Id. at 1166-67.
46
Id.
47
Universal Analytics v. MacNeal-Schwendler Corp., 707
F. Supp. 1170, 1177 (C.D. Cal. 1989) (citation omitted)
(emphasis added), aff’d, 914 F. 2d 1256 (9th Cir. 1990).
48
Forro Precision, Inc., 673 F.2d at 1057 (emphasis
added).
49
1996 U.S. Dist. LEXIS 22415, at *2-*3 (C.D. Cal. Oct.
3, 1996).
50
Id., at *2-*3.
51
Id., at *3.
Systems America, 1996 U.S. Dist. LEXIS 22415, at *2-
31 F. Supp. 2d 1193 (N.D. Cal. 1999) (opinion
withdrawn from publication) (holding limited to facts and
circumstances of particular case).
54
55
See Canter, 31 F. Supp. 2d 1193, at *23-*25.
The proposal plaintiffs submitted was to enhance
Westlaw capabilities by developing a program that would
suggest alternative keywords and phrases, suggest topics of
law to confine the query, and suggest appropriate databases
to run the query. Plaintiffs provided defendants with
demonstration of the program on disk, which was
copyrighted but not marked “confidential.”
West
subsequently rejected plaintiffs’ proposal and hired someone
who subsequently developed a similar program. See id., at
*1–*5.
CA Labor & Employment Bulletin
the QueryMate materials.”56
The referenced
“QueryMate materials” were twenty-one pages
describing the program and a prototype of the
software.57
The court noted, “Nowhere in the
designation did Plaintiffs specify which portions of the
QueryMate materials described their trade secret.”58
Finding this description insufficient, the court stated
that the plaintiffs cannot simply make a “blanket
reference” in complying with Section 2019(d),
referring the court and the defendant(s) to a
compilation of documents without identifying the
portions of information in the documents that qualified
as trade secrets.59 The court required the plaintiff to
“delineate specifically” the claimed trade secrets, but
did not provide much other guidance.60
In Whyte, et al. v. Schlage Lock Co.,61 the court of
appeal combined the standards from Diodes with the
provisions of Section 2019(d).62 The Whyte court
found Schlage’s description of its new product line
overly broad because it “does not differentiate
between truly secret information (such as formulas and
product design) and new product information which
has been publicly disclosed.”63 The Whyte court held,
however, that several of Schlage’s seemingly general
descriptions of other trade secrets were sufficient.64
The court reasoned that one of the plaintiffs, Kwikset,
easily ascertained the boundaries of Schlage’s trade
secrets during his deposition65 and understood the
56
Id., at *26.
57
Id.
58
Id.
59
Id.
60
Id.
61
101 Cal. App. 4th 1443 (2002).
260
July/August 2005
scope and meaning of the various categories described
by Schlage.66
In Excelligence Learning Corp. v. Oriental Trading
Co.67 the plaintiff, a developer, manufacturer and
retailer of educational products, alleged that the
defendant misappropriated trade secret product
information to create a competing mail-order catalog.
The plaintiff identified 278 of its “best-selling”
products and claimed the list of successful products
was a trade secret because “[w]ithout this alleged trade
secret information, [the defendant] would have had to
purchase and sell products on a ‘trial-and-error’ basis
in order to ascertain, over a period of years, which
products were the best-selling and most profitable.”68
based its conclusion in large measure on the fact that the
president of Kwikset, one of the plaintiffs, easily ascertained
the boundaries of Schlage’s trade secrets during his
deposition and understood the scope and meaning of the
various categories described by Schlage prior to the hearing
on Schlage’s application for a preliminary injunction.
66
The court found that the following descriptions
complied with section 2019(d):
b. Pricing of Schlage’s products sold to its
customers; c. Profit margins on Schlage’s products
sold to its customers; d. Schlage’s costs in
producing the products it sells to its customers; e.
The Home Depot line of documents; f. Pricing
concessions made by Schlage to its customers; g.
Promotional discounts made by [defendants] to its
customers; h. Advertising allowances made by
Schlage to its customers; i. Volume rebates made
by Schlage to its customers; j. Marketing
concessions made by Schlage to its customers; k.
Schlage’s market research data; l. Advertising
strategy for calendar year 2000; m. Trade
Discounts made by Schlage to its customers; n.
Payment terms offered by Schlage to its customers
and offered by Schlage vendors/suppliers to
Schlage; o. Rebate Incentives made by Schlage to
its customers; p. Schlage’s advertising, sales and
promotion budgets; q. Finishing processes for new
and existing Schlage products; r. Composite
material process technologies (i.e., the unique
composite materials used by [defendant] in its
products and the processes applied to those
composite materials; s. Schlage’s 1, 3 and 5 year
strategic plan documents. (Id. at 1452.)
62
“Schlage’s descriptions made pursuant to Code of Civil
Procedure section 2019, subdivision (d), in supplemental
briefing, and in declarations remove any doubt about the
‘boundaries within which the secret[s] lie[].’ ” Id. at 1452
(quoting Diodes, Inc. v. Franzen, 260 Cal. App. 2d 244, 253
(1968)).
63
Id. at 1454.
64
Id. at 1453.
65
In Whyte, the defendant Schlage filed a cross-complaint
for trade secret misappropriation and sought a temporary
restraining order against Whyte to prohibit disclosure of its
alleged trade secrets. The trial court then permitted
expedited and limited discovery on this issue in preparation
for an evidentiary hearing on Schlage’s application for a
preliminary injunction. After the hearing, the court denied
Schlage’s application for a preliminary injunction. Schlage
appealed. On appeal, the court applied Section 2019(d),
finding that Schlage’s disclosures “remove any doubt about
the ‘boundaries within which the secret[s] lie[].’ ” Id. at
1452 (citing Diodes, 260 Cal. App. 2d at 253). The court
67
68
2004 U.S. Dist. LEXIS 28125 (N.D. Cal. 2004).
Id., at *5. Plaintiff also identified “catalog layouts and
photographs, and the utilization of various sales methods
such as highlighted text and lettering” as trade secrets. Id. at
*12. Note that under the California UTSA, such “negative
know-how” can constitute a trade secret.
Courtesy
Temporary Serv. v. Camacho, 222 Cal. App. 3d 1278, 1287
(1990) (finding lengthy efforts that, from negative
viewpoint, indicate what does not work or which potential
customers are unlikely to become actual customers, could
constitute trade secret); SI Handling Sys. v. Heisley, 753
CA Labor & Employment Bulletin
The defendant argued that the identification did not
satisfy Section 2019(d) because the items were
publicly available.69 The district court initially agreed
with the defendant that the “information is largely
subsumed within a significant amount of data and
documents which do not appear to qualify for trade
secret protection.”70 However, the district court
concluded that the plaintiff’s identifications satisfied
Section 2019(d) and “are sufficient to fulfill the
minimum threshold requirements of the California
trade secrets discovery statute.”71 The district court
reasoned that simply because the “information is either
publicly available or known to those in the trade
addresses the merits of [the plaintiff’s] trade secrets
claim rather than its responsibilities under the
applicable discovery rules.”72 But the Excelligence
Court’s reasoning appears to contradict the Diodes
rule, i.e., the description of the alleged trade secret
should “separate it from matters of general knowledge
in the trade.”73
Similarly, the court in Pixion, Inc. v. Placeware, Inc.74
agreed with the plaintiff that Section 2019(d) only
requires a party to provide “reasonable notice of its
trade secrets, not to set forth the details of the secrets
themselves.”75 However, the issue in Pixion was
F.2d 1244, 1262 (3d Cir. 1985); Morton v. Rank Am., Inc.,
812 F. Supp. 1062, 1073 (C.D. Cal. 1993) (holding negative
research results may be protectable as trade secret); Self
Directed Placement Corp. v. Control Data Corp., 908 F.2d
462, 465-66 (9th Cir. 1990) (finding know-how and negative
information not secret and therefore not trade secret). Most
guidance on negative “know how” comes from the
Legislative Comments to the UTSA (Comment to Civil
Code § 3426.1):
The definition of “trade secret” … includes
information that has commercial value from a
negative viewpoint, for example the results of
lengthy and expensive research which proves that
a certain process will not work could be of great
value to a competitor.
On this point, the UTSA overruled Winston Research Corp.
v. Minnesota Min. & Mf’g Co., 350 F.2d 134 (9th Cir. 1965),
which had held that negative information cannot constitute a
trade secret. One may also have a trade secret in information
obtained by “reverse engineering” another’s trade secret.
See Comment to Civil Code § 3426.1.
69
Id.
70
Id. (emphasis added).
71
Id.
72
Id. (emphasis added).
73
Diodes, 260 Cal. App. 2d at 252-53.
74
2005 U.S. Dist. LEXIS 11356 (N.D. Cal. Jan. 13,
2005).
75
Id., at *21-*22.
261
July/August 2005
whether the plaintiff’s initial disclosure provided
reasonable notice of the issues to be met on summary
judgment regarding the alleged trade secret.76 In
opposing the defendant’s motion for summary
judgment, the plaintiff sought to add some technical
detail to its alleged trade secrets to attempt to create a
triable issue of material fact.77 The court found that
since the plaintiff previously had stated on the record
that it was “willing to live with our Section 2019
[description], it’s very detailed,” it was bound to these
initial disclosures.78
Moreover, by forcing the
defendant to rely upon a general description in
formulating its defense, the plaintiff should not be able
to change the description to survive summary
judgment.79
Amending an initial Section 2019(d) trade secret
description was also a central issue in Neothermia
Corp. v. Rubicor Medical, Inc.,80 where the defendant
refused to respond to discovery on the ground that the
plaintiff had not satisfied Section 2019(d).81 However,
the plaintiff had not even alleged a claim for
misappropriation of trade secrets, and argued that, as a
result, Section 2019(d) did not apply.82 The defendant
claimed that Section 2019(d) applied because the
plaintiff had alleged a cause of action for breach of a
non-disclosure agreement.83 The court found that
Section 2019(d) applied based upon the definition of
“misappropriation” under the California UTSA.84 In
any case, the court ruled that the plaintiff had satisfied
Section 2019(d) before starting its discovery relating
to the trade secret.85 The defendant then asked for an
order prohibiting the plaintiff from amending its trade
secret identification.86
The court rejected the
defendant’s request on the grounds that Rule 26(e) of
76
Id.
77
Id., at *22-*24.
78
Id., at *20.
79
Id.
80
345 F. Supp. 2d 1042 (N. D. Cal. 2004).
81
Id. at 1043.
82
Id.
83
Id.
84
Id. at 1044 (citing Cal. Civil Code §
3246.1(b)(2)(B)(ii)) (defining “misappropriation” as
“disclosure or use of a trade secret of another without
express or implied consent by a person who . . . at the time
of disclosure or use, knew or had reason to know that his or
her knowledge of the trade secret was . . . acquired under
circumstances giving rise to a duty to maintain its secrecy or
limit its use”).
85
Id. at 1044-45.
86
Id.
CA Labor & Employment Bulletin
the Federal Rules of Civil Procedure expressly permits
supplemental disclosures.87 However, in light of the
purpose of Section 2019(d), the district court reasoned
that the plaintiff “should not have free rein to amend
its trade secret identification without limits.”88
Consequently, the court stated that the plaintiff would
be required to demonstrate “good cause” for any future
amendments to its trade secret description.89
Guidance From Other Jurisdictions Regarding The
“Reasonable Particularity” Standard
Although Section 2019(d) of the California Code of
Civil Procedure is unique, other jurisdictions have
adopted the “reasonable particularity” standard, or a
variation of it, by virtue of their judicial opinions.90
These jurisdictions generally require some reasonable
definition of the claimed “trade secret” to provide
defendants with adequate notice of the specific trade
secret allegedly misappropriated and to enable
defendants to mount a defense.91
Delaware
Although Delaware does not have a statute similar to
Section 2019(d), it has a judicially created standard
that is identical to Section 2019(d). Delaware requires
a plaintiff in a trade secret misappropriation case,
before commencing discovery, “first to identify with
reasonable particularity the matter which it claims
constitutes a trade secret.”92 However, like California
courts, Delaware courts have yet to define exactly
what “reasonable particularity” means in the prediscovery context.
For instance, in Struthers Scientific & Int’l Corp. v.
General Foods, Corp., the court found that the
plaintiff had not completely complied with the
requirement that plaintiff identify its alleged trade
87
88
89
Id.
Id.
Id.
90
See, e.g., Luigino’s, Inc. v. Peterson, 317 F.3d 909, 912
(8th Cir. 2003) (applying Minnesota law and finding that
plaintiff’s descriptions were too general and not specific
enough to qualify as trade secrets); AMP Inc. v.
Fleischhacker, 823 F.2d 1199, 1203 (7th Cir. 1987)
(applying Illinois law and holding that the plaintiff failed to
specify precisely what trade secrets may be at risk by
identifying documents or other information, where plaintiff
simply alleged that defendant misappropriated “confidential
business and technical information”).
262
July/August 2005
secrets with “reasonable particularity.”93 In response
to one of the defendant’s interrogatories, the plaintiff
listed “103 items, covering 54 typewritten legal pages,
sworn to be trade secrets.”94 The plaintiff further
identified the individuals who made the disclosures,
the individuals to whom they disclosed the
information, the time period of the disclosures, and
how the disclosures were made.95 However, the court
faulted the plaintiff for including a “catch-all”
provision in its Section 2019(d) identification,
asserting that some of the information provided was in
the public domain and that a “unique combination” of
the public and private information constituted the trade
secret.96 As a result, the court ordered that the plaintiff
specifically identify the “unique combination” before
it could commence discovery.97
Also, in Engelhard Corp. v. Savin Corp., the plaintiff
suggested a protective order to modify the timing of its
trade secret disclosure.98 In that case, the plaintiff
requested a unilateral discovery right to propound
requests on the defendant during a 90-day period, but
not a reciprocal right of the defendant to conduct
discovery.99 At the conclusion of the 90-day period,
the plaintiff agreed to disclose its trade secret
description to the defendant.100 The court found that
the proposal was antithetical to the reasons a court
requires a plaintiff to identify the trade secret at the
outset: “Engelhard’s position, if accepted, would
defeat the very purpose of the trade secret disclosure
requirement, which is to enable the parties, and, if
necessary, the Court, to determine the outside
parameters of discovery.”101 To ensure that the
defendant is protected from disclosing confidential
information “beyond what is necessary for the
prosecution of the litigation,” the plaintiff must first
93
51 F.R.D. 149, 154 (D. Del. 1970).
94
Id. at 152.
95
Id.
96
Id. But see Imperial Chem. Indus. v. Nat. Distillers &
Chem. Corp., 342 F.2d 737, 742 (2d Cir. 1965) (“A trade
secret can exist in a combination of characteristics and
components, each of which by itself, is in the public domain,
but the united process, design and operation of which in
unique combination, affords a competitive advantage and is
a protectible secret”).
97
Id. at 153-54.
98
Engelhard Corp., 505 A.2d at 32.
99
Id. at 33.
100
Id.
101
Id.
91
See IDX Systems Corp. v. Epic Systems Corp., 165 F.
Supp. 2d 812, 817 (W.D. Wis. 2001), aff’d in part, denied in
part, 285 F.3d 581 (7th Cir. 2002).
92
See Engelhard Corp. v. Savin Corp., 505 A.2d 30, 33
(Del. Ch. 1986).
CA Labor & Employment Bulletin
establish the boundaries of disclosure by identifying
the alleged trade secrets at issue.102
Conversely, in SmithKline Beecham Pharmaceuticals
Co. v. Merck & Co., Inc.,103 Merck, the defendant
(trade secret plaintiff), disclosed more information
than was necessary to satisfy the “reasonable
particularity” standard.104 The defendant “identified
its claimed trade secrets as “the compilation and
combination of information making up Biken’s
process,” including the major process stages. The 37page [identification of trade secrets] described the
Biken vaccine production process step-by-step and
included the information Biken furnished SmithKline
in 1990 and 1991.”105 This disclosure satisfied the
“reasonable particularity” required under Delaware
trade secret law.106 Then, seven months before trial,
Merck sought to narrow its broad trade secret
identification “to fit the particular aspects of the
production
process
Merck
claimed
were
misappropriated by SmithKline.”107
SmithKline
objected to Merck’s proposed modification, but the
court rejected the argument, concluding that
“SmithKline was initially put on notice through
Merck’s broad disclosure but was subsequently
informed well in advance of trial of the specific
aspects of the trade secret Merck believed SmithKline
misappropriated. It cannot be said SmithKline was
prejudiced in any way.”108
Massachusetts
Massachusetts, like New York, has not adopted the
UTSA, but its judicial opinions are similar to
California decisions. Massachusetts also applies the
“reasonable particularity” standard in its trade secret
misappropriation cases.
263
July/August 2005
to require the plaintiff to specifically identify its trade
secrets.112 The opinion stated that, “neither this Court,
nor, it appears, the Reveal Parties, yet knows what
those secrets are with sufficient definition to determine
whether they are secrets, or if they have been taken
and are being used in any way by the Reveal
Parties.”113
The court applied the “reasonable
particularity” standard to the disclosures and granted
the defendant’s motion for a protective order.114
Florida
In Del Monte Fresh Produce Co. v. Dole Food
Company, Inc.,115 the court applied the Section
2019(d) requirement, commenting that “[a]lthough
Florida has not enacted a statute like California’s that
compels disclosure of trade secrets, the same result is
achieved under Florida’s case law. . . . Florida courts
recognize that in order to ascertain whether trade
secrets exist, the information at issue must be
disclosed . . . . Del Monte must list and reasonably
describe the trade secrets it seeks to protect.”116 In Del
Monte, the plaintiff identified three areas of trade
secret information: (1) the MD-2 litigation; (2) use of
pesticides and fungicides on pineapples; and (3) the
glassy appearance of MD-2 fruit.117 The court
criticized the plaintiff’s descriptions because “it is not
clear what Del Monte claims is privileged about the
MD-2 litigation… . It also is not clear what aspect of
Del Monte’s pesticide and fungicide techniques are
trade secrets.”118
With regard to chemical
compositions, the court stated that under the
“reasonable particularity” Florida case law, the
plaintiff “must tell Dr. Funk that [it] believes he has
misappropriated the percentage of concentration of
chemical ‘X’ or that he has misappropriated the
process for combining chemicals ‘X, Y, and Z.’ ”119
In L-3 Comm. Corp., et al. v. Reveal Imaging
Technologies, Inc.,109 the plaintiff relied upon
conclusory statements in its amended complaint to
identify its alleged trade secrets.110 Plaintiff accused
the defendant of using its “trade secrets and other
proprietary information, including inventions and trade
secrets… .”111 Defendant moved for a protective order
Wisconsin
Because other courts permit notice pleading at the
complaint stage, they do not expect or require the
plaintiff to plead the details of its trade secrets during
the initial pretrial phase.120 Thus, in the Seventh
102
Id.
112
Id.
766 A.2d 442 (Del. 2000).
113
Id., at *34-*35.
Id. at 447-48.
114
Id.
148 F. Supp. 2d 1322 (S. D. Fl. 2001).
103
104
105
Varying Standards From Other Jurisdictions
Id.
115
106
Id.
116
Id. at 1322-26.
107
Id.
117
Id. at 1325.
Id.
118
Id.
Id.
108
109
18 Mass. L. Rep. 512 (Mass. Super. Ct. 2004).
119
110
Id., at *22
120
111
Id.
See IDX Sys. Corp. v. Epic Sys. Corp., 165 F. Supp. 2d
812, 816 (W.D. Wis. 2001), aff’d in part, denied in part, 285
F.3d 581 (7th Cir. 2002).
CA Labor & Employment Bulletin
Circuit, and Wisconsin specifically, once the court has
issued a protective order, plaintiffs are only supposed
to plead the specific facts such that a reasonable jury
could compare the alleged trade secret with
information that is generally known to people in the
relevant field or industry.121
For example, in IDX Systems Corp. v. Epic Systems
Corp.,122 on the defendant’s motion for summary
judgment, the court held that the plaintiff did not meet
its burden to specifically identify its alleged trade
secrets.123 The plaintiff submitted three documents
purporting to identify its trade secrets: one setting
forth functionalities of trade secrets but not the trade
secrets themselves;124 a list of user manuals covering
more than the nine trade secret areas that the plaintiff
previously identified;125 and a forty-two-page
appendix that allegedly detailed the plaintiff’s trade
secrets, but which the court found to be simply a
narrative that failed to shed any light on the identity of
any supposed trade secrets.126 The court rejected each
of the documents:
Plaintiff’s documentation … adds nothing.
Plaintiff has effectively buried its trade
secrets in documentation. After reading
plaintiff’s Supplemental Answer together
with Appendix A the Court faces an unknown
number of concepts, designs, methods and
processes somewhere documented within
twenty-one technical product manuals. This
combination can yield no concrete,
particularized trade secrets.127
The IDX court’s ruling is comparable to the California
court of appeal decision in Canter v. West Publishing,
Inc.,128 which concluded that disclosures are
insufficient when they lack specific identifying
information but instead rely on blanket references or
vague and overly broad compilations of documents.
264
July/August 2005
Illinois
Other states, such as Illinois, follow this same line of
reasoning and require a plaintiff to specify exactly
which trade secrets it believes are at risk.129 “It is not
enough to point to broad areas of technology and
assert that something there must have been secret and
misappropriated. The plaintiff must show concrete
secrets.”130
For instance, in Teradyne, Inc. v. Clear
Communications Corp.,131 the court stated that
although “[t]here may be no law on whether a
complaint must list trade secrets or confidences to be
protected … it must be done at some point prior to
trial.”132 In fact, the court in that case went on to state
that “[t]here is no reason to require detailed
descriptions in the complaint of each of the secrets
Teradyne fears will be misused.”133
On the other hand, the court in Combined Metals of
Chicago Ltd. Partnership v. Airtek, Inc.134 required
specific identification of the alleged trade secrets in
the pleadings. However, the level of specificity was
required because the counterclaimant
… will not be permitted to change or narrow
them as the case progresses … . Airtek better
put Combined Metals on notice of such
technology now (by filing an amended
counterclaim) or forfeit the right to claim
such technology as a trade secret at a later
time in the case… . Accordingly, the court
expects an amended counterclaim from
Airtek identifying specific, concrete secrets
underlying the process of producing the
catalytic converters.135
The court criticized the prior case of Thermodyne
Food Service Products. v. McDonald’s Corp.,136
because at summary judgment both parties still
129
121
See id. at 816–17.
122
See id.
123
Id. at 819.
124
In the plaintiff’s supplemental interrogatory answer, the
plaintiff alleged nine functionalities as trade secret areas, but
not the trade secrets specifically. See id. at 817–18.
125
The manuals were attached as an appendix to the
plaintiff’s Supplemental Answer, which the court would
have had to sift through to find the trade secrets or trade
secret areas. See id. at 818.
See, e.g., Luigino’s v. Peterson, 317 F.3d 909, 912 (8th
Cir. 2003); Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d
655, 661 (4th Cir. 1993); AMP, Inc. v. Fleischhacker, 823 F.
2d 1199, 1203 (7th Cir. 1987); Porous Media Corp. v.
Midland Brake Inc., 187 F.R.D. 598, 600 (D. Minn. 1999);
Julie Research Labs., Inc. v. Select Photographic Eng’g,
Inc., 810 F. Supp. 513, 519 (S.D.N.Y. 1992), aff’d, 1993
U.S. App. LEXIS 15994 (2d Cir. 1993).
130
Composite Marine Propellers, Inc. v. Gerbrig Van Der
Woude, 962 F.2d 1263, 1266 (7th Cir. 1992).
131
707 F. Supp. 353, 355 (N.D. Ill. 1989).
132
Id.
126
Id. at 818–19.
133
127
Id. at 356
Id. at 818.
134
985 F. Supp. 827, 832 (N.D. Ill. 1997).
135
Id.
136
940 F. Supp. 1300 (N.D. Ill. 1996).
128
31 F. Supp. 2d 1193 (N.D. Cal. 1999) (opinion
withdrawn from publication).
CA Labor & Employment Bulletin
disagreed as to the definition of the trade secret at
issue.137 The Combined Metals court stated that it
would not “entertain such a dispute at such a late stage
in the proceeding” and required identification at the
pleading stage.138
In addition, the federal district court in AutoMed
Technologies, Inc. v. Charles Eller139 found that “[t]he
cases rejecting trade secret claims for lack of
specificity are predominantly at later stages in the
litigation process … . Courts only dismiss a claim for
lack of specificity on the pleadings in the most
extreme cases.”140 These decisions appear to be at
odds with California’s Section 2019(d) requirement
that a trade secret plaintiff first identify the claimed
trade secret with reasonable particularity before
starting any discovery relating to it.
Louisiana
The district court in Gabriel International, Inc. v.
M&D Industries of Louisiana141 stated its own view of
trade secret plaintiffs:
We find that if a trade secret or secrets exist
and that plaintiff is the owner, the plaintiff
necessarily and without the need to resort to
depositions, interrogatories or any other form
of discovery is now in a position to present in
secrecy the evidence required to determine
that a trade secret or secrets exist and that
plaintiff is the owner thereof.142
In requiring a plaintiff to first identify the trade secret,
the court relied upon Rule 1 of the Federal Rules of
Civil Procedure, requiring the speedy and inexpensive
determination of each action.143 The court observed
that only by requiring identification of the trade secret
at the outset can a “speedy and inexpensive
determination” be made.144 Nonetheless, the court
conducted a full evidentiary hearing to determine the
issue and required a preponderance of the evidence
showing “the substance of the trade secret, its origin
and duration, its secret and exclusive character since
origin, and the measures taken to preserve its secret
and exclusive character to date.”145
137
Id. at 1304-05.
138
Combined Metals, 985 F. Supp. at 832.
139
160 F. Supp. 2d 915 (N.D. Ill. 2001).
140
Id. at 921 n.3.
141
719 F. Supp. 522 (W.D. La. 1989).
142
Id. at 523.
143
Id. at 525.
144
Id.
145
Id. at 525.
265
July/August 2005
Conclusion: Some Practical Tips
A survey of the cases in California applying Section
2019(d) and the cases in other jurisdictions analyzing a
“reasonable particularity” standard provides some
guidance.
Avoid “Catch-All” Phrases
Several cases suggest that making “blanket
statements” or including “catch-all” phrases to
describe the allegedly misappropriated trade secret is
disfavored. Even where the trade secret plaintiff
provides a detailed identification, the court may focus
on whether the description contains an overbroad
“catch-all.” The temptation to include such phrases is
high. However, these terms do not allow a plaintiff to
claim a trade secret later in the litigation that was
previously undisclosed. It is safer to omit such “catchall” phrases from the description where possible.
Attempt to distinguish the trade secret from matters of
general knowledge to those skilled or experienced in
the trade or business.
Offer Concise Descriptions
Courts disfavor broad descriptions that reference other
documents or materials in defining the trade secret.
Plaintiffs should present a complete and concise
description to the trial court to avoid confusion and
additional work by the trial court and opposing
counsel. For example, busy judges do not often relish
rummaging through stacks of documents, deposition
transcripts, or other documents to locate a trade secret
description. Similarly, avoid overly broad descriptions
such as “any and all information relating to [the
employer’s] business, customers or plans.”
Do Not Bury the Trade Secret
Likewise, do not attempt to bury the “trade secret” in a
sea of documents or materials when presenting a
description to the judge or opposing counsel. Doing
so may disclose more information than necessary, and
runs the risk of irritating the judge and opposing
counsel. If the documents contain irrelevant or public
information then they will only weaken the
confidentiality required for the trade secret to exist in
the first place.
Cooperate With Opposing Counsel in the Section
2019(d) Identification Process
If possible, suggest putting together a stipulation
between the parties identifying the trade secrets and
matters at issue. Understandably, this will not be
possible in many cases due to the adversarial nature of
litigation.
However, presenting a joint Section
2019(d) identification can avoid a lot of litigation
expense fighting over whether the plaintiff’s
description is sufficiently reasonable.
CA Labor & Employment Bulletin
Obtain Protective Orders
If cooperation is possible, suggest that the parties enter
into a mutually agreeable confidentiality agreement
and/or protective orders to govern the use and
dissemination of trade secret information during the
litigation. If the opponent is unwilling to stipulate,
promptly move the trial court for an appropriate
protective order. As the plaintiff in a trade secret
litigation matter, the preservation and protection of
your information is the paramount concern.
*****
Tyler Paetkau is a partner in the San Francisco office
of Winston & Strawn. Mr. Paetkau represents
employers in all facets of labor and employment law,
including misappropriation of trade secrets and unfair
competition matters.
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CA Labor & Employment Bulletin
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A New Approach For Responding To New
Communicable Illnesses In The Workplace
By Jeffrey M. Tanenbaum*
* Jeff Tanenbaum is a partner at Nixon Peabody LLP. He regularly represents employers in all areas of employment law,
including Cal/OSHA, OSHA, wrongful termination, discrimination/ harassment and labor law.
Imagine this scenario: An employee notices a tiny red
mark on his leg while he is at work. It itches, so he
thinks it is a bug bite. A few days later the mark has
grown larger and has become slightly painful. The
following morning, the employee sees a doctor who
tells him he has an infection, prescribes an antibiotic
and sends him home. The next day he feels nauseous
and has a slight fever. He calls in sick, saying he feels
like he has the flu. The next day, when the infection
has spread and his leg has swollen, the employee calls
in sick again. Later that day, he gets frightened when
he loses some feeling in the leg, and his wife drives
him to the hospital.
Two days later, his employer is stunned to read in the
newspaper that the employee has died because of an
MRSA infection.
The same newspaper article goes on to note that
MRSA (Methicillin Resistant Staphylococcus Aureus)
is a highly contagious bacteria that is antibiotic
resistant. The employer, now even more alarmed,
conducts some research and learns that the early
symptoms of MRSA can seem minor and infected
people often do not seek medical help until the
infection is widespread. The employer even finds a
report that MRSA was found at the practice facility of
the St. Louis Rams, and that eight cases of MRSA
among the Rams and the San Francisco 49ers (who
apparently were exposed when the teams played each
other) were diagnosed.
The employer is now
concerned that MRSA may be at the workplace, but it
has absolutely no idea what to do.
We are living in a world in which we find an
increasing number of new communicable illnesses,
including SARS, MRSA, bird flu, and more. Indeed,
each year the flu costs businesses tens of millions of
dollars in lost productivity. The medical community is
very worried about the potential for a pandemic caused
by one or more new, drug-resistant flu strains.
Governmental agencies such as Cal/OSHA simply
cannot keep up with the moving target of
communicable illnesses fast enough to issue timely,
useful, regulations. Even the issuance of effective
non-mandatory guidelines and recommendations can
come too late to assist employers and employees
during the early stages of a new outbreak. Yet,
employers are still expected to respond appropriately
to any such emergency.
Although this task may seem overwhelming, even
impossible, there are steps an employer can reasonably
take to protect employees. Employers can prepare in
an effective and meaningful way by developing and
maintaining a communicable illness program that
provides a structured response to emergencies and
employee concerns in the event of an outbreak. Such
prevention programs will also help the employer
comply with Cal/OSHA’s injury and illness prevention
program and emergency action plan requirements
under 8 California Code of Regulations, sections 3203
and 3204.
A prevention program should be simple, clear and
cover the following elements:
1. Scope.
The policy should cover any
communicable illness or disease that poses a
credible threat of transmission in the particular
workplace. Examples might include active TB,
SARS, the flu, etc. The policy should not be
limited to currently known illnesses and diseases.
Typically, the policy should exclude any
communicable illnesses which do not pose a
credible threat of transmission in the particular
workplace (e.g., HIV in an office environment).
Such exclusions will help avoid violations of the
Americans with Disabilities Act (ADA) and, with
proper explanation, should help alleviate any
unnecessary employee concerns and fears.
2. Responsibility. The policy should assign
responsibility to an individual or committee to
maintain, enforce, and update the program as
necessary. Tasks will include monitoring
developments through news reports and assessing
information from the Center for Disease Control
(CDC), World Health Organization (WHO), local
public health authorities, and other appropriate
governmental agencies and health organizations.
3. Following Applicable Regulations and
Instructions by Appropriate Governmental
Agencies. Typically, the program will note that
the company will follow all applicable regulations
or instructions issued by appropriate agencies, but
it may distinguish between a government
regulation and a non-mandatory guideline. The
CA Labor & Employment Bulletin
program may provide discretion for the company
to modify guidelines to best fit the needs of the
particular workplace.
4. Information. The program should provide a
method for distributing appropriate information to
employees.
5. The
Requirement
of
Universal
Precautions. The program should mandate the
use of universal precautions. While every illness
is different, there are certain simple yet very
effective steps that every employee can follow to
minimize the potential for infection and the
potential for transmission of communicable
illnesses. Such universal precautions include:
a. Frequent Handwashing. Since access
to soap and water is not always convenient
(and some employees are allergic to
antibacterial and/or other soaps), ready access
to a hypoallergenic hand sanitizer such as
Purell® should be provided. For example, in
an office environment this might mean
providing containers of Purell® at work
stations. In other environments, it might
mean wall dispensers in convenient locations.
Employees should be instructed to wash or
sanitize their hands after shaking hands, using
a phone, handling money, etc. Employers
may even want to provide sanitary lotions or
towelettes so that employees can wipe down
phones, chair arms, or other tangible objects
before use.
b. Minimizing Exposure to Others Who
are Ill. Obviously, minimizing exposure to
others who are ill is critical. Employees who
appear ill when they are at work should be
sent home, and those who report being ill
should be encouraged to stay home. This
can, of course, create an enforcement
problem with employees who try to take
advantage of this policy. However, the cost
of having a widespread illness in the
workplace can be very high, and employers
can take action to minimize abuse.
Employees who attempt to misuse the policy
can be subject to discipline, up to and
including discharge. An employer may also
want to have a policy requiring medical
certification when an employee calls in ill.
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July/August 2005
Absenteeism policies can also serve to
minimize misuse, but, of course, all
applicable leave laws (e.g., Family and
Medical Leave Act, California Family Rights
Act, etc.) must also be followed.
6. Reporting Requirements. The program
should require employees to report to the
company whenever (a) they are diagnosed with an
illness communicable in the workplace, (b) they
believe they may have been exposed to a person
so diagnosed, or (c) they have recently visited a
location where there has been an outbreak of a
communicable illness. The policy should clearly
note that the information will be kept confidential
to the extent reasonably possible, but full
confidentiality cannot be guaranteed.
The program should also describe when the
employer will make a report of a known or
suspected communicable illness to local health
authorities.
7. Travel Procedures. Typically, a program
should note that the company will generally
follow the travel advisories issued by the CDC or
other appropriate agencies. Distinctions can be
made between work travel and personal travel.
As an example, work and personal travel can be
handled differently with regard to whether or not
employees are paid during a period of quarantine.
8. Return to Work Procedures. The program
should require certification from a medical
provider that it is safe for an employee to return to
work after (a) being diagnosed with a
communicable illness, or (b) when an employee
has been quarantined in association with such an
illness.
Adopting such a program will allow an employer to
respond quickly and effectively to the outbreak of both
common, and new, communicable illnesses, thus
providing a safer workplace.
*****
Jeff Tanenbaum is a partner at Nixon Peabody LLP.
He regularly represents employers in all areas of
employment law, including Cal/OSHA, OSHA,
wrongful termination, discrimination/ harassment and
labor law.
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CA Labor & Employment Bulletin
July/August 2005
CAPITOL RECAP – WASHINGTON
Hot Time, Summer in the City
By Harold P. Coxson*
* Harold P. Coxson, Esq. has practiced labor and employment law in Washington for over 30 years, where he has represented
employers before federal courts, administrative agencies, and Congress. He is also a shareholder in the Washington, D.C. office of
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and a Principal in the firm’s wholly-owned government relations subsidiary
Ogletree Governmental Affairs, Inc., through which he counsels over 30 national trade associations on workplace issues.
Congress, and many interest groups tied to Congress,
clear out of town every August to avoid the heat
(sometimes political as well as environmental).
However, due to the formidable fall agenda, many
congressional and interest group staffers will be doing
their summer reading in the city, rather than on the
beach. When Congress returns from its traditional
August recess away from the humid climes of
Washington, there are a number of hot political and
legislative issues simmering on the front burner that
are expected to delay well into December Congress’s
scheduled adjournment.
Unfinished “must pass” legislation includes
appropriation funding bills necessary to keep the
federal government running past the end of the fiscal
year.
Other priorities are the FY06 defense
authorization bill (which could toughen congressional
oversight of defense programs), extension of the USA
PATRIOT Act, estate tax legislation, Social Security
and retirement security pension plan reforms, and
promotion of the Medicare prescription drug benefit
that passed as part of the 2003 Medicare law.
Of course, there are other issues occupying
Washington that will have important consequences
well beyond this legislative session. One of the most
significant is the current internal upheaval at the AFLCIO.1
“Disorganized Labor?” — Political Ramifications
of the AFL-CIO Defections
In Washington, there is a saying: “organized labor and
disorganized business.” While behind closed doors
individual unions affiliated with the AFL-CIO
reportedly have had disagreements on individual
legislative and political decisions, such disagreements
have generally been worked out internally so that the
House of Labor emerges united on Capitol Hill as a
monolithic force. Business, on the other hand, often
seems to have competing legislative and political
priorities that divide it, confound its allies, delight its
opponents, and compromise its ability to succeed.
Now, however, organized labor may be joining the
ranks of the “disorganized” as a result of recent,
highly-publicized defections, disaffiliations, internal
leadership challenges and policy fights within the
1
At page 276 of this issue of the Bulletin is a discussion
of another important issue that will soon occupy
Washington: the Senate’s consideration of John G. Roberts
to fill the Supreme Court vacancy created by the retirement
of Justice Sandra Day O’Connor.
CA Labor & Employment Bulletin
AFL-CIO. Will “disorganized labor” join the ranks of
“disorganized business” in Washington?
A House Divided
The summer vacations of many Washingtonians are
likely to be disrupted by the recent disaffiliation of the
International Brotherhood of Teamsters (Teamsters)
and the Service Employee International Union (SEIU)
at the AFL-CIO’s quadrennial convention in Chicago
during the last week in July. Instead of a celebration
of the fiftieth anniversary of the merger of the AFL
and the CIO in 1955, organized labor’s traditional
rallying cry, “Solidarity Forever,” was strangely out of
place, as was the New Deal Democratic Party theme
song, “Happy Days Are Here Again.”
The boycott of the AFL-CIO convention and
disaffiliation by the 1.4 million-member Teamsters
and the 1.8 million-member SEIU—two of the largest
unions within the 57-member AFL-CIO federation—
followed shortly by the disaffiliation of the 1.3
million-member
United Food and Commercial
Workers (UFCW) and UNITE-HERE, threatens the
labor federation both financially and politically. Other
unions which have publicly joined in challenging the
AFL-CIO through the so-called “Change to Win
Coalition,” are UNITE-HERE (the merged union
representing textile, apparel, hotel and restaurant
workers), the Laborers International Union of North
America (LIUNA), the Carpenters and Joiners of
America, and the United Farm Workers. A founding
convention of a new labor federation is planned for the
fall. Combined, the unions in the new coalition
represent over five million workers and will deprive
the AFL-CIO of nearly $35 million in dues, out of the
AFL-CIO’s $120 million national budget.
The loss of dues revenue and membership will be felt
also by the AFL-CIO’s Central Labor Councils (CLC),
especially in states, cities and communities where the
disaffiliated unions make up a significant proportion
(in some cases a majority) of the CLC’s membership.
Although the disaffiliated unions offered to continue
local CLC participation, AFL-CIO president John
Sweeney announced that, consistent with the
federation’s constitution, the disaffiliated unions were
either all in or all out. Indeed, he used the perjorative
term “free riders” to describe the status of the
disaffiliated unions, and said that they would not be
allowed to “pick and choose” their affiliation.
The AFL-CIO schism is largely due to the continuing
decline in union density. In 1975, unions represented
21.5% of workers in the private sector. By 1995,
when Sweeney displaced then-AFL-CIO president
Lane Kirkland on a platform of increasing union
membership, union density had declined to 10.3% of
private sector workers. Sweeney promised a net
increase of one million union members each year
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July/August 2005
following his election.
However, in 2004, the
continuing union decline had dropped membership to
only 7.9% in the private sector. The decline was
especially precipitous in the manufacturing sector
(36% in 1975, 13% in 2004), construction (35% in
1975, 16% in 2004), and transportation (47% in 1975,
27% in 2004). In fact, the only major growth came
among government workers, where union membership
increased from 25% in 1975, to 36% in 2004.
While there are many issues dividing the two camps,
the primary reported disagreements are over greater
allocation of resources for union organizing (rather
than political and lobbying support), and
reorganization of the labor federation so as to require
individual unions to increase expenditures for union
organizing and coordinate organizing campaigns by
industry sector. Part of the increased funds devoted to
organizing would come from monies formerly paid as
membership dues by individual unions to the AFLCIO on a per capita basis. Another stated objective is
to expand American unions’ global reach in greater
solidarity with European and other international
unions. The intent would be to coordinate organizing
and collective bargaining campaigns involving global
companies. Also, although 71-year old Sweeney was
reelected at the convention to lead the federation for
another four-year term, the Change to Win Coalition
insists that new leadership is required to reform and
reorganize the labor federation.
Unions remaining in the AFL-CIO fear that the
defecting unions will raid their members and seek to
organize workers in their jurisdictions. For example,
at the recent AFL-CIO convention, an official with the
American Federation of State, County and Municipal
Employees (AFSCME), a union which has been one of
Sweeney’s staunchest supporters, warned that SEIU
and other unions in the new federation “have put a
target on the backs of [our] locals in California.” As a
result, the AFL-CIO convention approved a $4 million
dues increase for a fund to combat raids by the
disaffiliating unions.
Ramifications of the Defections
It is far too early to assess the long-term consequences
of the AFL-CIO split, particularly its effect on union
organizing and increased membership.
It is
predictable, however, that union organizing
campaigns, and resources devoted to organizing, will
increase among both the disaffiliated unions and those
still in the AFL-CIO. The increase is likely to be
greatest in the service sector, the largely non-union
parts of the country, and the jobs that are less capable
of being outsourced (e.g., janitorial services,
hospitality workers, transportation, hospital services
and construction). Also, expect to see competition
pitting the disaffiliated unions against the AFL-CIO
CA Labor & Employment Bulletin
unions, both seeking vindication and “bragging
rights.”
In the manufacturing sector, where union membership
has been hit hardest by retirements, reduction in
employment, and global competition, unions will
continue to fight to hold the line with existing
members. Manufacturing dominated unions, such as
the United Auto Workers, will step up corporate
campaign strategies to maintain existing members and
recruit new ones through pressure to negotiate
employer
neutrality/card
check
recognition
agreements. Also, expect greater union solidarity with
foreign unions, using international organizations and
institutions to promote coordinated organizing and
collective bargaining pressures on global companies.
The immediate fall-out of the AFL-CIO schism,
however, is to further reduce the federation’s operating
budget, perhaps causing additional staff reductions in
Washington, and ending the AFL-CIO’s dominance on
union political endorsements, contributions and
lobbying. While many claim that this will weaken
unions politically, other union observers assert that it
may actually boost union influence in the long run by
opening up competition for their political support on a
bipartisan basis.
Although Republicans are not
commenting publicly, the increased possibility for
union political support certainly must appear
tantalizing, especially for moderate, swing-vote
Republicans in labor-oriented districts.
The head of SEIU’s political operation, Anna Burger,
has complained publicly about union political support
being taken for granted on Capitol Hill.
The
Teamsters political director, Chuck Harple, has been
quoted in the press as saying: “We’re looking for a
labor majority with members of both parties and now
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July/August 2005
we have an open door.” Ironically, that might increase
chances for passage of limited labor law reforms on
Capitol Hill. As Harple concluded, “be careful of who
you invite to dinner. We want those who we support to
support us on Capitol Hill.”
In addition to political clout on Capitol Hill, unions
represent a powerful force in federal and state
elections. Despite representing only 12.5 percent of
the U.S. workforce and 7.9 percent of private sector
workers, the AFL-CIO has helped turn out the vote
nationally on election day and has contributed heavily
both in terms of financial political contributions and
well-mobilized union operatives in election
campaigns. In the 2004 elections, according to exit
polls, 24 percent of voters came from union
households. As the Teamsters political director also
noted, union political power depends to a large extent
on increasing union membership through enhanced
organizing. He also noted that in 2004, if union
membership in Ohio had been 26 percent instead of 16
percent, “we would have had John Kerry as
President.”
*****
Harold P. Coxson, Esq. has practiced labor and
employment law in Washington for over 30 years,
where he has represented employers before federal
courts, administrative agencies, and Congress. He is
also a shareholder in the Washington, D.C. office of
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and
a Principal in the firm’s wholly-owned government
relations subsidiary Ogletree Governmental Affairs,
Inc., through which he counsels over 30 national trade
associations on workplace issues.
272
CA Labor & Employment Bulletin
July/August 2005
CAPITOL RECAP – SACRAMENTO
Employment Bills Loom as Legislative Term Comes to
a Close
By Mike Belote*
* Mike Belote is a partner in the contract lobbying firm of California Advocates, Inc. Among the firm’s clients is the California
Employment Law Council, the state’s leading association representing employers in employment law issues.
For those attempting to make sense out of California
government and politics, the wild gyrations of recent
years have an almost tragicomic quality. In the
executive branch, a twice-elected governor was
replaced with a Hollywood action star, whose
popularity over eighteen months has veered from
discussions of Constitutional amendments for the U.S.
Presidency, to approval ratings lower than those of the
person he replaced. In the legislative branch, term
limits are causing legislators to spin into (and more
importantly out of) the system at a dizzying rate, as
members look for seats in Congress, statewide office,
or even local government.
election. Incredibly, as this column is written, it is
unclear whether the election will even occur. Some
believe that the Governor, having called the special
election, also has the power to “uncall” it, effectively
saying “never mind, we’ll do this all next year.” At
the same time, many supporters of the Governor are
urging him to stay the course, and the Governor’s own
approval ratings are causing some Democrats to
publicly dare him to “bring it on.”
Two years ago, the California Legislature approached
the end of the legislative year with the looming
uncertainty of the recall election. This had a real,
identifiable effect on the practical job of legislating.
The Governor signaled a clear willingness to sign bills
he had previously vetoed, and the Legislature
responded predictably, with actions that included the
passage of many controversial bills in the employment
area.
No matter how the special election issue is resolved, it
is almost certain that the practice of legislating will
again be affected. Most likely, the Legislature will
respond by passing bills important to key
constituencies, daring an apparently weakened
Governor to veto them. Many of these again relate to
employment. Business groups remain concerned that
the Legislature is very likely to again pass AB 48, to
both increase and index the minimum wage. Last
year, Governor Schwarzenegger vetoed a bill relating
to gender pay equity violations, and this year it is
virtually certain that the Legislature will pass a similar
bill, AB 169. Will the Governor veto the bill again?
This year, the end of the legislative term approaches
with the uncertainties of the November special
A third bill drawing increasing support among labor
groups, and causing growing alarm within the business
CA Labor & Employment Bulletin
community, is SB 300 by Senator Sheila Kuehl (DSanta Monica). This bill would expand California’s
unpaid leave law, known as the Moore-Brown-Roberti
Family Rights Act, to add the right to take leave to
care for adult independent children, as well as
grandparents, siblings and registered domestic
partners. Having passed the Senate, SB 300 is headed
for a showdown on the Assembly Floor as the end of
the legislative year approaches.
Additionally, another bill which creates a type of
statutory class action in the employment area is likely
to pass in SB 174. This measure would permit
employees earning less than twice the minimum wage
to bring an action for unpaid wages and overtime, on
behalf of themselves and other employees also earning
less than twice the minimum wage. Proponents argue
that diminished resources in the Department of Labor
Standards Enforcement make private enforcement
necessary, while the business community strongly
opposes another statutory class action law along the
lines SB 796 (the Private Attorney General Act).
Finally, with the end of the term approaching, all
interest groups watch for the time-honored practice of
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July/August 2005
last-minute amendments to bills. It is only halffacetiously said that some groups only begin their
legislative program in the final weeks of the session.
The technique is known as “gut and amend,” where
the entire content of bills is replaced at the last
possible time with an entirely new subject. The
Legislature has created procedural roadblocks against
this practice in recent years, but with the highlycharged politics of the special election, some “gut and
amends” are certain to occur.
The Legislature is scheduled to begin the fall recess on
September 9, 2005.
After that, Governor
Schwarzenegger will have 30 days to sign or veto the
more than 1000 bills likely to reach his desk. It will
be busy.
*****
Mike Belote is a partner in the contract lobbying firm
of California Advocates, Inc. Among the firm’s clients
is the California Employment Law Council, the state’s
leading association representing employers in
employment law issues.
CA Labor & Employment Bulletin
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July/August 2005
Personality Tests – Are They Vulnerable to Legal
Challenge When Used in the Workplace?
By Michael R. Minguet*
* Michael Minguet is an associate with Paul, Plevin, Sullivan & Connaughton LLP in San Diego, specializing in representing
employers in all aspects of employment and labor litigation.
Personality testing in the employment context has
become a source of increasing controversy. Many
employers are anxious to improve their hiring
decisions, but have diminished access to information
about the prior conduct of prospective employees.
Caught between the federal and California fair credit
reporting laws, and the reluctance of other employers
to utter a word about a prior employee for fear of a
defamation claim, employee testing has become an
alluring alternative. Here, some argue, is a glimpse
into the real person, a view into whether this person is
right for a particular position and a specific
organization. Their prior experiences may have been
good or bad, they may have experienced success or
failure, but are they a fit for a current opening? Can
they do better, be better than before, in the right spot?
Is their prior success a mirage, or due in significant
part to the efforts of others? Personality tests purport
to provide insight into these issues.
Despite their allure, the legality of these tests,
particularly the well known Minnesota Mulitphasic
Personality Inventory (MMPI), faces continuing
scrutiny. In the early 1990’s, the issue was whether an
employer’s use of a battery of tests, which included
the MMPI and the California Psychological Inventory,
violated the prospective employees’ privacy rights
under the California Constitution.1 A California court
of appeal, noting that many of the MMPI’s questions
focused on the individual’s religious beliefs or sexual
traits, concluded that the employer’s “preemployment
requirement of psychological screening violates both
the constitutional right to privacy and statutory
prohibitions against improper preemployment inquires
and discriminatory conduct by inquiring into its
applicants’ religious beliefs and sexual orientation.”2
The California Supreme Court granted review of the
decision, but settlement of the case before a decision
was issued deprived us of the benefit of a definitive
ruling on these issues.
Now, another court has questioned an employer’s use
of the MMPI under federal law. In Karraker v. Rent1
Soroka v. Dayton Hudson Corporation, 18 Cal. App.
4th 1200 (1991), rev. granted, 822 P.2d 1327 (1992), rev.
dismissed, 862 P.2d 148 (1993).
2
Id. at 1218.
A-Center, 3 the Seventh Circuit Court of Appeal ruled
that an employer’s administration of the MMPI to
employees seeking management positions violates the
Americans with Disabilities Act (ADA) because the
test screens for mental disabilities and, as a result,
constitutes an impermissible medical examination.
In Karraker, Rent-A-Center required employees
applying for a promotion to take a battery of tests
designed to measure math and language skills, as well
as interests and personality traits. One of the tests
administered to employees seeking promotions was
the MMPI.4 While the MMPI was modified since the
Soroka decision, the Karraker court noted that the
MMPI measures more than just workplace personality
traits; it also assesses where a test-taker falls on scales
measuring depression, hypochondriasis, hysteria,
paranoia and mania.5 In addition, elevated scores on
certain scales of the MMPI can be used in the
diagnoses of certain psychiatric disorders. Notably,
based on Rent-A-Car’s testing and scoring process, an
employee seeking promotion could be denied any
chance for advancement because of his or her score on
the MMPI test alone.6
After being denied consideration for promotions based
on their test scores, several employees sued Rent-ACenter in a class action case, claiming that the use of
the MMPI test constituted a medical examination
prohibited by the ADA. The employees asserted that
the ADA prohibits the use of certain medical
examinations, including pre-employment medical
tests, medical tests that lack job-relatedness and
business necessity, and tests which tend to screen out
persons with disabilities. They argued that the MMPI
was just such a test. The district court granted
summary judgment to Rent-A-Center, concluding that
the use of the MMPI did not violate the ADA.7
3
411 F.3d 831, 2005 U.S. App. LEXIS 11142 (7th Cir.
June 14, 2005).
4
Id. at *7.
5
Id., at *12-13.
6
See id., at *13.
7
Karraker v. Rent-A-Center, 316 F. Supp. 2d 675 (C.D.
Ill. 2004).
CA Labor & Employment Bulletin
The Seventh Circuit Court of Appeal reversed, holding
that the MMPI is a prohibited medical examination. In
reaching this conclusion, the court articulated the
following general rule: Psychological tests designed to
identify a mental disorder qualify as prohibited
medical examinations; psychological tests that merely
measure personality traits (such as honesty,
preferences, and habits) do not.8
Applying this general rule to the MMPI, the Karraker
court considered evidence that psychologists could use
the MMPI results to assist in the diagnosis of a mental
illness or disability.9 Rent-A-Center provided expert
testimony that the test did not actually diagnose or
detect any psychological disorders, but was merely a
symptom that could contribute to such a diagnosis.
However, the court concluded that because the MMPI
is designed, in part, to reveal a mental disability and its
use has the effect of hurting the employment prospects
of one with a mental disability, the MMPI does
constitute a medical examination prohibited under the
ADA—even though Rent-A-Center did not have the
8
2005 U.S. App. LEXIS 11142, at *9.
9
Id., at *10.
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July/August 2005
test results interpreted by a psychologist and did not
specifically use the test to screen for mental
disabilities.10
While the Seventh Circuit’s decision is obviously not
binding authority in California, Karraker should raise
concerns for employers who use personality tests that
veer into the arena of detecting mental disorders.
Taken against the backdrop of the privacy concerns
raised in Soroka, this decision makes personality
testing, at least outside of the context of specific
positions where it is related to job safety or specific
job requirements, a more risky venture. This area is
fertile ground for legal challenges in the future.
*****
Michael Minguet is an associate with Paul, Plevin,
Sullivan & Connaughton LLP in San Diego,
specializing in representing employers in all aspects of
employment and labor litigation.
10
Id., at *11.
276
CA Labor & Employment Bulletin
July/August 2005
Supreme Court Nominee John G. Roberts and the
Confirmation Process
By Harold P. Coxson*
* Harold P. Coxson, Esq. has practiced labor and employment law in Washington for over 30 years, where he has represented
employers before federal courts, administrative agencies, and Congress. He is also a shareholder in the Washington, D.C. office of
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and a Principal in the firm’s wholly-owned government relations subsidiary
Ogletree Governmental Affairs, Inc., through which he counsels over 30 national trade associations on workplace issues.
President Bush recently nominated John G. Roberts to
the U.S. Supreme Court to fill the vacancy that will be
created by the retirement of Justice Sandra Day
O’Connor. The White House hopes that the Senate
will confirm Roberts in time for him to start at the
beginning of the Court’s October Term. The early
political posturing in the Senate would suggest that
Roberts, age 50, is viewed almost universally as being
professionally and personally well qualified.
While the detailed scrutiny of the confirmation process
often derails an appointment, it appears probable that
Judge Roberts will be confirmed. That being the case,
a review of his background and record in labor and
employment matters seems prudent.
However,
because the extensive investigation and confirmation
process may well dictate whether Judge Roberts ever
becomes Justice Roberts, an understanding of this
process is also instructive.
Roberts’ Background
Roberts’ background has been widely reported in a
plethora of news accounts since his nomination was
announced. Briefly summarized, he graduated at the
top of his class at Harvard College and Harvard Law
School, and was the Managing Editor of the Harvard
Law Review. He clerked for a federal appeals court
judge and, thereafter, for Supreme Court Justice
William Rehnquist. He then worked in the White
House of former President Ronald Reagan and in the
Solicitor’s Office at the U.S. Department of Justice in
the administration of former President George H.W.
Bush. In between stints with the federal government,
Roberts became an associate, and later a partner, in the
prominent Washington, D.C. law firm, Hogan &
Hartson. While with the Solicitor’s office and at
Hogan & Hartson, Roberts argued cases before the
Supreme Court and other federal appellate courts.
Roberts’ first nomination to the D.C. Circuit was by
then-President Bush, when Roberts was just 36. His
nomination stalled in the Senate due to opposition of
some members of the Senate Judiciary Committee.
After being re-nominated for the same seat by
President George W. Bush, Roberts was confirmed
unanimously by the Senate in 2003.
Such general information is merely the start of the
inquiry into Judge Roberts’ background. The Senate
Judiciary Committee hearings in September will be a
concerted effort to discern Roberts’ positions on a
variety of controversial legal and social issues.
The Process of Investigating a Supreme Court
Nominee
The extensive “vetting” of Judge Roberts will occupy
the summer recess for many congressional, federal
government and interest group staffers. For example,
prior to the Senate hearings, Roberts, like all judicial
nominees, will have already undergone a due diligence
investigation and background check by the White
House from the FBI’s Special Inquiry Background
Investigation Unit. The process starts with completion
of Standard Form 86, the basic form filled out by all
presidential nominees, which includes personal data
such as current and all former addresses, employers,
family members, schools, and friends, as well as a
complete financial history, a record of any criminal or
mental health issues, and a list of foreign countries
ever visited. Nominees are asked to sign waivers for
access to tax records, background criminal reports and
credit history.
The initial FBI questioning also asks for any
potentially embarrassing information, such as personal
relationships, employment of illegal household help,
or country club memberships in clubs that exclude
women or minorities. An FBI full-field investigation
also includes face-to-face or telephone interviews with
family, friends, associates, former associates,
neighbors and former neighbors, business clients and
former clients, as well as anyone who is referred to the
agents by people they interview. The questions
generally relate to character, associations, reputation,
and loyalty to the United States.
The Senate Judiciary Committee’s own questionnaire
includes requests for the nominee’s curriculum vitae,
all published writings and all judicial opinions, as well
as all litigation records (briefs, motions, hearing
transcripts, etc.) in cases tried by the nominee. The
questionnaire also requests financial data and potential
conflicts of interest, and finally a description of the
nominee’s basic judicial philosophy on issues such as
CA Labor & Employment Bulletin
“judicial activism.” In addition to the standard
questionnaire, the Judiciary Committee has also asked
Roberts to disclose all memberships in, and “services
rendered” to, any political party or election committee,
as well as “any memoranda analyzing issues of law or
public policy that you wrote on behalf of or in
connection with a presidential transition team.”
Roberts reportedly assisted in the Florida recount
battle that decided the 2000 presidential election, and
may have had a role in the Bush v. Gore Supreme
Court case, which decided that issue.
Typically, the Committee’s “vetting” process includes
telephone interviews with people who have worked
with, or opposed, the nominee in his legal career. The
Senate Judiciary Committee staff will also conduct
further research and investigations to prepare the
Senators on the Committee for protracted questioning
at the confirmation hearings. These hearings are
designed to elicit additional information about the
nominee’s views and philosophy, and how they are
formulated. For example, the staff’s summer reading
will include not only his published decisions on the
Court of Appeals, but all other writings. Examples
include the following: briefs filed with a court or
administrative agency, any published articles, speech
texts, written documents from his tenure in the Reagan
White House, as well as more than 15,000 pages of
Justice Department memoranda and documents from
his tenure in the Solicitor General’s Office.
In addition, the American Bar Association’s 15member Standing Committee on the Federal Judiciary
is conducting its own “peer review” by interviewing
lawyers, judges, law school professors and deans,
community leaders, and others concerning the
nominee’s integrity, legal ability, and judicial
temperament. The Committee will assign law school
professors to review the nominee’s legal writings and
decisions. Following that process, the Committee will
rate the nominee as “well qualified,” “qualified,” or
“not qualified.” This rating will be passed on to the
Senate Judiciary Committee, but the ABA’s files are
kept confidential.
Of course, these are only the official investigations
that will take place between now and the Senate
confirmation hearings. Unofficially, but no less
public, will be investigations by scores of interest
groups and the media, which will conduct formal and
informal inquiries, interviews and research in an effort
to root out other sources of information about the
nominee.
By the end of the process, perhaps the only
information left undisclosed about Judge Roberts
(appropriately, some would say) is how the nominee
will rule on specific cases to come before the Court.
Prior nominees, including current Supreme Court
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July/August 2005
Justice Ruth Bader Ginsberg, have refused to answer
such direct questions, other than to express general
philosophies about types of cases and the
constitutional principles to be applied. The Senate
hearings, however, will be a “cat-and-mouse” game to
see how far “Supreme Court nominee Roberts” can be
baited into revealing more than past nominees about
how “Supreme Court Justice Roberts” might rule in
cases involving particular “hot button” issues.
Roberts’ Record on Labor and Employment Issues
Based on memoranda written while serving in the
White House and in the Justice Department, as well as
his published opinions on the Court of Appeals, it
appears that Judge Roberts has a fairly limited public
record on labor and employment law issues. During
his two-year service on the appellate court bench,
Judge Roberts wrote 11 opinions involving labor and
employment law, and participated in deciding 21
others.1 Of the total 32 cases, 18 involved public
sector employment.2 According to BNA, of Judge
Roberts’ 32 labor and employment law decisions, 11
were in favor of employees or unions, 18 were in favor
of employers, 2 had mixed results, and 1 involved
examination of a government regulation challenged by
the AFL-CIO.3 In 2-1 cases where Roberts was in the
majority, one decision was in favor of the employer
and the other was in favor of the employee.4
Among his reported decisions involving labor and
employment law issues, Judge Roberts scolded the
National Labor Relations Board (NLRB) for failing to
explain its departure from past precedent, a frequent
criticism by D.C. Circuit judges over the years as the
composition of the NLRB has changed with different
Administrations.5
In AFL-CIO v. Chao,6 Judge Roberts partially
dissented from the majority opinion reviewing the
U.S. Department of Labor’s revised regulations for
union financial disclosure and reporting obligations.
The AFL-CIO challenged the new reporting
requirements promulgated by the agency.
The
majority of the D.C. Circuit panel upheld the agency’s
regulations, except for one reporting form which
sought financial information concerning union-related
trusts. Roberts dissented on the issue of whether such
1
Bureau of National Affairs, Daily Labor Report, No.
142, p. C-1 (July 26, 2005).
2
Id.
3
Id.
4
Id.
5
LeMoyne-Owen College v. NLRB, 357 F.3d 55 (D.C.
Cir. 2004).
6
409 F.3d 377 (D.C. Cir. 2005).
CA Labor & Employment Bulletin
information was within the scope of the LaborManagement Reporting and Disclosure Act of 1959.7
Contrary to the majority, which held that such report
forms were improper since the information sought was
“unrelated to the union reporting requirements,”
Roberts’ dissent upheld the agency’s authority to
require the reporting of such information.8
Most recently, in Booker v. Robert Half, Inc.,9 Judge
Roberts approved a lower court opinion which severed
an unconscionable provision from an employer’s
arbitration agreement. With the offending provision
removed, Roberts then upheld the enforceability of the
remainder of the agreement as it applied to allegations
of racial discrimination. Roberts wrote that by
invoking the arbitration agreement’s severability
clause to remove an unconscionable provision in the
agreement, the court’s decision honored the intent of
7
29 U.S.C. §§ 401-531.
8
AFL-CIO, 409 F.3d at 391-395.
9
D.C. Cir. No.04-7089, 2005 U.S. App. LEXIS 13124
(D.C. Cir. July 5, 2005).
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July/August 2005
the parties, as well as the federal policy favoring
arbitration, as expressed in the Federal Arbitration
Act.
Although these rulings are hardly “landmark” cases,
by the September Senate Judiciary Committee
confirmation hearings, readers can be assured that
Roberts’ writings on labor and employment law issues
will have been fully analyzed and the subject of
questions from the Committee.
*****
Harold P. Coxson, Esq. has practiced labor and
employment law in Washington for over 30 years,
where he has represented employers before federal
courts, administrative agencies, and Congress. He is
also a shareholder in the Washington, D.C. office of
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and
a Principal in the firm’s wholly-owned government
relations subsidiary Ogletree Governmental Affairs,
Inc., through which he counsels over 30 national trade
associations on workplace issues.
279
CA Labor & Employment Bulletin
July/August 2005
PROFILE: Anne Celentino
By Lisa Hird*
* Lisa Hird is a summer associate at the labor and employment law firm of Paul, Plevin, Sullivan & Connaughton in San Diego.
She will graduate from the University of Minnesota Law School in May 2006.
Gottesman, who had argued numerous cases before
our nation’s highest court. From this experience,
everything else fell into place.
After graduating from Georgetown, Celentino became
an associate in the labor and employment law group at
Sheppard, Mullin, Richter & Hampton. She worked in
the San Diego office for five years, during which time
she represented many retailers, second-chaired a jury
trial, and handled union and wage and hour issues.
When she became a mother, however, Celentino
decided it was time to venture beyond private practice.
She needed a more manageable schedule, which Cubic
provided through a part-time, in-house position (that
eventually became full-time).
Transitioning from a law firm to become in-house
counsel, however, posed many challenges. Celentino
felt anxious when put on the spot to give legal advice,
since she could no longer retreat to her office and
research every conceivable issue. In-house attorneys
also operate on a different level of analysis and
awareness because the focus is primarily on
compliance and prevention. “I learned to quickly
analyze fact patterns and case law, balance those with
business risks, know the politics, know the company,
and then give an answer.”
What becomes of those who major in history as an
undergraduate? Anne Celentino provides a shining
example of success. Despite her fascination with the
U.S. Civil War era, Celentino opted to pursue her
lifelong interest in law. For the past thirteen years, she
has worked as a senior attorney specializing in
employment law at Cubic Corporation, a San Diegobased company that designs and manufactures items
such as military range instrumentation and ticket
vending machines for mass transit networks. Having
worked as an employment lawyer in a large law firm
for several years before assuming her in-house
position, Celentino obtained valuable insight into
employment law from the perspective of both outside
and in-house counsel.
Celentino savored her years at Georgetown Law. The
U.S. Supreme Court was only a few blocks away, the
law professors were outstanding, and the school
offered several clinical courses. Celentino sampled an
assortment of classes in her quest for career guidance.
At last, she drew inspiration from an introductory
labor law class taught by Professor Michael
Other perks and disadvantages of working in-house
gradually surfaced. As for the benefits, Celentino
enjoys having a long-standing relationship with one
client. She feels very familiar with all of the politics,
history and players.
She also enjoys training
employees in conjunction with Cubic’s Human
Resources (HR) department, which allows her to tell
war stories about companies embroiled in legal
dilemmas. Maintaining a long-term partnership with
HR employees and management is a source of
satisfaction for Celentino. “We have a mutual trust
and good working relationship. Lots of things are
streamlined because we know each other so well, and
we talk about a lot of issues at the early stages. Also,
you appreciate the pressures experienced by people
who have day to day interface with employees. In a
firm, you can lose sight of what it is like to be in the
HR trenches, so your advice can be different… .
Compared to when I first started [at Cubic], the advice
I give is better now because I understand the world in
which HR operates.”
Some of these benefits have a flip side. Celentino
explains that the drawback of having one client is that
CA Labor & Employment Bulletin
the spectrum of issues is more limited. For instance,
Cubic does an overwhelming amount of business in
the national defense area. Also, in-house attorneys
rarely engage in litigation. Celentino notes, “You
almost have to get over the feeling of being less of an
attorney because you’re not handling cases at a firm
like ‘real’ attorneys. However, working in-house has
more routine work hours, so I have more control over
my schedule now — except for the atypical nighttime
call from an overseas facility, that is.” Overall,
however, Celentino really enjoys being able to fully
dedicate herself to employment law, and believes she
has found the ideal job to satisfy her needs, interests
and talents.
As one can imagine, there are plenty of legal concerns
in a company with over 6,000 employees. As in-house
counsel, Celentino has become familiar with a variety
of legal areas that impact the Company’s employees.
Profit sharing, employee benefits, ERISA and
immigration issues all cross her desk. She also
engages in contract review and bankruptcy analysis.
Celentino has demonstrated that she is glad to share
her wisdom with others. In 2001, she served as
president of the San Diego chapter of the Association
of Corporate Counsel-America (ACCA). She has been
a guest speaker at ACCA’s annual conference ever
since. In fact, Celentino will travel to Washington
D.C. this October to give a speech on handling
government compliance audits, including affirmative
action audits, exempt classifications, and OSHA safety
reviews. If time permits, she hopes to visit Professor
Gottesman at Georgetown.
Aldous Huxley once wrote, “Experience is not what
happens to a man; it is what a man does with what
happens to him.” Celentino has taken her experiences
to heart. From the perspective of an in-house attorney
280
July/August 2005
who once worked in a law firm environment,
Celentino offers the following advice to lawyers who
work with in-house counsel:
1.
Keep the lines of communication open.
Strategize and make important decisions
together. That way there are no surprises
when there is a large legal bill or a significant
development. Remember that an in-house
attorney’s
job
is
to
communicate
expectations. Touch base often with status
reports.
2.
Appreciate the in-house attorney’s need for
practical
approaches.
Writing
a
memorandum with an in-depth analysis of
case law and potential alternatives can be
problematic because at the end of the day,
companies often need a bottom line
recommendation. Do not be reluctant to
provide that.
Although she loves her job and the people with whom
she works, Celentino maintains a healthy balance
between work and leisure. She loves to travel and
explore new countries. Her local activities include
hiking, yoga, and visiting her favorite San Diego
restaurant, Sushi Ota. Whether crossing the legal
battlefields of a corporation or the hollowed grounds
of Gettysburg, Celentino exudes a sincere appreciation
of her career — and of life.
*****
Lisa Hird is a summer associate at the labor and
employment law firm of Paul, Plevin, Sullivan &
Connaughton in San Diego. She will graduate from
the University of Minnesota Law School in May 2006.
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CA Labor & Employment Bulletin
July/August 2005
CASE NOTES
WAGE AND HOUR
Conley v. Pacific Gas & Electric Company, 2005 Cal.
App. LEXIS 1122 (July 21, 2005).
California Court of Appeal, First Appellate District,
ruled that a California employer’s policy of taking
partial-day deductions from exempt employees’
vacation balances did not violate the salary basis test.
Plaintiffs filed a class action suit challenging Pacific
Gas & Electric’s (“PG & E”) policy of taking partial
day deductions from accumulated sick leave. Under
the policy, exempt employees who had partial-day
absences had the time automatically deducted from
their accumulated leave. If the employee had not
accumulated sick leave, the policy did not permit a
deduction from regular pay.
The court of appeal found that the policy did not
violate the Fair Labor Standards Act (“FLSA”) salary
basis test as interpreted by California law. Agreeing
with the trial court, the court found that the employer’s
policy did not run afoul of the salary basis test because
employees are never forced to forego salary or
unearned vacation as part of the partial-day deduction
policy. Instead, they merely are being asked to use
already accumulated leave to accommodate the partialday absence. The court stated that the employer’s
“vacation leave policy neither imposes a forfeiture nor
operates to prevent vacation pay from vesting as it is
earned. All it does do is regulate the timing of exempt
employees’ use of their vacation time, by requiring
them to use it when they want or need to be absent
from work for four or more hours in a single day.”
The court found that this was entirely consistent with
Suastez v. Plastic Dress-Up Co., 31 Cal. 3d 774
(1982), wherein the court expressly noted that
“ ‘[s]ection 227.3 … does not purport to limit an
employer’s right to control the scheduling of its
employees’ vacations.’ ” Therefore, the court
concluded, Suastez does not preclude PG & E from
requiring its exempt employees to use their vacation
leave, if available, when they want or need to take a
partial-day absence.
In reaching its decision, the court rejected the
reasoning of several California Department of Labor
Standards Enforcement interpretive advice letters that
appeared to consider vacation leave as equivalent to
compensation. The court said the letters did not have
the force of law and were not controlling; thus, the
court was not bound by their guidance.
References. For a discussion of exemptions from
overtime pay requirements (under federal and
California law), see Wilcox, California Employment
Law, § 3.03.
_______________
Dunbar v. Albertson’s, Inc., Alameda County
Superior Court, No. RG04-146326 (June 9, 2005)
(unpublished).
An Alameda Superior Court judge denied class
certification in grocery store manager exemption
misclassification case.
Judge Sabraw of the Alameda County Superior Court
recently denied plaintiff’s motion for class
certification. The plaintiff, a grocery manager (“GM”)
employed by Albertson’s grocery store, claimed he
was improperly classified as an executive employee
exempt from California’s overtime pay requirements.
Plaintiff’s complaint stated causes of action for
nonpayment of overtime, failure to provide meal and
rest periods, failure to provide accurate wage
statements, and unfair competition.
The trial court concluded that plaintiff had not
demonstrated that common issues predominate for
purposes of class certification. The court explained
that although Albertson’s had made a single policy
decision to classify hundreds of GMs as exempt, that
single policy decision might be improper as to some
putative class members, but proper as to others. The
court stated that in determining whether an employee
is exempt or non-exempt, it should engage in a factspecific inquiry, focusing “on the evidence concerning
the actual experiences of the class members rather than
on the formal job descriptions and policies.” In
support of its ruling, the court stated that the
declarations and deposition testimony submitted by
Albertson’s revealed that the work of the GMs varied
by work location and time of year. The court found
that “the work performed by any one GM [was not] so
similar to the work performed by any other GM that
the Court can reasonably extrapolate findings from the
named plaintiff to the absent class members.”
Finally, the trial court determined that a class action
was not necessary to deter and redress the alleged
wrongdoing, where individual administrative and legal
claims were available to any aggrieved GMs.
References. For a discussion of exemptions from
overtime pay requirements (under federal and
CA Labor & Employment Bulletin
California law), see Wilcox, California Employment
Law, § 3.03.
_______________
In re Home Depot Overtime Cases, Riverside,
California Superior Court, No. RIC JCCP 4229 (June
9, 2005) (unpublished).
Riverside Superior Court judge granted class
certification in exemption misclassification case
involving Home Depot Merchandising Assistant Store
Managers.
Judge Roger Luebs, Riverside County Superior Court,
certified a class action involving Home Depot
merchandising assistant store managers who claim
they were misclassified as managerial employees
exempt from overtime pay under state law. The class
could include more than 2,000 current and former
employees. If the plaintiffs prevail on the merits of
their claims, their compensatory damages, including
penalties and interest, could exceed $300 million.
However, if Home Depot prevails on the merits — by
showing “that the realistic requirements of the job
involve more than 50 percent of work time on exempt
[managerial] tasks — no class member would be
entitled to overtime compensation, even though some
of them might have successfully pursued
individualized claims,” Judge Luebs said.
To succeed on the class claim, the employees need to
show “that misclassification was the rule, rather than
the exception.” The judge found the “central issues”
to be decided are Home Depot’s reasonable
expectations and the actual overall requirements of the
job. The named plaintiffs allege that they spent more
than 50 percent of their time on non-managerial tasks,
such as waiting on customers and stocking shelves.
Judge Luebs stated that if the employees present
evidence about what individual employees did during
their work time, the company “would have the right to
demonstrate that the employee was not performing in
accordance with the realistic requirements of the job.”
References. For a discussion of exemptions from
overtime pay requirements (under federal and
California law), see Wilcox, California Employment
Law, § 3.03.
_______________
Colburn v. Albertson’s, Inc., Los Angeles County
Superior Court, No. BC 299391 (June 16, 2005)
(unpublished).
A Los Angeles County Superior Court judge denied
class certification in an off-the-clock case.
Judge Edmon of the Los Angeles County Superior
Court recently denied plaintiff’s motion for class
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July/August 2005
certification in a case alleging that grocery store
employees routinely engaged in off-the-clock work at
Albertson’s without compensation, with Albertson’s
having actual or constructive knowledge.
The court stated that the inquiry into whether each
plaintiff worked off the clock is an inherently
individual one.
The court held that whether an
employee worked off the clock could not be
established by statistical sampling, referring to
evidence indicating that there were a myriad of
reasons for employees working off the clock, which
the court found relevant to employer knowledge.
“Accordingly, the circumstances of the front end
employee working off the clock and whether his or her
supervisors were or should have been aware of the offthe-clock work is a matter for individual proof … .”
The court also found that the employer was entitled to
assert individualized defenses to the class members’
claims, including: (1) individual class members did
not work off the clock; (2) any instruction to work
without compensation were outside the scope of the
supervisor’s authority; (3) the class member
unreasonably failed to use curative steps provided by
the defendant to be compensated for his or her work;
(4) the class member unreasonably relied on
instruction to work off the clock that were directly
contrary to the company’s policy; (5) a class member
had constructive knowledge of the company’s policies
prohibiting off-the-clock work but chose to violate that
policy for any one of a number of reasons; and (6) the
particular class member had a unique animus toward
the company that would cause him or her to fabricate
or inflate the claim. The court also found that the
plaintiffs did not present sufficient evidence to support
their argument that there was a common plan or policy
promoting off-the-clock work among the employees at
issue.
References. For a discussion of determining number
of hours worked, see Wilcox, California Employment
Law, § 3.07.
_______________
Precedent
Decision:
Hartwig
v.
Orchard
Commercial Inc., Case No, 12-56901 RB (June 17,
2005).
California Department of Labor Standards
Enforcement (“DLSE”) issued a precedent decision
that the one-year statute of limitations applied to
claims for failure to provide meal and/or rest periods.
The DLSE found that the one-year statute of
limitations under California Civil Procedure Code
Section 340(a) for penalties applied to meal and rest
period claims.
On June 17, 2005, the DLSE
designated this decision as a “precedent decision” on
CA Labor & Employment Bulletin
the issue of meal and rest breaks until such time as the
applicable regulations are in effect. The DLSE also
found that waiting-time penalties under Labor Code
Section 203 are not available for unpaid meal and rest
period claims because penalties are available only for
the willful failure to pay wages, not penalties.
References. For a discussion of determining number
of hours worked (and meal periods), see Wilcox,
California Employment Law, § 3.07.
_______________
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July/August 2005
shortchange the worker and evade following the Fair
Labor Standards Act, can pay overtime based on two
separate wages. The criteria used to determine whether
an employer can pay two different rates includes four
requirements:
•
the employee must perform two or more
kinds of work;
•
there must be a bona fide different hourly rate
for each position;
•
the compensation must be paid based on an
agreement between the worker and the
employer in advance of performing the work;
and
•
the compensation must be calculated at rates
no less than one and one-half times the rate
paid when such work is performed during
non-overtime hours.
Department of Labor Wage and Hour Opinion
Letter, Barbara R. Relerford, April 27, 2005 (released
in late June 2005).
The Department of Labor (“DOL”) found that truck
drivers who transport merchandise in-state (if it has
been stored in a warehouse after coming from another
state) are not entitled to overtime pay because they are
involved in interstate commerce and, therefore, are
exempt under federal regulations covering truck
drivers.
The DOL found that because the original shipments
from out-of-state were not delivered to the warehouse
as the final destination, the truckers were involved in
interstate commerce under Transportation Department
guidelines, because they were merely completing the
last leg of an interstate trip. Although the truckers
worked in only one state, the federal exemption
applied because the shipments were interstate. The
DOL stated, “[W]hether the final intrastate leg of
interstate shipments not sent to named recipients, but
held in storage between legs of the trip, constitutes
interstate commerce turns on whether the shipper has a
fixed and persisting transportation intent beyond the
terminal storage point at the time of shipments.”
References. For a discussion of exemptions from
overtime pay requirements (under federal and
California law), see Wilcox, California Employment
Law, § 3.03.
_______________
Department of Labor Wage and Hour Opinion
Letter, Barbara R. Relerford, February 14, 2005
(released in late June 2005).
The DOL found that an employee doing two jobs can
be paid overtime based on two separate rates as long
as the worker and the employer have reached an
agreement permitting such an arrangement.
In the opinion letter, Relerford said that although an
employer is usually required to pay the average
aggregate wage when an employee works two jobs at
different pay levels, employers who take affirmative
action to prove the pay scheme is not designed to
References. For a discussion of determining the
regular rate of pay, see Wilcox, California
Employment Law, § 3.08.
FAMILY LEAVE
Tellis v. Alaska Airlines, Inc., 2005 U.S. App. LEXIS
13975 (9th Cir. July 12, 2005).
The Ninth Circuit Court of Appeals recently dismissed
a lawsuit brought by an employee who claimed that
his absences to care for his pregnant wife were
protected under the Family and Medical Leave Act
(“FMLA”). According to the court, the worker’s
cross-country trip to retrieve the family vehicle and
phone calls while he was away cannot be considered
“caring for” his wife.
H. Charles Tellis was employed as a maintenance
mechanic by Alaska Airlines in Seattle. On July 4,
2000, he requested time off from work to care for his
pregnant wife. His supervisor suggested he take
FMLA leave and directed him to the proper
department to obtain the necessary forms.
Instead of showing up for his scheduled shift that
evening, Tellis left a leave request form for his
supervisor requesting holiday and vacation leave for
the following three days. On July 5, Tellis contacted
the benefits office to request FMLA leave, and the
office sent him the appropriate forms.
The next day, Tellis’s vehicle broke down and he
departed for Atlanta that evening to retrieve a second
car that he owned. He arrived back in Seattle on July
10, but his wife had given birth to a baby girl the day
before. While he was gone, Tellis regularly called his
wife from the road.
CA Labor & Employment Bulletin
After Tellis failed to report for his next scheduled
shift, the airline attempted without success to contact
him. The airline then terminated his employment
effective July 18, 2000, based on his unexcused
absences. Tellis subsequently filed a grievance with
his union. The airline agreed to reinstate him if he
would accept the placement of a disciplinary letter in
his file. Tellis refused the offer, and after an
arbitration hearing before the System Board of
Adjustment, filed a lawsuit in federal court.
The trial judge dismissed the suit, finding that Tellis
did not “care for” his wife during his time off. As a
result, his absences were not protected by the FMLA
and the airline had the right to terminate him. Tellis
then appealed this decision to the Ninth Circuit Court
of Appeals.
Tellis argued that he cared for his wife consistent with
the FMLA because his trip to Atlanta to retrieve the
family car provided psychological reassurance to her
that she would soon have reliable transportation.
According to Tellis, his phone calls to her while en
route to Seattle also provided moral support and
psychological comfort. The Ninth Circuit disagreed,
finding that providing care to a family member with a
serious health condition requires “some actual care
which did not occur here.”
The court held that while having a working vehicle
may have provided psychological reassurance for
Tellis’s pregnant wife, it was merely an “indirect
benefit of an otherwise unprotected activity – traveling
away from the person needing care.” Likewise, the
Ninth Circuit wrote: “Common sense suggests that the
phone calls Tellis made do not fall within the scope of
the FMLA’s ‘care for’ requirement.” Thus, because
his absences were not protected by the FMLA, the
court upheld the trial judge’s decision to dismiss his
suit.
References. For a discussion of general FMLA
requirements and reasons for FMLA leave, see
Wilcox, California Employment Law, §§ 8.20 and
8.21.
RETALIATION
Pinero v. Specialty Restaurants Corp., 130 Cal. App.
4th 635 (2005).
A California court of appeal recently upheld the
dismissal of a lawsuit brought by a manager who sued
his former employer for retaliation under state law.
The court held that the “nitpicking” about which the
manager complained was at most a “minimal
inconvenience,” rather than an “adverse employment
action.”
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In October 1998, Specialty Restaurants Corporation
(“SRC”) hired Alberto Pinero as General Manager of
Luminaries, a restaurant in Monterey Park. At the
time, Pinero was involved in a pending age
discrimination lawsuit against Alfred Balderrama, his
former employer and a city council member in
Monterey Park (where SRC conducted business).
Pinero did not inform SRC about his lawsuit against
Balderrama.
In January 1999, Pinero was promoted to General
Manager of the Castaways Restaurant in Burbank.
Several months later, SRC President David Tallichet
learned about Pinero’s lawsuit against Balderrama.
Tallichet subsequently met with Pinero in an attempt
to persuade him to abandon or settle what he believed
was a frivolous lawsuit. Pinero told Tallichet that the
lawsuit was a private matter and had nothing to do
with SRC.
After the meeting, Pinero claimed that he was
repeatedly criticized about work-related matters. By
mid-August, Pinero concluded that he could no longer
handle the situation and resigned. At the same time,
he was offered and accepted a job as Food and
Beverage Manager at American Golf.
Pinero filed a retaliation lawsuit under state law
against SRC, claiming that the company forced him to
resign after learning about his age discrimination
action against Balderrama. The trial judge held that
Pinero failed to establish that he was subjected to any
form of adverse employment action, and granted
SRC’s request to dismiss the suit. Pinero appealed this
decision to the California Court of Appeal.
To establish a prima facie case of retaliation, Pinero
was required to prove that: (1) he engaged in protected
activity; (2) he was subject to an adverse employment
action; and (3) there was a causal link between the
protected activity and the employer’s action. Even
under the most lenient “deterrence standard” used to
analyze the second and disputed element in this case,
the court of appeal found that “the employment actions
about which Pinero complains are insufficiently
adverse to support a retaliation claim.”
Notwithstanding the criticism, Pinero was not fired,
demoted or transferred, did not lose any benefits,
bonuses, or commissions, did not suffer any wage
reduction, and did not experience any change in job
duties or responsibilities as a result of his employer’s
knowledge of his lawsuit against Balderrama.
The court noted that “[w]hile it is understandable
Pinero was angered, displeased, or even insulted by
the criticisms … , such displeasure is simply not
actionable.” Thus, the trial judge’s decision to dismiss
his suit was upheld.
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July/August 2005
References. For a discussion of statutory prohibitions
and limitations on an employer’s right to terminate or
discipline employees, see Wilcox, California
Employment Law, § 60.03.
without the presence of unwelcome sexual
propositions or conduct directed at a particular
employee, may be sufficient to constitute sexual
harassment in violation of the FEHA.
SEXUAL HARASSMENT
References. For a discussion of sexual harassment
prohibitions in FEHA, see Wilcox, California
Employment Law, § 41.81.
Miller v. Dept. of Corrections, 2005 Cal. LEXIS 7606
(July 18, 2005).
The California Supreme Court recently held that
favoritism based on consensual sexual relationships
might constitute unlawful sexual harassment under
California’s Fair Employment and Housing Act
(“FEHA”).
At one California prison, the warden was doing more
than just taking care of the inmates. Over a period of
several years, this particular warden had sexual affairs
with at least three subordinate female employees.
Because of these relationships, the warden promised
and granted these three women unwarranted favorable
treatment, including special assignments, preferential
promotions, and other work privileges. When other
female employees complained about the favorable
treatment, the warden refused to intervene and
retaliated against the complaining employees. In
response, two female former employees sued the
California Department of Corrections claiming, among
other things, that the warden’s favoritism constituted
sexual harassment in violation of the FEHA.
Both the trial court and the court of appeal ruled that a
supervisor who grants favorable treatment to a person
with whom he is having a sexual affair does not,
without more, commit sexual harassment toward other,
non-favored female employees. The court of appeal
further explained that, because the plaintiffs were not
themselves subjected to sexual advances and were
basically in the same position as their similarly nonfavored male co-workers, the warden’s conduct was
not actionable sexual harassment because it was not
based on their gender.
The California Supreme Court, however, disagreed
with the trial court and court of appeal. After
surveying the landscape of sexual harassment law, the
court concluded that an employee may establish a
claim of sexual harassment under the FEHA by
demonstrating that widespread sexual favoritism, in
itself, was so severe or pervasive that it altered
working conditions and created a hostile work
environment. As the Supreme Court explained,
widespread favoritism based on consensual affairs
may fill the workplace with an atmosphere that is
demeaning to women because a message is conveyed
that managers view women as sexual playthings or
that sexual conduct with managers is required to
secure advancement. Such an atmosphere, even
_______________
Jespersen v. Harrah’s Operating Co., Inc., 392 F.3d
1076 (9th Cir. 2005).
The Ninth Circuit will rehear, en banc, Jespersen v.
Harrah’s Operating Co., Inc., 392 F.3d 1076 (9th Cir.
2004), in which an employee was terminated after she
refused to adhere to her employer’s new policy
requiring certain female employees to wear makeup.
Darlene Jespersen was an “outstanding” female
bartender at the sports bar in Harrah’s Casino in Reno,
Nevada, for nearly twenty years. Customers and
supervisors praised her positive attitude and
effectiveness. She had not worn makeup to work in
over a decade, however, because she felt it was “so
harmful to her dignity and her effectiveness behind the
bar that she could no longer do her job.”
In February 2000, Harrah’s implemented its
“Beverage Department Image Transformation”
program at twenty Harrah’s locations. The program
imposed specific “appearance standards” on each of its
employees in guest services, including heightened
requirements for beverage servers. The “Personal
Best” standards required all female beverage servers,
including female bartenders, to wear makeup. As
before, male beverage servers were prohibited from
wearing makeup. Because of her objection to wearing
makeup, Jespersen refused to comply with the new
policy. Harrah’s gave Jespersen thirty days to apply
for a position that did not require makeup to be worn.
Jespersen did not apply for another job, and she was
terminated.
Jespersen alleged that the employer’s policy
discriminated against her on the basis of sex and
constituted disparate treatment. The district court
granted summary judgment for the employer, holding
that the employee could not, in a Title VII sex
discrimination claim alleging both disparate treatment
and disparate impact, establish that the grooming
policy imposed greater burden on female bartenders
than on male bartenders. The three-judge panel
opinion can no longer be cited as precedent.
References.
For a discussion of appearance,
grooming and dress standards, see Wilcox, California
Employment Law, § 41.54.
_______________
CA Labor & Employment Bulletin
Angelucci v. Century Supper Club, 130 Cal. App. 4th
919 (2005).
The Court of Appeal of California held that in order to
maintain a civil rights action for discrimination, the
plaintiff must plead and prove that he or she requested
equal treatment, not just that the plaintiff received
unequal treatment.
Four male club patrons sued various nightclubs for
unequal treatment based on gender discrimination
under the Unruh Act and Gender Tax Repeal Act.
They argued that at the clubs, women were charged a
lower cover charge, if any, and were not subject to a
body search.
The court of appeal held that the male patrons failed to
state a cognizable claim because they did not allege
that they asked for a lower cover charge. The court
cited Koire v. Metro City Car Wash, 40 Cal. 3d 24
(1985), holding that “an affirmative assertion of the
right to equal treatment is based on the fact that there
cannot be a discrimination or a denial of services
unless services are requested. The principle is
consistent with long-standing California law, cited by
respondent, which holds that a plaintiff cannot sue for
discrimination in the abstract, but must actually suffer
the discriminatory conduct.” Thus, by failing to
request equal treatment, the men could not advance
their civil rights claim.
DISABILITY DISCRIMINATION
Wong v. Regents of University of California, 410
F.3d 1052 (9th Cir. 2005).
The Ninth Circuit held that a person who has achieved
considerable academic success, beyond the attainment
of most people or of the average person, cannot be
“substantially limited” in reading and learning, and,
thus, is not entitled to claim the protections afforded
under the Americans with Disabilities Act (“ADA”) to
a “disabled” person.
Andrew H.K. Wong completed the first two years of
the UC Davis Medical School program, on a normal
schedule, with a grade average slightly above a “B.”
He did not request or receive the benefit of any special
accommodations during the first two years of medical
school or in taking the national board exam. His
academic performance, however, substantially
declined during his third year as a medical student. He
also took off time to be with his father, who had been
diagnosed with lung cancer.
Ultimately, the
University’s Disability Resource Center identified
Wong as having a learning disability that impaired his
ability to process and communicate information.
Wong returned to school and requested special
accommodations. He asked to take several weeks off
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before a rotation in order to read in advance and
prepare for it, which the school initially allowed. A
subsequent request to take an eight-week study break,
however, was denied. A school official later gave a
number of reasons for denying Wong’s request,
including that it was “unreasonable, unfair, and
contrary to the purposes of the curriculum.” Wong did
not receive a passing grade for the clerkship, and he
was dismissed from UC Davis Medical School for
failure to meet the academic requirements. He sued
The Regents for discrimination in violation of the
ADA and the Rehabilitation Act, stemming from the
medical school’s denial of his request for learning
disability accommodations, although he nonetheless
achieved academic success without special
accommodation at various times in grammar school,
high school, and college.
The Ninth Circuit was forced to ascertain the meaning
of “disabled” under the ADA and Rehabilitation Act.
Specifically, the court considered whether a person
who has achieved considerable academic success,
beyond the attainment of most people or of the
average person, can nonetheless be found to be
“substantially limited” in reading and learning, and
thus be entitled to claim the protections afforded under
the acts to a “disabled” person. The court held that
Wong was not substantially limited by his learning
disability as a whole, compared to most people, as
required to establish that he was disabled under the
ADA. “It is plain that having an impairment does not
necessarily mean that a person is ‘disabled’ for
purposes of the [ADA and the Rehabilitation Act].”
References. For more on the scope of protection of
the various disability discrimination laws, see Wilcox,
California Employment Law, § 41.32.
ARBITRATION
Discover Bank v. Superior Court, 36 Cal. 4th 148
(2005).
The California Supreme Court held that the Federal
Arbitration Act (“FAA”) does not preempt state courts
from applying state substantive law to strike
arbitration agreement provisions prohibiting class
actions. In this case, the credit card company’s class
action waiver was declared unconscionable under
California law.
Christopher Boehr, a California resident, obtained a
credit card from Discover Bank in April 1986. In July
1999, Discover Bank added a mandatory arbitration
clause to its cardholder agreement and sent notice to
all cardholders. The arbitration agreement had a
clause
forbidding
classwide
arbitration.
Approximately two years later, Boehr filed a class
action alleging that Discover Bank breached its
CA Labor & Employment Bulletin
cardholder agreement by imposing a late fee of
approximately $29 on payments that were received on
the payment due date, but after Discover Bank’s
undisclosed 1:00 p.m. “cut-off time.” Plaintiffs
charged the defendant with breach of contract and
violation of the Delaware Consumer Fraud Act.
The superior court initially granted Discover Bank’s
motion to compel arbitration and dismissed the class
action pursuant to the arbitration agreement’s class
action waiver. On reconsideration, the superior court
invalidated the class action waiver in the arbitration
agreement. On writ of mandate, the California
Supreme Court agreed, holding that waiver of class
arbitration in a consumer contract of adhesion is
unconscionable and unenforceable. “We do not hold
that all class action waivers are necessarily
unconscionable. But when the waiver is found in a
consumer contract of adhesion in a setting in which
disputes between the contracting parties predictably
involve small amounts of damages, and when it is
alleged that the party with the superior bargaining
power has carried out a scheme to deliberately cheat
large numbers of consumers out of individually small
sums of money, then, at least to the extent the
obligation at issue is governed by California law, the
waiver becomes in practice the exemption of the party
‘from responsibility for [its] own fraud, or willful
injury to the person or property of another.’ ”
Additionally, the FAA does not preempt the
prohibition of class action waivers in arbitration
agreements.
References. For more on arbitration agreements, see
Wilcox, California Employment Law, §§ 90.1090.20A.
PUBLIC SECTOR
Botello v. Gammick, 2005 U.S. App. LEXIS 12122
(9th Cir. June 23, 2005).
The Ninth Circuit held that prosecutors’ interference
with former County investigator’s future employment
was not so intimately tied to judicial process as to
warrant absolute prosecutorial immunity from 42
U.S.C. section 1983 suit.
Rene Botello was a child sexual assault investigator
with the Washoe County Sheriff’s Office in Nevada.
He discovered that one of the nurses who frequently
testified in child sexual assault cases was
misdiagnosing physical evidence of child sexual
assault. Therefore, he advised two of the county
prosecutors about the problems with the nurse and
requested an audit of the county’s program to ensure
that it had integrity. Following that disclosure, the two
prosecutors told Botello that they were going to
retaliate against him.
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July/August 2005
Botello later reported his concerns about the nurse and
the program to the Nevada Attorney General’s Office
and to the FBI. He also quit his job with the county
and applied for a position with a county school district
police department. The two county prosecutors called
the school police department to try to dissuade the
department from hiring Botello, advising the school
police department that Botello should not be permitted
to participate in any investigations, and refusing to
prosecute Botello’s cases. Because of the threats,
Botello’s employer relegated him to a desk job.
Botello brought this suit in the district court against
the two prosecutors and Washoe County. He alleged
violation of his First Amendment rights under 42
U.S.C. section 1983, defamation, and intentional
infliction of emotional distress. Defendants filed a
motion to dismiss, arguing that they were absolutely
immune under the “prosecutorial immunity.” The
district court dismissed the case, and Botello appealed
to the Ninth Circuit. The Ninth Circuit reversed,
holding that prosecutorial immunity only protects
those acts that are “intimately associated” with the
judicial phase of the criminal process. The Ninth
Circuit found that the decision not to prosecute
Botello’s cases fell within prosecutorial immunity
because it is tied to the judicial phase, but the attempt
to dissuade Botello’s future employer from hiring him,
and a request that Botello not investigate any matters,
were not “intimately associated” with the judicial
process and thus were not subject to absolute
prosecutorial immunity.
_______________
Chapman v. Superior Court (Malcolm), 130 Cal.
App. 4th 261 (2005).
The California Court of Appeal, Fourth District, held
that public policy required dismissal of a legal
malpractice suit against the San Diego Port District
and its attorneys based on their failure to advise
plaintiff that his alleged self-interested dealings could
lead to criminal violations.
Real Party in Interest, David Malcolm, pled guilty to
violation of Government Code section 1090, which
prohibits an officeholder from having a financial
interest in any contract made by the public agency of
which he is a member. Malcolm’s self-interested
transactions occurred while he was a former member
of the Board of Commissioners of defendant San
Diego Unified Port District in connection with his
ownership of a company that entered into transactions
with Power Services companies and communities that
wanted to decommission aging power plaints.
Defendant David Chapman was the Port District’s inhouse legal counsel during all relevant times.
Malcolm told Chapman that he was interested in
CA Labor & Employment Bulletin
making a deal with Duke Energy Power Services, a
company with which the Port District had entered into
a memorandum of understanding (“MOU”) regarding
the operation and decommissioning of an energy plant.
Chapman told Malcolm that he must abstain from
voting on any Port District issue involving Duke and
disclose income from Duke on conflict of interest
forms. Malcolm followed this advice. After news
about Malcolm’s company became public, the San
Diego County District Attorney contemplated multiple
charges against him, including attempted perjury,
section 1090 violations and misappropriation of funds,
and a grand jury investigation was underway.
Malcolm negotiated a deal with the District Attorney
in which he would plead guilty to violation of section
1090, in exchange for the District Attorney’s
agreement to not pursue other charges.
After Malcolm’s plea was entered, Malcolm sued
Chapman and the Port District for legal malpractice,
alleging that Chapman wrongfully failed to advise
Malcolm of both Government Code section 1090 and
that his relationship with Duke required him to resign
from the Board rather than merely disclose the income
and abstain from voting. Defendants Port District and
Chapman moved for summary judgment, arguing that
Chapman and Malcolm did not have an attorney-client
relationship and maintenance of the cause of action
violates public policy as section 1090 is intended to
protect public agencies from officeholders’ selfdealing. The court denied the motion for summary
judgment.
The Port District and Chapman filed a petition for writ
of mandate in the Fourth District Court of Appeals
seeking to overturn the denial of the motion for
summary judgment. The Fourth District Court of
Appeals did not reach the issue of whether Chapman
and Malcolm had an attorney-client relationship. The
court did, however, conclude that the underlying
action was barred for public policy reasons. In this
case, Malcolm sought recovery from a public entity
that section 1090 was designed to protect. The court
found that “allowing Malcolm to recoup from the
public fisc losses he incurred as a result of his selfdealing, regardless of any negligent advice from
Chapman, ‘would indeed shock the public conscience,
engender disrespect for courts and generally discredit
the administration of justice.’ ” In granting the
petition and ordering summary judgment in favor of
the Port District and Chapman, the court followed a
series of cases holding that the court may preclude
particular types of actions for public policy reasons.
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July/August 2005
MISCELLANEOUS
Graham County Soil & Water Conservation Dist. v.
United States ex rel. Wilson, 125 S. Ct. 2444 (2005).
The United States Supreme Court resolved conflicting
circuit court decisions and held that the most closely
analogous state statute of limitations governs
retaliation claims under the False Claims Act.
Karen Wilson brought this False Claims Act action
against two special-purpose local government entities
(“Defendant Districts”) arising out of alleged false
claims for payment from the United States in
connection with a federal disaster relief program in
North Carolina. Wilson alleged that because she
reported the false claims and cooperated in the ensuing
federal investigation of these false claims, Graham
County District officials repeatedly harassed her for a
year, eventually leading to her resignation. Defendant
Districts moved to dismiss the retaliation complaint as
untimely, arguing that the six-year limitations period
provided in 31 U.S.C. § 3731(b)(1) did not apply to
the retaliation action. Instead, the Districts argued that
North Carolina’s three-year statute of limitations for
retaliatory-discharge actions should apply.
The
District Court agreed and dismissed the retaliation
claim as untimely. The ruling was certified for
interlocutory appeal, and the Fourth Circuit Court of
Appeals reversed.
The United States Supreme Court granted certiorari to
resolve a disagreement among the circuits as to
whether section 3731(b)(1)’s six-year statute of
limitations applies to retaliation actions under the
False Claims Act, or whether the most closely
analogous state limitations period governs. After
analyzing the admittedly ambiguous text in section
3731, the United States Supreme Court concluded that
the six-year statute of limitations does not apply to
retaliation actions under section 3730(h) of the False
Claims Act. Instead, the most closely analogous state
statute of limitations applies. This ruling is consistent
with the Ninth Circuit’s ruling in United States ex rel.
Lujan v. Hughes Aircraft Co., 162 F.3d 1027, 1034-35
(9th Cir. 1998), which held that the statute of
limitations, now found in California Code of Civil
Procedure section 335.1, applies to actions for
retaliation under the False Claims Act.
_______________
CA Labor & Employment Bulletin
Morris v. De La Torre, 36 Cal. 4th 260 (2005).
The California Supreme Court held that a customer
may proceed with his negligence lawsuit against a
restaurant owner for injuries he suffered in a fight
with another patron. The justices agreed with the
lower court that “a special relationship existed and
that it imposed upon defendant, through its employees,
such a duty, and that there exists a triable issue of fact
concerning whether defendant breached that duty
when his employees failed to make a 911 telephone
call to summon aid for [the customer].”
On August 1, 2000, Charles Morris and four friends
drove to Victoria’s Mexican Food, a 24-hour
restaurant located in a strip mall in San Diego. Silvino
De La Torre owns the restaurant. While two members
of Morris’s party went into the restaurant for food, he
and his other two friends remained outside.
At about the same time, Richard Cuevas, a known
gang member, pulled into the parking lot and
confronted Morris. A loud argument was followed by
a fistfight in the parking lot between Morris, his
friends, Cuevas, and an acquaintance.
Shortly
thereafter, Cuevas entered the restaurant and retrieved
a knife from the kitchen. It was disputed whether the
three-foot high door that separated the customer area
from the kitchen was locked, and whether an
employee opened the door for Cuevas (fearing that he
would become a victim).
After he exited the restaurant, Cuevas walked toward
Morris and stabbed him twice. Morris ran from the
parking lot, but Cuevas eventually caught him from
behind and stabbed him several more times. One of
Morris’s friends ran to a pay phone and called 911.
The police arrived at the scene within five minutes of
the call.
Morris survived and filed a negligence lawsuit in state
court against De La Torre. According to the suit, De
La Torre was negligent because (1) he was aware of
the repeated instances of violent conduct at the
restaurant and failed to take appropriate security
precautions that could have prevented the attack, and
(2) his employees, who were aware of the assault,
responded to the violence by providing the assailant
with a knife and failing to call the police. The trial
judge dismissed the suit, finding that the incident was
not sufficiently foreseeable to impose a duty of care.
In 2003, a California court of appeal reinstated the suit
against De La Torre. The court found that a special
relationship existed between De La Torre and Morris
such that he had a duty to take reasonable steps in
response to the ongoing criminal conduct. The
California Supreme Court recently upheld the lower
court’s decision, finding that De La Torre’s duty to
take “appropriate action as is reasonable under the
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July/August 2005
circumstances” may have “obligated the restaurant’s
employees to telephone 911 on [Morris’s] behalf.”
As a result, a trial will be held to determine whether
De La Torre’s employees breached this duty by failing
to summon help. “Even if a jury were to find a breach
of duty,” the Supreme Court concluded, “it also would
be required to consider whether the breach was a
proximate cause of [Morris’s] injuries – that is,
whether the failure of [De La Torre’s] employees to
act caused [Morris] to incur greater injury than he
would have suffered had [De La Torre’s] employees
taken appropriate action toward [Morris] as was
reasonable under the circumstances.”
References. See Wilcox, California Employment
Law, Chapter 30, Employers’ Tort Liability to Third
Parties for Conduct of Employees.
_______________
Payne v. Anaheim Memorial Medical Center, Inc.,
130 Cal. App. 4th 729 (2005), reh’g denied, 2005 Cal.
App. LEXIS 1171 (July 20, 2005).
The Court of Appeals, Fourth District, held that a
doctor with privileges at a hospital who initiates a
race discrimination suit does not have to exhaust the
hospital’s internal grievance procedures if the
procedures are inadequate.
David Payne, a black doctor, had privileges at
Anaheim Memorial Medical Center. He was not
employed by the hospital, and the hospital did not
compensate Payne for his medical services or exercise
any direct control over the manner in which he
practiced. Instead, the hospital merely provided a
facility that qualified physicians accessed when
providing medical care to their patients.
Payne alleged there was a pattern of racist conduct,
which was intended to provide his minority patients
with a lower standard of care. He sued the hospital for
Unruh Civil Rights Act violations and infliction of
emotional distress. The superior court granted the
hospital’s motion for judgment on the pleadings based
on the doctor’s failure to exhaust administrative
remedies.
The court of appeal held that the grievance procedure
contained in the hospital’s bylaws, which provided the
doctor with no right to a hearing and no opportunity to
provide evidence, did not constitute an adequate
“remedy” to resolve his complaint. At a minimum, fair
procedure requires adequate notice of the
administrative action proposed or taken by the group
or institution and a reasonable opportunity to be heard.
Moreover, the grievance bylaws did not make his
particular complaint mandatory or provide ability for
relief, so they were not viable alternate administrative
CA Labor & Employment Bulletin
remedies. Consequently, Payne was not required to
“exhaust” that process or file a writ of mandate prior
to filing a lawsuit in court.
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Furthermore, the court held that the Unruh Act applied
to prevent business entities from discriminating in the
provision of their facilities on the basis of race, so the
doctor’s allegation that he was denied such access was
properly cognizable under the Unruh Act.
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July/August 2005
TALES FROM COUNSEL TABLE
By Joe Connaughton*
* Joe Connaughton is a partner at Paul, Plevin, Sullivan & Connaughton LLP. Mr. Connaughton specializes in representing
retail and healthcare employers in whistleblowing, wrongful termination, wage and hour, discrimination litigation and litigation
avoidance.
I am here to extol the virtues of being incompetent, or
at least appearing so, during trial.
I learned this important lesson during my very first
jury trial, at the impressionable age of twenty-five. At
the time, I had been a member of the California Bar
for almost three entire months, and would have been
fortunate to have found the courthouse with the benefit
of a map in my hand and a Sherpa at my side.
Knowing what to do in an actual courtroom, with a
real judge sitting on the bench, and a bunch of live
jurors sitting in a box, was well beyond my
comprehension.
As you might expect, I had defined tasks for this trial.
These were my jobs:
1.
Write all the motions and jury instructions,
and generally be smart about the legal issues;
2.
Ensure that all of our exhibits were perfect;
3.
Schlep all the bags and boxes back and forth
to the courthouse every day (except, of
course, when we were within two blocks of
the courthouse, at which point the senior
partner would graciously share the load, just
in case a juror might be watching);
4.
Be able to work the overhead projector with
moderate skill, including the ability to project
exhibits that were neither out of focus, upside
down, nor backwards;
5.
Offer input when asked, including listening to
the senior partner’s opening statement and
closing argument and telling him how great
they were;
6.
Generally stay out of the way;
7.
Endeavor to not embarrass myself or our
client or, more importantly, our firm; and
8.
Examine one witness.
I was relatively confident in my ability to handle tasks
1-6, was a bit dicey about number 7, and was clueless
about number 8.
I handled 1 through 7 with aplomb. With the
exception of one small spill crossing the trolley tracks,
I hauled our boxes with exquisite precision. My
motions were winners. I even successfully avoided a
potentially career-killing mishap with the overhead
projector by having an extra projector bulb tucked into
one of my boxes. I was surely on the fast track to not
only accelerated partnership, but employment
litigation stardom. Yet my witness – Mr. Hartley, I
remember you to this day – awaited.
Not surprisingly, Mr. Hartley was not a critical
witness. He was going to basically testify that the
plaintiff wasn’t particularly great at his job, and that
the decision-making supervisor was a fair, nice person.
Dripping wet, Mr. Hartley was a ten-minute witness.
But he was my ten minute witness. The evening
before his testimony, I worked Mr. Hartley over for
two hours, practicing every possible angle of crossexamination and choreographing and then practicing
his direct examination over and over again. I then
proceeded to prepare a three-inch thick binder with not
only my examination, but an annotated outline of all
possible objections that I might encounter during that
examination, as well as case citations to justify the
admissibility of my inquiries. I respectfully submit
that no lawyer has ever been so ready for such an
unimportant piece of testimony in the history of
western jurisprudence.
The next morning came, and I dutifully lugged all of
our gear to the courtroom (except for the last two
blocks, of course). I even saw Mr. Hartley waiting
there for us, and gave him a cocky, knowing wink as
we strode through the double doors into the
courtroom.
My witness was first up. The bailiff called him from
the hallway. I marched to the lectern, confidently
moved it over by the jury box so that Mr. Hartley
would be looking right toward them while I examined
him (a trick that I must have learned from some book
or movie), and placed my outline/evidentiary tome
before me.
Mr. Hartley walked through the peanut gallery, around
counsel table, in front of me, and took the stand. I was
on.
CA Labor & Employment Bulletin
In my best lawyer voice, I lobbed my first, carefully
rehearsed question:
“Good morning Mr. Hartley. Could you please
tell the jury what you do, sir?”
I had not stuttered, spit nor suffocated. My question
was clear, concise and unobjectionable. Or so I
thought.
There was an odd silence in the courtroom. I looked
up. For reasons that escaped me, the judge was
shaking his head and muttering under his breath. He
then stood up on the bench and uttered these immortal
words, which are still seared into my brain:
“Mr. Connaughton, will you please allow the
witness to be sworn in before you begin what
will undoubtedly be a most brilliant direct
examination.”
I almost died that morning. Not only had I totally
unwound the brilliance of the “extra overhead
projector light bulb” maneuver, I had violated the most
important rule of all: never embarrass the firm.
But a funny thing happened. The jury laughed. Not in
a “are you sure you went to law school” kind of way,
but in a “we all do things like that, we’re rooting for
you kid,” kind of way. I looked at them and
sheepishly smiled, and we bonded in a weird,
292
July/August 2005
unexpected sense. And in the end, I like to think that
my idiocy/overzealousness helped our case to some
degree. (Yes, we won.)
Perhaps it was because the jurors couldn’t possibly
find it in their hearts to award damages against a client
that was forced to retain someone like me as their
lawyer. But, I hope that part of it was that the jurors
saw a real person behind the questioning, which
permitted a little spark of connection.
In any event, that incident taught me that there are
times when it is okay to be less than perfect in front of
a jury. Moreover, one can even use those otherwise
awkward moments as effective advocacy tools.
Plus, even more importantly, it provides a great readymade explanation for the inevitable trial mishap. “Of
course I meant to do that Mr. Client. Did I ever tell
you the story of my first trial?”
*****
Joe Connaughton is a partner at Paul, Plevin, Sullivan
& Connaughton LLP. Mr. Connaughton specializes
in representing retail and healthcare employers in
whistleblowing, wrongful termination, wage and hour,
discrimination litigation and litigation avoidance.
CA Labor & Employment Bulletin
293
July/August 2005
CUMULATIVE SUBJECT INDEX
The following subject matter index covers articles
appearing in Volume 2005 of Bender’s California
Labor & Employment Bulletin. The references are to
the page numbers in Volume 2005 on which the
articles begin.
Vol.:Page
EQUAL EMPLOYMENT OPPORTUNITY
ADA
Preemployment medical inquiries ......05:173
Personality Tests ................................05:274
Age discrimination
Disparate impact claims .....................05:129
Preemployment medical inquiries .............05:173
Retaliation claims
Title VII................................................05:47
Title IX ...............................................05:134
Sex discrimination
Grooming policies ................................05:56
Sexual harassment
Free speech issues ................................05:98
Undocumented workers’ rights ...................05:79
NATIONAL LABOR RELATIONS ACT
Bargaining units
Temporary employees ..........................05:13
Elections
Employer’s threat to close facility........05:13
Section 7 rights............................................05:13
Undocumented workers
Remedies available...............................05:79
OTHER AREAS OF INTEREST
Class Action Fairness Act
(CAFA) .................................... 05:140, 05:145
Employment practices liability
insurance (EPLI) ......................................05:20
False promise (in recruitment)...................05:223
First Amendment rights
Public employees..................................05:52
Illness in the workplace
Prevention programs ..........................05:267
Immigration reform .................................. 05:178
Non-compete and choice-of-law
provisions.................................................. 05:1
Labor Code Private Attorneys
General Act ............................................. 05:62
Legislative and regulatory agenda
in 2005 ......................................... 05:24, 05:54
Living wage ordinances............................ 05:136
Pension reform ............................ 05:102, 05:216
Preemployment medical inquiries ............ 05:173
Promissory fraud (in recruitment)............. 05:223
Punitive damage awards ........................... 05:221
Settlement issues....................................... 05:190
Severance agreements
Proposed legislation........................... 05:192
Social Security reform proposals.............. 05:102
Summary judgment
Opposition to ..................................... 05:187
Supreme Court Nominee
John Roberts ...................................... 05:276
Undocumented workers
Emerging issues................................... 05:79
PUBLIC SECTOR
First Amendment rights of employees........ 05:52
Interest arbitration..................................... 05:228
MMBA
Scope of representation ....................... 05:59
TRADE SECRETS
Trade secret litigation
“Reasonable particularity”................. 05:253
WAGE AND HOUR
Class action mediation.............................. 05:147
Leaves of absence..................................... 05:209
Meal and rest periods
Proposed regulations ............... 05:16, 05:17,
05:102, 05:153, 05:184
CA Labor & Employment Bulletin
294
July/August 2005
TABLE OF CASES
AFL-CIO v. Chao,
409 F.3d 377 (D.C. Cir. 2005).......................277, 278
AMP Inc. v. Fleischhacker,
823 F.2d 1199 (7th Cir. 1987) .......................262, 264
Angelucci v. Century Supper Club,
130 Cal. App. 4th 919 (2005) ................................286
AutoMed Technologies, Inc. v. Charles Eller,
160 F. Supp. 2d 915 (N.D. Ill. 2001) ............255, 265
Booker v. Robert Half, Inc.,
D.C. Cir. No.04-7089, 2005 U.S. App. LEXIS 13124
(D.C. Cir. July 5, 2005) .........................................278
Botello v. Gammick,
2005 U.S. App. LEXIS 12122
(9th Cir. June 23, 2005) .........................................287
Chapman v. Superior Court (Malcolm),
130 Cal. App. 4th 261 (2005) ................................287
Combined Metals of Chicago
Ltd. Partnership v. Airtek, Inc.,
985 F. Supp. 827 (N.D. Ill. 1997) ..................264, 265
Composite Marine Propellers,
Inc. v. Gerbrig Van Der Woude,
962 F.2d 1263 (7th Cir. 1992) ...............................264
Computer Econs. v. Gartner Group,
50 F. Supp. 2d 980 (S.D. Cal. 1999)..............256, 257
Gabriel Int'l, Inc. v.
M&D Industries of Louisiana,
719 F. Supp. 522 (W.D. La. 1989).........................265
Graham County Soil & Water Conservation
Dist. v. United States ex rel. Wilson,
125 S. Ct. 2444 (June 20, 2005).............................288
IDX Sys. Corp. v. Epic Sys. Corp.,
165 F. Supp. 2d 812 (W.D. Wis. 2001),
aff’d in part, denied in part, 285 F. 3d 581
(7th Cir. 2002) .......................................262, 263, 264
Imax Corp. v. Cinema Techs., Inc.,
152 F.3d 1161 (9th Cir. 1998) .......................258, 259
Imperial Chem. Indus. v.
Nat. Distillers & Chem. Corp.,
342 F.2d 737 (2d Cir. 1965) ..................................262
Jespersen v. Harrah’s Operating Co., Inc.,
392 F.3d 1076 (9th Cir. 2004) ...............................285
Jespersen v. Harrah’s Operating Co., Inc.,
392 F.3d 1076 (9th Cir. 2005) ...............................285
Karraker v. Rent-A-Center,
411 F.3d 831, 2005 U.S. App. LEXIS 11142
(7th Cir. June 14, 2005) .................................274, 275
Koire v. Metro City Car Wash,
40 Cal. 3d 24 (1985) ..............................................286
Conley v. Pacific Gas & Electric Company,
2005 Cal. App. LEXIS 1122 (July 21, 2005) ........281
L-3 Comm. Corp., et al. v.
Reveal Imaging Technologies, Inc.,
18 Mass. L. Rep. 512 (Mass. Super. Ct. 2004) ......263
Del Monte Fresh Produce Co. v.
Dole Food Company, Inc.,
148 F. Supp. 2d 1322 (S. D. Fl. 2001)...................263
LeMoyne-Owen College v. NLRB,
357 F.3d 55 (D.C. Cir. 2004).................................277
Diodes, Inc. v. Franzen,
260 Cal. App. 2d 244 (1968) ........ 253, 256, 257, 258,
259, 260, 261
Discover Bank v. Superior Court,
36 Cal. 4th 148 (2005)...........................................286
Engelhard Corp. v. Savin Corp.,
505 A.2d 30 (Del. Ch. 1986) .................................262
Excelligence Learning Corp. v.
Oriental Trading Co.,
2004 U.S. Dist. LEXIS 28125
(N.D. Cal. 2004) ............................................260, 261
Forro Precision, Inc. v. Int’l Bus. Mach. Corp.,
673 F.2d 1045 (9th Cir. 1982) .......................258, 259
Luigino’s, Inc. v. Peterson,
317 F.3d 909 (8th Cir. 2003) .........................262, 264
Microtech Int’l, Inc. v. Fair,
1992 Conn. Super. LEXIS 2754
(Conn. Super. Ct. Sept. 18, 1992) ..........................255
Miller v. Dept. of Corrections,
2005 Cal. LEXIS 7606 (July 18, 2005) .................285
Morris v. De La Torre,
36 Cal. 4th 260 (2005) ...........................................289
Morton v. Rank Am., Inc.,
812 F. Supp. 1062 (C.D. Cal. 1993) ......................261
Neothermia Corp. v. Rubicor Medical, Inc.,
345 F. Supp. 2d 1042 (N. D. Cal. 2004) ................261
CA Labor & Employment Bulletin
Payne v. Anaheim Memorial Medical Center, Inc.,
130 Cal. App. 4th 729 (2005),
reh’g denied, 2005 Cal. App. LEXIS 1171
(July 20, 2005).......................................................289
Pinero v. Specialty Restaurants Corp.,
130 Cal. App. 4th 635 (2005) ................................284
Pixion, Inc. v. Placeware, Inc.,
2005 U.S. Dist. LEXIS 11356
(N.D. Cal. Jan. 13, 2005) ...............................258, 261
Porous Media Corp. v. Midland Brake Inc.,
187 F.R.D. 598 (D. Minn. 1999) ...........................264
Precedent Decision: Hartwig v.
Orchard Commercial Inc.,
Case No, 12-56901 RB (June 17, 2005) ................282
Ray v. Allied Chemical Corp.,
34 F.R.D. 456 (S.D.N.Y. 1964) .............................255
295
July/August 2005
Tellis v. Alaska Airlines, Inc.,
2005 U.S. App. LEXIS 13975
(9th Cir. July 12, 2005)..........................................283
Temporary Serv. v. Camacho,
222 Cal. App. 3d 1278 (1990) ...............................260
Teradyne, Inc. v. Clear Communications Corp.,
707 F. Supp. 353 (N.D. Ill. 1989) ..........................264
Thermodyne Food Service Products. v.
McDonald’s Corp.,
940 F. Supp. 1300 (N.D. Ill. 1996) ........................264
Trandes Corp. v. Guy F. Atkinson Co.,
996 F.2d 655 (4th Cir. 1993) .................................264
United States ex rel. Lujan v.
Hughes Aircraft Co.,
162 F.3d 1027 (9th Cir. 1998) ...............................288
Self Directed Placement Corp. v.
Control Data Corp.,
908 F.2d 462 (9th Cir. 1990) .................................261
Universal Analytics v.
MacNeal-Schwendler Corp.,
707 F. Supp. 1170 (C.D. Cal. 1989),
aff’d, 914 F. 2d 1256 (9th Cir. 1990).....................259
SI Handling Sys. v. Heisley,
753 F.2d 1244 (3d Cir. 1985) ................................261
Vacco Industries, Inc. v. Van Den Berg,
5 Cal. App. 4th 34 (1992) ......................................256
SmithKline Beecham Pharmaceuticals Co. v.
Merck & Co., Inc.,
766 A.2d 442 (Del. 2000) ......................................263
Whyte, et al. v. Schlage Lock Co.,
101 Cal. App. 4th 1443 (2002) ..............................260
Soroka v. Dayton Hudson Corporation,
18 Cal. App. 4th 1200 (1991),
rev. granted, 822 P.2d 1327 (1992),
rev. dismissed, 862 P.2d 148 (1993).............274, 275
Struthers Scientific & Int’l Corp. v.
General Foods, Corp.,
51 F.R.D. 149 (D. Del. 1970) ........................255, 262
Suastez v. Plastic Dress-Up Co.,
31 Cal. 3d 774 (1982) ............................................281
Systems Am., Inc. v. Softline, Inc.,
No. C96-20730 RMW PVT n.1,
1996 U.S. Dist. LEXIS 22415
(N.D. Cal. Oct. 30, 1996)............................... 258, 259
Winston Research Corp. v.
Minnesota Min. & Mf’g Co.,
350 F.2d 134 (9th Cir. 1965) .................................261
Wong v. Regents of University of California,
410 F.3d 1052 (9th Cir. 2005) ...............................286
296
CA Labor & Employment Bulletin
July/August 2005
EDITORIAL BOARD
Contact Information
Michael C. Sullivan, Editor-in-Chief
Paul, Plevin, Sullivan & Connaughton LLP
San Diego
msullivan@paulplevin.com
Nancy L. Abell
(Discrimination/Affirmative Action)
Paul, Hastings, Janofsky & Walker LLP
Los Angeles
nancyabell@paulhastings.com
Michelle A. Reinglass
(Harassment)
Orange County
michelle@reinglasslaw.com
Joseph L. Beachboard
(Supreme Court)
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Los Angeles
joe.beachboard@ogletreedeakins.com
William B. Sailer
(In-House)
V.P. & Senior Legal Counsel;
QUALCOMM Inc.
San Diego
wsailer@qualcomm.com
Lynn Matityahu Frank
(Alternate Dispute Resolution)
Gregorio, Haldeman, Piazza, Rotman &
Matityahu
San Francisco
lynn@gomedi8.com
Charles D. Sakai
(Public Sector)
Renne, Sloan, Holtzman & Sakai
San Francisco
csakai@publiclawgroup.com
Lynne C. Hermle
(Retaliation/Whistleblowers)
Orrick, Herrington & Sutcliffe LLP
Menlo Park
lchermle@orrick.com
Stacy D. Shartin
(Disabilities/Leaves of Absence)
Seyfarth Shaw LLP
Los Angeles
sshartin@la.seyfarth.com
Phil Horowitz
(Litigation)
San Francisco
phil@creative.net
Jeffrey M. Tanenbaum
(Occupational Health and Safety)
Nixon Peabody LLP
San Francisco
jtanenbaum@nixonpeabody.com
Laura P. Juran
(Labor)
Altshuler, Berzon, Nussbaum, Rubin & Demain
San Francisco
ljuran@altshulerberzon.com
Jeffrey K. Winikow
(Wrongful Termination)
Los Angeles
jwinikow@yahoo.com
Tyler M. Paetkau
(Trade Secrets)
Winston & Strawn LLP
San Francisco
tpaetkau@winston.com
M. Kirby Wilcox
(Wage and Hour)
Paul, Hastings, Janofsky & Walker LLP
San Francisco
kirbywilcox@paulhastings.com
297
CA Labor & Employment Bulletin
July/August 2005
COLUMNISTS
Contact Information
Capitol Recap –
Sacramento
Mike Belote
California Advocates, Inc.
Sacramento
mbelote@caladvocates.com
Tales from
Counsel Table
Capitol Recap –
Washington
Harold P. Coxson, Jr.
Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
Washington, DC
hal.coxson@ogletreedeakins.com
Dan Stormer
Hadsell & Stormer Inc.
Pasadena
dstormer@hadsellstormer.com
REPORTERS
Contact Information
Joseph L. Beachboard
Stephanie Henry
(Miscellaneous Topics)
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Los Angeles
joe.beachboard@ogletreedeakins.com
Jennifer J. Walt
(Labor)
Littler Mendelson, P.C.
San Francisco
jjwalt@littler.com
Michelle C. Doolin
(Trade Secrets)
Cooley Godward LLP
San Diego
doolinmc@cooley.com
Deborah S. Weiser
(Wage and Hour)
Paul, Hastings, Janofsky & Walker LLP
(Of Counsel)
Los Angeles
deborahweiser@paulhastings.com
Sandra L. McDonough
(Public Sector)
Paul, Plevin, Sullivan & Connaughton LLP
San Diego
smcdonough@paulplevin.com
William V. Whelan
(Arbitration/ADR)
Sheppard, Mullin, Richter & Hampton LLP
San Diego
wwhelan@sheppardmullin.com
GUEST AUTHORS
Joe Connaughton
Paul, Plevin, Sullivan & Connaughton LLP
San Diego
jconnaughton@paulplevin.com
Lisa Hird
Paul, Plevin, Sullivan & Connaughton LLP
San Diego
lhird@paulplevin.com
Michael R. Minguet
Paul, Plevin, Sullivan & Connaughton LLP
San Diego
mminguet@paulplevin.com
CA Labor & Employment Bulletin
298
July/August 2005
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ATTENTION READERS
Any reader interested in sharing information of interest to the labor and employment bar, including notices
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CA Labor & Employment Bulletin
299
July/August 2005
BACK COVER PHOTOGRAPH
MODOC COUNTY
Photograph courtesy of University of California at Davis Library, Special Collections
Prospectors arrived in the far northeastern corner of California in the early 1860s, followed by
cattle ranchers and farmers. The early history of the region was marked by recurrent, violent
confrontations between the original inhabitants – the Modoc, Paiute and Pit River tribes – and the
settlers, eventually aided by the U.S. Army.
With the end of the Indian Wars, the move to secede from Siskiyou County gained force; the
Legislature established Modoc County in 1874. For the first 10 years, court was held in the
community hall, which also accommodated church services, dances, and community dinners. The
first real courthouse, a plain two-story frame building, was completed in 1884.
The second courthouse, built in 1914, was an astonishing accomplishment for a remote community
with a tiny population (only 6,000 in 1910). County Supervisors turned to Frederick J.
DeLongchamps, a young architect who had already designed courthouses for two counties in
Nevada. Like the courthouse in Reno, the building DeLongchamps designed for Modoc County is
monumental Neo-Classical architecture with a pronounced Beaux-Arts influence. Both buildings
have massive copper-clad domes, and a row of heavy columns that support a two-story portico
sheltering a grand entry. The interiors have similarities as well; in each, a central marble stairway
ascends to the second floor and multicolored tiles decorate the floors. There is, however, at least
one unique touch: the large racks beneath the spectators’ seats in the Modoc County courtroom,
which were designed to accommodate the cowboy hats favored by local ranchers.
Ray McDevitt
The photograph is from Courthouses of California: An Illustrated History.
Courthouses of California: An Illustrated History is a panoramic survey of the
courthouses constructed in every county in California over the past 150 years. A
large format, hardcover book, it is illustrated with hundreds of photographs and
features essays by distinguished judges, architects and historians. It was edited
by Ray McDevitt, a partner with the San Francisco office of Hanson Bridgett
Marcus Vlahos & Rudy, LLP, and is published by the California Historical
Society.
For information, or to order a copy, contact Heyday Books:
Call: (510) 549-3564
Fax: (510) 549-1889
Email: www.heydaybooks.com