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October 18, 2016

Summary Judgment Granted in Favor of Safeway in Telephone Consumer Protection Act (“TCPA”) Flu Shot Reminder Call Case.

Bill Murphy, John Dahlberg and Cross Creason recently succeeded in getting a motion for summary judgment granted in favor of Safeway Inc.  Lawyers representing a Safeway pharmacy patient who received pre-recorded flu shot reminder calls filed a class action lawsuit against Safeway in the U.S. District Court in San Francisco in Fall 2015.  The Complaint alleged that flu shot reminder calls were made to patients’ cellular telephones without their consent, and so violated the federal Telephone Consumer Protection Act (“TCPA”).  The lawsuit sought statutory damages of $500 per phone call, and treble damages of $1,500 per call because, plaintiffs alleged, the TCPA violations were knowing and willful.  Given that hundreds of thousands of prerecorded flu shot calls are made annually, the potential exposure was huge.

After limited discovery focused solely on the substantive merits of the case, Safeway moved for early summary judgment.  Safeway’s motion contended (a) that no prior express consent was required because the flu shot reminder calls were exempted from the TCPA by a Federal Communications Commission (“FCC”) “safe harbor” rule for prerecorded calls containing an exigent health care message, provided certain conditions were met, (b) that the calls were properly characterized as “emergency” calls exempted from the TCPA, and (c) that under longstanding FCC rulings, Plaintiff gave her prior consent for Safeway to call her on her cell phone by giving Safeway her cell phone number when she received a flu shot during the preceding flu season.

On October 11, 2016, the U.S. District Court granted Safeway’s motion and dismissed the lawsuit.  Jackson v. Safeway (N.D. Calif. 2016) 2016 WL 5907917.  The Court held that Safeway’s prerecorded call scripts fully complied with all of the preconditions of the FCC-created “safe harbor” exempting callers from the requirement of getting prior express consent before making certain “exigent” calls to wireless telephone numbers that have a “healthcare treatment purpose” and are not charged to the called party.  The Court also held that Safeway was entitled to summary judgment under the TCPA because the calls delivered a “health care message”, as defined in the regulations, and Plaintiff had given her prior express consent to Safeway to contact her at the phone number she previously gave Safeway in connection with a prior flu shot.  The Court rejected Plaintiff’s arguments that prior written consent was required for such calls or that Safeway’s calls exceeded the scope of the prior express consent given by Plaintiff.   

Of course, it is still important to double check with counsel before using prerecorded or automatically dialed phone calls to reach out to patients and other customers to remind them to get flu shots, to refill or pick up prescriptions or for any other purpose.  The law and regulations are detailed, and a failure to comply fully has potentially draconian consequences.  But the good news is that, correctly managed, prerecorded and automatically dialed reminder phone calls remain in the pharmacists’ tool box to promote the health of their patients and the general public, notwithstanding the TCPA.

July 19, 2016

The Defend Trade Secrets Act – Employers’ Confidentiality and Trade Secrets Agreements, Along with Employee Handbooks, need to be amended promptly.

By

William F. Murphy

The Defend Trade Secrets Act of 2016 (‘the Act”) creates a new cause of action that can be filed in federal court by employers against employees or former employees (and others) for misappropriation of the employer’s trade secrets.  Up to now, trade secrets were only protected by State law, and the protections provided for trade secrets could vary from State to State.

The Act also provides that employees or former employees are not liable under any federal or state trade secret law if they disclose an employer’s trade secret in confidence to a Federal State or local government official or to the employee’s attorneys, if the disclosure is made solely for the purpose of reporting or investigating a suspected violation of law. 

The Act also permits the employer’s trade secret to be disclosed in a complaint or other document filed in a lawsuit, if the filing is made under seal. 

An individual who files a lawsuit against his or her employer for retaliation based on the employee’s reporting of a suspected violation of law may disclose the employer’s trade secrets in confidence to an attorney, and may use the trade secret information in the court proceeding so long as the individual files any document containing a trade secret under seal and does not disclose the trade secret, except pursuant to Court order.

Most importantly, the Act requires employers to “provide notice of the immunity * * * [the right of employees to disclose trade secrets to government officials and to their lawyers in confidence] in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.”  The Act further specifies how the notice to the employees may be made:  it is sufficient, says the Act, if the contract or agreement cross-references to a policy document provided to the employee that sets forth the employer’s reporting policy for a suspected violation of law and sets forth the immunity provisions. 

What happens if the employer’s new Agreements fail to comply with the Act?  If the confidentiality agreements the employee signs do not have the required notice, the employer may not be awarded punitive damages or attorneys’ fees in a lawsuit against an employee for disclosing trade secrets – even if the employee is found guilty of disclosing the trade secrets to a competitor, or is found guilty of using the employer’s trade secrets to compete against the employer!  In such a situation, however, the employer would still be entitled to get injunctive relief (barring the employee from further disclosures) and to recover any damages caused by the employee’s disclosures.

Here is an example of how the Act changes things in the U.S.  Before the Act, an employee who disclosed an employer’s trade secret to a government official or to the employee’s lawyer because the employee believed the employer was breaking the law could be sued by the employer for breaching a confidentiality agreement prohibiting any unauthorized disclosures of an employer’s trade secrets.  This created a disincentive for employees to report suspected violations of law.  An employee who reported a suspected violation of the law by his employer and who disclosed trade secrets to a government official or a lawyer to help prove the case could still be sued by the employer for breach of contract, or for misappropriation of the employer’s trade secrets.  The Act changes things by making it clear that the employees can’t be sued if their disclosures of the employer’s trade secrets were made in on a confidential basis only to government officials or to lawyers, and only for the purpose of reporting or investigating a suspected violation of law.

So, employers in the U.S. should make sure to provide notice of the immunities provided by the Defendant Trade Secrets Act of 2016 in any employment agreements involving confidentiality/trade secret protections, and amend Employee Handbooks or other policy documents given to employees to do the same.   

The Act applies only to agreements entered into or updated after the date of enactment of the Act (April 2016).

October 2015 "CALIFORNIA ENACTS “FAIR PAY ACT” – EFFECTIVE JANUARY 1, 2016
Fair Pay Act Summary

August 3, 2015 - In Memoriam: William O. Dillingham
William O. Dillingham
Links to Bill Dillingham’s obituaries:

http://www.legacy.com/obituaries/sfgate/obituary.aspx?n=william-dillingham&pid=175433378

The Recorder “William O. Dillingham, 64, Founded SF Boutique”

The Daily Journal William O. Dillingham 1951 - 2015

June 2015 - For the third consecutive year, Dillingham & Murphy has been Named a California Top Ranked Law Firm by Martindale-Hubbell, as published by ALM. The nation's most elite law firms were recognized recently in the LexisNexis® Martindale-Hubbell® 2015 U.S. Top Ranked Law Firms list. LexisNexis® Martindale-Hubbell® was asked to research their comprehensive database of over 1.2 million lawyers and firms in over 160 countries and identify U.S. law firms of 10 or more attorneys, where at least one out of three of their lawyers achieved the AV Preeminent® Peer Review Rating. This rating indicates the rated lawyer has been deemed by his or her peers to have demonstrated the highest level of ethical standards and legal ability. Martindale-Hubbell Peer Review Ratings are driven by the confidential opinions of lawyers and members of the judiciary who provide reviews of lawyers about whom they have professional knowledge.

Dillingham & Murphy is proud to be recognized as one of the Top Ranked law firms in California.

Bill Murphy will be on the panel addressing depositions and discovery for the Practicing Law Institute’s Pretrial Practice in Federal Civil Litigation course, on June 24, 2015, in San Francisco.

Pretrial practice in federal civil litigation has undergone tremendous change. As fewer civil cases are tried, the staples of pretrial practice — pleadings, motions to dismiss, discovery, Daubert motions, summary judgment, and settlement — have replaced trials as the focus of litigation. What does the changing nature of pretrial practice in litigation mean for your practice? Join our faculty of experienced plaintiffs’ and defense attorneys, inside counsel, and judges as they review what you need to know to succeed at this increasingly important stage of litigation.  If you are interested in attending, or just learning more about the program, take the following link:

http://www.pli.edu/re.aspx?pk=58764&t=THF5_PRTR5

January 30, 2015 - John N. Dahlberg Wins Appeal

The California First District Court of Appeal affirmed judgment in favor of Dillingham Murphy clients James Elliot and Cafe Real Estate, Inc.  dba Delmar Properties.  These clients  were sued in 2013 by plaintiffs Steve and Anna Smith. Steve Smith etc. v. James Marshall Elliot, etc. San Mateo County Superior Court No 520542.

The Smith plaintiffs own and operate “Smith Trucks and Equipment”  in Princeton-by-the-Sea, California.  They sued Mr. Elliot and Café Real Estate, Inc. for trade libel, slander of title, defamation, intentional infliction of emotional distress, and fraud, alleging that defendants’ complaints to the government about their business practices damaged them.

Defendants filed an “anti-SLAPP”  motion to have the case dismissed because the allegations of the Smith lawsuit arise from the exercise of Mr. Elliot and Café Real Estate’s constitutional rights to speak about public issues and petition the government for help.  The San Mateo County Superior Court agreed, and dismissed the action on June 27, 2013, finding that it arose from defendants’ exercise of their rights, and because plaintiffs were unable to show that their claims had any probable merit.

The First District Court of Appeal affirmed the judgment in a 17 page unpublished opinion.  Among other things, the Court rejected the Smiths’ argument that defendants were barred from relief under the rules governing “issue preclusion” because Mr. Elliot had litigated and lost  a prior, unrelated case with Ms.  Smith. 

September 2014 - Paid Sick Leave Mandatory in California Beginning July 1, 2015
By William F. Murphy
Paid Sick Leave Mandatory in California.pdf

July 2014 - Lorman Seminar with Carla J. Hartley
Workplace Investigations in California Oakland, CA — July 30, 2014
Red Lion Hotel Oakland

Regardless of the workplace dispute, ensure nothing is overlooked - get on the road to success in workplace investigations.
CLE Credits Available

Click the link below and be taken to the Lorman website to read about and even register with a 20% savings.

http://www.lorman.com/393597?discount_code=L9623454&p=13389

May 2014 - Thomas J. Klitgaard: Cultivator for US-China relations
CHINADAILY USA Article May 5, 2014

October 2013 - California Governor Approves New Employment Legislation
CA Gov Approves Employment Legislation (pdf)

July 2013 - Bill Murphy was recently included in the San Francisco Magazine’s 2013 list of Northern California “Super Lawyers” practicing in the area of Employment and Labor.

http://www.superlawyers.com/search?q=William+F.+Murphy&l=california-northern

Bill says, “While it’s nice to be recognized, and I’m grateful for the recognition, what’s more fun is providing quality services to clients.”

July 2013 - PROTECTING OUR CLIENTS’  CONSTITUTIONAL RIGHTS TO SPEAK FREELY ABOUT PUBLIC ISSUES
WITHOUT FEAR OF SUIT

On June 27, 2013, the Superior Court in Redwood City granted our special motion to strike the entire March 18, 2013 complaint in the matter of Steve and Anna Smith dba Smith Trucks v. James Marshall Eliot and Café Real Estate dba Delmar Properties, Case 520542, pursuant to California Code of Civil Procedure Section 425.16, the “anti-SLAPP” [Strategic Lawsuit Against Public Participation”].  

Plaintiffs alleged that Dillingham Murphy client James Elliot was liable for compensatory and punitive damages, merely because Mr. Elliot made complaints to government agencies about Plaintiffs’ business in Princeton-by-the-Sea, California.  Because our clients’ complaints to the government are protected by the state and federal guarantees of free speech and the right to petition the government, the Smith claims arising from such acts are subject to a special motion to strike under California law.  If the motion is granted, the case is over without delay, or the costs of discovery.

On June 27, 2013, Judge Scott ruled that our clients’ activities are protected by the state and federal speech and petition guarantees, and that plaintiffs Steve and Anna Smith dba Smith Trucks had failed to show a probability of success as to any of their claims. The case was resolved in our clients’ favor in just over three months after it was filed.

The California legislature has also given to defendants such as Mr. Elliot a right to collect his attorney fees and costs from unsuccessful Plaintiffs, because he prevailed on claims that sought to penalize him for doing what Americans may do: speak freely about public issues, and complain to the government about them.  We will update this report once the court rules on our motion for fees and costs, which is likely to be heard in September.  

John Dahlberg and Patrick Suter represented Mr. Elliot in this matter.

June 2013 - Dillingham & Murphy, LLP Named 2013 California Top Ranked Law Firm by Martindale-Dale Hubbell, as published by ALM. The nation's most elite law firms were recognized recently in the LexisNexis® Martindale-Hubbell® 2013 U.S. Top Ranked Law Firms list, which was published in the December 24, 2012 issue of Fortune magazine. LexisNexis® Martindale-Hubbell® was asked to research their comprehensive database of over 1.2 million lawyers and firms in over 160 countries and identify U.S. law firms of 10 or more attorneys, where at least one out of three of their lawyers achieved the AV Preeminent® Peer Review Rating. This rating indicates the rated lawyer has been deemed by his or her peers to have demonstrated the highest level of ethical standards and legal ability. Martindale-Hubbell Peer Review Ratings are driven by the confidential opinions of lawyers and members of the judiciary who provide reviews of lawyers about whom they have professional knowledge.

October 2012 - In Memoriam: Bill Gaus was a mentor, a partner, and a very good friend.  When we lost him, he was an accomplished trial lawyer and advocate, at the very top of his professional skills.  Dillingham & Murphy is saddened by the passing of our friend and colleague, and express our sincerest condolences to Bill’s wife, Therese, and his six children.  His memory will continue to inspire (and prod) us to be advocates and counselors of the very best sort, as was Bill.

San Francico Chronicle Obituary

The Recorder Obituary

May 2012 - Dillingham & Murphy partner Bill Gaus, assisted by associate Andrea Fellion, obtained a $500,000 wrongful termination verdict in favor of the Firm’s client, a 57-year old electrical engineer who alleged he had been terminated by his employer in violation of public policy because he raised complaints about the testing and safety of circuits used in defibrillators manufactured and sold by the employer, and because he refused to certify that they met applicable safety standards.  The Santa Clara County Superior Court jury awarded plaintiff $370,000 in lost wages (the full amount demanded), and $130,000 in general damages.  The jury also awarded $1.00 in punitive damages.  Prejudgment interest will be sought.  In addition, Bill and Andrea got several cross-claims of misappropriation of company property asserted against their client by the employer thrown out via a motion for summary adjudication – this will result in an award of attorneys’ fees. 

February 2012 - Bill Murphy and Cross Creason obtained summary judgment for an employer who terminated a 28-year employee for providing an unauthorized markdown of liquor to “a friend of a friend.”  The case was venued in the United States District Court for the Eastern District of California.  The plaintiff claimed that she was terminated because of her age, her gender, and in retaliation for raising complaints.  Amotion for reconsideration is pending. For additional information, please contact Bill Murphy at wfm@dillinghammurphy.com or Cross Creason at jcc@dillinghammurphy.com.  The Court’s opinion can be found at 2012 WL 439597.

May 2011 - Employee theft is a problem continuing to vex retailers.  Bill Murphy and Cross Creason obtained summary judgment in favor of an employer who terminated an employee with 29 years of service for taking and drinking a cup of milk without paying for it.  Although the assigned judge expressed concerns that the penalty was draconian, the record established that the employer – and other employers in the industry – consistently and without exception terminated employees determined to have taken product without paying for it, regardless of length of service.  The Plaintiff alleged age and gender discrimination and intentional infliction of emotional distress.  The action was venued in the United States District Court for the Eastern District of California, in Sacramento, California.  For additional information, please contact Bill Murphy at wfm@dillinghammurphy.com or Cross Creason at jcc@dillinghammurphy.com.

February 12, 2011 - Thomas J. Klitgaard awarded Silver Beaver Award by the San Francisco Bay Area Council ot the Boy Scouts of America.
Silver Beaver Award (pdf)

In the Spring 2010, Dillingham partner Tom Klitgaard was certified as a mediator by the International Mediation Institute in the Hague, The Netherlands.  Tom has been a mediator for many years in complex transactions where business experience is useful.  Sample comments are “Mr. Klitgaard is a great mediator.  He went beyond most mediators I have dealt with”; “He is able to work with diverse parties and issues”; “He maintained the respect of both parties and successfully used various methods to reduce tension and maintain civil discourse.”
IMI Mediator Thomas J. Klitgaard (pdf)

In the Fall 2010, The University of San Francisco School of Law is again offering Tom’s two unit course on Asian Legal Systems to second and third year students and MBA candidates.  The course focuses on China and compares its legal system with the legal system of the United States and with the legal systems of surrounding Asian countries, including various means of dispute resolution and the nature of competition law and intellectual property law.  Tom also discusses the impact of religions and culture on the legal systems of Asia.

Auditors are welcome.

A Solution For Businesses Victimized by Internet Identity Theft (pdf)
“Bill Murphy and Cross Creason take on cyber-squatters”.

Avoiding Sexual Harassment

10 Tips to Avoiding Sexual Harassment (pdf)