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05.07.19
New California Independent Contractor Test Applies Retroactively According to the Ninth Circuit
By Procopio Partner Tyler M. Paetkau As we have previously reported, the California Supreme Court last year set forth a revolutionary new “ABC test” for determining whether workers are properly classified as employees or independent contractors, making it dramatically more difficult for California employers to lawfully retain independent contractors. On May 2, 2019, in Vazquez v. Jan-Pro Franchising Int’l, Inc., the Ninth Circuit Court of Appeals determined that the Supreme Cour...
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04.30.19
Where do Patent Owners Fit in the Current Federal Circuit-USPTO Patentability Divergence?
By Procopio Partners Miku H. Mehta and Robert H. Sloss Intending to bring more clarity and consistency to the patent examination process, the U.S. Patent and Trademark Office (USPTO) has been issuing new examiner guidelines over the last year focused on 35 USC 101. These include the so-called Berkheimer memo of April 19, 2018 (relating to step 2B analysis) and new subject matter eligibility guidelines announced on January 4, 2019 (relating to step 2A analysis). A Procopio colleague recent...
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04.24.19
Software is Patent-Eligible, But it's All About the Claims
By Procopio Associate Eric A. Bernsen Apps, computer- or smartphone-enabled processes, smart devices, and IoT solutions, often center on the same core element: software. Is your software, app, or process patentable? Well, to provide the stereotypical lawyer answer, it depends. But, at least in the near term, it seems easier now than it was before January 2019. The definition of patent-eligible subject matter is codified in 35 U.S.C. § 101: “Whoever invents or discovers an...
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04.17.19
Developing an Incident Response Plan for a Cyber Attack
By Procopio Partner and General Counsel Carole J. Buckner Every attorney’s ethical duty of competence requires a lawyer to provide competent representation to a client, applying the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. This in turn requires that a lawyer keep abreast of technology, including associated risks and benefits, including continuing study and education. As a matter of best practice and preparation, lawyers should pro...
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04.04.19
California Adopts Wetlands Definition and Expands Requirements for Dredge or Fill Applicants
By Procopio Partner John J. Lormon and Legal Assistant Miranda C. Barfield After more than a decade of work, the California State Water Resources Control Board (State Board) approved on April 2, 2019, a common definition for California wetlands and a regulatory program that amends and expands the permit requirements for the discharge of dredge or fill materials that impact or could impact state waters. We forecast coming changes and their importance for development in the state in a previ...
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03.19.19
Key Elements to an Effective Export Control Compliance Program
By Senior Associate Michael C. Jones One billion dollars: That was the fine ZTE agreed to pay in 2018 in order to lift a denial order issued by the United States government in response to export control violations. Similarly, Huawei’s CFO was indicted in December 2018 for alleged export control violations with respect to Iran. As these cases indicate, penalties for violating export control regulations can be high and include criminal charges. Further, as discussed in my previo...
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03.13.19
Should You Consider a Phantom Equity Plan?
By Procopio Senior Associate Aaron Sokoloff Whether you’re a brand-new startup or a veteran of several funding rounds, every emerging growth CEO wants to find the right path to incentivizing employees while conserving capital. One creative approach that might be right for you is a phantom equity plan. Phantom Equity – what is it? Phantom equity is essentially a cash bonus plan that is designed to mimic the effects of having an ownership interest in a company. While the terms v...
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02.28.19
Expanded Private Right of Action Proposed for California Consumer Privacy Act
By Procopio Senior Counsel Elaine F. Harwell When California quickly passed the landmark California Consumer Privacy Act (CCPA) last June, policymakers across the state made clear that they did not anticipate the new law--the most sweeping privacy legislation in the United States--would be implemented unchanged. What was unknown was what those changes might be, and whether they would reduce or increase burdens on businesses operating in the state. Now, almost eight months later, the s...
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02.28.19
Proposed Regulatory Changes Would Impact Clean Water Act 401 Applicants in California
By Procopio Partner and Energy and Environmental Law practice leader John J. Lormon and Legal Assistant Miranda C. Barfield A wide array of projects in California fall under the jurisdiction of the federal Clean Water Act (CWA), so it’s worth noting that changes are now being proposed to the jurisdictional reach of the CWA. In this first article of a two-part analysis, we examine the current California permitting process for projects subject to CWA dredge and fill jurisdiction, as well ...
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01.29.19
2019 Finds Commercial and Residential Real Estate Owners Under New Laws and Regulations
By Procopio Attorneys Sara G. Neva, Justine K. Nielsen, Kia R. Brady, Erica Kristen Lee, and Hazel Ocampo G. State and local lawmakers and regulators in California were busy in 2018, and as such there are about a dozen new statutes and regulations critical to owners of commercial and multi-resident real estate as well as common interest communities. From building inspections to wetlands regulations, and from landlord-tenant issues to parking regulations, parties affected by these new stat...
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