Understand Your Rights. Solve Your Legal Problems
Expenses for medications, housekeeping and childcare can be high, and you may miss important life events. If you were injured due to the negligence of another person, you are entitled to recover medical expenses and money for damages. There are a few facts you should know about insurance in The Golden State.
When it comes to personal injury, there are two kinds of insurance; fault and no-fault. In a no-fault state, a person’s own insurance company pays for their medical bills and damages. In a fault state the person or persons responsible for the accident are also responsible for paying the bills related to the accident. California is a comparative fault state. This means that a person is responsible for the percentage of the accident they caused. If you are responsible for 20 percent of an accident, you can recover 80 percent of your auto damage and medical expenses from the other driver’s insurance company.
When you are injured in an accident, you should call the at fault driver’s insurance company and file a claim right away. They have 15 days to acknowledge the claim. An actuary will call you and ask you questions about the claim. They will ask to record your answers, but you are under no obligation to let them. They then will have 40 days to accept or deny your claim. If they accept the claim, they will make you a settlement offer; chances are, they will try to underpay you. You should never accept a settlement offer without speaking to an attorney first.
Your attorney will negotiate with the insurance company to get a better deal. If you come to an acceptable agreement, the insurance company will have 30 days to pay you. If you are unable to reach an agreement, you may proceed with a lawsuit.
In the state of California, you have three years to file a lawsuit for damages to your property and two years to file a lawsuit for medical expenses. The clock starts ticking the second you have the accident.
There are only a few circumstances under which you may get an extension. If the at-fault driver left the state and was unable to be served with a summons, if you were under 18 when the accident happened or if your injuries were not initially apparent, your attorney may be able to convince the court to give you an extension.
Insurance companies are staffed with teams of lawyers whose entire job it is to make sure that you do not get the money you are owed. You probably do not know enough about insurance law, to combat such a team. You need a professional lawyer, like the ones at Grossman Law in Fresno.
A law firm staffed with hard-working researchers and attorneys who are well versed in personal injury law can help you recover your money and get on with your life.
Sources: https://www.courts.ca.gov/9618.htm https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2289&context=facpubs
Since the California Supreme Court’s April 30, 2018 decision in (Dynamex), which set a new standard for determination of employee/independent contractor worker classification in the context of California Wage Orders, there has been a good deal of speculation and prediction about the potentially negative impact of the decision on the Gig economy and the freelancing preferences of younger workers. However, there are at least three reasons why the impact of the decision will be more limited than its proponents hope and detractors fear.
First, the new standard set forth in Dynamex does not apply to all circumstances implicating categorization of workers as employees/independent contractors. Rather, as the decision itself repeatedly states, it is limited to worker classifications under California’s Wage Orders. As such, the new classification standard adopted in Dynamex does not apply to other provisions of the California labor code, state unemployment insurance rules, worker compensation, or state tax system, which continue to apply the three-decade old Borelo test.
Second, regarding the potential impact of Dynamex on the Gig economy, the “B” factor in Dynamex’s new ABC test, seems to preclude freelancers from qualifying as independent contractors, thus going against the tide and trend of young workers preference for freelancing over traditional employment. In the new digital age, many workers, especially younger ones, prefer the mobility and flexibility afforded by independent contractor positions. In fact, some studies suggest that by 2020 over 40% of the work force will be freelancing. A post Dynamex decision by a California federal court suggests that the Gig economy may be able to avoid the reach of Dynamex by articulating a clearly distinguishable definition for their business type.
The California Supreme Court pointed to the federal wage and hour laws known as "the Fair Labor Standards Act (FLSA)” for having its own standard for resolving the employee or independent contractor issue.
Finally, certain areas of the economy, such as transportation of goods, are pre-empted by federal law, which precludes application of Dynamex to workers in these industries.
California Wage Orders set forth certain standards and requirements that apply to specific industries dealing with various work-related issues involving certain wage, hour and working conditions and requirements. Regulated by the Industrial Welfare Commission (IWC), there are currently 17 Wage Orders that apply to different industries such as the manufacturing industry (Wage Order 1), Personal Services Industry (Wage Order 2), etc. Each Wage Order deals with issues such as minimum wage, overtime pay, retaining of records and meal and rest periods. Whether a worker is classified as an employee or an independent contractor under a Work Order is crucial to businesses, especially those industries whose success is built around the “independent contractor” worker model.
Prior to Dynamex, courts applied the 11 factor Borelo standard to determination of worker status under Wage Orders. The Borelo standard is primarily focused on the business’s “right to control” the worker, along with certain “secondary” factors, including location where the services are performed, provision of tools by the hiring business, among others. Dynamex replaced the Borelo test with a simpler, three factor “ABC test”. Under the ABC test, there is a presumption in favor of classifying workers as employees, which the hiring entity can overcome by showing: “(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”
The B prong of the ABC test enquires into whether the work performed by the worker is in “the usual course of the hiring entity’s business.” This test is likely to engender the most controversy and dispute, as it aims at the heart of the freelancing model, on which many successful businesses in the Gig economy are built and which many millennials prefer. However, a recent post Dynamex decision points to a way out for the freelance based businesses. In Curry, a post Dynamex decision, the issue was whether an employee of a company that leased gas services stations from Shell Oil Products (Shell) was also an employee of Shell under a joint employment theory. Applying Dynamex’s ABC standard, the Curry court concluded that the worker at issue was not in Shell’s “usual course of business” because the worker, as the manager of a gas station leased from Shell, was engaged in the occupation of a station manager, while “Shell was not in the business of operating fueling stations—it was in the business of owning real estate and fuel.” Curry will likely hearten independent contractor-based businesses such as employment placement agencies and other freelance based entities.
The scope and reach of Dynamex are limited to Wage Orders
In enunciating the new ABC standard, the Dynamex court acknowledged existence of different standards for different statutes implicating employee/independent contractor classification, but attributed any such apparent inconsistency to the purpose of the underling statute. The California Supreme Court pointed to the federal wage and hour laws known as "the Fair Labor Standards Act (FLSA)” for having its own standard for resolving the employee or independent contractor issue. The Dynamex court stated that like California, the federal labor codes don’t apply a uniform standard to all federal labor laws implicating worker status. The California Supreme Court also noted that, like “California wage orders, the FLSA contains a broader standard of employment than that generally applicable in other, non-wage-and-hour federal contexts.” This statement signals the California Supreme Court is content with the application of the narrower Borelo standard to non-Wage Order classifications. Post Dynamex cases have similarly noted the limitation of the ruling. For e.g., in Salgado a California Court of Appeal stated that except for claims under a Wage Order, “the common law definition of employee controlled all the other claims, including a claim for reimbursement of business expenses under Labor Code…”
Although billed as a “game changer”, the Dynamex decision will not have the reach or potency that its detractors feared.
Impact of Federal Preemption
Federal preemption laws temper the application of the Dynamex decision to certain industries. For example, the Federal Aviation Administration Authorization Act (FAAAA) preempts any state law “relating to a price, route, or service” of a motor carrier. The 1st Circuit Court of Appeals, in the context of applying Massachusetts’ ABC test, has found preemption of the “B” factor of the ABC test as conflicting with FAAAA. In Coakley the First Circuit Court of Appeal held that the FAAAA preempts the “B” prong of Massachusetts ABC test. Moreover, in Dilts the Ninth Circuit Court of Appeal recognized that even “broad laws applying to hundreds of different industries,” could be preempted by federal statutes if they have a “forbidden connection with prices, routes, and services.” In light of this recognition, California courts and agencies may find that many industries are outside the reach of Dynamex’s new standard.
Although billed as a “game changer”, the Dynamex decision will not have the reach or potency that its detractors feared. First, by its own language and emphasis, the decision is limited to Wage Orders. Additionally, many participants in the Gig economy will be able to avoid the dreaded B prong of the ABC test but clarifying the definition of their businesses. Finally, federal preemptions laws temper application of the ruling to many industries.
Dr. Dariush Adli, Ph.D., Esq. is the founder and president of ADLI Law Group. His practice is primarily focused on business and intellectual property litigation, media and entertainment law, real estate, products liability, family law, labor and employment and transportation law. He can be reached at adli@adlilaw.com.
The California Supreme Court limits de minimis off-the-clock work, expanding California employers’ duty to record time worked. Below, Kate Visosky and Christina Nordsten share what this means for employers in the respective state.
In July, the California Supreme Court issued its opinion in Troester v. Starbucks Corp., holding that the federal wage laws that excuse companies from paying workers for de minimis work, i.e. small amounts of time that are difficult to record, do not apply under the California wage and hour standards.
The de minimis rule has been applied by the federal courts for more than 70 years. The doctrine excuses the payment of wages for small amounts of otherwise compensable time upon a showing that the time is administratively difficult to record. For example, courts have held that time spent by employees booting up their computers and shutting down and clocking out are de minimis and not compensable. See e.g. Chambers v. Sears Roebuck and Co., 428 Fed. Appx. 400 (5th Cir. 2011).
In Troester, the California Supreme Court stepped away from the de minimis approach holding that an “employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine.” Troester, (2018) 5 Cal. 5th 829, 847. The plaintiff in Troester “had various duties related to closing the store after he clocked out” and that “on a daily basis, these closing tasks generally took [plaintiff] about 4-10 minutes.” Id. at *21. The Court said this time must be compensated.
Notably, while the Court declined to apply the de minimis standard under the facts of the case, it did not reject the doctrine completely. Indeed, it noted there could be instances involving tasks “so irregular or brief in duration that it would not be reasonable to require employers to compensate employees for the time spent on them.” Troester, 5 Cal. 5th at 848. Thus, the key notion to take away from this case is that off-the-clock work considered significant and regular must be compensated, while insignificant and irregular time could still be considered de minimis. As to the application of the rule, Justice Leondra Kruger wrote a separate concurring opinion offering some concrete examples for when the de minimis rule could apply:
Justice Kruger noted that requiring an employer to accurately record this type of time would be impractical and unreasonable.
What does this ruling mean for California employers?
Although the Troester decision limits the de minimis standard in California, it does not fully reject it. Realistically there will be situations where some work will be impossible to record. The Court made note of this. Therefore, while entities doing business in California can be confident that highly unusual and irregular time spent off-the-clock may not be found compensable, the Troester decision may still have an impact on their business. This is especially true for companies in the service industry such as retailers and restaurants who employ a large number of the hourly workers in our state. These companies may want to conduct a review of their policies, practices, and procedures that impact their employees’ timekeeping. Below are a few examples of what employers in California can do in light of Troester.
Although the Troester decision has limited the application of the de minimis doctrine in California, it remains to be seen how it will be applied to other cases moving forward. In the meantime, employers can limit their exposure by proactively reviewing and revising their policies and procedures in light of the decision.
Partner Kate Visosky and Associate Christina Nordsten are with Kelley Drye & Warren and specialize in defending companies in complex labor & employment litigation and class actions, high-stake disputes, discrimination, harassment and retaliation claims and agency charges. Visosky can be reached at kvisosky@kelleydrye.com, or 310-712-6199. Nordsten can be reached at cnordsten@kelleydrye.com or 310-712-6199.
At the end of June 2018, the California Consumer Privacy Act was passed unanimously, potentially sparking a revolution in data protection across the US. Following in the footsteps of the EU’s new GDPR laws, the privacy act will mean radical changes to how companies can gather and monetise their customers’ data in California. Below Lawyer Monthly explores with Nina Conseil, Senior Director, Product and Marketing at Affinion, the potential for GDPR like data protection law to go global.
It is not surprising that the tide is turning – for as long as we can remember Silicon Valley has had the upper hand and free rein to do whatever it pleases. But all that has changed since the furore surrounding Cambridge Analytica’s use or rather misuse of Facebook data hit the headlines. Mark Zuckerberg has been hauled in front of the US Congress to answer questions from the Senate commerce and judiciary committees on privacy, data mining, regulations. He has also been grilled by the European parliament and faces a lawsuit for allegedly misusing the personal data of more than 71 million people. While many have criticised the effectiveness of these hearings, users remain furious and US legislators are responding with the law.
Not just Facebook
The Facebook data scandal is just the tip of the iceberg. Unfortunately sensitive personal information often falls into the wrong hands - Norton’s latest global research shows that 978 million people were victims of cybercrime last year, losing an estimated $178 billion to hackers. Similarly, a hacker dubbed ‘Courvoisier’ stole 78 million usernames and passwords to sell on the dark web, infiltrating the likes of Uber, Argos and Asda. Only last month, Adidas suffered a security breach which endangered sensitive data of millions of its customers.
Data privacy is a serious issue for both businesses and their customers and regulation like GDPR and the California Consumer Privacy Act are helping to address it. But what else needs to change to ensure sensitive data remains private and consumers protect themselves?
Putting education first
Norton research shows 10% of the world’s population experience cybercrime every year – be it ID theft, financial fraud or a misuse of their data. This means that before long almost everyone will either be a victim or know someone directly impacted by cybercrime. Regardless of how it happens and who’s at fault, one mistake can have a huge impact – either personally, financially, or both.
Interestingly, Sophos research shows people are currently more worried about cybercrime than physical crime, yet a third of them admit ignoring data breach emails. Clearly businesses need to educate consumers on how to act if they fear they’ve been hacked - Symantec Internet Security Threat Report found that despite a 13% increase in data vulnerabilities, people don’t know who to turn to for help, while 41% can’t identify a phishing email and guess at its legitimacy.
Equipping customers with innovative tools
Financial institutions need to innovate and arm their customers with the tools they need to protect themselves such as technology which actively scans for potential data privacy risks. The provision of products and services that raise awareness and help improve data privacy and cyber security could become a key differentiator in driving loyalty. This way of thinking is starting the hit the mainstream and we’ve already started working with financial institutions across the world to offer cyber and ID protection to their customers.
One growing field is dark web scanning – most consumers won’t have seen or know much about the dark web, let alone considered whether their personal data has been published there. By offering dark web scanning, customers are given additional peace of mind and the option to take action before they suffer a loss or damages. In taking this approach, businesses are going the extra mile to show they truly care about the security of their customers’ cyber security and data.
Thanks to the Facebook scandal, data protection is the theme tune for 2018 and businesses across the world must keep up. Financial services businesses and customers alike should embrace the challenge to build an ecosystem in which data is as secure as possible. To make this possible, it’s vital that banks and financial institutions do all they can to educate and empower their customers to protect themselves while providing peace of mind. Failure to do so will not only result in data losses, but also trust and inevitably, profit.
People are often unaware to how complex family law can be in California.
“My concern is that people may not be properly represented, because lawyers think 'family law is simple' but it is not, particularly for us specialists. We know the minefields and where the conflicts will be, and we come up with creative solutions that will work and be sustainable, if and when we do go to court”, speaks specialist Stephen Ruben.
Stephen speaks more on common misconceptions people have about family law.
Touching on your 30 years’ experience; how have you seen family law change and how has it changed for the better?
Family law has changed a lot over the past ten years, because almost 70% of people in California are now self-represented. So, the cases that we are engaged in tend to be much more complex and do require the skills and expertise of a specialist.
What would you say is quite a complex family law case? What has been your most complex case to date?
The cases become very complex when there are agreements or marriages between states. For example, clients that now reside in California but have a prenuptial agreement signed in another state, can present certain complexities in their case. It is a question of which law will apply: will it be the law of the state in which the parties executed the agreement, and where the agreement says, or will California override certain provisions related to the prenuptial as it could cause violation of public policy.
Do you think any changes need to be made in regard to non-marital partnerships and what are common issues do you see arise in this area?
Some states have very limited support provisions, but some are revisiting that issue. For example, in the state of Illinois where I previously practiced as a public prosecutor, there was a very limited period of time in which spouse support was awarded. However, Illinois reversed its decision a couple of years ago and recognised that long term support is a very important aspect, particularly if there is a huge disparity of wage and earnings. I do think that long term support is really an important aspect of divorce, because it equalises the playing field and puts both parties in a balanced economic status, but it also gives a chance for the receiving spouse to have an opportunity to go back into the workplace, to pursue their career, in order to be self-supporting, which is a law I think all states should address.
Do you think there are any complexities in family law which you are hoping to address in the future?
Yes - I am an expert in The Hague convention, which deals with abducted children which are brought into the US - either through kidnapping or wrongful detention-, and I have just recently concluded a very successful case where my client’s child was returned back to Denmark. I am hoping to address more cases like this as they are highly rewarding; the reunification of a child back to his or her parent is gratifying, as wrongful abduction is a high level of child abuse.
As a featured radio guest on "Your Legal Rights" in San Francisco, can you share with us some common ‘rights’ that your clients often are unaware about in family law?
I think some clients are glued to the notion that gender has an impact on custody and that they are entitled to 50%. California was the first state in the nation to adopt a neutral assessment where sex and gender does not matter. Instead, it is based on who is the active parent, the one providing the child with daily supervision control, taking the child to piano rehearsals and doctor appointments; some parents are not as active as they work more hours, yet they have this notion that this will give them the entitlement to joint custody, which is not true. We have a non-sexual discrimination statute which has a provision stating that both parents are entitled to frequent and continuous contact, but that does not mean ‘equal’. This is one of the areas we must careful explain to clients; the comprehensive custody plan takes into account everybody's work schedule and who is providing the day to day care.
Stephen B. Ruben
Certified Specialist, Family Law
Ruben Law Firm
625 Market Street, Penthouse
San Francisco, CA 94105
sruben@rubenlawfirm.com
Stephen B. Ruben is the Managing Director of The Ruben Law Firm, P.C. He provides family law representation, mediation, and private judging in San Francisco, San Mateo, Marin, Alameda, Contra Costa and Marin Counties. Steve’s practice is devoted to complex family law litigation including high net worth divorce cases, financial issues, spousal and child support, high conflict custody disputes, and dissolution, including non-marital and domestic partnerships, adoptions, child abandonment and paternity and will and trust administration.
Aaron Allan, Senior Partner of the Environmental & Energy Department at Glaser Weil speaks on saving clients during lawsuits.
“Managing environmental risks and having appropriate insurance is more important than ever given the high stakes that face our clients,” he explains.
“We have been successful not only in identifying risks for clients, but also in obtaining new insurance and maximising the value of historic policies when confronted with new or potential liabilities. “While I pride myself on my ability to win lawsuits, the best lawsuit for a client is the one that never happens.”
Below he speaks more on energy law and how it is impacting his clients.
How have you seen insurance coverage change in relation to energy law, with the increasing environmental concerns?
Over the past 10-15 years, there generally has been a reduction in the availability of insurance to cover environmental issues (including shorter terms, and higher self-insured retentions). Environmental disasters, such as the offshore spill in Santa Barbara and the water quality problems in Flint, Michigan, coupled with more aggressive government regulation (prior to 2017), have also led insurance companies to demand higher premiums and deductibles, and to refuse types of coverage that used to be routinely available, such as "cost-cap" environmental coverage, which protects against cost overruns for the remediation of polluted sites. In the energy sector, whether in new shale plays or traditional resource plays, there are a limited number of insurers willing to entertain environmental risks. Those writing policies have been successful, but many insurers appear to be wary of the technology and appear not yet ready to correctly underwrite the risk. The tide may be turning, however, because of several factors: (1) a trend down in oil prices has led to decreased production activities and a reduction in the number of claims, (2) increased regulation and new technologies have led to improved safety of operations; and (3) recent large spills, such as Deepwater Horizon, have inspired industry wide efforts to better protect workers, property and natural environments, of which insurance companies have taken notice.
Are there any rumored changes expected to occur, which you think may deeply affect your clients?
The recent prolonged downturn in energy prices, which has led to reduced demand for insurance among energy providers, coupled with anticipated relaxed enforcement efforts from the current administration in Washington D.C., is expected to put pressure on insurance carriers to loosen underwriting standards and expand the terms and conditions under which they offer coverage to energy companies. The rise in alternative energy companies and sources is also expected to generate incentives for insurance carriers to come up with creative new products to insure against financial loss in this sector, which should also benefit more traditional energy providers.
What do you think is key in ensuring you obtain full (or the best) coverage for your clients during lawsuits?
First, while it may seem obvious, it's important to carefully read every term and condition of the policy. Second, in all dealings, I have found it extremely helpful to act reasonably and maintain credibility with the insurance carrier representatives and counsel. Finally, the case law affecting coverage is constantly evolving, particularly here in California, and it's imperative to keep up to date with the most recent decisions that may affect your clients on coverage issues.
What would you claim are three important factors to address during environmental due diligence?
The most important aspect of performing environmental due diligence is completeness. For the deals that I have been involved in handling, there has been simply too much at stake to think about cutting corners. Second, it's important to understand the limitations of a Phase I Environmental Site Assessment. A Phase I should only be used only as a starting point for evaluating the need for other tools to complete due diligence. Third, you must gain a complete understanding of the target company's operations, both present and historical, which often requires interviews with both current and former officers and employees. Without that understanding, there is too much of a risk of missing indicators for both on-site and off-site liabilities.
Aaron Allan | Partner
10250 Constellation Blvd., 19th Floor, Los Angeles, CA 90067
Main: 310.553.3000 | Direct: 310.282.6279 | Fax: 310.785.3579
E-Mail: aallan@glaserweil.com | www.glaserweil.com
Aaron P. Allan, a Senior Partner in Glaser Weil’s Environmental & Energy Department, has for over twenty-five years represented a diverse range of business entities on significant issues involving energy, environmental, consumer products, insurance coverage, toxic tort and real property issues. He has published and presented on significant topics such as groundwater management, environmental lender liability, and California's Prop. 65, and is currently working on an article discussing California's cap and trade programme to reduce greenhouse gas emissions. He has successfully represented oil and gas companies, solar providers, water utilities, insurance companies, hotels, banks, and other business entities on such matters.
Glaser Weil, based in Los Angeles, is one of the country’s premier full-service law firms. Advising a roster of diverse, selective clients — from start-ups and large global corporations to high-profile entertainers and other well-known individuals — Glaser Weil represents clients’ interests with an unprecedented level of dedication and commitment.
In the case of Google vs. Equustek, some weeks back a Canadian Supreme Court ordered Google to eliminate a number of search results from a previous distributor that was reportedly using its sites to sell, illegally, the defendant Equustek Solutions’s IP. On November 2nd 2017, a California district court granted Google’s request for a preliminary injunction preventing US enforcement of the order. Below, Gwilym Roberts, Chairman and Partner at Kilburn & Strode, discusses the Canadian Supreme Court's decision and what it means for the prospects of more global injunctions.
As walls spring up everywhere internationally, we are seeing a counter-intuitive move towards cross-border injunctions in Intellectual Property cases. IP is becoming a test bed for remedying infringement in multiple jurisdictions, with the internet at the root of the issues.
Two recent developments are at the forefront – firstly the ruling by the Supreme Court of Canada in Google vs. Equustek, and secondly a draft EU convention on the recognition and enforcement of foreign judgements. Each deals with cross-border issues in a different way – the Supreme Court of Canada (SCC) by imposing an injunction which it can enforce at least in Canada if it is not obeyed globally, and the other by asking EU governments to actively sign up to mutual recognition. And each raises practical and legal issues.
In the Google case, the facts were straightforward. Canadian company Equustek Solutions sued distributor Data Link Technology Gateways for listing its products on Google as their own. The facts were agreed and so Google’s case was merely that it was not even a party (which was quickly dismissed) and that there was a “freedom of information” angle which could be breached by an injunction being awarded in other jurisdictions even if not in Canada. Google cooperated initially by de-indexing pages on Google.ca but the SCC issued a global “Google Order” requiring Google to de-list around the world.
Many rights holders have welcomed the decision as providing fair protection, but free speech organisations characterise the decision as “race to the bottom”. The SCC itself has indicated that if Google can demonstrate that the injunction does cause problems in other jurisdictions it will reconsider but points to other instances of global injunctions that have seemed acceptable including the take down of defamatory material, copyright enforcement and the EU “right to be forgotten”.
The EU meanwhile continues to strive for multi-territory enforcement. The current draft EU recognition convention proposes cross-border enforcement for a range of rights and, for now, leaves IP open for discussion. Its principal IP target may well be online infringement of the type dealt with by the SCC, but broader rights, including patents, are still up for grabs.
In any event, IP emerges as a common denominator for cross jurisdictional disputes, fuelled by the ease of infringement on the web. The internet after all provides perfect data liquidity, with IP acting as its legal vessel. However, IP law sharply defines territorial boundaries and problems emerge with the combination of the internet, information, and intellectual property.
Long before the draft recognition convention appeared, assorted enforcement initiatives had been tried in relation to IP – pan-European patent injunctions faded, the EU Criminal Enforcement Directive for IP floundered and the proposed Unified Patent Court, having tripped over Brexit, has now landed hard on a German constitutional challenge.
For now, therefore, it may well be that judicially-driven pan-territorial remedies may be the practical option rather than Directives. This raises practical considerations for rights holders. Google’s example casts light on this – Canada is evidently a huge market for them, they can’t pull out, therefore, they either need to observe the SCC injunction globally or face sanctions at least in Canada. So for other, less international companies, a consideration of where their headquarters are based may be highly relevant. Setting yourself up in a country which is less likely to issue an injunction, particularly a global one, may make some sense if you have the freedom to drop out of other risky territories.
At the moment, it remains to be seen whether courts will enforce an injunction issued in another jurisdiction, and it seems fairly unlikely without some form of international convention of the type proposed by the EU. However, economically speaking, global injunctions clearly still have teeth if they issue in commercially important territories.
As elsewhere, the internet has provoked a major rethink of how businesses operate internationally. Mixing the internet, unlimited data and the highly territorial nature of IP law creates a potent cocktail. Even in the absence of government-level cooperation we can expect to see ever more creative legal/commercial solutions to global disputes, with IP at the forefront.
Kenneth R. Baker is a Professional Engineer and licensed General Contractor with a practice in construction and real estate consulting and claims. With knowledge on construction regulations based all over the globe, he speaks with Lawyer Monthly about how the field is developing, where construction can go wrong and what investors in real estate can do to avoid rising costs.
How has real estate risk changed over the years in California? Have regulations become tighter, and if so, what has been the effect of this?
California is a progressive state in terms of technology, politics, natural resources and it is the largest state with the largest population, so it has unique challenges; there are a lot of regulations in place to protect these resources, so builders and workers that come from outside of California are often surprised by the degree to which the process is regulated by the government and third parties. You can’t come in and just build what you want, as California has very specific sets of requirements that don’t exist in other places. For example, hospital construction in California has its own regulatory agency called OSHPD and their regulations are quite unique. Most people who get involved with hospital projects discover the process is very slow; review and analysis is very robust so there are a lot of things that may be done in terms of construction details and the way the hospital is laid out.
There are also regulations that consider California’s long coastline – there is a public governmental Coastal commission regulating what can be built miles within the coastline. That’s a special regularity review which developers and agencies must know. They are aimed at protecting and enhancing the assets that California has; many complain it is very expensive and these regulations add further expense, but they are there for protection. California is not a cheap place to live or do business in that matter.
What are the most common reasons to why construction goes wrong and thus results in legal disputes? What could be done to avoid this?
Different owners have different needs that drives the project, so many times projects go wrong for different reasons. If you’re in the business long enough, you get an idea to what could be going better and if people could alter the way they do projects. In infrastructure projects, public agencies are often involved and as a result the agencies are susceptible to disputes, due to budgets and funding constraints. Money affects how projects are delivered and in many cases these constraints result in alternative delivery methods, where the design is partially done by the owner/agency and then the rest of the design is completed by the contractor they retain. The contractor, instead of just building has to finish the design which can cause problems. Agencies may not be happy with the design, so then the project agency gets involved and try to change and adapt the design that the contractor has developed. Many construction projects agencies have poor management practices like so, which causes legal disputes.
Projects also run into their own problems just because the field is unpredictable. In construction, you can’t control all the variables; for example, regarding foundations and underground work, you have to know the rock and soil and their conditions. You devise reports on what you suspect is underground, but you really don’t know what is underground until you start building. These ‘surprises’ are built into the construction world and you find out later down the line the foundation you thought was perfectly fine, actually is not; everything following cannot go on until the foundation is changed, which delays everything else.
What are the most vital things that clients need during real estate asset investigations?
What is growing fast is capital programmes and risk assessments. Capital programmes are for big companies and governmental agencies that have capital spending on an annual basis. The way in which they deliver projects in this programme often needs updating and could benefit from observing what others are doing, so our services are aimed at helping clients treat their real estate assets to do more with less money and do more with money they have. The services are aimed at how you deploy your capital most efficiently and what aspects are causing problems. A factor business people address is money – they need to get money at an attractive rate and need to know how and when to spend that money. However, technical areas they don't deal with everyday are: external factors - evaluating restrictions on entitlement and regulations when buying property -, and internal factors that affect real estate development, for example building suitable foundations and assessing soil conditions. This expertise is needed; our company has that expertise in all the different areas. You can always short cut some of these costs, but you find out during construction that this can cause more problems in the long run, thus higher costs. Even natural disasters such as earthquakes, can affect building constructions and regulations, as constructions obviously need to be stronger. If you are going to be a smart investor or builder, you want to get the best people on your team who are aware of these little things.
With a denser population and with America being a developed country, how do you see engineering and construction developing? What problems do you see along the way and what changes do you think will be made to adapt to this?
The urban environment and where jobs are have changed. Cities have grown and rural areas have shrunk and advancements in technology have allowed the traditional office-based role to change. Companies are lot more flexible, so offices designs have developed; people are often more global and better accommodated, sometimes working from home. All these developments have changed the way in which construction has progressed, including transportation and travel, due to changes in movements, especially in suburban areas. There are still needs for infrastructure - roads and the energy system are constant in need of updating. Rather than a decrease in commercial construction, we see different types of buildings now and a changed planning mindset and model.
How often is analysis poor, which results in problems in the long run for businesses and corporations? What could be done to avoid this?
Our business focuses on a fact-based analysis, which is driven so our clients make the best decisions. The thing which affects our ability to do our best work is poor budgets. Clients do not always want to spend realistically on things they need. A poor analysis also involves a poor investigation into looking at the things that need to increase the liability. We have adapted ways to help clients to not spend maximum amount of money; the ways in which we do this involves a phased analysis where we tackle the bigger issues and spend money progressively and in stages. We look at the fundamentals, what they’re strong in and the challenges they will have so the money is used to maximum benefit. Business people who are trying to spend their money wisely need to know if their investment is worth it and so we become their trusted advisers and take on the ability to try put ourselves in their shoes. Many people go into a lawsuit due to attitudes and opinions that have been shaped by the project and not objectively trying to see if it is a reputable and economically wise move.
How do you ensure you remain neutral during disputes?
One of the core services we provide is dispute resolution support for our clients, whether they are public agency clients or private owners, contractors, designers - people part of the construction process. My mission is to seek the truth and this serves both sides of the dispute. I try to advise and council clients if they have vulnerable aspects in their claim, but I cannot stray from the truth. I am independent and neutral and not an advocate; as an expert I perceive my role as if I am working for the judge. I try to get to the bottom of the cause and the effects of the project and staying objective is what drives our success in this business. We evaluate the facts, contracts and law and we present that knowing the third party, the judge and arbitration panel will evaluate both sides and make a fair decision.
