02/10/2014 Payne & Fears LLP Partner Eric C. Sohlgren Keynote Speaker at Orange County Bar Association Labor and Employment Law Section Meeting
Annual Update on Key Employment Law Cases and LegislationPayne & Fears LLP partner Eric C. Sohlgren was the keynote speaker, addressing over 155 lawyers, at the Orange County Bar Association Labor and Employment Law Section meeting on February 11, 2013. Sohlgren reviewed dozens of case decisions from 2012, along with recent legislative developments in employment law that went into effect this year, providing insights about how these recent changes in employment law affect the California workplace. The presentation materials may be downloaded by clicking on the link above. For more information, please contact Eric Sohlgren at firstname.lastname@example.org.
01/06/2014 New California Employment Legislation: Legislature Continues to Expand Employee Rights
Annual Update on Key Employment Law Cases and LegislationNumerous new laws took effect in California on January 1, 2014 which expand employee rights and increase compliance requirements for employers. Expanded whistleblower rights, increased penalties for nonpayment of wages, and protections for immigrants are chief among the legislative enactments. For a summary of California employment laws taking effect on January 1, 2014, click here.
05/30/2013 California Court of Appeal Rejects “Multi-tasking” Argument for Exempt Employees
California Employment Law AlertOn May 23, 2013, the California Court of Appeal affirmed a jury verdict awarding damages to a former Safeway assistant store manager. The Court found that a manager who performed various nonexempt tasks while simultaneously supervising other employees was not primarily engaged in the performance of exempt work. Prior to Heyen v. Safeway, there was no published precedential California case law specifically addressing how time spent simultaneously performing concurrent duties, which are both exempt and nonexempt, should be evaluated for purposes of the executive exemption. To read more about the Heyen decision please open the attachment.
04/26/2013 Payne & Fears LLP Partners Scott Thomas and Kelby Van Patten Speaking on Overcoming Evasive Actions by Insurers in Construction Defect Claims
Orange County Bar Association MeetingOn April 26, 2013, Payne & Fears LLP partners Scott Thomas and Kelby Van Patten will present “You Can Run, But You Can’t Hide: Overcoming Evasive Actions by Insurers in Construction Defect Claims” to a joint meeting of the Insurance Law and Construction Law sections of the Orange County Bar Association. This meeting will discuss how construction defect claims present a seemingly endless array of coverage landmines for developers, general contractors and trade contractors, as well as explore some more exotic traps insurers lay and how policyholders can navigate around them. For more information please see the attached flyer.
02/11/2013 Payne & Fears LLP Partner Eric C. Sohlgren Keynote Speaker at Orange County Bar Association Labor and Employment Law Section Meeting
Annual Update on Key Employment Law Cases and LegislationPayne & Fears LLP partner Eric C. Sohlgren was the keynote speaker, addressing over 150 lawyers, at the Orange County Bar Association Labor and Employment Law Section meeting on February 11, 2013. Sohlgren reviewed dozens of case decisions from 2012, along with recent legislative developments in employment law that went into effect this year, providing insights about how these recent changes in employment law affect the California workplace. The presentation materials may be downloaded by clicking on the link above. For more information, please contact Eric Sohlgren at email@example.com.
12/12/2012 Payne & Fears LLP Presents Live Webinar - What's New for 2013: California Employment Law Update - Employment Law Developments and Trends
Payne & Fears WebinarsPayne & Fears LLP recently hosted a complimentary employment law webinar. San Francisco attorneys Rod Sorensen, Leila Narvid and Melissa Powar discussed key employment cases from 2012 and new employment laws that go into effect in 2013. A copy of their presentation slides may be downloaded by clicking on the link above. Payne & Fears LLP will address other employment related topics in future webinars. For more information, please email firstname.lastname@example.org or contact one of the attorneys listed below.
09/18/2012 Payne & Fears LLP Obtains Defense Verdict in Race Harassment/Retaliation Case
Payne & Fears LLP won a complete defense verdict for its clients, an employer and an individual supervisor, in a race harassment and retaliation case in Los Angeles County Superior Court. In White v. Corinthian Colleges, Inc., et al., the plaintiff alleged that her employer and supervisor had subjected her to discrimination and harassment over a period of two years, and that they retaliated against her for making complaints about the alleged conduct. She also alleged that she had been assaulted and battered by having a lock of her hair cut off at work, and that she had been forced to work overtime without premium pay. During the six-day jury trial, the Court granted an oral nonsuit motion against the plaintiff’s claims for discrimination and assault. The jury then overwhelmingly rejected plaintiff’s claims for retaliation, harassment, battery and overtime compensation, finding that many of the incidents described in plaintiff’s testimony simply had not occurred, and that the plaintiff had already been properly paid for any overtime that she did work. Jeff Brown and Alex Ruiz represented the successful employer and supervisor.
08/28/2012 Payne & Fears LLP Selected to Join the Worldwide Network of First Law International
AnnouncementPayne & Fears LLP has been selected to join the worldwide network of First Law International ("FLI NET") and has entered into a joint venture agreement with FLI NET as of July 26, 2012.
FLI NET is the Brussels-based hub of a global network of 50 independent, national law firms in some 50 countries around the world. Each local firm is a best-in-class independent national law firm, according to Chambers/Legal 500, and is top-tier in its respective jurisdiction. Each member firm is carefully selected and vetted to ensure that it meets FLI NET's high quality standards, common culture of timely responsiveness and customer satisfaction, while providing a full range of legal services to provide seamless cross-border legal support. FLI NET member firms currently employ more than 4,000 lawyers in over 60 of the world's most thriving economic centers.
"We are honored to have been selected as one of only two law firms in the United States to be part of the FLI NET network," said Daniel F. Fears, managing partner of Payne & Fears LLP. "In an increasingly global legal market, we believe this new association will offer our clients greater access to a full-service menu of the best quality legal services in each jurisdiction with a FLI NET affiliate firm. In turn, we hope to offer member firms and their international clients doing business in the United States access to our outstanding lawyers here at Payne & Fears."
05/22/2012 Payne & Fears LLP Wins Important Victory for Homebuilder in Insurance Coverage Dispute
Payne & Fears LLP won an important victory for its homebuilder client in an insurance coverage dispute when a federal district court rejected the insurer's attempt to control a construction defect lawsuit after the insurer reversed its coverage denial.
In Travelers v. Centex II, Travelers filed suit against Centex in the Northern District of California, seeking a judicial declaration that it was entitled to control Centex's defense of several construction defect lawsuits, including two cases where Travelers had previously denied Centex's claims. Despite its prior denial of Centex's claims, Travelers argued it should be permitted to appoint Centex's defense counsel when it agreed belatedly to defend Centex.
In a motion for partial summary judgment, Centex argued that Travelers' prior denial of Centex's claims constituted a forfeiture of the contractual right to defend. District Court Judge Samuel Conti agreed with Centex: "Once the insurer takes on the duty to defend, it generally has the absolute right to manage the defense, and the insured is required to surrender all control," Judge Conti ruled. "The insurer' right to control the insured's defense extends to the right to select legal counsel. However, when an insurer wrongfully refuses to defend, the insured is relieved of his or her obligation to allow the insurer to manage the litigation and may proceed in whatever manner is deemed appropriate."
J. Kelby Van Patten and Jeffrey M. Hayes represented Centex before the federal court.
03/30/2012 Payne & Fears LLP Obtains Summary Judgment for Major National Title Company
On March 30, 2012, Payne & Fears LLP obtained summary judgment in favor of its client, a major national title company, in an alleged Truth in Lending Act violation matter in the United States District Court for the Northern District of California. The plaintiffs alleged that a bank failed to provide the plaintiffs with the proper disclosures in connection with the refinancing of plaintiff's property in 2008 and the closing documents had been altered without the plaintiff's consent. The bank had in turn filed a third party complaint against the title company, seeking indemnity for any damages awarded against the bank as a result of irregularities in the closing documents. Following discovery in which the bank was unable to develop any evidence showing liability on the part of the title company, Payne & Fears moved for summary judgment. The motion was granted on March 30, 2012 and judgment was entered in favor of our client on the same day. Dan Livingston and Alisha Louie represented the successful title company.
02/15/2012 Payne & Fears LLP Partner Eric C. Sohlgren Keynote Speaker at Orange County Bar Association Labor and Employment Law Section Meeting
Annual Update on Key Employment Law Cases and LegislationPayne & Fears LLP partner Eric C. Sohlgren was the keynote speaker, addressing over 160 lawyers, at the Orange County Bar Association Labor and Employment Law Section meeting on February 13, 2012. Sohlgren reviewed dozens of case decisions from 2011, along with recent legislative developments in employment law that went into effect this year, providing insights about how these recent changes in employment law affect the California workplace. The presentation materials may be downloaded by clicking on the link above. For more information, please contact Eric Sohlgren at email@example.com
01/19/2012 Payne & Fears LLP Presents Live Webinar - What's New and What's Next: Employment Law Developments and Trends
Payne & Fears LLP recently hosted a complimentary employment law webinar. San Francisco attorneys Rod Sorensen, Leila Narvid, Melissa Powar and Alisha Louie discussed key employment cases from 2011 and new employment laws that went into effect this year. The PowerPoint presentation may be downloaded by clicking on the link above. Payne & Fears LLP will address other employment related topics in future webinars. For more information, please email firstname.lastname@example.org or contact one of the attorneys listed below.
01/05/2012 Payne & Fears LLP Wins Major Jury Verdict for Estancia Coastal LLC
Press ReleasePayne & Fears LLP won nearly $10 million in a jury trial in the San Diego Superior Court which concluded on December 27, 2011, on behalf of Estancia Coastal LLC. Estancia Coastal LLC is a subsidiary of TriPacific Capital Advisors, an investment advisor to the Los Angeles County Employees Retirement Association. Judge Thomas P. Nugent presided over the trial. Payne & Fears LLP attorneys Daniel M. Livingston and Thomas L. Vincent represented Estancia. Please see the attached press release for further details.
12/20/2011 Payne & Fears LLP Sponsors Christmas with a Purpose, a Luncheon Benefitting the Mona Foundation
Payne & Fears LLP is a proud sponsor of "Christmas with a Purpose," a luncheon benefitting the Mona Foundation, which supports socioeconomic and educational development programs for women and children around the world. The organization contributes funds to grassroots educational initiatives that provide quality education to children, raise the status of women and girls, and build community capacity in areas where its partner projects are located. The luncheon, headlined by Rainn Wilson, a long-time supporter of the Mona Foundation who is best known for his role as "Dwight" on NBC's The Office, brought together executives from leading Bay Area companies and included discussions regarding ways to support communities in becoming agents of change.
As community support and philanthropy have long been valued by Payne & Fears, the firm was proud to support the Mona Foundation.
09/12/2011 Persistence Pays Off
A home builder client of the firm was recently sued for alleged non-disclosure and fraud in the California Superior Court based on allegations that the home builder misrepresented the sales prices of other homes sold in the new home community and conspired with the lender and appraiser to inflate the appraised value of the home purchased by the plaintiffs. The home builder denied all alegations of wrongdoing, believing that the accusations against it were unwarranted. Payne & Fears LLP vigorously defended the action by persistently attacking the allegations in the complaint on three successive demurrers, successfully securing judgment in favor of the firm's client at the pleading stage with an award of costs in the client's favor. Thomas L. Vincent and Erik M. Andersen represented the home builder in the matter.
05/16/2011 Daniel M. Livingston featured in The Legal OC
www.thelegaloc.comPayne & Fears LLP partner Daniel M. Livingston has been featured in The Legal OC, a new blog covering lawyers and legal developments in Orange County. To read more please go to www.thelegaloc.com/?p=609.
04/26/2011 Payne &Fears LLP Obtains Important Victory for Arizona Policyholders
Insurance Law AlertIn a victory not only for homebuilders but for all policyholders, the Arizona Court of Appeals recently rejected an attempt by several liability insurers to dramatically expand Arizona's "fair debatability" defense to policyholder bad faith claims. Lennar Corp. v. Transamerica Ins. Co., No. 1 CA-CV 10-0141 (April 14, 2011) ("Lennar II"). Our client, Lennar, a Fortune 500 homebuilder, sued several insurers for breach of contract and bad faith after they denied coverage for a multi-plaintiff construction defect lawsuit. After several years of litigation, the trial court summarily dismissed Lennar's bad faith claim on the basis that a prior trial court ruling in the case validating the insurers' "no occurrence" coverage defense established that coverage was "fairly debatable," even though the trial court's "no occurrence" ruling was subsequently reversed on appeal. See Lennar Corp. v. Auto-Owners Ins. Co., 214 Ariz. 255 (2007) ("Lennar I" ). In Lennar II, the Court of Appeals rejected the insurers' "erroneous ruling" theory.
In doing so, the Court of Appeals reached two conclusions which are game-changers for policyholders. First, the Court of Appeals expanded the scope of extraneous evidence which may be relevant in determining the reasonableness of an insurer's coverage position. This evidence includes, among other things, the interpretation given disputed policy terms by the defendant insurer, other insurers and other courts in other cases, as well as by the insurance industry generally. This means that insurers must now disclose how they have handled similar claims in various jurisdictions. And it also means that if an insurer takes an outlier position that is inconsistent with positions that it knows other insurers typically take in similar claims, or that are contrary to well-established interpretations other courts have adopted, these facts are admissible to show that the insurer's conduct is unreasonable.
Second, the Court of Appeals held that an insurer's duty to reasonably investigate, evaluate and process a claim continues unabated while the insurer and its insured engage in coverage litigation. Indicting the insurer's conduct in this case, the Court observed that "the saga of this litigation illustrates the injury an insured may suffer when (as Lennar alleges here) an insurer sues over the meaning of a disputed policy term and effectively ignores its obligation to investigate the claim during ensuing protracted legal proceedings."
Scott S. Thomas, J. Kelby Van Patten and Jeffrey M. Hayes represented Lennar in the appeal. Please see the attachment above for the Court of Appeal's opinion.
04/12/2011 Payne & Fears LLP Obtains Judgment for Major National Bank
On April 5, 2011, P&F obtained a dismissal with prejudice and judgment in Orange County Superior Court in favor of its client, a major national bank, in an alleged fraud and wrongful foreclosure case involving a commercial property. The plaintiff had alleged that the bank conspired with the other defendants to sell the property in a non-judicial foreclosure sale to deprive the plaintiff of the property. P&F demurred to the 21-count complaint and the demurrer was sustained on every count. When the plaintiff failed to file a timely amendment, P&F moved for dismissal with prejudice, which was granted by the court and judgment entered in favor of the bank. Dan Livingston represented the bank.
03/02/2011 Payne & Fears LLP Wins $4.3 Million Appeal in Closely Watched Case for Negligence, Sexual Battery, and Fraud by Concealment Case
In a case generating statewide media attention, the California Court of Appeal, Fourth Appellate District, Division Two, unanimously affirmed a damages award of $4.3 million in favor of the firm's client (Patricia Behr) for lifetime damages resulting from the defendant's failure to disclose an infectious virus before transmitting it to her. When the defendant subsequently informed Ms. Behr of the infection, the court found that he had misrepresented the nature of the risk. Attorney Paul D. Herbert successfully argued the case before the Court of Appeal, which has since ordered that its decision be published in California's Official Reports as Behr v. Redmond,__Cal. App. 4th__, 2011 WL 721465, as modified at 2011 WL 1090305 (2011).
01/05/2011 Payne & Fears LLP Wins Appeal in Sexual Harassment Suit
The California Court of Appeal, Fourth Appellate District, Division Three today affirmed the grant of summary judgment in favor of P&F's client, a leading developer and manufacturer of biomedical products. A former employee had brought suit against the company in Superior Court, alleging sexual harassment, retaliation and related claims. After discovery, P&F moved for summary judgment, and in September 2009, the trial court granted judgment for the client. The employee appealed, and after briefing and oral argument, the Court of Appeal affirmed the victory for P&F's client. Daniel F. Fears, Eric C. Solhlgren and Daniel F. Lula handled the appeal, with Mr. Fears arguing the case before the Court of Appeal
11/08/2010 Payne & Fears LLP Wins Appeal in Medical Leave Case
The California Court of Appeal, Second Appellate District, today affirmed the grant of summary judgment in favor of P&F's client, a large national bank, on a former employee's claims under the Family Medical Leave Act. The employee had alleged that his termination for disability-related absenteeism violated the Act. In its summary judgment motion, P&F established that the termination was based on other, non-protected attendance infractions. In January 2009, the Superior Court granted summary judgment and the employee appealed. After briefing and oral argument, the Court of Appeal affirmed judgment for P&F's client. Daniel F. Fears, Eric C. Sohlgren and Daniel F. Lula handled the appeal, with Mr. Sohlgren arguing the case before the appellate court.
04/27/2010 Payne & Fears LLP Obtains Judgment In Favor of Client, Plus Award of Attorneys' Fees and Costs (2010)
Payne & Fears LLP recently obtained an arbitration award in favor of our client for damages over a commercial contract for a large modular building installed on a United States Air Force base. After awarding our client multiple six figures in damages, the arbitrator also awarded our client all of its attorneys' fees and costs. Shortly after the award, the Orange County Superior Court confirmed the arbitration award and entered judgment in favor of our client.
04/07/2010 Payne & Fears LLP Defeats Claim That Client Violated Americans With Disabilities Act
Payne & Fears LLP successfully defeated a claim that its client violated the Americans with Disabilities Act by implementing a policy which excludes Segway vehicles from its theme park. The hard work of Dan Fears, Daniel Rasmussen and Julie Bisceglia resulted in a published opinion which is very favorable to the firm's client.
04/05/2010 Payne & Fears LLP Wins Appeal Upholding Grant of Summary Judgment for Client and Award of Attorneys' Fees and Costs (2010)
Payne & Fears LLP obtained an order granting summary judgment in favor of its client, American Reprographics Company, on claims brought by Jefferson Wells International, Inc. After entering judgment in favor of American Reprographics Company, the trial court also awarded American Reprographics Company its attorneys' fees and costs. After Jefferson Wells appealed the judgment, Payne & Fears LLP successfully persuaded the Court of Appeal, Second Appellate District, Division Five, to affirm the judgment in American Reprographics Company's favor, including award of attorney's fees and costs. American Reprographics Company was represented in the defense victory by Benjamin A. Nix, Erik M. Andersen, and Marisa J. Ippolito.
01/23/2010 What's in a Name?
The Tonight Show with Jay Leno
01/22/2010 COMING FEBRUARY 2, 2010 - The Pacific Club - Newport Beach, CA
Please Join Us For A "Private Briefing" On How to Successfully Navigate:
- The Free Choice Act
- Health Care Reform 2010
- Managing Legal Expenses
- Generational & Demographic Shifts in your Business
06/24/2009 P&F Files Petition to U.S. Supreme Court in Consolidated Church Property Litigation
On June 24, 2009, Payne & Fears LLP filed a petition for certiorari to the United States Supreme Court on behalf of St. James Anglican Church in Newport Beach, California. The petition is linked above. The church is embroiled in a battle for its property after its withdrawal from the national Episcopal Church in 2004. After the denomination sued St. James Church, the case was consolidated with two others under the title, Episcopal Church Cases. P&F attorneys Eric Sohlgren and Daniel Lula initially obtained a dismissal of all claims in the Superior Court, but the Court of Appeal overturned the judgment in 2007, and P&F successfully petitioned for review by the California Supreme Court. St. James prevailed before the California Supreme Court on the legal method by which church property disputes will be resolved in California -- neutral principles of law. However, in applying those principles, in February, the state Supreme Court ruled that a provision of the Corporations Code permits certain religious denominations to create trusts in property owned by separate but spiritually affiliated local churches, solely by enacting an internal "rule" to that effect.
The petition for certiorari, filed jointly with Dr. John C. Eastman, Dean of the Chapman University School of Law, argues that the California Supreme Court ruling violates the Establishment Clause of the First Amendment. By empowering "superior religious bodies or general churches" (but no one else) to unilaterally create trusts in property owned by separate member entities, the state court has unconstitutionally preferred certain denominations over other religious or non-religious groups. "Many local congregations that are members of larger denominations or associations purchased their own property and have held record title for decades. A denominational headquarters, often located in some other state, should not have the power to unilaterally create a trust in that property for its own benefit without the local congregation's express informed consent," said Eric Sohlgren. "No other group, such as a community or fraternal organization, can take member property simply by enacting an internal rule," added Daniel Lula, "and denominations should not be given greater power simply because they're religious."
The U.S. Supreme Court is expected to decide whether to take up the case during its October Term. If certiorari is granted, the parties will file legal briefs early next year, with a decision expected in mid to late 2010.
The case has generated national media attention over the past five years, and is being closely watched by churches throughout the nation. Eric Sohlgren was featured in the October 9 issues of both the Los Angeles Daily Journal and The Recorder, and has been interviewed by the Los Angeles Times, OC Register, Associated Press, KABC-TV, KKLA-TV, Anglican TV, numerous radio shows, and many other media outlets.
Eric Sohlgren heads up P&F's cross-disciplinary church law practice. Attorneys Benjamin Nix, Daniel Lula and Andrew Haeffele round out the church law team.
04/27/2009 Payne & Fears LLP Wins Appeal in Corporate Governance Case
In September 2007, the congregation of a historic Angeleno Heights church retained Payne & Fears LLP as appellate counsel after suffering a complete defeat in the Los Angeles Superior Court. The church, which is a California nonprofit corporation, had been affiliated for many years with a "cooperative fellowship" of other Pentecostal churches. The officers of this larger association used the affiliation as a pretext to seize control of the corporation, occupy its property (valued at over $14 million), and literally lock the congregation out of its own church. After a three day bench trial, the lower court entered judgment against the church in a written decision holding that religious corporations lose all rights when they affiliate with a large association. Payne & Fears LLP substituted in as counsel and appealed, arguing that California law expressly protects the rights of religious corporations notwithstanding spiritual affiliations. The California Court of Appeal, Second Appellate District, agreed with Payne & Fears LLP on all points, reversed the judgment in full, ordered a trial on two claims, and directed the Superior Court to enter judgment for the client on all remaining claims. The published decision is entitled Igelsia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of the Assemblies of God, 173 Cal. App. 4th 420, 93 Cal. Rptr. 3d 75 (2009). Eric C. Sohlgren and Daniel F. Lula handled the appeal.
04/07/2009 Stolen Asset
Employee theft is a serious issue for many in the quick service restaurant industry. Free food, pocketed cash and items tossed out with the trash can all add up to significant lost revenues. There are many actions that quick serve operators can take. At a minimum, the employee manual should be clear on how the company defines employee theft and the repercussions which will occur if someone is caught stealing. Quick serve operators can also take preventative measures by instilling a "team" mentality that allows employees to take ownership in the activities of the business. Operators can also utilize technology to monitor business and to prevent employee theft.
However, attorney Rod Sorensen, a partner at Payne & Fears LLP's San Francisco office, advises that employers be upfront about any surveillance or monitoring. "You have to provide notice of what you are planning to do or are doing. If the employee gives consent, the search is valid." Sorensen also recommends reserving the right to inspect lockers and break room areas in the employee manual, which employees should sign off on upon receipt.
If an operator is faced with confronting an employee over suspected theft, they should ensure that there is adequate proof. And if an employee theft does occur, management should use the opportunity to bring the staff together to discuss the situation and review the procedures and policies regarding employee theft.
04/02/2009 The Amended Coverage Provisions of COBRA
Employment Law 360
On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act ("the Act"), in an attempt to provide economic stimulus to the nation's economy. Among the provisions of the Act are important changes to the continuation coverage of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). The Act revises COBRA to alleviate nearly two-thirds of the cost to employees from continuing their medical benefits following an involuntary termination for eligible taxpayers earning below a maximum threshold. For eligible individuals, the Act provides for a 65 percent subsidy of the required COBRA premium for a maximum period of nine months. Eligible employees will only be required to pay 35 percent of the COBRA premium that he or she would otherwise be required to pay for employee and family coverage. This new COBRA benefit under the Act applies to persons who became eligible for COBRA between September 1, 2008 and December 31, 2009, due to an employee's involuntary termination of employment. The Act requires employers to change some COBRA notices and practices, and also affects payroll tax obligations.
Attorney Leila Narvid in Payne & Fears LLP's San Francisco Office gives the following advice to employers with regard to new obligations arising under the Act:
- All employees eligible for COBRA on or after September 1, 2008, must receive a notice of the availability of premium assistance. This notice can be incorporated into an existing COBRA notice, or added as a supplemental notice.
- Assistance-eligible employees who are currently covered by COBRA must be notified that they are only required to pay 35 percent of the COBRA premium during the period of premium assistance. Assistance-eligible employees who are not currently covered under COBRA must be notified that they now have a second opportunity to elect COBRA.
- Employers and/or plan administrators must notify assistance-eligible employees of provisions relating to COBRA coverage and the federal subsidy no later than April 18, 2009. They must also include with that notice the forms necessary for establishing eligibility under the program. Failure to comply with notice requirements will be a COBRA violation, subject to penalties.
- Employers wishing to be eligible for reimbursement of the 65 percent of premium assistance will need to provide a list of their assistance-eligible employees and the amount of premium assistance paid by the employer as part of its payroll reporting obligations.
- Revise payroll systems to identify eligible individuals in order to report the tax credit to the government and receive the subsidy.
- On March 23, 2009, the DOL issued Act-compliant model COBRA notices. Each model notice is designed for a particular group of qualified beneficiaries and contains information to help satisfy the Act's notice provisions.
The COBRA subsidy will have a substantial impact on almost all employers. Employers have little time to implement the new administrative procedures and meet the new notice requirements. Despite the time pressure, employers should take the time to work with HR, payroll, finance, and third-party providers to ensure understanding of the new provisions. Employers should expect a higher level of use of COBRA than there has been in the past, and should be prepared for that development. Employers should also take careful consideration of the new rules when planning any workplace reductions.
04/01/2009 Top 10 To-Dos After You’re Laid Off
With unemployment growing and more companies downsizing, it is important to be prepared for a lay-off. A recent Yahoo! HotJobs article lists the top 10 things to if you are laid off that will help keep you financially afloat and ready to hit the job market again.
First, make sure to file for unemployment benefits and COBRA insurance coverage even if you are unsure about your eligibility. Protect your credit and monitor your budget by notifying your lenders of your new status and asking for temporary payment reductions.
In terms of 401(k) resources, try to avoid using this fund source. Payne & Fears LLP attorney Leila Narvid warns that, “workers should avoid taking money out of a 401(k) plan, as they could lose a large portion of it to taxes and penalties and the amount they withdraw will be added to their income.”
There are many resources for job hunting, too. One-stop career centers house networking and job opportunities as well as retraining tips and seminars. Narvid notes that many community colleges offer free or discounted tuition to unemployed workers. Additionally, printing business cards, updating your resume, and creating a LinkedIn account will help you network.
Finally, ask your children’s summer camps if they offer scholarships or financial aid, explaining your circumstances. Check what options are available before foregoing the opportunity.
02/25/2009 Women Lawyers May Be At Risk During the Recession
The Glass Hammer
Are female attorneys at a greater risk for being laid off during a recession? That is a question explored by Anna Collins in her February 24, 2009 column on TheGlassHammer.com. Some experts say that there is no gender discrimination at work in law firm layoffs. Instead, layoffs are determined by profitability and that those who bill less or at a lower rate are more at risk. However, as 74% of part time attorneys are women, they are at a greater risk during a recession because they are not as profitable as full time attorneys. Payne & Fears attorney Leila Narvid added that women lawyers can also be at risk because "the first industries to be hit by economic downturn are women-dominated industries such as retail, hospitality, and service."
Attorneys who work reduced hours can be an asset to a firm that is looking to cut costs, as long as they continue to invest in marketing and professional development. According to Narvid, "the more one shows investment and interest in a firm's well-being and business development endeavors, the more one is viewed as an asset to the firm, even if she does not work full time." Narvid also has several practical tips for women attorneys hoping to survive the recession. "For associates who receive work from partners, it is important to take the initiative to work with partners who have clients in the more stable industries, which right now are clean technology, life sciences, and biotechnology," said Narvid. And for women who work part time, Narvid advises that they "remind the partners, in subtle ways, of the value they bring to the firm."
02/17/2009 The Law of Alternative Work Arrangements: Furloughs, Reduced Work Weeks & Flexible Work Arrangements
Layoffs are not the only option for corporations facing the need to cut costs. Alternatives include mandatory furloughs, reduced work weeks and flexible work arrangements; however, employers must implement these strategies while keeping state and federal wage and hour laws in mind. Leila Narvid, an attorney in Payne & Fears LLP's San Francisco office, quoted extensively in an article on TheGlassHammer.com, discusses the legal pitfalls of implementing such programs.
For example, mandatory work furloughs may be difficult to implement with "exempt" employees (those who are exempt from the wage and hour regulations covered by the Fair Labor Standards Act and other state laws). "If any exempt employee performs any work during a work week," Narvid says "that person must receive his or her entire salary for that week." Thus, failure to pay an exempt employee for a week where any work is performed -- even very minimal work -- can jeopardize that employee's exempt status. Narvid recommends that employers should inform exempt employees that absolutely no work is authorized during the furlough period without advance permission.
Narvid also cautions that employers must be careful when implementing a reduced work week for reduced wages so that the reduced wage does not bring the employee's salary below the required threshold amount -- $455 per week under federal law, and higher in some states. "The least risk is taken by reducing the pay of exempt employees without dictating the hours they work," Narvid suggests. Finally, Narvid explains that while flexible working arrangements are gaining popularity, employers must carefully review their policies to ensure compliance with wage and hour laws, such as the FLSA, many of which were not designed to be flexible or to facilitate the practical concerns of the modern-day employer and employee. However, if legislation currently pending in Congress is passed, Working Family Flexibility Act, then state and federal regulators will be forced to clarify labor and employment laws that affect flexible work arrangements.
All employers should review their policies, handbooks and employment contracts before implementing any of the alternatives to layoffs.
12/22/2008 Beware: Your "Tweet" on Twitter Could be Trouble
National Law Journal
Employees who participate in the latest social networking craze known as "Twitter" could create legal risks for themselves as well as their employers. "Tweets," as the no longer than 140 character blog posts are known, are posted from corporate networks and are subject to the legal rules of electronic discovery and raise issues of invasion of privacy and defamation issues. Tweets can also raise intellectual property issues.
Rod Sorensen, a partner in Payne & Fears LLP's San Francisco office, quoted in the National Law Journal, confirmed that Tweets can lead to legal trouble. "They're quick sound bites and instantaneous and, as we know, instantaneous messages aren't the most well-thought out....Someone could, for example, say something when they're angry or frustrated. It opens the door to poor judgment. And, of course, as with other technology, once it's released you're not going to get it back."
12/06/2008 Radio Shows Examine St James Anglican Church Property Dispute
The Frank Pastore Show (KKLA), KWVE Update
On Friday, December 5, 2008, Eric Sohlgren appeared as the featured guest on KKLA's the Frank Pastore Show. During the 30-minute interview, Eric discussed his experience representing St. James Anglican Church in its landmark property dispute with the Episcopal Diocese of Los Angeles. Eric also offered insight on recent legal and theological developments within the Anglican community.
On Saturday, December 6, 2008, Eric Sohlgren appeared on KWVE's Update, a public interest radio show highlighting community leaders and non-profit organizations. Eric discussed the Episcopal Church property case currently pending before the California Supreme Court and the ramifications the case will have throughout California's legal, real estate, and religious communities.
12/05/2008 Seventeen Attorneys Named 2008 Super Lawyers
Law & Politics
Payne & Fears LLP is pleased to announce that seventeen of the firm's attorneys were named 2008 Super Lawyers by Law & Politics. Super Lawyers is a listing of outstanding lawyers from more than 60 practice areas who have attained a high degree of peer recognition and professional achievement.
The Payne & Fears attorneys named California Super Lawyers are as follows: Erik Andersen (Business Litigation); Jeffrey Brown (Employment & Labor); C. Darryl Cordero (Business Litigation, Insurance Coverage, Health Care); John T. Egley (Employment & Labor, Business Litigation); Daniel F. Fears (Employment & Labor); Laura Fleming (Employment & Labor); Daniel M. Livingston (Business Litigation); Charles M. Louderback (Employment & Labor, Business Litigation); Daniel F. Lula (Business Litigation, Employment & Labor); James R. Moss, Jr. (Employment & Labor); Benjamin A. Nix (Business Litigation; Intellectual Property Litigation); James L. Payne (Employment & Labor); Daniel L. Rasmussen (Business Litigation); Eric C. Sohlgren (Employment & Labor); Scott S. Thomas (Insurance Coverage); J. Kelby Van Patten (Insurance Coverage); and Thomas L. Vincent (Business Litigation, Construction/Surety).
Law & Politics selects Super Lawyers based on a unique multi-step process including a regional survey, internal searches, an extensive evaluation of each candidate's professional achievement and evidence of peer recognition, peer evaluations by practice area and a final selection. Super Lawyers selects only five percent of the licensed active attorneys in a state for this prestigious honor.
11/19/2008 Payne & Fears LLP Defeats Four Abusive Suits and Wins Motions for Attorneys' Fees
Over a four-month period, Payne & Fears LLP obtained the dismissal of four abusive defamation complaints filed by two anti-illegal immigration activists against other activists in that movement. The complaints sought to punish the defendants for speaking out about allegations of financial misconduct in the plaintiffs' nonprofit corporation. The defendants had few resources and turned to Payne & Fears LLP for help. Without endorsing the underlying political issue, Payne & Fears LLP recognized the threat to free speech posed by the plaintiffs' use of litigation to silence criticism. Using a special California statute designed to protect vigorous debate about matters of public interest, the firm convinced two different judges in the Orange County Superior Court to strike all four suits and enter judgment for the defendants. The Court then granted Payne & Fears LLP's motion for attorneys' fees, and awarded over $34,000 to the defendants to reimburse them for their out-of-pocket expenses. Daniel F. Lula handled the defense.
08/18/2008 Break Rulings Mark Cautious Victory for Employers
California class actions against employers for break time violations will be harder to file and more difficult to prove, according to an August 18th article published by Law360. In two recent cases against Brinker International, Inc., and Safety-Kleen Systems, Inc., California courts ruled on the side of the employers, holding that an employer is only obligated to make meal and rest breaks available, it does not have to ensure that these breaks are taken. Payne & Fears LLP associate Leila Narvid described the rulings as a greater shift against rest period class actions, and explained the new measures plaintiffs will have to take to show a history of violations. "If the California Supreme Court does not grant review, it will serve as a significant barrier to class certification in most meal and rest break cases, and we can expect a major decrease in the number of class action lawsuits in this arena," Narvid told Law360.
08/18/2008 Facebook friends as job references?
With the popularity of online networking websites such as Facebook, MySpace, and LinkedIn, more and more hiring managers are turning to the web to find and interview references for prospective employees. As an August 18th MSNBC article reports, HR professionals are using applicants' social networking profiles to contact friends, get references, and uncover more information about potential employees, often without the applicant's knowledge or permission. While many HR professionals consider social networking sites a convenient and useful tool for uncovering information, Payne & Fears attorney Rich Falcone warns that hiring managers still need to exercise caution and discretion. "Some managers may have the feeling of freedom in cyberspace, doing things from home when they don't feel the restraints of the office with the HR person looking over their shoulder," Falcone told MSNBC. "We recommend they just give out name, rank, and serial number."
08/03/2008 Too much information? Think your e-mails and phone calls at work are private? Think again.
Employees often feel they have more rights to privacy at work than they actually do, according to an August 3rd article in the Miami Herald. As long as employees are made aware of company privacy policies, employers in most states are allowed to videotape workers, search workspaces, and examine e-mails and online activity without prior consent. Payne & Fears attorney Rich Falcone advised employers on the safest and most effective ways to publicize corporate privacy policies. "First, an employer should disseminate its written policies informing its employees that they should not have an expectation of privacy with regards to computers, lockers, desks, vehicles, or other personal effects," Rich told the Miami Herald. "Second, an employer should obtain the written approval of its employees by having them acknowledge their awareness of the employer's policy and granting permission for the employers to inspect lockers, desks, etc."
07/02/2008 Defense Verdict in Race Discrimination Trial
Payne & Fears LLP recently obtained a defense verdict for a manufacturing client on claims for racial discrimination, racial harassment and retaliation in a jury trial in San Bernadino County Superior Court. The plaintiff was a 19-year employee whose employment was terminated for two safety violations in a short period of time. He alleged that his safety violations were fabricated by his Supervisor in order to arrange his termination, motivated by the Supervisor's bias against him on the basis of his race (African-American) and age (over 65). He also accused his Supervisor of repeatedly harassing him on the basis of his race and age, using racial epithets and accused his employer of terminating him in retaliation for complaints about the Supervisor's alleged harassment. After a two-week trial, the jury returned defense verdicts on all of the plaintiff's race-based claims, for discrimination, harassment and retaliation. While the jury was deliberating on the plaintiff's age claims, plaintiff accepted a cost waiver in exchange for abandoning his remaining claims for discrimination and harassment on the basis of his age. James L. Payne and James R. Moss tried the case.
06/30/2008 Published Ninth Circuit Victory in Antitrust Case
In June 2006, Payne & Fears LLP obtained summary judgment for its client, a New Jersey intellectual property firm, in an action brought by a California tool distributor and its Taiwanese supplier. The complaint, which sought millions in damages, alleged that the client violated federal antitrust law, the Lanham Act and state law when it brought a prior suit against the distributor and supplier for patent infringement. In 2005, Payne & Fears LLP brought a successful motion for partial summary judgment on litigation privilege grounds, which eliminated six of nine claims. After discovery, the federal court held that the prior patent suit was supported by probable cause and protected by the Noerr-Pennington doctrine, and dismissed the three remaining claims. Plaintiffs then appealed to the Ninth Circuit. After briefing and oral argument, the Ninth Circuit agreed with Payne & Fears LLP on all points and upheld the grant of summary judgment in favor of its client. The published decision, authored by Chief Judge Alex Kozinski, in entitled Fisher Tool Company, Inc. v Gillet Outillage, 530 F.3d 1063 (9th Cir. 2008). Daniel L. Rasmussen and Daniel F. Lula handled the defense and the appeal.
12/11/2007 Eric Sohlgren Interviewed by Anglican TV
Payne & Fears LLP partner Eric Sohlgren was interviewed by Anne Colletta of AnglicanTV.org regarding the various church property cases that the firm has handled. Click here to replay the video interview.
11/30/2007 Complete Victory in Arbitration for Printing Supplies Manufacturer
In November 2007, Payne & Fears LLP obtained an arbitration award in favor of its client, a manufacturer of printing supplies, awarding it over $800,000 and ordering future royalty payments which will push the total recovery to approximately $1.5 million. The client had sold its operations and assets to another manufacturer under a contract providing for future royalty payments based on revenue from the sold operations. After the sale, the buyer refused to make any royalty payments and instead sued the client, claiming that it had misrepresented the state of the business. Payne & Fears LLP successfully moved the Orange County Superior Court to refer the case to arbitration as the parties' contract specified, and counterclaimed for the unpaid royalties. After a three day arbitration in Los Angeles, the arbitrator issued an award finding in favor of the client on the buyer's fraud claim and ordering the buyer to pay back royalties and interest of over $668,000, attorneys' fees and costs of over $127,000, and future royalties. Payne & Fears LLP then moved the Superior Court to enter judgment based on the arbitration award, which it did on March 20, 2008. Daniel M. Livingston and Daniel F. Lula handled the arbitration and court proceedings.
02/24/2007 Payne & Fears LLP Helps Nonprofit Client Turn Tables on Plaintiff
In February 2007, Payne & Fears LLP assisted a nonprofit client in turning a liability into a recovery. The client had been sued for wrongful termination and discrimination by a former officer of the corporation. By uncovering evidence of the plaintiff's improper self-dealing with the corporation during his employment, and aggressively confronting the plaintiff with that evidence during his deposition, Payne & Fears LLP was able to obtain a resolution of the matter under which the client paid nothing to the plaintiff, and the plaintiff instead agreed to make substantial payments to the client. Eric C. Sohlgren and Daniel F. Lula handled the case.
12/12/2006 Payne & Fears Expands San Francisco Office
The San Francisco office of Payne & Fears LLP, which was opened just six months ago, has recently added two experienced management-side employment lawyers, Rich Falcone and Rod Sorensen. Both previously were partners at DLA Piper in Palo Alto, and before that both practiced at Littler Mendelson. They bring a combined 34 years of experience representing employers in all aspects of employment law and litigation.
The expansion continues a steady trend of client-driven growth for Payne & Fears LLP since its founding in 1992. The Irvine-based firm opened its Los Angeles office in 2003, its Las Vegas office in 2004 and the San Francisco office in 2006. Payne & Fears LLP has grown to 50 attorneys with diversified employment and business law experience.
"Adding talented lawyers such as Rich and Rod further solidifies our Northern California practice and adds an even greater depth of experience with which to assist our clients" said James Payne, managing partner, Payne & Fears LLP. "Rich and Rod will be outstanding assets to many of the firm's clients, who increasingly face a myriad of employment-related issues."
Mr. Falcone received his B.A., cum laude, in 1974 from Tusculum College in Greeneville, Tennessee, and his juris doctor in 1980 from the University of Santa Clara University School of Law where he was an Editor of the Santa Clara University Law Review.
Mr. Sorensen earned his J.D. (Dean's List) from Santa Clara University School of Law. While at Santa Clara, Mr. Sorensen was an Editor of the Santa Clara University Law Review and a member of the Moot Court Board. Mr. Sorensen received his B.S., cum laude, from California Polytechnic State University, San Luis Obispo.
03/29/2006 Peers Recognize Legal Skills of Payne & Fears Partner
The Best Lawyers in America 2006
Payne & Fears LLP congratulates Daniel L. Rasmussen on being among The Best Lawyers in America 2006. The Best Lawyers lists, representing 57 specialties in all 50 states and Washington, DC, are compiled through an exhaustive peer-review survey in which thousands of the top lawyers in the U.S. confidentially evaluate their professional peers. The current, 12th edition of Best Lawyers (2006), is based on more than 1.5 million detailed evaluations of lawyers by other lawyers.
02/02/2006 Payne & Fears LLP Lawyers Featured Speakers in Seminar on Insurance Law
Nevada State Bar Association Conference, “Insurance Coverage for Construction Defects in Nevada”
Payne & Fears LLP Insurance Law Department partners Scott Thomas, Kelby Van Patten, and Greg King will be speaking at a conference entitled "Insurance Coverage for Construction Defects in Nevada." The conference will take place on February 2, 2006 in Reno, Nevada, and on February 3, 2006 in Las Vegas, Nevada. The conference is sponsored by the Nevada State Bar Association and Payne & Fears LLP.
Payne & Fears LLP partner Kelby Van Patten is the chair of the program.
08/01/2005 Payne & Fears Attorneys Named Superlawyers; Rising Stars
Continuing a series of recent awards and recognition, many Payne & Fears LLP attorneys have been named "Super Lawyers" or "Rising Stars" by their peers in the legal community. Seventeen Payne & Fears lawyers were named "2005 Super Lawyers" by Super Lawyers®, "The Ultimate Guide to The Best Attorneys in Southern California," published as a joint project of Law & Politics and Los Angeles Magazine. Those on the list were nominated and rated by bar members who were asked to vote for the best lawyers they had personally observed in action. The nominations were researched by Law & Politics, and finally reviewed and selected for the list by practice-area blue ribbon panels of top attorneys.
The Super Lawyer designation indicates that the lawyer is in the top 5% of lawyers practicing in Los Angeles and Orange Counties. The Payne & Fears LLP lawyers who were named Super Lawyers are: James L. Payne, Daniel F. Fears, Daniel M. Livingston, Daniel L. Rasmussen, Benjamin A. Nix, Eric C. Sohlgren, Jeffrey K. Brown, Scott S. Thomas, Karen O. Frankudakis, Thomas L. Vincent, J. Kelby Van Patten, C. Darryl Cordero, W. James Scott, Jr., Richard K. Zepfel, Julie J. Bisceglia, Sean A. O'Brien, Alan G. Ross and Gregory H. King.
The publication further honored seven of those lawyers as not just being in the top 5%, but being among the top 50 lawyers in Orange County: James L. Payne, Daniel F. Fears, Daniel M. Livingston, Daniel L. Rasmussen, Benjamin A. Nix, Eric C. Sohlgren and Jeffrey K. Brown.
In addition to these honors, Payne & Fears LLP also celebrates its nine "Rising Stars" as identified by Law & Politics magazine. A "Rising Star" is an up-and-coming attorney who is 40 or younger or has been in practice ten or fewer years. The results are based on responses to surveys sent to California lawyers who themselves had been selected as Super Lawyers. The final list includes less than three percent of the Southern California Bar, and will be featured in Los Angeles Magazine. The Payne & Fears LLP lawyers who were named "Rising Stars" are: James R. Moss, Jr. John V. DeZee, Sean T. Nguyen, Yoko Yagi Lim, Thayne Larson, Daniel F. Lula, Erik M. Andersen, Lindley P. Fraley and Stacey O. Jue. Congratulations to all of the honorees.