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Browse below for news, legal insights, information on presentations and events, and other resources from the Weintraub Tobin legal team.

Upcoming Speaking Engagement: Digital DIY: The New Wild West

Published: August 29, 2013

Intellectual Property/Entertainment attorney Scott Hervey will serve as the moderator for “Digital DIY: The New Wild West” at Westdoc 2013 on Tuesday, September 17.

Panel Description

Not everyone is using iTunes to sell their content online. Hear about alternative distribution avenues that will blow your mind. How are DIY sites such as Distrify, MoPix, FilmBinder, and Dynamo succeeding in this corner of the marketplace? Learn how to create your own site and understand the costs of making your content readily available for consumers in the long tail approach to indie distribution.

The panel discussion includes the following speakers:

  • Barry Blumberg, Executive Vice President, Alloy Digital
  • Gayle Gilman, Executive Vice President, Digital Content, Fremantle North America
  • Andy Green, Chief Operating Officer/Co-Founder, Distrify Unlimited
  • Drew McAuliffe, CTO and co-founder, MoPix

For more information or to register for the Westdoc Conference and attend this seminar, visit the Westdoc website.

Speaking Engagement: Philanthropic Advisor’s Forum Fall Forum

Published: August 28, 2013

Trusts and Estates Attorney Kay Brooks was a panelist at the Philanthropic Advisors’ of Greater Sacramento’s Fall Forum on Monday, September 30 from 5 to 7 p.m. The forum: “Exploring Creative Solutions with Charitable Case Studies” will be a lively, interactive experience and is intended for professional advisors. Drinks and appetizers will be provided.

The event was held at B Street Theater, 2711 B Street in Sacramento.

Upcoming Seminar: Pregnancy Leave, Accommodation & Discrimination

Published: August 26, 2013

Don’t Wait for the Stork To Teach You What It All Means

Summary of Program
Join the Employment Law Group of Weintraub Tobin for an informative and up-to-date discussion about the rights and obligations of pregnant
employees.

Program Highlights

  • Pregnancy Disability Leave (PDL)
    • What is it?
    • Which employers are covered?
    • When is an employee eligible?
    • How should employers administer the leave?
  • PDL versus FMLA/CFRA
    • How do they relate or overlap?
    • How should employers administer overlapping leave?
  • Reasonably Accommodating Pregnant Employees
    • Do you have to?
    • If so, what is required?
    • What are the consequences if the employer fails to accommodate?
  • Pregnancy Discrimination
    • What is it under federal and state law?
    • How can you avoid it?
  • What are the Courts saying?
    • Recent decisions.

Seminar Program
9:00 a.m. Registration and Breakfast
9:30 a.m. – 11:30 a.m. Seminar
Approved for 2 hours MCLE credit; HRCI
credits available upon request.
There is no charge for this seminar.
RSVP
Ramona Carrillo
400 Capitol Mall, 11th Fl.
Sacramento, CA 95814
916.558.6046
rcarrillo@weintraub.com

This seminar is also available via webinar. Please indicate in your RSVP if you will be attending via webinar. If attending via webinar, MCLE and
HRCI credits will be provided upon verification of attendance for the entirety of the webcast.

Parking
Parking validation provided. Please park in the Wells Fargo parking garage, entrances on 4th and 5th St.

Chris Chediak named 2014 ‘Lawyer of the Year’ for Corporate Law

Published: August 21, 2013

Sacramento, California – Weintraub Tobin Chediak Coleman Grodin, a business law and litigation firm, announces that Chris Chediak has been named Northern California’s Lawyer of the Year in Corporate Law for 2014 by Best Lawyers in America®. After more than a quarter of a century in publication, Best Lawyers is designating “Lawyers of the Year” in high-profile legal specialties in large legal communities. Individuals are named to the list based on their particularly high level of peer recognition.

Chris is a shareholder in the firm’s Corporate department. He represents public and private clients in a variety of industries including technology, private equity, agri-business, manufacturing and trade associations. Chris routinely represents and counsels clients on a broad range of legal and business matters involving corporate governance, corporate finance, mergers and acquisitions, fiduciary duties and licensing and distribution arrangements. His practice encompasses transactions for companies of all sizes ranging from growth companies to well capitalized publicly traded corporations, for profit and non-profit companies, partnerships, limited liability companies and joint ventures.

Chris was also named 2009 “Lawyer of the Year” by Best Lawyers.

Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 36,000 leading attorneys cast almost 4.4 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Eight Shareholders Named 2014 Best Lawyers in America®

Published: August 20, 2013

Weintraub Tobin Chediak Coleman Grodin, a business law and litigation firm, is pleased to announce that eight of its partners were recently selected by their peers for inclusion in the 2014 edition of Best Lawyers in America®. The honored attorney are:

  • Chris Chediak, Corporate
  • David Adams, Leveraged Buyouts and Private Equity Law, Corporate Governance Law
  • Dale C. Campbell, Commercial Litigation
  • Jim Clarke, Litigation & Controversy – Tax, and Tax Law
  • Dan Eng, Banking and Finance Law, Corporate Governance Law, Leveraged Buyouts and Private Equity Law, Securities/Capital Markets Law
  • Louis Gonzalez, Real Estate Litigation
  • Michael A. Kvarme, Real Estate Law
  • Charles L. Post, Employment Law – Management and Litigation – Labor & Employment

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 16th edition of The Best Lawyers in America® (2014), is based on more than 2.8 million detailed evaluations of lawyers by other lawyers.

SAHRA Annual Conference: To Tweet or Not to Tweet: Social Media and Employee Privacy Rights

Published: August 16, 2013

Employers are now faced with a variety of issues stemming from employees’ social media participation, such as: unproductive use of time during workers hours, making statements that may violate the company’s harassment/discrimination policies, and sharing confidential/proprietary information.

Employers are often left asking: Just how far into the Internet do my rights go? And how far into my business do my employees’ privacy rights go under California law? Recently the National Labor Relations Board has also let employers know not to forget about the NLRA and its interpretation of social media as a way for employees to engage in collective action.

Through this presentation session, HR professionals will learn effective strategies for the design, implementation, and enforcement of social media policies in the workplace. Presentation topics will answer these questions:

• What should a workplace social media policy do and say?

• Are employees’ social media interactions private?

• Are employees’ social media interaction protected by the National Labor Relations Act?

• How do you enforce a workplace social media policy?

Please make sure to bring your best workplace tweets/Facebook posts to discuss!

2013 Annual Sacramento Area Human Resource Association (SAHRA) Conference

Date:

August 22, 2013

Time of Speaking Engagement:

2:15 – 3:15 p.m.

Location:

1400 J Street
Sacramento, CA 95814

To register, visit the SAHRA website.

Upcoming Webinar: FSMA Made Simple: Strategic & Tactical Approaches In Preparing For New Regulations

Published: August 9, 2013

Attorneys Lee Smith and Alden Parker will present at an upcoming webinar: “FSMA Made Simple: Strategic and Tactical Approaches In Preparing for New Regulations” at 2 p.m. August 14.

After participating in this webinar, attendees will have knowledge of how to realistically analyze the effects of FSMA regulations on their operations and build an action plan of next steps for their company.

The Food Safety Modernization Act (FSMA) presents a daunting collection of both newly enforced and proposed regulations impacting food processors. While some of the regulations, are in effect now and must be carefully managed, other FSMA components like the Preventive Controls regulation are still in the proposal phase. Talking heads are advising us to go full-steam forward with implementing these regulations in processing operations, and there are FSMA products and services already being offered. Given this current situation, what is a practical and realistic strategy to minimize risk and regulatory action against your company, while controlling costs and running efficient operations?

During this webinar, we will address this dilemma by looking at strategic and tactical responses that can help us “wrap our arms” around the new FSMA regulations. We will briefly review the details of new requirements, and then jump into how to manage compliance at both a corporate and plant level. An important tool for analyzing the impact of these regulations and developing an action plan is gap assessment. Examples of how to conduct gap assessments for the whistle blower protection, records requirements, and preventive controls rules will be presented.

Webinar Agenda:

  • Overview of the Food Safety Modernization Act (FSMA) Regulations
    • Who does it apply to?
    • Why was it created?
    • What is now in effect that will impact my company and what is pending?
  • Currently Implemented FSMA FDA rules
    • Registration, Re-registration, Suspension of Registration
    • Inspection Frequencies and Record Access
    • Administrative Detention
    • Recall Authority
    • Fees: Recalls, Re-inspection
    • Whistleblower Provision
    • Imports
  • Proposed Regulations For Food Processors: Preventive Controls
  • Strategic Planning for FSMA Compliance
    • Executive and Management Team Roles
    • Controlling Risk for the Company
    • Developing a Road Map for Implementation
    • Gauging FSMA Impact on Company through Gap Assessment
    • Example GAP Assessments: Whistleblower Provision, Record Requirements, and Preventive Controls
  • Tactical Response to FSMA
    • Corporate Programs
    • Factory Systems
  • Best Practices and Pointers to Control Costs
    • What products and services are essential and legitimate for FSMA?
    • What really requires immediate implementation?
  • Building a FSMA Action Plan to Guide Our Next Steps
  • Questions and Answers Session

Who will benefit from this webinar:

  • Executive management team
  • Regulatory compliance managers
  • Executive Quality and Food Safety managers
  • Legal counsel
  • Plant manager
  • Quality Assurance Manager
  • Company owners
  • Food safety and HACCP Manager
  • Consultants

Presenter–Jeff Kronenberg
Jeff Kronenberg, M.S., is Extension Food Processing Specialist with the University of Idaho, School of Food Science. Over the past 30 years he has held positions in operations and corporate quality, productivity, food safety, HACCP, and health & safety with Frito-Lay, the J.R. Simplot Company, PowerBar, AIB International, and University of Idaho. Jeff has worked with numerous company and supplier processing operations in developing, training, and implementing quality, food safety and HACCP systems. Through his industry affiliations, Jeff has worked with, and audited, food manufacturing and distribution companies across the United States in the areas of product quality, food safety, and HACCP. Over the past 12 years, he has spearheaded the introduction of Lean Manufacturing to the food industry in Idaho. Jeff holds a Master’s Degree in Food Science and Microbiology from Cornell University. He holds HACCP certifications through the Association of Food and Drug Officials (Seafood HACCP Trainer), the American Society for Quality (HACCP Auditor), International HACCP Alliance, and Safe Quality Food Institute (SQF Consultant). Jeff also holds a Lean Knowledge Certificate from the Society of Manufacturing Engineers.
Presenter–Lee N. Smith, attorney
Lee is a shareholder of Weintraub Tobin in Sacramento and Fresno. His practice includes Prop 65 and Food Safety issues, land use regulation and development, environmental compliance, water law and litigation. Lee will address the FSMA record-keeping requirements.

Presenter–Alden J. Parker, attorney

Alden is a shareholder in the Labor and Employment Law and Litigation Sections at Weintraub Tobin Chediak Coleman Grodin. His employment practice includes defending employers in all areas of employment law. He has extensive experience defending against sexual harassment, discrimination, retaliation, and wage & hour class action litigation in both federal and state courts. Alden will address employment issues relating to FSMA including important whitsleblower regulations.

To register, visit the Food Seminar International Website.

The Ninth Circuit Throws a Penalty Flag Against Electronic Arts

Published: August 9, 2013

by Dale C. Campbell

On July 31, 2012, the Ninth Circuit issued its ruling protecting the right of privacy held by collegiate athletes against the use of their likeness in connection with video games. (Keller v. Electronic Arts, Inc. (2013) 9th Circuit Court of Appeals 10-15387. This decision joins the Third Circuit’s decision in Ryan Hart v. Electronic Arts, Inc., U.S. App. LEXIS 10171 (3d Cir. 2013), finding that the collegiate athletes’ right to publicity outweighs Electronic Arts’ First Amendment rights.

Sam Keller was a starting quarterback for Arizona State in 2005, before joining Nebraska in 2007. Electronic Arts (“EA”) is the producer of a series of video games known as NCAA Football, in which EA seeks to replicate a school’s entire team as closely as possible. NCAA Football is an interactive game that allows the video gamer a wide range of playing options including modification of a player’s size and abilities as well as for which team he plays. Keller sued EA and the NCAA in a putative class action. EA filed a SLAPP motion (“Strategic Lawsuit Against Public Participation”), claiming that this conduct was protected by the First Amendment. The District Court denied the SLAPP motion, and EA appealed.

The Ninth Circuit recognized that video games, like books, plays, and movies, are entitled to the full protections of the First Amendment. (Brown v. Entm’t Merchs. Ass’n, 131 S.Ct. 2729, 2733 (2011). However, the First Amendment rights are not absolute, and states may recognize the right of publicity to a degree consistent with the First Amendment. (Zacchini v. Scripps-Howard Broad Co., 433 U.S. 562, 574-75 (1977).)

California’s right of publicity is codified in Civil Code section 3344 as well as common law. Civil Code section 3344 prevents the use of another’s likeness “in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling . . . without the person’s prior consent.” EA raised four First Amendment privileges as defenses. The first, and most viable, potential defense is the “transformative use defense” as formulated by the California Supreme Court in Comedy III Productions, Inc. v. Gary Sandrup, Inc., 25 Cal.4th 387 (2001). The transformative use defense is “a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.” (Id.) The protected economic interest in a celebrity’s right of publicity diminishes when the work contains substantial transformative elements.

The court in Comedy III set forth five factors to consider in determining whether a work is sufficiently transformative. First, if the celebrity likeness is just one of many elements from which the work is developed as compared to whether the likeness is the “very sum and substance of the work in question.” Second, the work is protected if it is primarily the defendant’s own expression so long as that expression is something other than the likeness of the celebrity. This element has been described to examine whether the consumer is purchasing the work primarily because it is a replicate of the likeness of the celebrity or is purchasing the work because of the creative elements added by the defendant. Third, each of the five factors is to be applied more quantitatively than qualitatively in order to avoid debates over artistic expression. In other words, do the creative elements predominate over the likeness of the celebrity? Fourth, the court is to consider whether the economic value of the work is primarily due to the likeness or fame of the celebrity. Lastly, there is no transformative work if the overall goal is to create a traditional likeness or portrait of the celebrity so as to exploit his or her fame.

In addition to Comedy III, the Ninth Circuit examined three other California decisions applying the transformative use defense: Winter v. DC Comics, 30 Cal.4th 881 (2003); Kirby v. Sega of America, Inc., 144 Cal.App.4th 47 (2d Dist. 2006); and No Doubt v. Activision Publishing, Inc., 192 Cal.App.4th 1018 (2d Dist. 2011). Applying the five factors, the Ninth Circuit found that EA’s depiction of Sam Keller was not protected by the transformative use defense. Although all players, including Mr. Keller, could be modified by the video gamer, such control did not outweigh Mr. Keller’s right of publicity. The Court found that, just as in the No Doubt v. Activision Publishing, Inc., the characters in the EA NCAA Football video series were literal recreations of the collegiate players engaging in the same activities, and in the same settings, in which they gained their fame. The transformative elements of the overall video game that allowed the video gamer to manipulate certain elements of the characters, settings, and plays did not overcome the literal recreation of the collegiate players.

Judge Sidney R. Thomas issued a dissent, finding that a “holistic” examination of the video game established that the “transformative and creative elements” of the work “predominate over commercially based literal or imitative depictions.” Judge Thomas criticized the majority decision, focusing on a single athlete’s likeness rather than examining the video game as a whole.

The majority, and dissenting Judge Thomas, gave little weight to the other three First Amendment defenses argued by EA.

The Ninth Circuit was now joined by the Third Circuit in finding that the transformative use defense did not protect EA against claims for violation of the collegiate players’ right of publicity. The Third Circuit denied EA’s petition for a hearing en banc. One can only assume EA will make the same request for the Ninth Circuit. Unless overturned by the United States Supreme Court, these two decisions affirm substantial rights for collegiate athletes to protect the use of their likeness for commercial purposes without their consent. The economic consequence to EA and the NCAA will undoubtedly be substantial.

The EEOC Is Now Officially An Employee-side Employment Law Firm

Published: August 9, 2013

For years, California’s employers have suspected that the EEOC is not the neutral investigative agency it holds itself out to be. Through the process of dealing with recalcitrant advocates, err investigators, employers know all too well that often times the EEOC seems to be on a mission that is anything but a straight forward fact finding mission. The EEOC’s latest alleged actions further demonstrate that this Federal Governmental Agency may now have fully crossed the Maginot line into the land of openly being one of the many employee side plaintiff’s law firms that dot California’s golden shores.

Recently, the EEOC is alleged to have sent out emails to more than 1,000 Case New Holland, Inc. employees, soliciting potential plaintiffs for a class action against the company. The regular plaintiff’s bar is salivating at this gross solicitation, where our Rules of Professional Responsibility prohibit such conduct, either directly or through a shill, i.e. other governmental employees. Perhaps the EEOC put in their email “Attorney Advertisement.” Well, the company will likely find out exactly how the process over at the EEOC’s marketing department was designed through their recently filed lawsuit against the Agency. The lawsuit, filed August 1, seeks injunctive relief prohibiting the EEOC from engaging in this type of conduct in the future. As many know, this writer never roots for a plaintiff. However, in this case I am making an exception. Go CNH!

DTSC Issues Final Green Chemistry Regulations

Published: August 5, 2013

With little public notice the final version of the Green Chemistry regulations has been released. The final regulations show no substantive changes made to the regulations from the April version that has already been reviewed and commented upon. OAL has until August 29 to complete its review of the regulations which requires OAL to make a number of findings and when OAL signs off the regulations become effective. http://www.dtsc.ca.gov/SCPRegulations.cfm

In summary, the DTSC from a list of “Candidate Chemicals” will identify particular “Chemicals of Concern” and “Priority Products” for which an analysis of alternative chemicals must be accomplished to determine how to limit exposures or the adverse level of environmental impacts. The DTSC is then to identify and require implementation of a regulatory responses for Priority Products if the manufacturer retains theProduct and the chemical of concern. There are also listing and delisting provisions for Candidate Chemicals.