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  • By Keith J. Gutstein, Esq. and Jessica Tischler, Esq.

    Yesterday, a federal judge in Texas issued a nationwide injunction halting the implementation of a Department of Labor regulation which would have entitled millions of employees to overtime pay by raising the weekly salary cutoff for an exemption to employees earning more than $913 per week. The decision, issued just over a week before the regulation was set to go into effect, comes as a shock to many employers who have spent months preparing for the new requirements by evaluating employees’ exempt status and, in many cases, even adjusting workers’ pay in anticipation of the new test.

    The regulation, which was adopted in May and set to go into effect on December 1, 2016, was challenged in two complaints, one brought by a coalition of twenty-one States and the other initiated by more than 50 business groups. U.S. District Judge Amos L. Mazzant ruled that these groups demonstrated a substantial likelihood of success in showing that the government had overstepped its authority by raising the salary cap and setting automatic increases by relying on the salary increase to “supplant[] the duties test,” which requires a factual analysis of an employee’s duties in order to assess exempt status.

    The Court rationalized that if the new overtime rule is invalid, the injunction will prevent any harm to the public from its enforcement, whereas if the rule is subsequently determined to be valid, the injunction would merely delay its implementation somewhat. Finally, the Court made the injunction applicable nationwide because the Department of Labor regulations apply nationwide. Thus, the nationwide injunction protects employees and employers from being subject to different exemptions based on location.  It should be noted, however, that the overtime exemption already varies by geographic location as many states have their own requirements in place, including, in some instances, significantly higher salary thresholds than federal law currently requires.

    The current salary test (set at $455 per week under federal law) will remain in effect unless and until the Court determines that the regulation is enforceable.  The situation remains fluid, so any employers who have questions about how this injunction may impact their current practices should contact the attorneys in KDV’s Employment Law practice.

  • Jan 26, 2017

    Philip Voluck, Managing Partner of KDV at its Pennsylvania office, will be a co-presenter at the American Conference Institute’s (ACI) 25th National Forum on Employment Practices Liability Insurance in New York City.

    Session Title: The Latest on Pregnancy/Maternity Discrimination Claims and the Intersection with the ADA/FMLA
    Date: Thursday, January 26th, 2016
    Time: 3:20 PM

    This presentation will cover the following topics:

    • Examining the latest pregnancy discrimination issues and claims and their impact on coverage
    • The intersection of Title VII; ADA & FMLA; state discrimination laws; disability laws; wage & hour laws relating to lactation time; and state and local laws for paid and unpaid sick leave
    • ADA’s definition of pregnancy as a disability; when may pregnancy complications meet eligibility guidelines requiring employers to make accommodations?
    • Diabetes and pregnancy complications
    • New York pregnancy accommodations law as compared to other jurisdictions
    • EEOC guidance
    • Expanding state and local anti-discrimination and leave requirements
    • Defending pregnancy discrimination claims following the Young v. UPS case as the legal landscape has shifted in favor of claimants
    • Extending pregnancy benefits to fathers

    For more information about the event and to register, click here.

     

  • Nov 23, 2016

    By Keith J. Gutstein, Esq. and Jessica Tischler, Esq.

    Yesterday, a federal judge in Texas issued a nationwide injunction halting the implementation of a Department of Labor regulation which would have entitled millions of employees to overtime pay by raising the weekly salary cutoff for an exemption to employees earning more than $913 per week. The decision, issued just over a week before the regulation was set to go into effect, comes as a shock to many employers who have spent months preparing for the new requirements by evaluating employees’ exempt status and, in many cases, even adjusting workers’ pay in anticipation of the new test.

    The regulation, which was adopted in May and set to go into effect on December 1, 2016, was challenged in two complaints, one brought by a coalition of twenty-one States and the other initiated by more than 50 business groups. U.S. District Judge Amos L. Mazzant ruled that these groups demonstrated a substantial likelihood of success in showing that the government had overstepped its authority by raising the salary cap and setting automatic increases by relying on the salary increase to “supplant[] the duties test,” which requires a factual analysis of an employee’s duties in order to assess exempt status.

    The Court rationalized that if the new overtime rule is invalid, the injunction will prevent any harm to the public from its enforcement, whereas if the rule is subsequently determined to be valid, the injunction would merely delay its implementation somewhat. Finally, the Court made the injunction applicable nationwide because the Department of Labor regulations apply nationwide. Thus, the nationwide injunction protects employees and employers from being subject to different exemptions based on location.  It should be noted, however, that the overtime exemption already varies by geographic location as many states have their own requirements in place, including, in some instances, significantly higher salary thresholds than federal law currently requires.

    The current salary test (set at $455 per week under federal law) will remain in effect unless and until the Court determines that the regulation is enforceable.  The situation remains fluid, so any employers who have questions about how this injunction may impact their current practices should contact the attorneys in KDV’s Employment Law practice.

  • Nov 21, 2016

    (November 21, 2016) – In a first amendment case decided on November 16, 2016, a federal district court in California enjoined the California Attorney General from requiring that the Thomas More Law Center, a nonprofit legal advocacy organization, send its donor list to her as a condition of soliciting donations in the state.

    Arguing that the right to anonymous free speech was threatened by the donor disclosure requirement, a legal team led by Kaufman Dolowich & Voluck (KDV) San Francisco partner Louie Castoria prevailed in a nonjury trial in the U.S. District Court, Central District, Judge Manuel Real, presiding. Associate attorney Marion Cruz and paralegal James Jordan were also on the trial team.

    The court found that “as applied” to the Thomas More Law Center (TMLC), which represents advocates of causes based on traditional Christian religious principles, the disclosure requirement “places individuals ‘in fear of excising their constitutionally protected rights of free expression, assembly, and association’” (citing other authority).

    “Free speech can be exercised without making a sound or writing a word,” said Castoria. “Private donors who provide financial support for advocacy organizations that represent clients who advocate causes are exercising their First Amendment rights. Such donors’ identities should not be subject to mandatory disclosure to state agencies when doing so will likely expose them to harassment, boycott, or bodily harm.” He noted that on cross-examination, the Attorney General’s  employees admitted that no complaints had ever been made against TMLC, nor had they conducted or planned to conduct any investigation of the Law Center.

    Richard Thompson, President and Chief Counsel of the Thomas More Law Center, commented, “Louie Castoria did a fantastic job not only defending the Law Center, but defending fundamental aspects of the First Amendment.”

    Since NAACP v. Alabama, 357 U.S. 449 (1958), the Supreme Court of the United States has recognized that supporters of organizations advocating controversial views have the right to donate anonymously, with their identities free from disclosure from prying government eyes other than disclosure to the IRS. KDV’s team established a reasonable probability that the compelled disclosure “would burden the donors’ First Amendment Rights,” as the court found.

    TMLC is a 501(c)(3) nonprofit, raising funds through charitable contributions. California state law requires TMLC to file a copy of its IRS Form 990 (including the Schedule B) with the State Registry of Charitable Trusts. It includes the names and addresses of every donor who gave more than $5,000 in a tax year. The Form 990 is public but the Schedule B is not. Since 2001, TMLC filed its Form 990 with the Attorney General, not including its Schedule B, and each year the Attorney General accepted the registration. But in 2015, the Attorney General gave TMLC 30 days’ notice that if it did not file its Schedule B list, its tax exempt status and license to raise funds would be revoked, and its officers would be held personally liable for penalties.

    The District Court granted TMLC a preliminary injunction which the Ninth Circuit partially vacated, but allowed the District Court to decide TMLC’s “as-applied” challenge at trial.

    As an “as-applied” constitutional challenge, the case does not apply on a blanket basis to all advocacy organizations, but illustrates the continuing need for judicial protection of controversial free speech, on all points in the spectrum of opinion.

     

    The case is Thomas More Law Center v. Harris, No. CV 15-3048-R, (C.D., Cal., 11/16/2016).

  • Nov 14, 2016

    By Scott Murch

    The California Court of Appeal recently provided guidance as to when a law firm’s representation ends so as to start the statute of limitations running.  In GoTek Energy, Inc. v. SoCal IP Law Group, LLP (2016) __ Cal.App.4th __, 2016 WL 5929908 (10/12/16), the Second Appellate District held that representation ends when the client has no reasonable expectation that the law firm will perform further legal services for the client even though the law firm still owes the client some remaining duties.

    In GoTek, the client put the law firm on notice that it intended to make a legal malpractice claim against it for failing to file certain patent applications for the client.  Following receipt of that notice, the law firm emailed the client on November 7, 2012, stating that it must withdraw from the client’s representation and that the attorney-client relationship was immediately terminated.  That email also asked the client where the law firm should send the client’s files.  The client responded on November 8, 2012 by directing the law firm to send its files to replacement counsel by November 16, 2012.  The law firm transmitted the client’s files to replacement counsel on November 15, 2012 and notified the client of the file transfer that day.  The client filed a legal malpractice action against the law firm on November 14, 2013.

    California Code of Civil Procedure §340.6 provides that a legal malpractice action must be commenced “within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission . . . .”  (California Code of Civil Procedure §340.6(a).)  However, the statute is tolled while the “attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.”  (Id.§340.6(a)(2).)  This tolling is called the “continuous representation exception.”  (Beal Bank v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 511.)

    GoTek held that the tolling provided by the continuous representation exception ended no later than November 8, 2012, and the legal malpractice action was therefore time-barred under Section 340.6.  “An attorney’s representation of a client ordinarily ends when the client discharges the attorney or consents to a withdrawal, the court consents to the attorney’s withdrawal, or upon completion of the tasks for which the client retained the attorney.”  (Gonzalez v. Kalu (2006) 140 Cal.App.4th 21, 28.)  Applying the Gonzalez rule, GoTek concluded that the law firm’s representation ended no later than November 8, 2012 when the client consented to the law firm’s withdrawal and directed the transfer of its files to replacement counsel.

    In reaching that holding, GoTek rejected the client’s arguments that the law firm’s filing of withdrawal papers with the United States Patent and Trademark Office or that the law firm’s possession and transfer of its files constituted legal services so as to toll the statute under the continuous representation exception.   Because failing to withdraw as counsel of record, without more, will not toll the statute under the continuous representation exception (Shapero v. Fliegel 1987) 191 Cal.App.3d 842, 846), GoTek reasoned that the act of withdrawing does not constitute the provision of legal services. GoTek also concluded that the transfer of files was a clerical, ministerial activity and likewise not the provision of legal services.

    A California lawyer owes an ethical obligation to the client to “promptly release to the client, at the request of the client, all the client papers and property” upon termination of services.  (California Rules of Professional Conduct, Rule 3-700(D)(1).)  Although a lawyer is required to satisfy that ethical duty following termination, GoTek strongly suggests that the statute is not tolled simply because the lawyer has not yet fulfilled that obligation, but GoTek did not address this precise issue.

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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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