Ad Astra Law Group, LLP

Courts Say the Darndest Things II: Bill Cosby and Procedural Tricks

The Cosby case presented an unusual situation. The filings under seal were pending future review concerning sealing when the case settled. As a result, the Court did not rule until the Associated Press sought review years later.[1]

Settlements sometimes preserve confidentiality, but they cannot be relied on to happen at the right time. Sometimes litigants need to make a motion, and need to present the evidence they want sealed in order to provide adequate support for the motion. This can be a tricky situation for counsel.

The timing of motions permits state-court litigants more room to maneuver on noticed motions, at least compared to federal court litigants in the Northern District of California. California permits a party to file a redacted motion and conditionally lodge the un-redacted version of the motion under seal.[2]

Because the timing rules are the same for the motion to seal and any other motion other than summary judgment, the underlying motion often will be heard on the same or a later date than the motion to seal.

If the moving party prevails on the motion to seal, then that party is secure — at least for the time being. If the moving party loses a motion to seal, the filing under seal is returned to the moving party unless that party directs otherwise.[3] If the moving party also loses the underlying motion, then the moving party may be perfectly happy to have the moving papers not appear in the file. The difficult situation arises when the moving party prevails on the underlying motion but loses the motion to seal. At that point, the litigant must decide what is more important: obtaining relief on the motion or keeping the records out of public view.

Underlying Motion Granted, Motion to Seal Granted (moving party satisfied)	Underlying Motion Granted, Motion to Seal Denied (moving party’s dilemma)
Underlying Motion Denied, Motion to Seal Granted (moving party maintains confidentiality)	Underlying Motion Denied, Motion to Seal Denied (moving party has option to withdraw sealed papers)[4]

As a result, in California state court, a moving party that arranges the calendar well can guarantee that the motion to seal only matters if the party wins the motion.

In federal court, the Northern District’s local rules prevent this situation by employing an administrative motion process, which causes the motion to seal to be fully briefed in five days.[5] and that motion to be decided promptly, well before any ruling on the underling motion.[6]

[1] Memorandum Order (link)

[2] Cal. Rule of Court 2.551(b)(4).

[3] Cal. Rule of Court 2.551(b)(6).

[4] This blog post does not explore whether withdrawing such papers has an effect on preserving rights for appeal. As with any litigation decision, parties should consult with an attorney.

[5] N.D. Cal. L.R. 7-11.

[6] N.D. Cal. L.R. 7-11(c), 79-5(f).

The “Day of Rest” Requirement is Now Clear for California Employers

Author: Wendy L. Hillger

Last month, the California Supreme Court issued an important ruling for employers concerning the state’s “day of rest” statute for employees. California Labor Code sections 551[1] and 552[2] entitle employees to one day’s rest in seven and to not be caused to work more than six days in seven. The question before the Court in Mendoza v. Nordstrom, Inc. was whether this protection applies on a week-by-week basis or on a rolling basis. The Court explained the difference:

Under the weekly interpretation, the calendar is divided into seven-day blocks, and these provisions ensure at least one day of rest in each block, but an early day of rest in one week and a late day of rest in the next may lead to an employee working seven, eight, or more days in a row—though no more than six days out of seven, on average. Under the rolling interpretation, the provisions apply on an ongoing day-by-day basis, so that any employee who has worked the preceding six days in a row is presumptively entitled to rest on the next day.

One of the employees who sued Nordstrom had worked each day from Friday, January 14, 2011, to Friday, January 21, 2011. Nordstrom’s workweek was Sunday to Saturday. The Court ruled this was not a Labor Code violation, after a lengthy review of the statute’s text, the legislative history, the Industrial Welfare Commission Wage Orders and the general statutory scheme. The unanimous Supreme Court noted, “We conclude sections 551 and 552, fairly read in light of all the available evidence, are most naturally read to ensure employees at least one day of rest during each [work]week, rather than one day in every seven on a rolling basis.”

There are some exceptions:

1) This protection is not applicable for workers who do not work more than six hours in any day of the workweek;

2) Employees can work more than seven days in a row if they are given time off equivalent to one day’s rest in seven days.

[1] “Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”

[2] “No employer of labor shall cause his employees to work more than six days in seven.”

Computer Crime Returns to the Ninth Circuit Court of Appeal

Author: Michael Dorsi [1]

Tomorrow the United States Court of Appeals for the Ninth Circuit will hear argument in United States v. Nosal, a case testing the meaning of the federal computer crime laws.

Petitioner David Nosal was convicted of a felony for his participation in a conspiracy by former employees of the executive search firm Korn/Ferry. The trial court found Nosal guilty of violating the federal Computer Fraud and Abuse Act[2] (“CFAA”) because his co-conspirators[3] used a password belonging to a then-employee of Korn/Ferry. After a jury trial, the district court concluded that the co-conspirators’ access was not authorized, and that using a current employee’s password falls within the CFAA.

This is the third time that the Ninth Circuit will hear argument in this case. In 2011, a three-judge panel considered an appeal of the dismissal of several charges. That panel reversed the district court, but on review en banc in 2012, the Ninth Circuit reversed the panel decision and affirmed the district court’s dismissal of causes of action. That decision held that the CFAA only prohibited wrongful access to — not wrongful use — protected computers and material found on those computers. Judge Kozinski’s opinion for the en banc panel[4] suggested that the court was concerned about the broad reach of the statute, but stopped short of striking down the statute for unconstitutional vagueness and overbreadth. That opinion considered but did not conclude that circumvention of a technological access barrier would be required to find a CFAA violation.

Interestingly, one of the eleven judges from the en banc decision in 2012, Judge M. Margaret McKeown, is on tomorrow’s panel. And during the en banc oral argument, Judge McKeown engaged in a brief colloquy with defense attorney Ted Sampsell-Jones, attempting to distinguish the charges now on appeal from those on appeal during the 2011 oral argument. Judge McKeown and Mr. Sampsell-Jones considered an analogy between passwords and keys to doors. Judge McKeown appeared to be under the impression that the defendants had kept their working passwords — like keeping a key after leaving — when in fact they used the password of a current employee. The text of the exchange suggests that Judge McKeown may not be as supportive of the defense argument now as she was in 2011–12:

“Mr. Sampsell-Jones: I don’t think that’s quite the same as picking a lock or stealing.

Judge McKeown: Well the one who’s left, has a key that he or she didn’t, quote, turn in, so to speak.

Mr. Sampsell-Jones: No the one who’s left doesn’t have a key anymore. The one who has left gets the key consensually from the one who is still there.

Judge McKeown: That’s called hacking.”[5]

While a single question is not entirely useful in forecasting the outcome, it will be interesting to see if Judge McKeown revisits the same question tomorrow.

[1] Mr. Dorsi is an associate at Ad Astra Law Group, counsel for amicus curiae NovelPoster. NovelPoster’s brief can be found here. All briefs are available online on a page hosted by the Electronic Frontier Foundation.

[2] The Computer Fraud and Abuse Act is codified at 18 U.S.C. § 1030. Mr. Nosal was convicted for his violation of 18 U.S.C. § 1030(a)(4).

[3] There are also arguments about whether Mr. Nosal can be guilty by way of conspiracy for these actions. Those arguments will not fit into a brief blog post, but are addressed in the briefs.

[4] 676 F.3d 854 (9th Cir. 2012).

[5] Oral Argument, Nosal, supra, 676 F.3d 854, at 46:45–47:10, available at http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000006176.

San Francisco Protects Caregiver Employees

Author: Annie Smiddy

The City of San Francisco has recognized the need for protections for caregiver employees, and in particular working parents, by enacting two ordinances providing employees the right to request flexible working schedules and paid family leave for bonding time with a new child. The changes to demographics of the modern workplace have resulted in: (1) more flexible work arrangements regarding the time or place where work is conducted, and (2) more mothers and fathers wanting time to bond with their new children. However, many employees are concerned about requesting flexible work arrangements, or taking time off after the birth of a new child, due to the stigma associated with these additional family responsibilities. These protections extend to employees who have caregiving responsibilities, such as pregnant women, mothers and fathers of young children, and employees with aging parents.

Family Friendly Workplace Ordinance
In 2013 (operative January 1, 2014), the Family Friendly Workplace Ordinance (“FFWO”) was enacted to provide employees the protected right to request a flexible work schedule. The FFWO states that caregiver status is a protected class, and places notice and record keeping requirements on covered employers. The FFWO prohibits employers from retaliating against an employee who attempts to exercise of rights under the ordinance, or makes a claim or complaint pursuant to the ordinance. The Office of Labor Standards and Enforcement (“OLSE”) is authorized to investigate possible violations of the FFWO, and the agency will impose an administrative penalty up to $50.00 requiring the employer to pay to each employee or person whose rights under the ordinance were violated for each day or portion thereof that the violation occurred or continued. In addition, the City may bring a civil action for reinstatement; back pay; the payment of benefits or pay unlawfully withheld; the payment of an additional sum as liquidated damages in the amount of $50.00 to each employee or person whose rights were violated for each day such violation continued or was permitted to continue; appropriate injunctive relief; and reasonable attorneys’ fees and costs.

Paid Parental Leave for Bonding with New Child Ordinance
In 2016, the City further expanded protections for parents by enacting the Paid Parental Leave for Bonding with New Child Ordinance (“PPLO”), which requires employers who have employees working in San Francisco to provide Supplemental Compensation to employees who are receiving California Paid Family Leave benefits to bond with a new child, so that the employees receive up to 100% of their normal weekly wages during 6 weeks of parental leave. The PPLO takes effect on January 1, 2017 for San Francisco employers with 50 or more employees; on July 1, 2017 for employers with 35 or more employees; and on January 1, 2018 for employers with 20 or more employees. The ordinance places notice, posting and record keeping requirements on employers. The ordinance prohibits against retaliation for an employee’s exercise of rights provided by the ordinance. The OLSE may investigate any possible violations of the ordinance by an employer and bring an administrative enforcement or a civil action against an employer. In addition, the City may bring a civil action in court against an employer for violations of the ordinance. A person or entity may also bring a civil action against an employer after he/she/it provides the OLSE and the City Attorney with written notice and more than 90 days have passed without the City Attorney filing suit or the OLSE providing notice of its intent to bring an administrative enforcement action or a determination that no violation has occurred. The employee may be entitled to reinstatement; backpay; payment of any Supplemental Compensation unlawfully withheld or the amount of Supplemental Compensation unlawfully withheld from the employee multiplied by three, or $250.00, whichever is greater; $50.00 for each employee or person whose rights were violated for each day that violation occurred; injunctive relief; attorneys’ fees and costs.

In sum, San Francisco has expanded protections for employees with greater caregiving responsibilities. If you would like to hear more about these ordinances, Ad Astra Law Group LLP is available to help.
For a link to the text of the ordinances, as well as FAQs, please visit the following websites:

FFWO – http://sfgov.org/olse/family-friendly-workplace-ordinance-ffwo
PPLO – http://sfgov.org/olse/paid-parental-leave-ordinance

Congressman Darrell Issa Not Happy With The Federal Trade Commission Taking Action Against LabMD For Data Security Breaches

Author: Scripta Ad Astra Staff

On Thursday, July 24, 2014, Congressman Darrell Issa (R- CA 49), Chairman of the House Oversight Committee, held a hearing on the Federal Trade Commission’s prosecution of LabMD for alleged data security breaches leading to the release of its customer’s personal data. Needless to say, Congressman Issa was not happy with the FTC.

Background of FTC v. LabMD
On August 28, 2013, the FTC filed an administrative complaint against LabMD alleging a variety of data security breaches that lead to the release of consumer information. LabMD conducts clinical laboratory tests on specimen samples from consumers and reporting test results to consumers’ health care providers.
Read More >

Can Insiders be Guilty of Computer Hacking? Ad Astra attorney Michael Dorsi is interviewed

Among the questions posed in the Ninth Circuit Court of Appeals case of United States v. Nosal is whether a person can be convicted under an “anti-hacking statute” if they do not circumvent a technical or code-based access barrier. Ross Todd from The Recorder[1] interviewed Ad Astra associate Michael Dorsi and quoted Mr. Dorsi on the difficulty of defining a technical access barrier. The underlying events in the Nosal case took place in 2004. As stated in The Recorder:

Dorsi said one need only look at how long Nosal’s case has been pending to see the problem with tying CFAA allegations to some sort of technology-based standard.

Said Dorsi, “If we do end up with a ‘technological access barrier’ standard we will constantly be catching up with the question of ‘What is a barrier?’

In addition to its work on NovelPoster, Ad Astra Law Group presently represents workers’ compensation law firm Reyes & Barsoum in ongoing CFAA litigation in Los Angeles County Superior Court against another law firm, Knox Ricksen.

[1] Ross Todd, Nosal Appeal Could Extend Limits on Computer Hacking Law, The Recorder, October 16, 2015, available at http://www.therecorder.com/id=1202740085781/Nosal-Appeal-Could-Extend-Limits-on-Computer-Hacking-Law

Cannabis Industry Employment Numbers on the Rise: Misclassification Claims to Follow?

Author: Katy M. Young

In a recent article in Marijuana Business Daily , author Eli McVey posited that the cannabis industry now employs 165,000 to 230,000 workers, which is more than the number of employees who are dental hygienists, bakers, or massage therapists. At the NCIA’s Business Expo in Oakland, I was a speaker on a panel discussing how cannabis business owners need to be mindful of employment classification issues.

Here at Ad Astra, we predict (along with many other experienced attorneys) that employment misclassification claims are going to be the next big wave of litigation in the cannabis industry.

As an example, I came upon a cannabis grower who operated as a sole proprietor. When I asked if she had any employees, the owner responded: “No, just my boyfriend who works with me and we split profits 50/50, then a few people [her trimmers] who come and go.” She must have seen the reaction on my face, because she then asked what it was that she said. I explained that in a business context, anyone working with you is either your business partner/co-owner, your employee, or your independent contractor. She said that her boyfriend is NOT her partner, though I was sure she called him her “partner” earlier in the conversation.

Additionally, this owner insisted that her trimmers were independent contractors. She obviously was unaware that there is a multi-factor test for determining whether one is truly an independent contractor. California’s default is that a person is an employee, and so it is far more likely that the trimmers are really misclassified employees. It came as a shock to her that there were no in-betweens, and that at any moment, one of those people she considers friends could go to the EDD and complain that they were misclassified as independent contractors when they are really employees.

If there are 165,000 employees we know of, how many “independent contractors” are there? How many potential claims does that translate to? Many! Please do not fall into this trap.

If you are a business owner in the cannabis space, it is imperative that you understand the difference between employees and independent contractors; and, partners or co-owners. Employees are further subdivided into “exempt” and “non-exempt” (non-exempt are entitled to meal and rest breaks, and paid overtime- this is a whole different topic).

In sum, please contact us for a review of your employment and ownership practices. An ounce of prevention is really worth a pound of cure here!

NSF Funds New UCLA Cybersecurity Research Center and Other News

Author: Scripta Ad Astra Staff

NSF Funds New UCLA Cybersecurity Research Center
In news not necessarily related to the law, UCLA just announced that it is starting a cybersecurity research center, thanks to a grant by the National Science Foundation. The Center for Encrypted Functionalities opened on Thursday, July 31, 2014, and is funded by a five-year, $5 million grant from theNSF’s Secure and Trustworthy Cyberspace program. The center is a collaboration among researchers at UCLA, Stanford University, Columbia University, the University of Texas at Austin and Johns Hopkins University. As a proud alumnus, I am happy to hear that UCLA is taking a leading role in developing cybersecurity solutions.

Attorney Communication – Sharing Your “Likes and Dislikes” to Improve Our Services

Author: Scripta Ad Astra Staff

At Ad Astra, we believe attorneys are not only professionals with extensive knowledge of the law, but also counselors and advisors to their clients. We hope to constantly better our services by improving our communication skills, and by tailoring our services to our clients’ specific needs. I recently attended a Continuing Legal Education course in which in-house counsel from various prominent businesses in the Bay Area explained their “likes and dislikes” regarding attorney-client communications. The following is a list of some of the communication skills that all the speakers agreed on:

write brief, concise, and well-written analyses of issues;
respond to questions quickly;
provide regular updates on outstanding issues;
allow time to review documents by making internal deadlines, so they client can manage his or her schedule accordingly;
make the client’s life easier by preparing correspondence that can be forwarded to high-level executives; and
provide recommendations while also explaining risks, using the lens of the client’s mission.

We recognize that not all clients have the same communication preferences, and encourage all of our existing and prospective clients to share their own “likes and dislikes” with us because we believe that better communication always translates to better representation.

California Trial Courts Are Still Chronically Underfunded, Which Delays the Public from Getting their Day in Court

Author: Wendy Hillger

Have you wondered why it takes so long to have your matter heard by a judge in California?

Unfortunately, the trial courts are not being properly funded. As a result, there are reduced hours of operation, reduced services, and fewer workers to staff the courts. California Supreme Court’s Justice Tani Cantil-Sakauye noted that chronic under-funding of the courts, “unfairly affects members of the public seeking their day in court.”

In 2008, the San Francisco Court’s budget was $90.5 million. At the time, the Court employed nearly 600 non-judicial staff. However, because of the subsequent Recession, California’s trial courts saw severe budget reductions.

While the economy has improved, the funding has not been substantially restored.

In July, 2017, San Francisco trial courts saw their budget further reduced by 9% for the fiscal year 2017-2018. The court has a budget deficit of over $5.2 million dollars. Today, the Court’s budget amounts to just $51.7 million, with a staff of approximately 430.

To help save money, San Francisco announced that court staff are being furloughed without pay for one day a month. In addition, the clerk’s office will close early on Fridays. Alameda County also has experienced a similar shortfall and has been on reduced staff hours and services for a few years now.

The July 2, 2017 news release of the San Francisco court is linked here. Here is the County of Alameda public notice from November, 2016.