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Antitrust Lawsuit Allowed to Continue Against California Tech Companies

2012-04-25T22:25:47Z

Last week, a California Federal District Court Judge denied the request by seven California-based companies to dismiss claims against them alleging they had colluded with each other not to attempt to hire each other's employees.

The lawsuit claims that the companies conspired with one another to restrict salaries and job mobility by reducing competition for employees, thereby costing the employees millions of dollars, according to the five software engineers who originally brought the lawsuit.

Tech giants Apple Inc, Google Inc and Intel Corp - along with Intuit Inc, Pixar, Lucasfilm Ltd and Adobe Systems Inc - had asked the court to dismiss various federal and state claims alleged against them, including alleged violations of the Sherman Act, California's Cartwright Act and California's Unfair Competition Law (UCL). Ultimately, the court sided with the companies regarding the UCL claims, but refused to dismiss the other antitrust claims.

]]> In her opinion, District Judge Lucy Koh stated the fact that many of the companies had "Do Not Cold Call" agreements among themselves supported the conclusion that they were negotiated at the top levels of the companies. She continued, "The fact that all six identical bilateral agreements were reached in secrecy among seven defendants in a span of two years suggests that these agreements resulted from collusion, and not from coincidence."

As this opinion illustrates, business litigation in California can be quite complex and difficult to navigate. Parties have to not only be able to address federal laws but state laws as well. Regardless of whether you are defending or presenting allegations of unfair business practices, an experienced business litigation attorney will be able to provide you the guidance you need.

Source: Reuters, "Apple, Google, Intel fail to dismiss staff-poaching lawsuit," Jonathan Stempel, April 19, 2012

California's Covenant of Good Faith and Fair Dealing in Business Contracts

2012-03-30T19:08:38Z

During this economic downturn - which some have dubbed the "Great Recession" - California companies have to work especially hard to keep their businesses afloat. Unfortunately, this already difficult task gets even more complex when businesses breach contracts with each other. For example, when a distributor fails to deliver products on time to a retailer, the retailer has nothing to sell on its shelves, which means no revenue for the retailer.

While clear breaches of contracts are easy to spot, such as the example above, there exists another type of breach that is not as obvious - this breach is known as the breach of the implied covenant of good faith and fair dealing in California.

Implied Covenant of Good Faith and Fair Dealing

In every contract there is an implied covenant by both parties not to do anything that will deprive the other party of benefits under the contract. If the cooperation of the other party is needed for successful completion of a contractual obligation, a promise to provide this cooperation and not to do anything that hinders performance will often be implied.

]]> As California case law has stated, this implied covenant of good faith and fair dealing "not only imposes upon each contracting party the duty to refrain from doing anything which would render performance of the contract impossible by any act of his own, but also the duty to do everything that the contract presupposes that he will do to accomplish its purpose." Thus, California law imposes an affirmative duty on both parties to do everything the contract presupposes they will need to do to perform under the contract - even if the obligation is not expressly stated in the contract itself.

When a party to a business contract breaches this covenant of good faith and fair dealing in California, it gives rise to a breach of contract action. However, bringing a suit under this particular cause of action can be quite complex - as such, an experienced business litigation attorney can always advise as to the best way to proceed.

When Are Customer Lists Trade Secrets?

2012-03-01T17:51:28Z

Under the federal Uniform Trade Secret Act (UTSA), a trade secret is information that derives economic value, actual or potential, from not being generally known to the public or ascertainable by other people who could obtain economic value from its use. In order to be a trade secret, the information must also be the subject of reasonable efforts to maintain its secrecy.

Therefore, to be considered a trade secret, a customer list must provide economic value to your company, be confidential, and not be generally known to the public.

If the list can be obtained through a simple directory search (or search through the yellow pages) and does not contain additional information about customers, a California court will likely not protect the list. If, however, it is evident that the business has spent time and money creating a unique list with information that is difficult to obtain, the court will be more likely to consider the list a trade secret.

]]> Protecting Your Customer List

There are several steps you can take to protect your customer lists. First, keep customer lists separate from other documents and files and mark the lists as confidential and proprietary. Keep hard copy files locked and password-protect computer files. Also, limit the number of employees that can access the documents.

Second, it is important to limit how employees can use your customer lists. You can have them sign non-disclosure agreements and non-solicitation agreements that protect your customer lists from misappropriation. Teach your employees about maintaining the confidentiality of customer lists and include confidentiality policies in your employee handbooks. Be sure to remind your employees about the confidentiality agreements and have them return any confidential information in their possession before they leave your company.

Taking steps to protect your customer lists will not only help keep the lists confidential, but will also help ensure the lists are considered trade secrets should they ever be compromised.

Source: Graziadio Business Review, "Protect Your Trade Secrets," Keith M. Gregory and Stephen J. Baumgartner, 2002.

California Civil Procedure and the Civil Trial Process

2012-01-24T12:03:00Z

With so many television series focused on dramatized criminal trials, few people understand how a civil lawsuit works. What is California civil procedure? What is the civil trial process?

Civil litigation deals with disputes between individuals or organizations. Remedies can include money damages (such as financial damages after a serious personal injury) and specific performance (such as requiring a party to perform under the terms of a contract).

]]> Generally, the civil trial process includes:

Complaint and answer: In order to bring a civil suit, a plaintiff must file a written complaint with the court. After the complaint is filed, the defendant will have time to respond in writing.
Discovery: After the complaint is filed and answered, both parties will have a chance to research the facts of the case. This process is called "discovery" and can include a number of trial preparation techniques, such as questioning witnesses, sending written questions to the other party and exchanging documents with the other party.
Settlement negotiation: During any point in the lawsuit, the parties and their attorneys may meet to discuss the facts of the case and try to come to a settlement agreement. If the parties reach an agreement on all of the issues, they can enter that agreement with the court and may not have to go to trial.
Civil trial: During a civil trial, both sides have a chance to prove their case before a judge. In some suits, such as select personal injury lawsuits, the case may be argued in front of a jury. The judge's or jury's decision is binding on the parties but may be appealed.
Civil appeals: If a case is decided improperly during trial, a party may bring an appeal to the California appellate courts.

Alternative Dispute Resolution

Depending on the type of civil litigation and the facts of the case, the parties may choose to resolve their disputes through an alternative dispute resolution method such as mediation or arbitration.

In mediation, a neutral third party meets with both of the parties to try to help them come to a mutually beneficial agreement.

In arbitration, the parties present their cases to an arbitrator who then makes a decision. The arbitrator's decision is generally binding like a judge's decision; however, unlike in general civil litigation, the decision is not public. Private business disputes are often resolved through arbitration.

This blog highlights the basic steps of a civil court case. Each branch of civil litigation is unique. There are specific rules of civil procedure (such as different statutes of limitation - or the amount of time a plaintiff has to file a case) for the various types of civil cases. A real estate case is going to be different from trust litigation, which will be different from a construction contract dispute.

Whatever civil lawsuit you face, it is important to speak with a lawyer experienced in California civil procedure who can help you protect your rights.

Southern California's Business Litigation Attorneys

2012-01-11T20:01:46Z

How do you choose the right attorney for your business matter? There are several factors you should look for when choosing the right law firm to represent you in any business litigation matter. You want to consider a firm who has not only a proven track record, but who has litigation and trial experience. There are a lot of lawyers out there who want to settle your case and not fight for you. We at Boyd Contreras have offices throughout Southern California and experience specifically in a variety of complex business litigation matters. We've handled cases involving breach of contract claims, misrepresentation, conversion, interference with contracts, fraud, premises liability, partnership and shareholder disputes, unfair and deceptive trade practices as well as intellectual property claims. Call us today at 619-378-4033 or 949-242-0656 to schedule an appointment to come into our office and meet our attorneys and judge for yourself. We are extremely efficient and aggressive and can fight for you.

Netflix and AT&T: Examples of Recent Antitrust Lawsuits

2011-12-22T16:52:53Z

One recent case involving Netflix and an ongoing case regarding AT&T's T-Mobile merger have put antitrust issues back into the public eye. While these are large companies involved in major disputes, any business can face antitrust and anti-competition issues.

Antitrust cases are complicated and often involve a wide range of factors. Therefore, if your business is accused of violating the California Unfair Competition Act or federal law, or if you must bring an unfair business practices claim against another business, the best protection you can offer your business is to speak with an experienced business litigation attorney.

]]> Netflix Antitrust Case

The U.S. District Court in Oakland, California, recently dismissed an antitrust case against Netflix, Inc. In In Re Online DVD Rental Antitrust Litigation, consumers alleged that Netflix was creating a monopoly for online video rentals. The lawsuit was filed after Wal-Mart Stores, Inc., closed its own online video rental business, agreeing to refer customers to Netflix.

The court held that the consumers failed to show that these actions were an attempt to prevent competition or that video prices had risen due to the agreement.

AT&T / T-Mobile Merger

While Netflix was able to win its antitrust case, another large company faces significant obstacles. In 2011, AT&T Inc. sought to buy out T-Mobile USA. The Justice Department sued to prevent the merger, stating that it would significantly reduce competition in the cell phone / wireless market. The Federal Communications Commission also opposed the merger.

AT&T would likely face an extensive legal battle if it moved forward with merger. Spokesman Larry Solomon stated that the challenges to the merger were simply "another example of a government agency acting to prevent billions in new investment."

Source: Bloomberg Businessweek, "HSBC, RBS, Madoff, Facebook, AT&T, Lehman in Court News," Elizabeth Amon, Nov. 28, 2011.

The NBA Lockout: Antitrust Lawsuits and Union Issues

2011-11-28T16:15:43Z

This weekend, the National Basketball Association (NBA) lockout effectively came to an end after nearly four months of disputes. While some issues have yet to be worked out, the players and the NBA have come to a tentative agreement on the major concerns. This was a highly-publicized business dispute with many issues at stake. However, it is not unlike business litigation faced by companies in California and across the country.

According to counsel for the NBA players, the players "wanted a fair deal with a system that would provide a true competitive market for their services." In an effort to reach that goal, NBA players submitted antitrust lawsuits in both California and Minnesota.

]]> The lawsuits came after the players' union withdrew an unfair labor practices charge that had said the NBA did not negotiate the new collective bargaining agreement in good faith. This charge may have allowed players to decertify the National Basketball Player's Association (vote to end the union) in an effort to push the NBA to negotiate.

By decertifying, the players could have dissolved the bargaining relationship and forced the NBA to face antitrust laws. (While the National Basketball Player's Association existed, collective bargaining agreements remained shielded from antitrust laws that prohibit restraints on competition. Under the antitrust laws, the NBA's salary caps, maximum salaries and even the lockout itself, could be considered price fixing and, thus, illegal.) However, the NBA filed a disclaimer of interest, dissolving the union into a trade association and allowing individual players to bring antitrust claims against the NBA.

The antitrust lawsuits claimed that the NBA violated the Sherman Antitrust Act by not allowing collective bargaining proceedings to take place. The NBA allegedly did this by giving the union a take it or leave it deal, effectively forcing the union to accept the offer or suffer financial loss.

Through the antitrust lawsuits, the players sought treble damages, which means the NBA may have been forced to pay three times what the players lost in salary during the lockout.

The NBA claims the players used the decertification threat and antitrust lawsuits to force negotiations. There are many tactics both parties can use during any business dispute, some of which can threaten a business' financial wellbeing and reputation. That is why it is important for businesses to hire business litigation attorneys that are strong advocates with experience in the complexities of business disputes.

Source: USA Today, "NBA Deal Not Perfect, But Sides Can Go With It," Jeff Zillgitt, Nov. 27, 2011.

California Company Faces Lawsuit Over Non-Disclosure and Non-Compete Agreements

2011-10-31T18:35:24Z

Anchor Brewing Co. in San Francisco is facing business litigation from Boston Beer Co. for hiring one of Boston Beer's former district managers. The business litigation centers around non-disclosure and non-compete agreements that the business manager signed upon employment.

Under his employment contract, the employee agreed to:

A non-disclosure clause: An agreement to not disclose trade secrets, such as recipes, formulas, processes, and distribution and marketing methods
A non-compete clause: An agreement which said that the employee would not import, produce, market or distribute a beer or ale within the "Better Beer market" for one year from the date he last received compensation from Boston Beer Co.

]]> The employee was a district manager for Boston Beer for approximately a year and a half. He left the beer company voluntarily and was hired as a sales manager for Anchor. Anchor claims it has not received proprietary information from the employee and that the lawsuit is a nuisance suit. Meanwhile, Boston Beer claims that it is inevitable that the employee will use the company's confidential information to compete with it.

The lawsuit was filed in the Massachusetts' court system. In Massachusetts, non-compete agreements are upheld if they are reasonable. This is in stark contrast to California, where non-compete agreements are typically void as a matter of law.

In 2008, the California Supreme Court ruled that non-compete agreements have been illegal since 1872. In fact, California non-compete agreements are only allowed in a small number of circumstances, such as in cases involving dissolution of partnerships and LLCs. Thus, the non-compete agreement in the Anchor case would not be upheld in a California court.

Source: San Francisco Business Times, "Beer Battle Brewing Between Bay Area and Beantown," Chris Rauber, Oct. 27, 2011.

El divorcio y una pequeña empresa

2011-09-14T04:40:24Z

Cuando se trata de divorcio, la mayoría de la gente está preocupada con la custodia de los hijos, pensión alimenticia, manutención del cónyuge (pensión alimenticia), y cómo dividir los bienes matrimoniales (división de la propiedad). Si usted es dueño de una pequeña empresa, la última pregunta cobra mayor importancia.

]]> Una pequeña empresa a menudo es el activo más grande que solo posee un par. Sin embargo, de acuerdo con San Diego abogados de protección de activos, sino que también puede ser la más difícil de dividir.

Una gran parte puede ser invertido en el valor intangible de la empresa, por ejemplo, si usted es dueño de un restaurante, puede ser una combinación de la ubicación, la decoración, el chef y su capacidad de gestión, trabajando todos juntos para que sea un éxito. Estos factores deben ser tenidos en cuenta al valorar una empresa durante un divorcio.

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Divorce and a Small Business

2011-09-13T14:02:15Z

When it comes to divorce, most people are concerned with child custody, child support, spousal support (alimony), and how to divide marital assets (property division). If you own a small business, the last question takes on greater importance.

A small business is often the largest single asset that a couple owns. However, according to San Diego asset protection lawyers, it may also be the most difficult to divide.

A great deal may be tied up in the intangible value of the business; for instance, if you own a restaurant, it may be a combination of the location, the décor, the chef and your management skills, all working together to make it a success. These factors must be taken into account when valuing a business during a divorce.

]]> How to Protect Your Business

Because liquidating a small business could be crippling or catastrophic, some advance planning can help protect your interests during a divorce involving the business or other significant event. The following are some of the tools business owners can use to protect their interests early on:

Trusts: Trusts are a powerful planning instrument; they can be designed to contain all of the assets of the business. The trust owns the business, so it is not a party to the divorce and its assets are not part of the marital distribution.

Buy/Sell Agreements: Buy/Sell agreements are an important part of any succession planning strategy for a business. They can be drafted to allow the business the right of first refusal when stock needs to be sold. A divorce can be made a trigger event for the purchase and sale of the business.

Prenuptial Agreements: Prenuptial agreements can be useful to determine who will own the business in the event of a divorce. They can also help one spouse retain control over a business he or she owned prior to marriage.

A knowledgeable business attorney can help discuss the combination of instruments that best fit your circumstances. Because many of the instruments are state-specific, speaking with a lawyer before there is a need is the best plan.

Cuando disputas entre socios de plomo a la disolución de negocios

2011-08-24T03:42:59Z

Recientemente, en Corrales Corrales contra, la Corte de Apelaciones de California envió un caso de disputa colaboración al tribunal de juicio porque las partes en la controversia - los dos socios - que se cree que una persona puede ser dueño de una asociación. Bajo la Ley Uniforme de California revisado Asociación (RUPA), las asociaciones deben tener al menos dos personas. Por lo tanto, cuando uno se retira socio de una asociación de dos personas, la asociación se disuelve por la ley.

]]> El fallo del tribunal sin duda refleja una definición de sentido común de una "asociación". Sin embargo, también plantea la pregunta: ¿qué opciones están disponibles cuando una disputa asociación amenaza la viabilidad de un negocio? Asociación de la disolución y la disociación son dos opciones para hablar con un abogado de la asociación disputas.

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When Partnership Disputes Lead to Business Dissolution

2011-08-23T10:58:48Z

Recently, in Corrales v. Corrales, the California Court of Appeals sent a partnership dispute case back to the trial court because the parties to the dispute - the two partners - believed that one person can own a partnership. Under the California Revised Uniform Partnership Act (RUPA), partnerships must have at least two people. Therefore, when one partner withdraws from a two-person partnership, the partnership dissolves by law.

The court's ruling certainly reflects a common sense definition of a "partnership." However, it also begs the question: what options are available when a partnership dispute threatens the viability of a business? Partnership dissolution and dissociation are two options to discuss with a partnership disputes attorney.

]]> Dissociation

Before 1996, when one partner left a partnership, the partnership dissolved. The dissolution happened automatically unless the partnership agreement stated otherwise.

Now, when one partner wishes to withdraw from a partnership of three or more people, the RUPA allows for dissociation. During dissociation, the dissociated partner sells his or her interest in the partnership to the partnership. The remaining partners are able to keep the partnership going without much legal consequence.

Partnership Dissolution

Under the RUPA, partnership dissolution occurs when at least half of the partners desire to dissolve the partnership. This number includes those who had dissociated from the partnership in the past 90 days and who had wanted the partnership to dissolve.

During a dissolution, creditors of the partnership are paid and business assets are split between the partners.

Partnership dissolution and dissociation are complex legal proceedings. If you are involved in a partnership dispute, do not hesitate to contact a San Diego partnership disputes attorney to learn about your options.

Source: California Court of Appeals, Rudy Corrales et al. v. Richard Corrales

Cuando los Baby Boomers Divorcio: Proteger lo que es tuyo

2011-07-14T03:46:01Z

Según la Oficina del Censo de los EE.UU., el 25 por ciento de los divorcios en el año 2007 participan las parejas mayores que habían estado casados por más de dos décadas. De hecho, durante los últimos 20 años, la tasa de divorcio para las personas mayores de 50 años se ha duplicado.

]]> Los baby boomers fueron la primera generación para ver la caída de los tabúes de divorcio (como razones religiosas para permanecer casados) y una mayor autonomía de la mujer, que puede ser la razón que ha llevado la carga sobre el divorcio en California y en todo el país.

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When Baby Boomers Divorce: Protecting What's Yours

2011-07-13T11:01:42Z

According to the U.S. Census Bureau, 25 percent of all divorces in 2007 involved older couples who had been married for more than two decades. In fact, over the last 20 years, the divorce rate for individuals over 50 has doubled.

The baby boomers were the first generation to see the decline of divorce taboos (such as religious reasons to stay married) and increased empowerment of women, which may be why they have led the charge on divorce in California and around the nation.

]]> The reasons for midlife divorce - life changes, children leaving the nest, alcoholism, etc. - are perhaps less important than what happens during divorce. Unlike young couples, who concentrate on child custody / child support arrangements or fight over the pieces of furniture in their homes, baby boomers often deal primarily with financial issues during a divorce.

If you are a baby boomer going through a California divorce, you may wonder: what will happen to my assets? Can my spouse's retirement benefits be divided? Is permanent spousal support (also called "alimony") an option? How can I protect what's mine? A divorce lawyer can help answer these questions.

Dividing Financial Assets During a California Divorce

Three common topics that baby boomers are concerned about include:

Retirement plans: In order for a court to divide a pension plan, it must issue a Qualified Domestic Relations Order (QDRO). An experienced family law attorney can help you negotiate and draft an effective QDRO, which recognizes an alternate payee's (spouse's) right to receive some of the retirement benefits.
Social Security benefits: Generally, if a marriage has lasted more than 10 years and the spouse of the person receiving Social Security benefits is at least 62 years old, he or she can continue to receive benefits on the ex-spouse's record unless he or she remarries.
Alimony / spousal support: When judges decide whether to grant alimony / spousal support and how much, they look at many different factors, including the length of the marriage, the couple's financial situation, each spouse's work history and education levels, and more.

Spouses with investments, substantial real estate and other significant assets will need to locate, appraise and characterize those assets. Divorcing baby boomers who own a family business may also need to go through the difficult process of dividing that business. If you face complex asset division in your California divorce, trust your case to an experienced San Diego divorce lawyer.

Bienvenidos al Blog de nuestro Derecho de Familia, Derecho Mercantil y Concursal

2011-06-14T04:48:47Z

En Boyd Contreras & Davis LLP, nuestro equipo legal posee una amplia base de conocimientos jurídicos y experiencia que nos permite satisfacer las necesidades legales de una clientela muy diversa: desde parejas con importantes activos financieros considerando el divorcio, a los propietarios que buscan la resolución de una inmobiliaria controversia, a los dueños de negocios involucrado en un juicio sobre las prácticas comerciales desleales. En estos y muchos otros asuntos legales, podemos ayudar.