With the end of 2022 fast approaching, it is time to look back on everything that has unfolded since January. A year that was billed as a return to a sense of normalcy after the shock of the COVID-19 pandemic was instead marred by geopolitical turmoil and a widespread economic slump. This has of course made for significant developments in the legal sphere, which we dive into more deeply in this edition. Our front cover feature comes from Paul J. Leaf, partner at Seyfarth Shaw and a specialist in California employment law. In an exclusive interview with Lawyer Monthly, he reflects on the organisational consequences of retroactively applied employment law in his jurisdiction, along with valuable insights gleaned from his own prolific career in the sector. You can read more about his unique perspective on page 12. The December edition also comes equipped with three further stories from featured bookers. Consider turning to page 20 to read about the fascinating career stories of Shannon Dorvall and Afshin Yazdani in the My Legal Life section, or to page 26 to gain fresh insights from Mishcon de Reya partner Robert Wynn Jones as he shines a light on how his team work tirelessly to obtain freezing injunctions in international fraud investigations. All are guaranteed to be of interest. For further intriguing stories from the world of law, from an exploration of the toxic mindsets of ‘superstar’ lawyers to the value that effective estate planning holds for women, you can find many more incisive features in this new edition. All of these features have been carefully curated to cap off a year of exemplary practice in the legal sector, and we hope to see you again next month as we look forward to what the new year will have in store for us. We hope that you enjoy this edition. LAWYER MONTHLY©2022 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com. The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Approx. 302,000 net digital distribution. Oliver Sullivan Editor Lawyer Monthly Welcome to Lawyer Monthly Magazine DECEMBER 2022 EDITION @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 Production Team: Emma Tansey, Luke Ostle, Nathan Athersmith email@example.com Sales Enquires: Jacob Mallinder Jacob.firstname.lastname@example.org
Contents 50 54 6 Monthly Round-Up 8 Lawyer Moves FEATURE OF THE MONTH 12 Paul Leaf California Employment Law and Retroactivity MY LEGAL LIFE 20 Shannon Dorvall A Close Look at Expungement 26 Afshin Yazdani The Life of an International Immigration Lawyer SPECIAL FEATURES 34 How the Kafala System Shaped Qatar Oliver Sullivan, Lawyer Monthly 38 Is Political Ideology Now a Leading Cause of Divorce? Tenny Amin, The Amin Law Group EXPERT INSIGHT 44 Obtaining and Keeping Freezing Injunctions Robert Wynn Jones, Mishcon de Reya LLP 50 Ensuring Effective ‘Virtual’ Mediation Robin Burley, Eskhill & Co 54 The Essentials of Estate Planning for Women Zakiya Norton & Somita Basu, Norton Basu LLP 58 Do Top Lawyers Make Top Leaders? Charlène Gisèle Bourliout THOUGHT LEADER 64 2023’s Challenges for French Retailer-Supplier Negotiations Anne Granger, FLV & Associés 68 Moving the Needle on Fraud James Tebbs & Kassem Younes, Ankura 72 Gaming Law and Canada’s Indigenous Peoples Murray Marshall, Kahnawà:ke Gaming Commission TRANSACTIONS 76 What’s Happening in the World of M&As and IPOs?
Monthly Round-Up DECEMBER 2022 UK Supreme Court Rules Out Second Scottish Independence Referendum Supreme Court judges unanimously ruled against the Scottish government's claim that it can hold a second independence referendum without UK parliamentary permission. Numerous Twitter employees took to the social media site to post that they had discovered they were fired upon realising they could no longer log into their work email accounts or laptops. Emmanuel Cornet and other plaintiffs in the class action lawsuit claim that their termination came without proper written notice, constituting a violation of US and California law. Since the wave of mass layoffs was launched, Twitter has asked dozens of sacked employees to return. Some were allegedly let go by mistake, while others were determined to possess knowledge necessary for the implementation of new features planned by Musk statement on the decision. Sturgeon also stated that the SNP would use the next UK general election as a “de facto referendum” to demonstrate that a majority of the Scottish people supported independence. 10 Downing Street later told journalists that it disagreed with Sturgeon’s plan. In announcing the ruling, Lord Reed said that legislation for a second referendum would relate to “reserved matters” and was therefore outside the powers of Holyrood. The Court’s decision is a setback for Scottish nationalists, who have argued that the country’s voters should determine its future as part of or separate from the United Kingdom. The first minister, Nicola Sturgeon, criticised the ruling, but vowed to continue the Scottish National Party (SNP)’s push for independence. “Today’s ruling blocks one route to Scotland’s voice being heard on independence – but in a democracy our voice cannot and will not be silenced,” she said in a Twitter faces a class action lawsuit from former employees who allege that they were not given the advance notice of their redundancy required under US federal law. The lawsuit was filed in the US District Court in the Northern District of California on Thursday 3 November as news broke of an impending wave of mass layoffs to follow on Friday. The layoffs come as part of a plan by Elon Musk, the social media platform’s new owner, to reduce costs by cutting 3,700 employes, amounting to half of its total workforce. Lawsuit Launched Against Twitter Over Mass Layoffs 6 LAWYERMONTHLYDECEMBER 2022
FTX Founder and Celebrity Backers Sued Amid Crypto Collapse Law Firms See Sector-Wide Profit Loss as Demand Falls Larry David, Tom Brady and Shaquille O'Neal are named among the defendants named in a class action lawsuit over the cryptocurrency platform's downfall. The global legal sector's profits have been hit by slowing demand and soaring operational costs, according to a worldwide sector snapshot by Thomson Reuters. 10.8% and 12.8% respectively. The report also noted that most law firms’ responses to the elevated costs has been to “wait it out” and continue with seasonal hiring. “With fresh memories of the difficulty of rehiring talent, law firms seem willing to accept some productivity contraction in the short term,” the report stated. FTX filed for Chapter 11 bankruptcy in the US on 11 November. BankmanFried resigned as CEO on the same day, following a week of turmoil regarded as the biggest collapse in the crypto sphere to date as the platform’s users rushed to withdraw more than $6 billion within 72 hours. Rival Binance abandoned a proposed rescue deal. Many of the company’s celebrity advocates have since sought to distance themselves from the brand, with Brady deleting a number of tweets tagging BankmanFried and the Miami Heat basketball team removing the FTX logo from the roof of its home court. a drop in transactional work compared to the previous year and an increase in lawyer salaries as a result of the escalating war for top talent. The report also noted that the costs of staff returning to physical offices post-pandemic will have compounded expenses. Firms’ direct expenses and overhead expenses grew by controlled, promoted, assisted in, [or] actively participated in FTX Trading” to encourage investment in the platform, which the suit refers to as a “Ponzi scheme”. Alleging that defendants stand to lose $11 billion from FTX’s collapse, the suit seeks unspecified monetary damages. The report showed that overall demand for legal services in Q3 this year was down 0.7% compared to the same period in 2021. Labour and employment was one of the few practice areas to see an uptick in demand, rising 0.3%, while M&A advice collapsed by 13.7%. Thomson Reuters attributed the loss of demand to both The complaint, which was filed on 15 November in Florida federal district court on behalf of FTX users, names these celebrities and others alongside founder and former CEO Sam BankmanFried. The lawsuit alleges that the defendants each “either MONTHLYROUND-UP 7
Lawyer Moves RECENTAPPOINTMENTS FROMACROSS THEGLOBE Gregory M Shumaker is slated to become Jones Day’s latest Managing Partner, succeeding Stephen J Brogan to become the eighth such figure in the firm’s 130 years of operation. The appointment will go into effect on 1 January 2023. Shumaker has spent his entire legal career with Jones Day, having joined after graduating from Brown University and the University of Notre Dame Law School, where he was Notes Editor of the Law Review. He made partner in 1997 and has since served in several leadership roles, having at points been Partnerin-Charge of the Washington Office, Firmwide Hiring Partner and, since 2015, leader of the firm’s 200-lawyerstrong Global Disputes Practice. Shumaker has been involved in a number of high-profile litigation matters during his 35-year career with Jones Day, including the firm’s involvement in the Detroit bankruptcy litigation, the largest municipal bankruptcy in history. Stephen J Brogan, who helped recruit Shumaker to the firm in 1986, lauded his ascension to Managing Partner. "Greg is a natural born leader who has a disarming charm while at the same time possessing an iron will to protect our clients and the firm,” Brogan said. “He will be a wonderful steward and take great care of our institution and the more than 20,000 people whose lives depend upon its good fortune. Jones Day is blessed to have him assume the role of its eighth Managing Partner.” Shumaker also praised Brogan’s tenure at the firm. "Steve Brogan has been one of the most consequential Jones Day partners in its long history," Shumaker said. "Throughout a near half-century of service to the Firm, he has been the person most responsible for transforming Jones Day from a high-quality national law firm with a Midwestern base into a uniquely integrated global law partnership, in which attorneys throughout all offices work collaboratively to provide the highest level of client service." International law firm DAC Beachcroft has announced the appointment of Fabio Corominas as a partner in the firm’s Mexico City office. Since 2017, Corominas has served as founding partner at boutique litigation firm Harrsch & Corominas, which focused on commercial litigation and arbitration. Prior to this, he served as Head of Litigation at the City Hall of Naucalpan, México State, where he was responsible for leading the litigation team in all disputes involving the Municipality. He also previously served as the Head of Litigation for the Mexico Tourism Board, and began his career with a nine-year stint in Baker & McKenzie’s litigation team. “Fabio is well known in the Mexican market and highly experienced in both public and private sector litigation,” said Miguel Ángel De la Fuente, head of DACB’s Mexico office. “He brings local litigation expertise, a well-developed understanding of client service, an international approach, and a background in managing his own business that will be invaluable to our growing team here. We’re delighted to welcome him to the team.” DACB’s Head of Latin America, Andrés Amunátegui, also hailed Corominas’s arrival. “With his strong portfolio of civil, commercial and administrative litigation, Fabio will be key in helping us further develop our capabilities in Mexico and beyond, ensuring our clients receive the best possible service across LatAm,” he said. DLA Piper has hired energy and natural resources specialist Karin Maalioun to its international projects practice. Maalioun joins from Canadian firm Fasken. Maalioun’s expertise lies in the energy and natural resources sector, with more than 20 years’ worth of experience in projects across the Middle East and Africa. Prior to joining Fasken in 2018, he was a partner in Squire Patton Boggs’s Paris and London offices, and earlier served as general counsel for EMEA at fossil fuels company ContourGlobal. Maalioun advises purchasers, vendors, lenders, developers and equity investors on complex large-scale projects and transactions. DLA Piper sought him out for his experience in working with African governments, financial institutions and indigenous communities to provide legal and policy advice, with a particular emphasis on addressing sustainable energy and mining policy. “Karim’s appointment builds on our recent investments, supporting one of our key strategic priorities – expanding our capability in the African and Middle Eastern markets,” said Colin Wilson, head of DLA Piper’s international projects practice. Jones Day Appoints Eighth Managing Partner DAC Beachcroft Hires Leading Litigation Partner in Mexico DLA Piper Adds London Partner for Africa-Focused Projects USA Jones Day London, United Kingdom DLA Piper Mexico City, Mexico DAC Beachcroft 8 LAWYERMONTHLYDECEMBER 2022
Squire Patton Boggs has announced the appointment of Carlos Blanco Morillo as its latest partner in the firm’s Madrid-based corporate law practice. Blanco is a leading private equity lawyer who joins SPB from Roca Junyent, where he served as head of its Madrid corporate and M&A office and previously as its office managing partner. Mr. Blanco arrives with three associates. As a recognised private equity specialist with more than 15 years’ worth of experience in high-level Spanish domestic and international corporate transactions, Blanco’s hire furthers the firm’s strategic expansion across Europe. He joins two weeks after SPB’s announcement of a Dublin office to be headed by private equity and corporate partner Dennis Agnew. “Squire Patton Boggs has shaken up the legal landscape in Spain and is now the emerging powerhouse for mid-market private equity and M&A in the region and across Europe,” Blanco said in a statement on his appointment. “I look forward to being part of the team that takes it to the next level.” Blanco joins SPB’s Madrid corporate and M&A division alongside an intake of three associates. Dechert has announced its appointment of Maria Sit as Managing Partner for its Hong Kong office. Sit, a highly regarded lawyer who specialises in financial services regulation and complex civil litigation and dispute resolution, initially joined Dechert’s Hong Kong office in 2019 as partner in the firm’s Trial, Investigations and Securities Group. Thereafter, she was quickly promoted to the firm’s Asia head and global co-leader of its White Collar, Compliance and Investigations practice. In addition to her experience as former in-house counsel at the Securities and Futures Commission of Hong Kong, Sit has gained more than two decades of litigation experience focusing on complex commercial litigation and boasts an impressive track record of representing clients on crucial matters in mainland China and Hong Kong, as well as a number of other jurisdictions around the world. Eric Deltour, head of Dechert’s Asian offices, described Sit as “a highly esteemed lawyer who has demonstrated strong leadership skills and dedication to her work, clients and the firm’s overall growth and success”. Squire Patton Boggs Bolsters Madrid Private Equity and M&A Practice With New Partner Dechert Hires New Hong Kong Managing Partner Hong Kong Dechert Madrid, Spain Squire Patton Boggs LAWYERMOVES 9
Employment is one of the fastestdeveloping areas of law today. Pertinent to every organisation and deeply intertwined with new technological advancements and societal changes, employment law must constantly be innovated to ensure that workers remain protected and employers understand what is expected of them. Naturally, this rapid evolution requires organisations to pay close attention to avoid being caught flat-footed – no easy feat when, in jurisdictions like the state of California, new employment case law is regularly applied retroactively. What impact does this have on some of the state’s biggest employers? Our featured booker of the month, Seyfarth Shaw’s Paul J. Leaf, explores further overleaf. FEATURE OF THE MONTH
California Employment Lawand the Dangers of Retroactivity Paul J. Leaf Wide-reaching – and sometimes unexpected – changes in employment law are important to all businesses in the US, because they must continually ensure their compliance with fast-evolving and hyper-technical legal requirements. These challenges are compounded for larger companies with a national footprint, given that employment law requirements may differ in each state. California is a perfect example, where its Supreme Court frequently announces law unique to that state and applies its rulings retroactively. This compels organisations to constantly partner with legal counsel to anticipate upcoming decisions or risk significant class action and representative PAGA lawsuits for past and future conduct. This month, we have the fortune to hear from Seyfarth Shaw partner Paul J. Leaf. In this featured article, he draws upon his wealth of experience in California employment law to explain the pitfalls of and defences to retroactively applying new California Supreme Court rulings, while also delving into ongoing developments in California employment law. Feature of theMonth 12 LAWYERMONTHLYDECEMBER 2022
FEATUREOF THEMONTH 13 What are some hot issues in California employment law? Practicing in one of the most employeefriendly states, there is never a dull moment when advising my business clients about California employment law. I work on a wide range of employment issues, often on the following repeat matters: (1) independent contractor misclassification claims; (2) protecting my clients from the retroactive application of new California employment law that invalidates how they previously operated; and (3) strategising about how to deal with PAGA claims, including by updating arbitration agreements. What is California’s ABC test, and is it being applied retroactively? In 1989, the California Supreme Court announced that SG Borello & Sons, Inc v Department of Industrial Relations, 48 Cal. 3d 342 (1989) controls whether workers are independent contractors or employees. Under this nine-factor test, no single factor automatically establishes employee status. Indeed, even if multiple factors indicate employee status, a worker can still be deemed an independent contractor. Despite businesses relying on Borello for nearly 30 years to structure their workforces, in Dynamex v Superior Court, 4 Cal. 5th 903 (2018), the California Supreme Court adopted a three-factor test to replace Borello for certain claims. The ABC test significantly expands the scope of employment, because if the hiring entity fails to establish any factor, the worker is deemed an employee. After Dynamex, the ABC test became effective immediately. Businesses thus had to scramble to assess whether their existing independent contractor relationships – even if lawful under Borello – could pass the ABC test. If a hiring entity was unsure whether it could satisfy the ABC test, it had to pivot to an employee model, modify its own business practices, or risk a misclassification lawsuit. The cost of such a lawsuit can be staggering, because misclassifying a worker as an independent contractor gives rise to a litany of derivative claims that may be actionable through class action and PAGA lawsuits, including willful misclassification, unpaid minimum wages and overtime, improper meal and rest breaks, failure to reimburse business expenses, inaccurate wage statements and untimely payment of wages. Willful misclassification alone can give rise to $25,000 in penalties for each worker misclassified as an independent contractor. What’s more, in Vazquez v Jan-Pro Franchising Int’l, Inc, 10 Cal. 5th 944 (2021), the California Supreme Court ruled that the ABC test applies retroactively. Thus, even if hiring entities had properly utilised workers as independent contractors while Borello controlled, the backwards application of Practicing in one of the most employeefriendly states, there is never a dull moment when advising my business clients about California employment law.
the ABC test created four years of potential class action liability and one year of potential PAGA liability during that Borello period. Are other key California court decisions relating to employment law being applied retroactively? Yes, because the California Supreme Court regularly applies its decisions retroactively, including when it announces new law. Based on statutes of limitations, such retroactive decisions generate four years of potential class action liability and one year of potential PAGA liability, often across multiple claims. This is because a single claim for unpaid wages gives rise to derivative claims, including penalties for inaccurate wage statements, penalties for untimely payment of wages and attorneys’ fees. Consider a few examples. For approximately 70 years, businesses in California relied on a federal doctrine holding that up to 10 minutes of work time each day need not be compensated if the time was difficult to track. This de minimis doctrine was endorsed by the US Supreme Court and then applied to California claims by the Ninth Circuit and the California Division of Labor Standards Enforcement (DLSE) – the state agency charged with enforcing California’s wage and hour laws. Further, a California Court of Appeal applied the federal de minimis doctrine in an employee compensation case. No California court had deemed the federal de minimis doctrine inapplicable under California law. But in Troester v Starbucks Corp, 5 Cal. 5th 829 (2018), the California Supreme Court rejected the federal de minimis doctrine. Troester is being applied retroactively. In 1990, 2011 and 2013, the California Court of Appeal held that an eight-hour sleep period could be excluded by written agreement from hours worked in a 24hour shift. The DLSE agreed that such sleep time need not be compensated. No California court had reached a contrary conclusion. But in Mendiola v CPS Sec. Sols., Inc, 60 Cal. 4th 833 (2015), the California Supreme Court first announced that sleep time during an on-call shift can be compensable. Mendiola was made retroactive. Since at least 2012, multiple federal courts concluded that premium pay – the hour of compensation owed to employees for an improper meal or rest break – is paid at an employee’s base hourly wage, not the potentially higher (and more difficult to calculate) regular rate of pay. In 2019, the first California Court of Appeal to consider this issue agreed. But in Ferra v Loews Hollywood Hotel, LLC, 11 Cal. 5th 858 (2021), the California Supreme Court held that premium pay must be paid at the regular rate of pay. Ferra was made retroactive. Starting in 2012, three California Courts of Appeal held that premium pay is not a wage that can trigger penalties for inaccurate wage statements or untimely payment of wages. At least seven federal courts applying California law agreed. But in Naranjo v Spectrum Sec. Servs., Inc, 13 Cal. 5th 93 (2022), the California Supreme Court parted ways with these authorities. The California Supreme Court has not barred retroactive application of Naranjo. What is your strategy to protect clients from the retroactive application of new California law? Among other strategies, I establish a 14 LAWYERMONTHLYDECEMBER 2022
defence that shields my clients from retroactive penalties, because those penalties – as opposed to any unpaid wages – are usually the greatest source of potential liability. When the California Supreme Court applies new law retroactively, the resulting owed wages are often small, but the derivative penalties stemming from those unpaid wages can be crippling. For example, with one employee, a single unpaid penny in wages can trigger up to $4,000 in penalties for inaccurate wage statements, up to 30 days’ worth of compensation for not timely paying the missing wages at separation (for an employee earning the $15 California minimum wage, these penalties max out at $3,600) and attorneys’ fees. That is $7,600 in penalties, plus attorneys’ fees, for one unpaid penny in wages. Multiply that by hundreds or thousands of employees, including employees earning above the minimum wage who trigger higher waiting time penalties, and companies are quickly facing significant liability. Under California law, an employer has a good faith dispute defence against these wage statement and waiting time penalties (among other wage-related penalties) if it reasonably believed it was following the law at the time and the law later changed, or if the law was unclear during the pertinent period. The mere fact that the California Supreme Court chooses to decide a case should necessarily establish the good faith dispute defence. After all, the California Supreme Court often takes up cases to resolve a split of authority among federal or lower state courts. Other times, federal appellate courts find it so difficult to forecast how the California Supreme Court will decide an issue of state law that they ask the California Supreme Court to decide the issue for them. Yet, as in all of the retroactively applied California Supreme Court cases discussed above, that Court often does not address whether a good faith dispute defence applies. As a result, companies must hire lawyers to litigate whether they are subject to penalties, and many companies are compelled to settle cases at inflated prices due to the spectre of massive penalties. Should the California Supreme Court change how it applies employment decisions retroactively and prospectively? Yes. Starting with prospective application, final California Supreme Court decisions are effective immediately. If a new decision entitles employees to additional wages, the employees should begin accruing those wages right away. But the California Supreme Court should provide a grace period before derivative penalties stemming from those wages can kick in. After all, some businesses have giant workforces with complicated personnel software controlled by third parties, which makes instant changes impossible. Smaller businesses may not have the resources to immediately figure out how to comply with new law. It is unfair to penalise well-intentioned, diligent employers that are willing to pay the new wages but simply need time to comply. Employers have advance notice of new laws passed by the legislature well before they become effective, which gives FEATUREOF THEMONTH 15 employers time to make changes and avoid penalties. The same should be true of new rules coming out of the California Supreme Court. Retroactively applying new law without the California Supreme Court specifying whether a good faith dispute defence exists essentially requires employers to predict the future or to constantly engage lawyers. Aside from a decision by the California Supreme Court, there is no official authority employers can consult to derive a definitive understanding of what California employment law requires and that will shield against future penalties if the law changes. As shown by Troester and Mendiola, employers cannot unreservedly rely on what the DLSE says about California law, because the California Supreme Court may ignore that agency’s interpretations and then retroactively apply contrary law without specifying whether the good faith dispute defence governs. Nor can employers unreservedly rely on opinions from the California Courts of Appeal or federal courts, because as shown by Ferra and Naranjo, the California Supreme Court can disagree with those courts and then retroactively apply contrary law without addressing the good faith dispute defence. The lack of a reliable self-help guide short of a California Supreme Court opinion leaves businesses having to constantly engage lawyers to anticipate forthcoming legal changes. But employment lawyers – even judges – cannot always predict how the California Supreme Court will decide an issue. For instance, Ferra shows that even when lawyers parse a statute and follow how the California Court of Appeal and multiple federal courts interpreted that statute, the California Supreme Court may disagree, make its decision retroactive without addressing the good faith dispute defence, and open employers who followed their lawyers’ advice and published court opinions to years of potential liability for unpaid compensation and penalties. In Ferra, the California Supreme Court held that premium pay must be paid at the “regular rate of pay”. That phrase is a term of art with a long-established meaning that is often used in statutes and Wage Orders to distinguish from the only I love the challenge of finding creative legal solutions that meet my clients’ business preferences.
the plaintiff’s individual PAGA claim has been compelled to arbitration. These holdings are significant because they allow businesses to avoid class actions and representative PAGA claims while remaining in arbitration. Businesses still face real PAGA risk, however. First, the California Supreme Court has granted review of Adolph v Uber to consider the second holding of Viking River. The California Supreme Court could decide this statutory standing issue in a way that permits a representative PAGA claim brought on behalf of other employees to proceed in court, irrespective of whether the plaintiff is arbitrating her individual PAGA claim. Still, some employers can get around Adolph and receive the full benefits of Viking River. For some businesses, all of their employees have signed an arbitration agreement with a PAGA waiver. This means that even if the PAGA standing portion of Viking River is undone by Adolph, and trial courts retain jurisdiction over representative PAGA claims after the plaintiffs have been compelled to arbitrate their individual PAGA claims, there will be no one available to participate in those representative PAGA actions. This conclusion derives from executed waivers, not standing, which makes Adolph irrelevant. To secure a dismissal, businesses must make this argument when courts intend to stay a representative PAGA claim until Adolph is decided. If a court nevertheless stays the case, the employer has great settlement leverage. Second, if this approach is followed, an employer can face a flood of individual arbitrations, assuming opposing counsel has access to a meaningful percentage of the workforce. Because California law requires employers to pay all expenses unique to mandatory arbitration, employers face significant arbitration costs not present in court, such as filing fees and arbitrator fees. To minimise these risks, employers can add mass arbitration protections to their arbitration agreements, including a process to arbitrate a few test cases while the rest of the portfolio is stayed and no arbitration fees are incurred. What other trends do you see on the horizon for California employment law? There are many future developments that employers should watch, including the following: Based on current trends, the California Supreme Court could make it unlawful for employers to round employee time punches. It already barred rounding of employee meal period time punches in Donohue v AMN Servs., LLC, 11 Cal. 5th 58 (2021). And more recently, the California Court of Appeal in Camp v Home Depot USA, Inc, 2022 WL 13874360 (Cal. App. Oct. 24, 2022), held that if employers have captured the exact amount of time employee have worked, rounding is unlawful, even if it benefitted the employees overall. other compensation metric available: an employee’s base hourly wage. The Ferra holding was not obvious beforehand because the statute and Wage Orders that require premium pay do not say it must be given at the regular rate of pay; a different term is used. Several district courts and the California Court of Appeal agreed that premium pay is given at the base hourly wage, because if the legislature intended premium pay to be given at the regular rate of pay, it easily could have said so, as it did elsewhere in statutes for different types of compensation. The California Supreme Court can resolve this retroactivity problem when it announces new law by opining then whether the good faith dispute defence is available. Sometimes these legal changes may be obvious and employers will be penalised. But when legal changes are not foreseeable, penalties are unfair and no employer should have to spend money fighting over the good faith dispute defence or be forced to accept inflated settlements. What is the Private Attorney General Act and what is the significance of the US Supreme Court allowing individual PAGA claims to be arbitrated? PAGA is a California statute that authorises employees to file lawsuits to recover civil penalties on behalf of themselves, other employees and the State of California for violations of the California Labor Code. A major reason that PAGA lawsuits have often been filed is a line of cases beginning with the California Supreme Court in Iskanian v CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348 (2014), which holds that PAGA claims cannot be waived or compelled to individual arbitration. But in Viking River Cruises, Inc v Moriana, 142 S. Ct. 1906 (2022), the US Supreme Court held that (1) a plaintiff’s individual PAGA claim can be compelled to arbitration and (2) as a matter of state law standing under the PAGA statute, a representative PAGA claim brought on behalf of other employees must be dismissed once 16 LAWYERMONTHLYDECEMBER 2022 The lack of a reliable selfhelp guide short of a California Supreme Court opinion leaves businesses having to constantly engage lawyers to anticipate forthcoming legal changes.
Under California Assembly Bill 51, employers may not require employees as a condition of employment to execute arbitration agreements covering claims under the California Fair Employment and Housing Act or the California Labor Code. In Chamber of Commerce of the US v Bonta, the Ninth Circuit will determine whether AB 51 is preempted by the FAA. Though PAGA claims need not meet class action procedural requirements, some courts hold that PAGA claims must nevertheless satisfy a similar standard of manageability. The California Supreme Court recently granted review in Estrada v Royalty Carpet Mills, Inc, 76 Cal. App. 5th 685 (2022) to resolve a split of authority concerning whether trial courts may strike or limit PAGA claims as unmanageable. On a personal level, what drew you to employment law in particular? I was initially a commercial litigator at Kirkland & Ellis LLP, learning from incredibly bright attorneys on ‘bet the company’ cases. But the ‘one and done’ nature of such litigation made it difficult for me to partner with clients so I could help steer their day-to-day business operations. After friends practicing employment law confirmed that working in this area would allow me to more deeply integrate with my clients, I joined Seyfarth Shaw in 2015. Being an employment lawyer has delivered on all fronts. I regularly work with the same clients on multiple cases, which gives me a significant understanding of their businesses. I then use lessons learned from litigation and attempt to predict future legal precedent to modify my clients’ policies and practices to minimise their liability. I love the challenge of finding creative legal solutions that meet my clients’ business preferences. My deep interest in employment law and desire to achieve great results for my clients make it easy to work very hard and passionately at my job. I was thus very proud to be recognised last year by the National Hispanic Bar Association as one of the top lawyers under 40 across the US. Can you share anything about your plans for 2023? Given my interest in policy, I want to argue a case before the California Supreme Court that defines a far-reaching part of California employment law. On a personal level, I want to dedicate more time to international travel with my wife and parents, publishing op-eds about US foreign policy (I have written extensively about China’s rise and other international security issues in the Indo-Pacific region), playing pickleball, and putting more miles on my Peloton tread. FEATUREOF THEMONTH 17 Contact Paul J. Leaf Partner, Seyfarth Shaw LLP 2029 Century Park East, Suite 3500, Los Angeles, California 90067-3021, USA Tel: +1 213-270-9724 Fax: +1 310-551-8449 E: email@example.com www.seyfarth.com About Paul J. Leaf Paul J. Leaf is a partner in the Los Angeles office of Seyfarth Shaw LLP. He represents businesses in employment and commercial disputes, with a focus on wage and hour class actions and representative PAGA actions. Paul also defends companies against claims of discrimination, harassment, retaliation, breach of fiduciary duty, wrongful termination, non-compete and nonsolicitation. Paul enjoys leveraging lessons learned from litigation and anticipating future legal developments to draft forward-looking personnel policies for his clients in order to prevent lawsuits altogether. Seyfarth Shaw LLP Seyfarth Shaw LLP provides advisory, litigation, and transactional legal services to clients worldwide. With approximately 900 lawyers across 17 offices, Seyfarth Shaw and its employment group consistently earn top spots in national rankings of law firms.
Each month, Lawyer Monthly Magazine has the privilege of interviewing the brightest and most ambitious movers in the legal space. In these conversations we dig into their areas of expertise, learning more about their practice and the stories behind their pursuit of excellence. We invite you to read on as Imhoff & Associates’ general counsel, Shannon Dorvall, calls upon a storied career as a defence attorney to discuss the use of expungement as vital tool for criminal reform, and as immigration expert Afshin Yazdani relates the trajectory of his life in law from Iran to Canada. Both lawyers represent the cream of their respective sectors and have packed their interviews with insights that any practitioner will find fascinating. MY LEGAL LIFE
Shannon Dorvall process. • Sealing makes records unavailable to the public but allows some agencies and individuals to access records. • Confidentiality laws generally only apply to juvenile records and require that states make juvenile records confidential, allowing access to schools, crime victims, the media, and the public in specific instances. Could you please explain the basic premise behind expungement? Who it is meant for and what does it entail? The general idea behind an expungement is a do-over or reset. It is meant for people who committed a minor crime like shoplifting, minor What distinguishes ‘expungement’ from ‘sealing’ or ‘confidentiality’? Expungement, sealing and confidentiality are three legally distinct methods of dealing with criminal records. • Expungement is the process of destroying and eliminating records. The goal of expungement is to make it as though the records never existed. While this is the goal, its results vary widely depending on the state where the expungement is requested. Often, the term ‘expungement’ is used where the process is actually ‘sealing’, whereas a true expungement requires destruction of the record. For example, Kentucky uses expungement and sealing interchangeably in practice. Other states like Idaho explicitly permit the use of the two terms for the same My Legal Life A Close Look at Expungement Expungement and other methods of criminal record elimination provide a vital role in allowing their recipients a fresh start at life. However, truly erasing such records is not straightforward and often has to be fought for through legal channels. Shannon Dorvall, general counsel at Imhoff & Associates, shares her specialised knowledge of expungement and its uses in this article. MY LEGAL LIFE 21
drug offences or driving on a suspended license. People make mistakes. Mistakes should not define people. Expungements are an opportunity to start fresh in job searches and other facets of life. Several people seeking expungements are people who did something ill-advised in their 20s or 30s and have moved forward, becoming an entirely different person often with a new life. Those small convictions can be the difference in failing to receive job offers or promotions in many fields. The goal is not to paper over someone’s past, but rather to give them another try. Most states allow for some form of expungement for misdemeanours and over half allow expungement of certain felonies. There is no broad or general federal expungement statute and federal courts do not have the authority to expunge records of a valid federal conviction. In most states where expungements are available, a person must prove they are worthy of the second chance. The grant of an expungement is not automatic. This is shown through an otherwise clean record, maintaining gainful employment, volunteerism and reference letters from loved ones. In California, we use the term ‘dismissal’, meaning that the Court reverses a guilty plea and enters a dismissal. On paper, it looks like the case was not prosecuted. Unfortunately, this produces no change to the person’s arrest record. The former requirement to seal and destroy an arrest record was a finding of ‘factual innocence’. This was a nearly impossible standard as the person was required to demonstrate they were actually innocent of the crime versus merely not guilty. This often required a finding that no crime occurred or determining the actual culprit with some finding of guilt regarding that person. Few people were successful in reaching that standard. Now, the law has been expanded to allow sealing and destruction of arrest records in many more cases, allowing more people a fresh start. For immigrations purposes, only full and unconditional pardons can avoid deportation for a criminal conviction. Expungements, sealing or other mechanisms are not recognised unless there was a substantive structural or procedural error during the conviction process that led to the post-conviction relief. What are the typical steps taken during expungement proceedings? Although each state differs, most require the person seeking the expungement to begin the proceedings since the process is not automatic after the completion of a sentence. The documents and information needed to complete the petition will vary based on jurisdiction. It may be imperative to have as much documentation such as arrest records, case numbers, judgments, etc. as possible to ensure the form is completed accurately. After the filing is prepared, applicants should be prepared to submit the filing fee required by the court. Applicants should research all the required fees prior to submitting their application to ensure it is not rejected or delayed. Some courts, where applicable, may have a filing fee per offence a petitioner is applying for. In states where a hearing is required for the expungement, the court will set a date. The hearing may be set anywhere from 30 days to months out depending on scheduling. Another important thing to remember is that law enforcement and other agencies may take several months to destroy records. Does this process differ where juvenile records are concerned? There is a common misconception that juvenile records are automatically sealed upon the juvenile reaching 18. The laws regarding this vary widely by state. Few states allow full expungement or sealing For immigrations purposes, only full and unconditional pardons can avoid deportation for a criminal conviction. 22 LAWYERMONTHLYDECEMBER 2022
of juvenile records, especially in the case of felonies. For those select few states, the process is usually not automatic. Probation or the prosecution has to make the request. Where juvenile records are subject to confidentiality while the person is a minor, the states have recognised the unique nature of these documents. The files go well beyond normal criminal proceedings to include things like mental health records, school records, grades, medical records, parental history, history of abuse and dozens of other intimate details. There is a movement to make this process automatic and remove barriers such as filing fees, but it is still off in the horizon. What California-specific laws affect how these proceedings are carried out and what offences may be expunged? California has been leading the charge in the area of automatic record sealing. Beginning on 1 August 2022, the court probation but later completed all terms of supervision. Previously, a probation violation would prohibit relief. Convictions for certain serious or violent felonies and registerable sex offences are not eligible for relief. What are the limits of what an expungement order can achieve? The expunged offence can still be used as a ‘prior’ to enhance sentences or charges in most instances, barring specific exceptions in state law prohibiting it. The person is usually also required to disclose an expunged conviction if they are seeking a licensure in certain fields like teaching or to obtain security clearance. In most cases, the expungement orders do not automatically restore firearms rights. Per 18 U.S.C. § 922(g)(1), convictions in any court punishable by imprisonment exceeding one year, whether the conviction is under state or federal law, are subject to the prohibition on possession of firearms under federal law. Certain state laws may also prohibit possession of a firearm. Domestic violence convictions also terminate firearms rights under federal law § 922(g) (9). People with state convictions may avoid the federal bars in §§ 922(g)(1) and (g)(9) if their convictions have been pardoned, set aside or expunged, or if their civil rights have been restored, unless the relief they obtained “expressly provides” that they “may not” possess firearms. See 18 U.S.C. §§ 921(a)(20), (a)(33)(ii). Automatic restoration of civil rights can restore firearms possession rights, but ambiguity remains. Circuits remain split on how to interpret the ambiguous language of § 921(a) (20). What does “free of state firearms disabilities” mean in order for a person to take advantage of the relief offered by §§ 921(a)(20) and (a)(33)? Also, the term ‘expungement’ in these federal laws is record of convictions set aside at any time under certain diversion and deferred entry of judgment code sections where the person has completed probation terms will be automatically sealed, per the ‘Clean Slate Act’ described below. Under this Act, the state records repository is presently prohibited from including in responses to requests from the public information about convictions that have been set aside in certain situations. Beginning 1 January 2023, California will expand automatic record relief to all felony non-convictions six years after the date of arrest. California law currently excludes felony arrests from eligibility for automatic relief if the charge is serious enough to potentially result in incarceration at a state prison. Other felony non-convictions remain eligible for automatic relief after three years unless the charge was punishable by eight years’ incarceration or more in a county jail. The law also expands eligibility for automatic relief to persons convicted of a felony and sentenced to probation on or after 1 January 2005 if they violated MY LEGAL LIFE 23
overbroad and there is an open question as to whether it applies if a record has been sealed but not completely destroyed. In what ways can modern internet-based media complicate the efficacy of an expungement order? Are there any ways to mitigate this? A few states have information-sharing agreements with private companies that sell records – including juvenile records – online for a nominal fee. Online record check companies often use out-of-date information pulled from public court dockets and arrest or inmate reports with little to no concern for the accuracy of the information. Those initial reports rarely match the current status of the person’s record but are difficult to correct. The online services can charge to ‘research’ a request for correction but are unlikely to correct the mistake short of a legal action. Clients and counsel should always keep copies of any orders granting sealing or expungement to strengthen their argument if there are online mistakes. How can legal counsel act to ensure that a request for expungement has the best possible chance of success? Counsel can assist clients in gathering and presenting the request in the best light. The prosecutors are usually given notice and an opportunity to object to motions where the court has discretion in granting the request. As with any situation involving courts and prosecutors, clients are best served by having an experienced advocate to assist them. What legislative trends are you seeing in this area? Ban the Box ‘Ban the box’ legislation seeks to remove questions about criminal history from employment applications. Specifically, it seeks to eliminate the checkbox that asks if applicants have been convicted of a crime. Approximately 31 states, including California, have passed some form of ban the box legislation or fair chance policy. This generally requires that a conditional offer of employment be made prior to asking about convictions. 11 states also require private employers to remove questions from job applications that ask about previous criminal convictions. ‘Ban the box’ is currently focused on employment laws, but criminal records can negatively impact state or federal licensure, housing availability and education opportunities. If the goal is rehabilitation, forcing someone to wear a scarlet conviction for life prevents moving forward. Federal employers are also subject to ‘ban the box’ rules that prohibit asking about convictions unless a conditional offer of employment has been made. Anything involving security, transportation or like jobs are excluded from ‘ban the box’ rules. H.R. 6667 H.R. 6667, aka ‘The Fresh Start Act of 2022’, is a bill pending in Congress to allow expungement of federal non-violent offences. If passed, the law would require automatic granting of an expungement for certain federal offences seven years after completing the sentence for the offence and discretionary relief one year after completing the sentence. The bill has a low chance of passage given the newly elected Congress that will form in January, but it is a large step in the right direction. Federal law for expungement is sharply limited to first time possession cases if someone was under 21 at the time of the offence. Can you share any insights that you have gained from your own work regarding expungement? Courts and prosecutors are reluctant to grant the person a fresh start. Even convictions that should be automatically sealed require vigilance to make sure a person gets the relief they deserve on the local and state level. Some of my biggest fights on these cases come not from the local prosecutor, but the state Department of Justice failing to recognize the relief. 24 LAWYERMONTHLYDECEMBER 2022