BREAKING NEWS: NavBat Wins Federal Jury Trial

Posted by on Dec 11, 2018 in Newsflash | 0 comments

2018-12-11 Press Release - Zhong Verdict FINAL

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Protecting Your Intellectual Property: Patents

Posted by on Dec 4, 2018 in Newsflash | 0 comments

This is a continuation of our four part discussion of intellectual property. Last month, our newsletter discussed trademark protections for words, symbols, phrases, or other identifiers of a product or brand. Trademarks exist to protect the goodwill and brand recognition that are associated with a particular company or good, and are commonly affixed to a company’s goods and marketin The U.S. Patent and Trademark Office (USPTO) registers both trademarks and patents. Patents, unlike both copyrights and trademarks, are intended to protect inventions and discoveries.  In order to bring an invention or discovery to fruition, a person or company must generally invest a significant amount of time, energy, and resources into the research and development of the invention or discovery. Obtaining a patent for the invention or discovery helps to ensure that the person or company who put the time, energy, and resources into the creation of the invention or discovery is actually able to reap the rewards associated therewith.  A patent provides a person or company with the exclusive right to make, use, or sell the invention (at least for a certain amount of time) before others can make the same or similar products. There are three types of patents: utility patents, design patents, and plant patents.  First, and most common, is the utility patent.  This type of patent is available for new and useful processes, machines, manufacturing methods, compositions, or improvements. A design patent is available to protect a new design for a manufactured item.  Finally, as the name indicates, a plant patent is available to protect a newly invented or discovered type of plant. Obtaining a patent can be difficult, time consuming, and expensive, as the applicant must show the invention is new, useful, and nonobvious, and must comply with various statutory requirements.  To prove an invention is new or novel, the invention: (1) must not be similar to another product or process and the public must not have previously known of the invention; (2) cannot have been described in a publication more than one year before the filing date; and (3) must not have been used or publicly sold more than one year before the filing date.  These requirements impose a fairly strict one year deadline to file a patent application, starting at the time the invention is first disclosed to the public.  Next, the invention must have a useful purpose and be operable.  Finally, an invention must be nonobvious.  To be nonobvious, an invention which is an improvement must not have been obvious to a person who had ordinary skill with the technology used in the invention. Patents are a highly complex type of intellectual property which usually require a very specialized review.  Companies seeking patent protection are well-served to hire competent and experienced patent counsel to help navigate the process.  Although Navigato & Battin does not prosecute patents, it has a network of experienced patent counsel it can recommend.  If you have created a product you think may be eligible for patenting, call the attorneys at Navigato & Battin so that we can help determine if patent protection is something you should...

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California Court of Appeal Strikes Down Anti-Solicitation Clause

Posted by on Dec 3, 2018 in Newsflash | 0 comments

While many states authorize employers to use fairly broad non-compete and non-solicitation provisions in contracts with their employees, California has what are likely the most restrictive and employee-friendly laws regulating these issues in the country. Under California law, except in rare circumstances, these types of provisions are generally not enforceable. Employers are often left to rely solely on trade secret protections as their sole means of restricting an ex-employee’s use of confidential information for the benefit of a new employer. While this type of protection provides a modicum of protection to an employer by providing a remedy in the event an employee pilfers a company’s trade secret information and takes it down the road to a competitor, it certainly does not provide an employer with all of the protections that its counterparts in other states enjoy. A recent California case chips away at employers’ options even further. In November, the California Court of Appeal issued an opinion in AMN Healthcare, Inc. v. Aya Healthcare Services, Inc., et al., addressing the validity of non-solicitation clauses. AMN sued Aya and four former employees of AMN who had recently moved to Aya, claiming AMN and the former employees had violated a non-solicitation clause in the former employees’ contracts. This clause, according to AMN, operated to bar any former employees of AMN from soliciting AMN’s clients and employees for an amount of time between 12 and 18 months following the employee’s departure, depending on the client and employee. AMN and Aya are both traveling nurse agencies, which place traveling nurses and other medical professionals in hospitals and medical centers for short periods of time. While these nurses completed their assigned placements coordinated by AMN, the nurses were considered by AMN to be AMN employees. Defendants, former AMN employees who had worked as recruiters for AMN, did the same job for Aya. At the beginning of the former employees’ employment with AMN, AMN required an employment contract be signed which included a non-solicitation clause. When the former employees left AMN for Aya, AMN noticed a small number of traveling nurses also began taking assigned placements from Aya. AMN believed these traveling nurses had been solicited and ultimately poached by the former employees for the benefit of Aya, and AMN accordingly filed suit because it believed that these nurses were AMN “employees” who could not be solicited by Aya or its new, ex-AMN recruiters. The Superior Court decided, and the Court of Appeal affirmed, that AMN’s case was without merit. The Court of Appeal first found that, under the somewhat unique circumstances of the case, enforcing the non-solicitation clause was a direct violation of California’s strict rule invalidating any restriction on a person’s right to practice his or her profession. Because the former employees were recruiters by trade, AMN’s attempt to keep the former employees from recruiting traveling nurses who had ever worked for AMN on behalf of Aya amounted to a restriction on the former employees’ ability to practice their profession. However, the Court of Appeal left open the possibility that these clauses can be valid if the former employees are using trade secrets of their former employer. The most important trade secret in this case was the company’s pay structure. The Court of Appeal noted that if a competitor knows of a company’s...

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Protecting Your Intellectual Property: Trademarks

Posted by on Nov 1, 2018 in Newsflash | 0 comments

This is a continuance of our four part discussion of intellectual property. Last month featured a discussion of copyright law. Last month, our newsletter discussed copyright protections for works that are put into a tangible form, such as books, movies, songs, drawings, and photographs. Copyright is automatically granted to the creator of the work the moment the work is created. However, subsequent registration with the U.S. Copyright Office can be beneficial to put the public on notice of your rights in a work. This registration is also a requirement in order to recover statutorily prescribed damages and attorney’s fees and costs if you ever have to bring suit against an infringer. This month, we focus on trademarks, which are words, symbols, phrases, or other identifiers of a product or brand. Examples of trademarks are the Nike swoosh, Starbucks’ green mermaid, and the U.S. Marine Corps’ “Semper Fi.” Each of these conjures up in the mind of the consumer the corresponding company, and represents the company’s reputation, goodwill, and brand identity.  The purpose of trademarks is to distinguish your company and your products from those of another company, especially to consumers. Similar to the U.S. Copyright Office’s role in registering copyrights, the U.S. Patent and Trademark Office (USPTO) registers trademarks. In order to successfully register a trademark, the USPTO must find there is little to no likelihood of confusion with other, previously registered trademarks. But, if there is another trademark similar to yours which is already registered, all is not lost. The USPTO may still register your mark if the goods and services to which your trademark will relate are substantially different than those covered by the previously-registered trademark. For example, if the existing trademark is related to t-shirts and pants, and your trademark is related to hats and scarfs, the USPTO will probably find there is a likelihood of confusion between the two marks. However, if the existing trademark is for mortgage lending services, and your trademark is related to hats and scarfs, there will be no likelihood of confusion. There are four classes which your trademark may fall into: fanciful or arbitrary, suggestive, descriptive, or generic. The USPTO favors those trademarks that are fanciful or arbitrary the most, and those that are generic the least. As an example, while Apple’s logo may seem generic (because what is more common than an apple?), the Apple logo is entirely arbitrary to the goods it is related to: computers and electronics. Thus, Apple’s logo falls into the fanciful or arbitrary category, and is registered by the USPTO. To register your trademark with the USPTO, you should first check the USPTO’s electronic search system database to ensure there are no trademarks already registered that are similar to yours. Online searches for companies using unregistered marks similar to your proposed mark are also suggested, as pre-existing users have certain trademarks rights to a mark whether registered or not. Next, you can submit an application to register your trademark online, inputting your information along with the categories of goods and services to which the mark will relate, the date of the trademark’s first use in commerce, and whether there is a design component to the trademark. The cost of the filing of the application is between $225 and $325. Within about six months of...

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Ending Confidential Settlements of Sexual Harassment Claims

Posted by on Nov 1, 2018 in Newsflash | 0 comments

At the close of this legislative session, one of the laws signed by the Governor effectively prohibits any provision in settlement agreements preventing the disclosure of information regarding sexual harassment and sex discrimination. The law takes effect on January 1, 2019, and will retroactively apply to any previously entered settlements barring the disclosure of such information. The law will specifically ban any settlement agreement provision that prevents disclosure of facts regarding: acts of sexual assault, acts of sexual harassment, acts of workplace sexual harassment, acts of workplace sex discrimination, failure to prevent acts of workplace sexual harassment or sex discrimination, and retaliation against a person for reporting sexual harassment or sex discrimination. While seemingly all encompassing, the law does permit a provision which would shield the identity of the claimant and facts which could reveal this person’s identity from disclosure. But, this is only available upon the request of the claimant and in matters not involving a government agency or public official. This new law is aimed at ending the practice of “secret settlements” where the names and facts of sexually-based claims would be kept strictly confidential as a term of the settlement. This information will no longer be subject to these strict confidentiality provisions. One fact which can remain confidential, however, is the amount paid in settlement of a claim. Both public and private employers will be subject to this new law in both civil and administrative actions. Any violation of the new law can result in liability for civil damages. The new rule poses a serious risk to even the best-run companies, as allegations of sexual harassment, discrimination, and retaliation will no longer remain confidential. Instead, these allegations run the risk of seriously damaging a company’s reputation, regardless of whether they are true or not. While proponents of the new law believe this will assist victims of harassment in filing their complaints, critics believe it will deter companies from settling these types of claims because the allegations, whether true or false, can become public knowledge and hurt the company’s image and reputation. It goes without saying that the best way to avoid having to deal with allegations of sexual harassment in the workplace is to comply with training requirements, promote a transparent complaint system which can effectively resolve these types of issues, and observe your employees and outside contractors (whose acts of sexual harassment or discrimination against your employees may cause liability for you) to ensure they are not harassing or discriminating against anyone else, among other things. If you would like more information about the new developments in this area of law, if you think your policies regarding sexual harassment need to be reviewed, or if you need assistance in determining whether sexual harassment may be an issue within your company, contact the attorneys at Navigato &...

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Protecting Your Intellectual Property: Copyright

Posted by on Oct 1, 2018 in Newsflash | 0 comments

This will be a four part series over the next four newsletters where each type of intellectual property will be discussed. In an increasingly digital world, where competitors can easily access your website and quickly obtain detailed information on your latest projects, protecting your intellectual property is becoming increasingly important.  There are four types of intellectual property, each of which provides a business with protections to different types of work: copyright, trademark, patent, and trade secret.  While very different, each of these categories are meant to help ensure that your work is protected from being copied, distributed, and sold by other parties who did not create the work and do not have any license from the creator. Copyright protection exists to shield works like books, movies, songs, drawings, photographs, software codes, emails, and sculptures.  Once these types of works are put into a tangible form (e.g., written on a page), they immediately receive copyright protection.  A common misconception is that a copyright does not exist until the work is registered with the U.S. Copyright Office.  In fact, copyright is automatically granted to the creator of the work the moment the work is created.  Because copyright does not protect ideas but rather the expression of ideas, the copyright vests as soon as the idea materializes into a tangible form.  This copyright exists for the lifetime of the creator, plus 70 years. Copyright owners have six specific rights which are exclusive to them and them alone: (1) the right to reproduce the work; (2) the right to prepare new derivations of the work; (3) the right to publicly distribute the work; (4) the right to publicly perform the work; (5) the right to publicly display the work; and (6) the right to digitally perform the work (i.e., record sound recordings).  Additionally, only the copyright holder may validly grant others a license to exercise any or all of these rights.  When someone infringes on any of these rights, the copyright holder may want to prosecute the infringement. To enforce copyright protection in a court, the work must either be registered with the U.S. Copyright Office or the registration process must have been initiated.  Such registration puts the general public on notice of the creator’s ownership of a work.  Additionally, when a properly registered copyright is infringed upon, the copyright holder may recover significant statutory fees for each infringement as well as attorney’s fees and costs from the infringer.  If a registration is rejected by the U.S. Copyright Office after the copyright holder has already initiated a lawsuit, the lawsuit may proceed but these statutory awards are no longer automatically available. Considering all of this, registering a copyright still may not be the best option. Registering a copyright costs $55 and requires that an application be submitted to the U.S. Copyright Office along with a sample of the work (which is not returned).  Different types of works require different types of samples.  To register, the work must be an original work of authorship with some creative value.  This means the work must be original and not copied from anywhere else.  Additionally, the work must exhibit some creativity. If you have a creative work, and you plan on exercising any of the six rights listed here, you may want to register your copyright to...

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So You Received a Pre-Litigation Letter – Now What?

Posted by on Oct 1, 2018 in Newsflash | 0 comments

Receiving a notice that claims are being filed against it by a current or former employee is a moment every employer hopes to avoid.  But, however shocked, upset, embarrassed, or just plain uninterested you may feel to receive a pre-litigation notice or demand, ignoring the notice and burying your head in the sand will not make the problem go away.  In fact, doing so may give an ex-employee and/or the employee-side attorney who sent the letter exactly the advantages they need to turn a routine procedural step into a significant legal advantage.  It is important for any employer to have a basic understanding as to what the various notice letters might mean, to review them carefully and take them seriously, and to get your attorneys involved in the process of addressing them as early as possible. One popular pre-litigation letter employers may receive is a demand for employment records.  California’s labor laws allow a current or former employee to demand his personnel file from his employer.  Companies may also receive PAGA notice letters.  These letters include claims filed by a current or former employee under California’s Private Attorney General Act (PAGA), which allows the former employee to sue his employer on behalf of all similarly aggrieved employees.  While some recipients of these letters may be tempted to disregard the communications as the mere ramblings of disgruntled employees trying to make life more difficult for an ex-employer, these letters are important legal correspondence that should be carefully read, understood, and acted upon. In order to more accurately assess an employee’s potential claims, most employee-side attorneys will send out a demand for the employee’s personnel file to the client’s employer or ex-employer.  While this could be a mere fishing expedition, an ex-employee’s attorney is more often looking for support for claims made by a former employee and checking to see whether your record-keeping procedures meet the exacting standards California requires.  This demand can include, but is not limited to, the employee’s personnel file; hiring paperwork; write-ups or other disciplinary action; notices of commendation, warnings, and/or termination; sick time, vacation, and leaves of absences; performance evaluations; attendance records; payroll records; and wage statements.  In short, the employee can request just about every record his employer may have on him, some of which the employer is legally required to keep for several years.  These records are due no later than 21 and 30 days after the employer receives a demand (different time frames apply to different types of documents demanded).  Failing to comply with the request can lead to a $750 fine, and can entitle the other side to collect his attorney’s fees and costs in a lawsuit whether you have done anything wrong or not.  It is not uncommon for such a letter to include a draft tolling agreement, requesting that you “toll” the statute of limitations while discussions with the ex-employee are ongoing. Demands for records may precede the filing of a lawsuit for claims relating to a singular employee.  PAGA claims, on the other hand, relate to all similarly aggrieved employees.  These claims also are preceded by a letter putting the employer on notice that the employee would like to bring these claims on behalf of the government.  Before an aggrieved employee can file a lawsuit in court alleging PAGA...

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Female Director Quotas for Publicly Traded Companies

Posted by on Aug 31, 2018 in Newsflash | 0 comments

Recently, California legislators passed a bill which would require any publicly traded companies based in California to have female directors on their boards. If signed by Governor Jerry Brown, this bill will require those publicly traded companies based in California to add at least one female to their boards by the end of 2019. Additionally, those companies with a board of five or more directors must have two or three females added by the end of 2021. This law is modeled after several European countries’ laws which require publicly traded companies to have female directors. However, if passed, California will be the first state to have such a law on the books. (Currently, Massachusetts and Illinois have passed non-binding resolutions urging public companies to balance the gender representation on their boards.) Hannah-Beth Jackson (D), who represents Santa Barbara in the California state Senate told the Wall Street Journal that one-quarter of boards for publicly traded companies based in California are entirely male. This is “despite numerous independent studies that show companies with women on their board are more profitable and productive,” stated Jackson. The law does not require male directors to be removed from the board, but instead allows for the creation of an extra board seat to be filled by a female director. There are other issues which could present themselves if this law is passed, though. One such issue arises when a publicly traded corporation uses cumulative voting for directors. In those companies, whether shareholders will only be allowed to put a fixed portion of their votes towards male versus female directors is unclear. Presumably, companies will have to update their voting procedures to ensure compliance with this potential law. The California Chamber of Commerce has objected to this mandate, arguing it could violate the Equal Protection Clause of both the United States and California Constitutions. According to the Chamber of Commerce, if a company is put in the position of turning down or removing altogether a male board candidate in favor of a female candidate solely based on gender, the company may risk an Equal Protection violation suit. While this potential law is currently only being aimed at publicly traded companies, if passed and successful in operation, it may be expanded to private companies and those which are closely held. Similarly, if California is able to demonstrate the success of this type of law, other states may be inclined to follow...

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California Labor Laws Provide (Yet More) Protection For Employees

Posted by on Aug 30, 2018 in Newsflash | 0 comments

Douglas Troester was a Starbucks shift supervisor from mid-2009 to October 2010. Each closing shift required Troester to first clock out and then initiate the store’s “close store procedure” on a different computer which would transmit daily sales, profit and loss, and store inventory data to Starbucks’s corporate headquarters. Troester would then activate the store’s alarm, exit the store, lock the front door, and walk coworkers to their cars, as required by Starbucks’s policy. On some occasions, Troester would have to reopen the store for coworkers who had forgotten belongings inside or to bring in patio furniture mistakenly left outside. On average Troester spent four to ten minutes working after he had clocked out of his shift. After 17 months of employment, Troester filed suit against Starbucks for unpaid wages based on these off-the-clock tasks. Over the term of Troester’s employment, Troester worked about 12 hours and 50 minutes after clocking out. At $8 per hour, Troester alleged he was owed $102.67 in unpaid wages. While Troester believed he was owed this amount, Starbucks argued the few minutes of work performed after clocking out each shift was negligible, and therefore subject to the de minimis doctrine. Under the federal Fair Labor Standards Act, this de minimis doctrine applies to unpaid wage claims. However, Troester brought his suit based on California law. Until this decision, the Supreme Court of California had never before addressed whether the FLSA’s de minimis doctrine applied to unpaid wage claims brought under the California Labor Code. Addressing Troester’s claims, the Supreme Court of California found the de minimis doctrine does not apply. Under California labor laws, any and all work performed must be compensated by employers. Accordingly, employers cannot use the de minimis doctrine to their advantage by directing employees to perform certain tasks off the clock, even if they only take a couple of minutes to perform. The court addressed the California Labor Code’s commitment to “the small things.” For instance, the Labor Code requires employees to give their employers two 10 minute breaks for every four hours worked. The court had previously held even minor intrusions on these mandated rest breaks to be unacceptable. Even though Troester was working ten minutes or less after his shifts, because the Labor Code requires employees be compensated for “any and all” work performed these four to ten minutes required compensation. The court recognized these small increments of time would not add significantly to an employee’s paycheck, but also recognized that the $102.67 Troester had not been paid was enough to pay a utility bill, buy a week’s worth of groceries, or a cover a month of bus fares. Per the Court’s ruling, “What Starbucks calls ‘de minimis’ is not de minimis at all to many ordinary people who work for hourly wages.” Poor timekeeping methods will not excuse failing to properly compensate employees for their time worked, whether on or off-the-clock. The court held that today’s technological advancements allow employers to more accurately and efficiently track time worked (e.g., using handheld technology like smartphones or tablets, or through scanning RFID chips). Seemingly, the court expects employers to utilize this updated technology to ensure no employees are undercompensated. Although tracking employees’ time may now become even more time consuming and burdensome for employers, the court, in line...

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Navigato & Battin Hosts its 22nd Annual Opening Day at the Del Mar Races

Posted by on Aug 1, 2018 in Newsflash | 0 comments

On July 18, 2018, Navigato & Battin returned to Opening Day at the Del Mar Thoroughbred Club to host its 22nd annual client appreciation event. Clients and friends alike enjoyed mingling, food, and wagering on the races. Reflecting on the day, partner Dan Navigato said, “We have been hosting this event every year for a while now, and every year it is a great time when we are able to bring our clients and colleagues together for a beloved San Diego tradition.” Each year, we enjoy getting to see everyone outside of the business context at this event. Whether you attended this time or not, we look forward to seeing you there next...

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