• The Daily Journal recently published an article written by Marc S. Voses and Chang Liu on Uber and the Cochran decision.

    The U.S. District Court for the Northern District of California which recently applied the California Court of Appeals’ ruling that, under California Labor Code Section 2802, employers are obligated to reimburse their employees for work-related personal phone expenses, even if the employees have unlimited plans.

    In Douglas O’Connor v. Uber Technologies Inc., 13-03826 (N.D. Cal. Dec. 9, 2015), class plaintiffs were Uber drivers in California who seek, among other relief, reimbursement of their cellphone expenses incurred while driving Uber cars. The court certified the class over Uber’s objections.

    Uber contended that it need not reimburse any expenses that were not actually incurred, arguing that when drivers have unlimited cellphone plans, they do not incur any actual expenses. The court, however, rejected this argument. Quoting the decision in Cochran v. Schwan’s Home Serv. Inc., 228 Cal. App. 4th 1137 (Cal. Ct. App. 2014), the court reasoned that even if the employee did not incur any extra expenses, the employer is required to reimburse a reasonable percentage of the employee’s phone bills. (For a detailed discussion of the Cochran case, see Marc Voses, “Work-Related BYOD Use: Potentially More Costly Than Previously Thought,” Career Management (Sep. 29, 2014)).

    The court pointed out that Uber erred in its interpretation of the Cochran decision, finding that the decision does not hold that employers have to reimburse the employee even if no expenses were incurred. To the contrary, the court recognized that employees were paying for work expenses as long as they were using the phone for work purposes, regardless of whether they have unlimited plans. In other words, unlimited cellphone plans are not free, so employers still have to reimburse the employees for the expense of having the plan, but only for that portion of the plan used for work.

  • Apr 27, 2016

    (April 27, 2016, Los Angeles, CA) — Kaufman Dolowich & Voluck (KDV) today announced that it is doubling the size of its Los Angeles office with the addition of nine-lawyer, LA-based Waxler Carner Brodsky LLP (WCB), which was founded in 2000 and has extensive professional liability defense, insurance coverage and employment litigation experience. With this move, KDV bolsters its national professional liability coverage capabilities and expands in the area of legal and insurance malpractice and employment practices liability.

    Five partners, two of counsel and two associates from Waxler Carner Brodsky LLP (WCB), will be joining the KDV Los Angeles office. WCB founders and named partners Andrew J. Waxler and Barry Z. Brodsky will be co-managing partners of KDV’s Los Angeles office. Gretchen S. Carner, also a founding partner, is joining as a partner, as are Jodi L. Girten and Danielle Sokol. Brian Peters and Julie Weber are joining as counsel and Christopher Wong and Scott Murch are joining as associates. WCB is bringing six support staff.

    “This is a transformative move for Kaufman Dolowich & Voluck,” said Michael A. Kaufman, co-managing partner of the firm. “With these distinguished attorneys from such a well-respected firm, we have greatly increased our stature throughout California and significantly enhanced three of our hallmark practices, professional liability, insurance coverage and employment practices liability defense, benefiting not only our California-based clients but those nationwide who do business in the state. Our intention is to continue to grow in California by recruiting high quality laterals and we are hoping to reach 25 attorneys in this office over the coming year.”  KDV has a second California office in San Francisco with 13 lawyers.

    Waxler will be director of KDV’s West Coast Professional Liability Practice Group. His practice focuses on defending professionals in malpractice actions with an emphasis on representing lawyers and insurance agents and brokers. He also represents insurers and professionals in professional liability coverage disputes and in bad faith litigation and has served as an expert witness or consultant in state and federal courts involving standard of care issues in professional liability and claims handling in insurance actions.

    Waxler earned his B.A. from the University of California, Los Angeles and his J.D. from Loyola School of Law, Los Angeles.

    Brodsky represents lawyers, accountants and others in professional liability disputes. He has tried more than a dozen professional liability cases to verdict in both state and federal courts. Brodsky also has significant experience handling business litigation and employment related matters including claims of discrimination, wrongful termination and sexual harassment/abuse. He frequently lectures on varied topics involving professional liability and ethical standards.

    Brodsky graduated Phi Beta Kappa from the University of California, Berkeley and earned his J.D. from Loyola School of Law in Los Angeles.

    “The synergy between our two firms, from the clients we share, the practice areas we work in and the firms’ cultures with an emphasis on collegiality and team work, makes this a natural combination,” said Waxler. ”We share a philosophy of total client involvement in every step of the legal process as we work with them to protect their businesses. Every client we have talked with about this combination has expressed total delight and continued support of the new firm.”

    Carner, who will be the co-leader of the Global Insurance Practice Group, practices in the areas of complex civil litigation, insurance coverage, bad faith law, general and professional liability, property and casualty, life and health, workers’ compensation, and employers’ liability coverage. In addition, she handles cases alleging errors and omissions by professionals such as directors, officers, insurance agents, insurance brokers and lawyers and employment cases involving issues of discrimination, wrongful termination and sexual harassment/abuse.

    Carner earned her B.A. from the University of California at Berkeley and her J.D. from the University of San Francisco School of Law.

    All attorneys will be located at the KDV Los Angeles office — 11755 Wilshire Blvd, Suite 2400, Los Angeles, CA, 310-775-6511.

    In addition to Waxler, Brodsky and Carner, the other attorneys’ joining are:

    • Jodi Girten, partner, represents professionals including attorneys, accountants and officers and directors in malpractice cases. She has significant litigation experience in handling a wide variety of professional liability claims for high profile attorneys and law firms, which involve personal injury, probate, bankruptcy, corporate, business, employment, and entertainment issues. Girten earned her B.A. from the University of Texas, El Paso, her M.A. from the University of California and her J.D. from the University of San Diego School of Law.
    • Danielle Sokol, partner, focuses her practice on professional liability, including the defense of attorneys and real estate professionals. She has also worked on breach of contract and insurance coverage. She received her B.A. from the University of California, Santa Barbara and her J.D. from UCLA School of Law.
    • Brian Peters, of counsel, represents employers in connection with various statutory and common law claims, including harassment, age, race, sex and disability discrimination, wrongful termination, trade secrets, and unpaid wage and hour class actions. He also provides consulting services to clients on various employment-related matters, such as legal compliance, investigations, terminations, wage and hour, and employment policies. He received his B.A. from California State University, Northridge and his J.D. from the University of California, Hastings College of the Law. While in law school, Brian served as a judicial extern for the late Judge Cecil F. Poole on the Ninth Circuit Court of Appeals and was also a recipient of the American Jurisprudence Award in Contracts. He is admitted to practice before the United States Supreme Court.
    • Julie Weber, of counsel, specializes in employment litigation, handling the defense of employment matters, including claims for harassment, discrimination and retaliation. She has also provided advice and counsel to clients on employment matters including hiring, terminating, counseling, policy making, and policy enforcement and has also defended matters involving professional liability, business, real estate, and bankruptcy issues. Weber received her B.A. from the University of California at Los Angeles and her J.D. from Southwestern University School of Law.
    • Christopher Wong, associate, focuses his practice on the defense of professionals. He also handles civil litigation and has represented both plaintiffs and defendants in various matters before state and federal courts and in arbitrations as well as appellate matters. Wong has a B.A. from Claremont McKenna College and his J.D. from the University of California, Hastings College of the Law where he was on the Editorial Board of the Hastings Constitutional Law Quarterly.
    • Scott Murch, associate, has a diversified practice, including professional liability defense, insurance coverage and bad faith defense, and intellectual property defense. He has substantial appellate experience, handling numerous appeals and writs. Murch has a B.A. from University of California San Diego and his J.D. cum laude from Hastings College of the Law where he was on the editorial board of the Hastings Constitutional Law Quarterly.
  • Apr 18, 2016

    By Iram P. Valentin and David J. Gittines, both from the New Jersey office of Kaufman Dolowich & Voluck, LLP.

    Clawing back on the ever-expanding duties imposed on those selling real estate in New Jersey, the Third Circuit Court of Appeals recently ruled that there is no affirmative duty by a developer’s sales agent to warn a potential home buyer of a “neighbor from hell.”

    In Phoenix v. U.S. Homes, 628 Fed. Appx. 825 (3d Cir. 2015), the Third Circuit upheld the dismissal of a home buyer’s lawsuit alleging that a developer, through its sales agent, failed to alert her, prior to her purchase of a house, about a troublesome neighbor.  The buyer, Cydnee Phoenix (“Phoenix”), visited a property built by Lennar Homes (“Lennar”) in September of 2013.  While being shown the property by Lennar’s sales agent, a neighbor from across the street, Kevin Potter (“Potter”), approached the pair and warned Phoenix not to let Lennar treat her as he had been treated.  After the encounter, Phoenix inquired with the sales agent if there was an issue with Potter.  The sales agent replied that there was no problem and implied that Potter was no longer eligible for warranty repair services as a result of the time that had passed since he purchased.  Phoenix later learned that Potter was no longer receiving services as a result of his allegedly harassing, hostile and volatile interactions with Lennar’s employees.

    On September 12, 2013, Phoenix signed an agreement to purchase the property from Lennar. On October 1, 2013, before Phoenix closed on the property, Lennar sent a letter to Potter’s wife demanding that Potter stop parking his cars in front of Phoenix’s property and driveway.  The letter also demanded that Potter cease and desist from taking any further actions which would interfere with Lennar’s business or which could be considered an invasion of privacy of any new home owner.

    Phoenix later alleged that Lennar’s letter instigated Potter to retaliate against her by engaging in a pattern of harassment. In November of 2013, due to Potter’s behavior, Phoenix filed a criminal complaint for harassment against him and hired a security guard for her family’s protection.  Phoenix filed suit against Potter in December of 2013, alleging that Lennar fraudulently concealed and misrepresented Potter’s harassing, hostile and volatile behavior.  Phoenix asserted claims for fraud, equitable fraud, negligent misrepresentation and omission, violation of the New Jersey Consumer Fraud Act (“CFA”), violation of the Planned Real Estate Development Full Disclosure Act (“PREDFDA”) and negligent infliction of emotional distress.  Phoenix claimed that once Lennar, through its sales agent, elected to speak to Phoenix, Lennar assumed a duty to speak truthfully about the irascible neighbor.

    Upon considering Lennar’s motion to dismiss, the District Court ruled that Phoenix’s fraud, CFA and PREDFDA claims based upon Lennar’s affirmative misrepresentations failed because she did not establish that the sales agent made a statement of fact that was false. The Third Circuit Court of Appeals upheld the decision.

    The Third Circuit found that the sales agent’s comment—that there was no problem with Potter—left Phoenix with the impression that she should not be concerned about Potter, but that the comment was not an expression of fact. At most, it was an idle comment conveying the sales agent’s opinion about Potter and the degree of risk he posed.  In addition, the Court found that Lennar’s advertisements about the “wonderful lifestyle” and integrity of the development were not actionable because they were mere “puffery,” not misrepresentations of fact.

    The Third Circuit Court of Appeals further agreed that Phoenix’s nondisclosure claims failed because Lennar had no duty to disclose off-site social conditions, such as the personality traits of a neighbor. As the developer, Lennar had a duty to disclose off-site conditions that were material to the transaction, but it had no duty to investigate or disclose transient social conditions in the community that arguably could affect the value of the property.  Moreover, the duty to disclose extends only to off-site physical conditions known to the seller and unknown and not readily observable by the buyer.  The Third Circuit found that Lennar’s sales agent did not know Potter was going to be hostile to his neighbors and that Potter’s behavior was also readily observable to Phoenix when she visited the property.  Since Lennar did not owe Phoenix a duty of care to disclose information regarding Potter’s conduct, her claims for negligent misrepresentation/omission and negligent infliction of emotional distress also failed.

    Phoenix is a victory for home developers and their sales agents. While the case did not discuss real estate professionals, in general, the same logic applied by the District Court and Third Circuit can be applied to defending claims against realtors for negligent misrepresentation, common law fraud, and CFA violations. Phoenix also illustrates the minefield through which real estate professionals must walk when attempting to balance commercial interests and professional obligations.

    The attorneys at Kaufman Dolowich & Voluck, LLP are experienced in handling professional negligence, common law fraud and statutory fraud claims asserted against realtors, developers, contractors and their respective insurers.

    New Jersey Contacts:

    Iram P. Valentin                                              Robert Berns

    ivalentin@kdvlaw.com                                   rberns@kdvlaw.com

  • Apr 7, 2016

    By Stefan R. Dandelles, Esq. and Brendan P. McGarry, Esq.

    On Wednesday, April 06, 2016, the U.S. Department of Labor released the final version of its much-anticipated Rule requiring financial advisors imparting investment advice to ERISA qualified plans and holders of IRAs to act in the best interests of their customers. While the crux of the final Rule remains the same as the version proposed in April 2015, the DOL attempted to “streamline” the rule to make it “workable” for industry participants. Some of the key changes to the final Rule include:


    • The initial implementation period for the rule has been extended from eight months to one year. Full compliance is “phased in” and won’t be required until January 1, 2018;
    • The final rule clarifies that the best interest contract exemption does not have to be signed until an account is opened;
    • The disclosures required under the contract have been reduced, including the elimination of the 1, 5 and 10-year projections of returns and fees at the point of sale;
    • The exemption has been clarified to ensure there is no bias against the sale of proprietary products; and,
    • The list of approved investment products for retirement accounts has been removed.


    The attorneys in the Financial Services Practice of Kaufman Dolowich & Voluck, LLP have been closely following the progression of the Rule from proposal to this final version, which is scheduled to be published in the Federal Register on April 8, 2016. You can find our prior analysis of the Rule (here) and (here). We will be reviewing and releasing our continued in-depth analysis of the Rule in the coming days.

    Please contact Stefan Dandelles or Brendan McGarry with any questions.


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Dean Herman and Hee Young Lee Join Kaufman Dolowich & Voluck as Partners in Firm’s Los Angeles Office; Senior Counsel and Three Associates Also Join LA Office

(June 3, 2013, Los Angeles, CA) — Kaufman Dolowich & Voluck, LLP (KDV), a leading national law firm, today announced that Dean B. Herman, who has more than 30 years of experience in insurance industry and business litigation, and Hee Young Lee, who has represented insurers and policyholders for more than a decade, have joined the firm as partners in its Los Angeles office. They will be accompanied by Craig D. Aronson as senior counsel and Steven S. Son, Andrew C. Johnson and Mikhaile P. Savary as associates.

Dean Herman defends and advises insurers and professionals on liability, first and third party insurance coverage issues, bad faith, and errors and omissions issues. His experience also includes sophisticated business and commercial litigation in state and federal trial and appellate courts on issues across a broad range of industry sectors and a diversified array of issues, ranging from IP to employment and contract disputes, executive risk exposures,  entertainment, wine industry,  as well as professional liability claims involving lawyers, insurance agents and brokers, real estate agents and brokers, directors and officers, business managers, financial advisors among others. He has also served as an expert witness and consultant and acts as a mediator in complex insurance coverage and other disputes. He comes to Kaufman Dolowich & Voluck from Mendes & Mount where he was a partner in the firm’s Los Angeles office.

Hee Young Lee also joins from Mendes & Mount, where she was a partner and her practice is focused on advising and defending insurers and their insureds in federal and state courts in matters involving intellectual property, environmental, construction defect, agribusiness, privacy, and personal lines claims. She also defends insureds in professional liability claims.

“Dean and Hee Young are preeminent insurance attorneys who will enhance not only our West Coast but our national presence in this field, which has always been a core strength of the firm,” said Ivan J. Dolowich, co-managing partner of KDV.  “This group enhances our practice on the West Coast providing insurance coverage, business litigation, professional liability, labor & employment and financial services for our clients.”

Herman will also be working out of the KDV San Francisco office due to the considerable work he does in the Bay area for clients based there.  He earned his B.A.  from California State University at Fullerton, his J.D. from Loyola Law School and his Master of Laws from the University of California, Berkeley. He is admitted to practice in California, and regularly handles matters in many other states either on a pro hac vice basis or an advisory or national coordinating counsel basis.

Lee will have a leadership role in the Los Angeles office. She earned her B.A. from the University of California, Los Angeles and her J.D. from the University of California Hastings College of the Law. She is admitted to practice in California, and also handles insurance coverage matters in many other states.

“Hee Young and I are excited to be joining a firm whose key practice areas are so compatible with our strengths,” said Herman. “We look forward to the opportunity to helping to grow KDV’s already strong insurance, professional liability and litigation practices on the West Coast and nationally.”

Craig Aronson, who has been practicing law for 30 years and whose practice focuses on coverage and professional liability, joins KDV from Gaglione, Dolan & Kaplan (Los Angeles) where he was a partner. He is admitted to practice in California. Aronson graduated summa cum laude and Phi Beta Kappa from Dartmouth College and earned his law degree from the University of Chicago Law School.

Steven Son, Andrew Johnson and Mikhaile Savary are litigation attorneys joining KDV from Mendes & Mount where they were all associates. Son, admitted to practice in California, earned his B.A. from the University of California, Los Angeles and his J.D. from the University of Illinois College of Law.  Johnson, admitted to practice in California and Nevada, received his B.F.A. from the University of Kansas and his J.D. from St. John’s University School of Law. Savary, admitted to practice in California and New York, received his B. A. from Cornell University and his J.D. from Columbia Law School.

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