Want to see how important you are to your attorney? Cheat at golf.

Posted by on Aug 1, 2017 in Newsflash | 0 comments

If you have had any significant interactions with any attorney during the course of your life, and if you have even a remote interest in golf, you have almost certainly played at least a few rounds with your attorney.  Attorneys tend to love golf, most likely because attorneys view the intricate sets of rules and decorum involved in a round of golf as a near-perfect reflection of the practice of law.  Golf, like civil litigation, is viewed as an age old sport steeped in tradition.  The rules of golf, like those of the courtroom, were meant to provide a general lay of the land to allow participants to know exactly how to proceed from start to finish.  However, attorneys quickly realized that the rules dictating their behavior and actions in court were not so much rules to be followed as they were boundaries to be pushed.  With these realizations, attorneys came to understand that they could win cases by having a mastery of the finer points of procedure even where their clients did not have the best case.  Eventually, these procedural games have become almost as important as the underlying facts of the case to the attorneys who use them as weapons every day. In much the same way, your attorney almost certainly relishes the rules of golf, realizing that a mastery of those rules can propel them to victory in a match that their skills might not otherwise allow.  Your attorney likely has an encyclopedic memory of the rules of golf, and uses that memory to his or her advantage whenever possible.  So how do you determine how important you are to your attorney?  Go ahead and break those rules the next time you play a round of golf with him.  Kick that ball out of a divot and into a more favorable lie.  Ground that club in a hazard.  See how many times you can break minor rules before your attorney says something to you about it.  It is an absolute certainty that he sees it every time.  If you can get away with five or more breaches in a single round without hearing a word about it, you are likely a very important client!  At the very least, you can be sure you will be driving your attorney nuts in the meantime.  But take solace in the fact that the same way of thinking that makes those rules so important on the golf course will serve you well when that same attorney is fighting for you in court.  And if you ever need someone to play a round of golf with, the attorneys at Navigato & Battin are here to...

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Navigato & Battin’s 19th Annual Opening Day at the Del Mar Races

Posted by on Aug 1, 2017 in Newsflash | 0 comments

On July 19, 2017, Navigato & Battin held its 19th Annual Opening Day at the Del Mar Thoroughbred Club.  Clients and friends enjoyed a day of mingling, food, wagering, and even a magician.  Of the day, Daniel Navigato states, “NavBat Opening Day is always one of my favorite events of the year, as it gives us the opportunity to show appreciation to our clients and friends while having fun in the process.” Whether you walked away with your pockets a little heavier or were amazed at the magician’s mind-boggling tricks, we enjoyed socializing with everyone outside of the business setting.  Thank you to all those who attended and we look forward to seeing everyone at next year’s...

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Non-Binding Letters of Intent and Memoranda of Understanding – What Are they Good for?

Posted by on Jul 5, 2017 in Newsflash | 0 comments

Most transactions involving the purchase and sale of a business start with negotiations between the buyer and seller and end with a formal binding contract.  In between these steps, the parties often exchange preliminary draft versions of the major deal points through letters of intent (“LOI”) or memoranda of understanding (“MOUs”).  Because most LOIs and MOUs are non-binding, business people do not always put enough time and effort into making sure all important terms are included.  They mistakenly believe that the time to address the detailed terms is when they negotiate the final, binding agreement.  However, a detailed letter of intent which addresses all of the material terms provides a road map to a favorable outcome and helps avoid hurdles which arise in finalizing the binding contract. Although MOUs and LOIs are normally non-binding, they contain the major deal points of the transaction and they are signed by the parties.  Because they are signed, the parties to a transaction will be hard pressed to renege on terms when it comes to negotiating the final agreement.  For example, if the LOI contains a term that says that certain assets will be excluded from the sale, it would be difficult for the buyer to insist that such assets be included later down the line (at least not without additional compensation).  Thus, it is very important to make sure all material terms of the transaction are included in an LOI or MOU, even if the other side is not technically bound by such terms.  ...

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Use of Criminal History in Hiring Decisions

Posted by on Jul 5, 2017 in Newsflash | 0 comments

A new regulation approved by the Fair Employment and Housing Council limits employers’ ability to make hiring decisions based on an applicant’s or employee’s criminal history.  The new law, titled “Regulation §11017.1: Consideration of Criminal History in Employment Decisions,” went into effect on July 1, 2017.  Unless otherwise allowed by law, the regulation expressly prohibits basing employment decisions on a conviction for non-felonious marijuana possession more than two years old, an arrest that did not lead to a conviction, or any proceedings which occurred in juvenile court or which were expunged from the applicant’s record. Further, employers who consider convictions in the decision-making process can be found to have discriminated against employees or job applicants where a use of such information has an adverse impact on a protected class (gender, race, national origin, etc.).  To avoid a discrimination claim, employers must demonstrate that the convictions considered were related to aspects of the job and were consistent with business necessity.  Screening procedures should consider the gravity of the offense, how much time has passed, and the type of employment. If screening is used to eliminate candidates without consideration of a candidate’s individual circumstances, the employer has the burden of showing that the criteria used adequately distinguish between candidates who pose an unacceptable level of risk and those who do not.  This burden is especially high if the conviction is more than seven years old.  Whether a candidate would pose an unacceptable level of risk would be highly dependent on the type of employment being sought, among many other factors. In the event the information regarding an applicant’s criminal history is obtained through a third party, an employer must confirm with the applicant that the data provided is accurate before making any adverse employment decisions based on that information.  Employers who choose to obtain criminal background checks should keep in mind that both the Fair Credit Reporting Act and the California Investigative Consumer Reporting Agencies Act impose additional requirements upon the use of information provided in such reports. If you have any questions concerning your company’s use of background information in hiring decision or any California’s employment laws, the attorneys at Navigato & Battin are here to...

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What You Should Know Before Putting Surveillance Cameras in Your Place of Business

Posted by on Jun 1, 2017 in Newsflash | 0 comments

California employees’ reasonable expectations of privacy are protected by Article I, Section 1 of the California Constitution and by the common law tort known as “invasion of privacy.”  In determining whether particular acts or policies go too far in encroaching on an employee’s privacy rights in an impermissible way, the law requires balancing (1) an employee’s reasonable expectation of privacy with (2) an employer’s legitimate business purpose for the intrusion. When analyzing whether an employer has invaded the privacy of an employee, the court first looks to whether the employer intentionally intruded into a place, conversation, or matter as to which the employee has a reasonable expectation of privacy.  Second, the intrusion must occur in a manner that is highly offensive to a reasonable person. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231) Courts have consistently held that notice of and consent to an impending potential intrusion can “inhibit reasonable expectations of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 36.)  Thus, when considering placing surveillance cameras in your place of business, whether for safety or security issues or any other reason, the following guidelines should be followed to minimize any potential liability or claims of invasion of privacy: Mark the Cameras – Well-marked cameras reduce an employee’s reasonable expectation of privacy.  Having a camera plainly visible and located next to a sign stating “recording in progress,” greatly diminishes an employee’s claim of an expectation of privacy.  The courts use a sliding scale- the more obvious an employer is about its video surveillance practices, the less likely a reasonable expectation of privacy exists or will be deemed to have been unlawfully intruded on. Create, Distribute and have the Employee Execute a Clear Workplace Video Surveillance Policy – This can be done by placing a policy in an employee handbook or through a stand-alone policy.  Employees are less likely to have a recognized claim that their privacy rights have been invaded if they are put on notice by a specific written policy that the employer records employees in open work areas.  The policy should include the scope, duration and methods of surveillance.  It should also notify employees that video recordings may be used to monitor work performance and may be used as part of any discipline-related investigation.  Finally, employers should require each employee to sign an acknowledgment that he or she has reviewed and understands the video surveillance policy. Limit the Number of People who can Access the Cameras – Since privacy interests are at play, limit the number of people who can access and control the footage of the surveillance cameras.  If possible, limit access to the CEO and one or two other high ranking (and trusted) employees. Do Not Place Cameras in Sensitive Private Places – Do not place any video or audio recording devices in any bathrooms, locker rooms, or rooms designated by an employer for changing clothes.  Secret cameras can also cause major concerns- at a minimum, the safest and most practical course of action for employers is not to place secret cameras in work areas that employees would not expect to be recorded.  These include offices, cubicles, break rooms, file rooms, etc. If you have questions regarding the use of video surveillance cameras or need assistance in updating your...

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Avoid Costly Litigation by Ensuring Your Website is ADA Compliant

Posted by on Jun 1, 2017 in Newsflash | 0 comments

A little over a year ago, we wrote an article, Is Your Website ADA Compliant?, which explained that a business opening itself to and holding itself out to the public must meet certain requirements to remain in compliance with the Americans with Disability Act (“ADA”), which affects not just the physical buildings but a company’s website.  Individuals with various disabilities rely on technology to help them navigate websites or access information contained on those websites, and many commercial websites are not designed to interact correctly and effectively with the assistive technology such individuals utilize.  As a result, many websites fail to incorporate or activate features that enable users with disabilities to access all of the website’s information or elements. When the article was first published, it was more of a cautionary tale.  However, recently litigation concerning non-ADA compliance in commercial websites has really started to ramp up.  Therefore, it is now imperative for companies to assess their websites to ensure compliance or face the increasing risk of litigation, which are extremely difficult and costly to defend. Recently, the Department of Justice (“DOJ”) published an “ADA Best Practices Tool Kit,” which includes website accessibility guidance and a checklist that can be used to verify compliance with the ADA.  The tool kit identifies common website accessibility problems and proposes solutions and other considerations to assist in developing ADA-compliant websites.  It also includes a detailed action plan for making existing web content accessible.  The checklist is intended to guide preliminary assessments of website accessibility, and policies and procedures for maintaining website accessibility. It should be noted that while the tool kit is primarily geared toward state and local governments, which are governed by a separate title (Title II) of the ADA, it will be helpful to companies to begin determining their compliance.  The DOJ has indicated that the same rules significantly impact the website accessibility requirements for companies, which are expected to be issued in 2018.  However, in the meantime, ADA lawsuits are being filed based on the general ADA standards and companies cannot wait until the 2018 requirements are issued to move their websites into compliance. It is far better to spend money now on your IT professional to ensure your company’s website compliance than to be liable for damages and penalties for non-compliance.  As always, if you have any questions concerning your company’s compliance with federal, state or local laws, the attorneys at Navigato & Battin are here to...

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Employers Beware: Gender-Neutral Bathrooms are Now Law in California

Posted by on May 1, 2017 in Newsflash | 0 comments

On March 1, 2017, AB 1732, or the Equal Restroom Access Act, went into effect.  The law seeks to combat gender identity discrimination by making it mandatory for all single occupancy restrooms in any business establishment, place of public accommodation, or government agency to be identified as all-gender toilet facilities.  For the purposes of this bill, a “single occupancy restroom” is defined as “a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.” What this means for companies and employers is that any business with single-occupancy bathrooms must make the bathrooms gender-neutral.  Additionally, the restrooms should be identified as all-gender toilet facilities by signage that complies with Title 24 of the California Code of Regulations.  As of now, this Bill does not apply to multi-stall bathrooms, nor does it require any workplace to add to existing facilities.  Therefore, if your workplace only provides multi-stall bathrooms, then this law does not affect your place of work. The bill allows an inspector, building official or other local official responsible for code enforcement to inspect for compliance with AB 1732.  While the bill does not provide for any penalty for non-compliance, employers and companies that fail to comply to run the risk of being sued for discrimination. If you have questions regarding AB 1732 or any other employment laws, the attorneys at Navigato & Battin are here to offer...

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The Necessity of Buy-Sell Agreements for all Co-owned Companies

Posted by on May 1, 2017 in Newsflash | 0 comments

As attorneys, we are unfortunately tasked with thinking through and planning for the worst case scenarios.  It is always easier (and significantly less expensive) to address possible negative outcomes and set a path for resolution that everyone is clear on and agrees with ahead of time, when everyone is getting along, than after the fact, when people are significantly less likely to be willing to work together.  This is one of the reasons we advise our co-owned company-clients to enter into buy-sell agreements with their co-owners early on.  A buy-sell agreement protects the company and its owners when a co-owner voluntarily or involuntarily leaves the company, or when there is a significant dispute or change of heart about how the company should operate. The purpose of the agreement is to predetermine how the owners’ ownership interests will be sold or transferred upon the happening of certain ‘triggering events.’  While the triggering events vary based on the company’s needs and goals, the most common triggering events include: divorce of an owner, death of an owner, bankruptcy of an owner or other assignment to creditors, permanent disability of an owner, or an owner’s withdrawal from active participation in the company.  It is basically a prenuptial agreement between business owners. The buy-sell agreement lays out the options the company and other owners have in the event a triggering events occurs.  For example, in the event of the death of an owner, many companies want the option to purchase the deceased owner’s interest from his/her estate rather than having the estate retain the ownership interest in the company (and potentially inserting a stranger into the business operations).  The buy-sell agreement would state exactly what the rights of the company and other owners are, including the formula for determining the value of the deceased owner’s ownership interest and setting out payment terms should the company elect to purchase the shares back. To ensure the availability of funds in the event of an owner’s death, many parties will purchase life insurance policies on each of the owners.  Thus, in the event of death, the proceeds from the policy are used to fund the purchase the deceased owner’s interest. While no one expects to get into disputes with their co-owners during these major events, the reality is that no one can predict the future and prudent planners will find a way to proactively address just what happens in the event a business relationship takes an unexpected turn.  A properly thought out and drafted buy-sell agreement can prevent fighting between family members, co-owners and spouses, keep the business afloat, and avoid liquidity problems that often arise on during these unforeseen events. If you are interested in discussing whether a buy-sell agreement is necessary for your company, the attorneys at Navigato & Battin are here to...

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Could AB 199 Destroy the Housing Marketing in California?

Posted by on Apr 4, 2017 in Newsflash | 0 comments

For the past several weeks, the construction industry has been buzzing with opinions regarding Assembly Bill 199 (“AB 199”).  AB 199, which was introduced by Assemblyman Kansen Chu, D-San Jose, and authored in part by the Construction Trade Council, requires that workers be paid “prevailing wage” on residential projects that have any agreement with the state or a political subdivision. The last portion of that phrase (“…any agreement with the state or political subdivision”) is the primary point of contention with AB 199.  Critics of AB 199, which include the California Chamber of Commerce, the California Building Industry Association, the California Business Roundtable, the California Manufacturers, and many other associations, argue that this phrase is ambiguous and that it could apply to the mere pulling of permits for a housing project.  If opponents are correct on this assumption, AB 199 would impact virtually every residential housing project in the state, with builders estimating it would raise home construction costs up to 45% and increase housing prices by approximately $90,000. For his part, Chu denies that this provision applies to the simple pulling of permits.  However, if AB 199 passes the Assembly and Senate and Governor Jerry Brown signs it into law, it will undoubtedly wind up in the courts for judges to interpret its meaning.  With so much at stake, one would hope for clearer guidance from the drafters of the legislation.  The first hearing on AB 199 was March 15th and drew a large opposition crowd.  It will certainly be interesting to see how the battle over AB 199 unfolds, and as always, Navigato & Battin, will keep you apprised of any new...

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Costco takes on Titleist

Posted by on Apr 4, 2017 in Newsflash | 0 comments

Avid golfers may be interested in the legal showdown between two industry giants, Costco and Titleist.  Costco sells golf balls – at $15 a dozen – under the brand Kirkland Signature.  Recently, the parent company of Titleist sent a letter to Costco claiming that the Kirkland Signature balls violated patents held by Titleist.  It also claimed “false advertising” based on Costco’s claim that all Kirkland Signature products “meet or exceed the quality standards of leading national brands.”  Titleist demanded that Costco stop selling the balls. Costco did not take Titleist’s written demand lying down.  Not only did Costco refuse to stop selling the golf balls, it filed a lawsuit against Titleist.  According to Dan Navigato (a partner at Navigato & Battin and avid golfer himself), “The lawsuit is in effect a preemptive strike by Costco.  By filing the lawsuit, Costco seeks an affirmative ruling by the court that the golf balls it is selling under the Kirkland Signature brand do not violate any of Titleist’s patents.” The lawsuit could take years to resolve.  Until then, you may want to stock up on the Kirkland Signature golf...

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