We have previously written about how Dodd-Frank retaliation cases are a mixed bag for employers and about the Supreme Court’s expansion of Sarbanes-Oxley (“SOX”) Whistleblower protections. A new decision from the Wisconsin District Court is another mixed win for employers who want to enforce arbitration agreements in Dodd-Frank and SOX retaliation cases. In a case of first impression in the Seventh Circuit, Wussow v. Bruker Corporation., No. 16-cv-444-wmc, 2017 WL 2805016 (W.D. Wis. June 25, 2017), the district court held that while arbitration of SOX whistleblower retaliation claims cannot be compelled, a similar cause of action for whistleblower retaliation under Dodd-Frank can be. READ MORE
Michael's practice focuses on matters involving trade secrets, restrictive covenants, employee mobility issues, Sarbanes-Oxley (SOX) whistleblower claims, wrongful termination and discrimination. He has also defended numerous wage-and-hour class actions and representative actions under state and federal laws, including claims for overtime, vacation, meal and rest break penalties, waiting-time penalties and other alleged Labor Code violations. Finally, Michael counsels clients on a wide variety of employment and related corporate issues.
In addition, Orrick’s Employment Law and Litigation group was recently named Labor & Employment Department of the Year in California by The Recorder, the premier source for legal news, in recognition of their significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.
Some of Michael's representative litigation engagements include the following:
Trade Secrets Matters:
- eBay v. Google. Michael represented eBay in this lawsuit alleging trade secrets misappropriation in connection with Google’s hiring of a former PayPal employee. The case resolved confidentially.
- Bio-Rad v. 10X Genomics. Michael successfully defended the founders of 10X in a multi-week arbitration, brought by Bio-Rad, seeking to enjoin the founders from working at 10X.
- Williams-Sonoma v. Arhaus. Michael represented Williams-Sonoma in this trade secrets lawsuit alleging that a former employee and his new employer misappropriated trade secrets. Following a three-day evidentiary hearing, the Court granted Williams-Sonoma's motion for preliminary injunction.
- Varian Medical Systems v. Elekta, Inc. Michael represented Varian in this trade secrets dispute alleging that a former employee and her new employer misappropriated trade secrets. Following a two-day evidentiary hearing, the Court granted Varian’s motion for a temporary injunction. The case resolved confidentially thereafter.
- Zynga v. Scopely Inc. Michael successfully defeated an application for TRO and preliminary injunction under the Defend Trade Secrets Act filed against Scopely.
- AllCells, LLC v. Cepheus Biosciences. Michael secured a preliminary injunction under the Defend Trade Secrets against the defendants for misappropriation of biomedical trade secrets.
- First American Equipment Finance v. US Bancorp. Michael represented a U.S. Bank in this lawsuit alleging trade secrets misappropriation in connection with US Bank’s hiring of two employees from First American. The case settled confidentially.
- Hewlett Packard v. Adrian Jones. Michael represented Mr. Jones in this lawsuit alleging trade secrets misappropriation following Mr. Jones’ departure from HP to Oracle. The case settled confidentially.
- Silvaco Data Systems v. Agilent Technologies, Inc. Michael was part of a team representing Agilent Technologies Inc. in a trade secrets action filed by Silvaco Data Systems. The court granted Agilent’s motion for summary judgment, which was affirmed on appeal.
- URS Corporation v. Earth Tech, Inc. Michael was part of a team representing Earth Tech Inc. and two individual defendants in a trade secrets, employee raiding and contract interference case involving over forty allegedly raided employees. The case resolved confidentially.
- Protiva Biotherapeutics, Inc. v. Sirna Therapeutics, Inc. Michael was part of a team representing Protiva Biotherapeutics, Inc. in a trade secrets case filed by Protiva for misappropriation of biotechnology trade secrets. The court granted Protiva’s motion for preliminary injunction, and the case settled thereafter confidentially.
Employee Mobility Matters:
- Adobe Systems Incorporated v. Joshua G. James. Michael represented Mr. James, the former CEO of Omniture, Inc., in this multiple lawsuit cross-border dispute arising out of purported non-compete and non-solicit agreements Mr. James’ signed with Adobe. The case resolved confidentially.
- Oracle America, Inc. et al v. International Business Machines. Michael represented Oracle in this multiple lawsuit cross-border dispute arising out of Oracle’s hiring of an executive from New York who signed a non-compete agreement with IBM. The cases resolved confidentially.
- Johnson & Johnson v. Genentech. Michael represented Genentech as defendant against claims for employee raiding, tortious interference and unfair competition. The court granted Genentech’s motion to dismiss, and the case ended shortly thereafter with no injunction or damages whatsoever paid by Genentech or any of its employees.
- Honeywell International Inc. v. David Stacey. Michael represented Mr. Stacey, a former Honeywell employee who joined Nest Labs, in this lawsuit alleging breach of restrictive covenants and inevitable disclosure of trade secrets. The case resolved confidentially.
- Zynga Game Network v. CLZ Concepts. Michael represented the founders of CLZ in this lawsuit arising out of purported non-compete and non-solicit agreements the founders signed with Zynga in connection with the sale of their former business. The court denied Zynga's motion for preliminary injunction. The case settled confidentially thereafter.
Class Action Matters:
- Kilby v. CVS. Michael represents CVS in this class action alleging that CVS violated California law by failing to provide suitable seats for its cashiers.
- Ortiz v. CVS. Michael represented CVS in this class action alleging that CVS violated numerous California Labor Codes. The Court denied class certification and later struck Plaintiffs' Private Attorney General Act Claims.
- Rankin v. Longs Drug Stores. Michael represented Longs in this class action alleging that Longs’ employment application was unlawful. The court entered judgment for Longs after a bench trial, which was affirmed by the California Court of Appeal in a published decision.
Posts by: Michael Weil
Several recent cases are poised to set a major tonal shift in the realm of LGBT employee rights following the Supreme Court’s 2015 landmark decision in Obergefell v. Hodges. As part of its ongoing coverage of LGBT employment issues, Orrick offers its insights and predictions as courts continue to contemplate where sexual identity fits within this changing landscape of protected statuses. READ MORE
From the time of its enactment, the California Private Attorneys General Act of 2004 (“PAGA”) has been a thorn in the side of employers. For example, the California Supreme Court insists PAGA actions are not class actions, but that hasn’t stopped aggrieved employees from seeking class-wide discovery. And because PAGA permits employees to seek penalties for unconventional causes of action previously off-limits to private plaintiffs (such as the California Wage Order’s suitable seating requirement), employers must grapple with new uncertainties.
But one aspect of PAGA that provides some relief to employers is the requirement that plaintiffs exhaust administrative remedies before filing a lawsuit. To satisfy this this requirement, a plaintiff is required to send a notice to her employer and the Labor Workforce Development Agency (“LWDA”) setting forth the “specific provisions” of the Labor Code allegedly violated and explaining the “facts and theories to support the alleged violation” and then wait 65 days before filing suit. This notice requirement has two purposes: (1) to give the LWDA sufficient information to determine whether the alleged violation justifies an investigation and/ or citation and (2) to put the employer on notice so that it may voluntarily cure the alleged violation. Oftentimes, however, plaintiffs’ notice letters are deficient because they fail to include sufficient facts and theories to inform the employer or the LWDA of the nature of the claims. In such cases, plaintiffs have failed to exhaust administrative remedies.
Judge Gonzalo Curiel’s recent decision in Gunn v. Family Dollar Stores, Inc., Case No.: 3:14-cv-1916-GPC-BGS (S.D. Cal. Dec. 2, 2016), reminds us of the standard that notice letters must meet. Plaintiff Gunn’s notice letter advised the LWDA of his intent to file a PAGA action for violations of Wage Order 7-2001, Section 14, and “[s]pecifically . . . allege[d] that Family Dollar failed to provide suitable seats to Plaintiff and other current and former employees when the nature of their work reasonably permits the use of seats, in violation of California Labor Code section 1198 and Wage Order 7-2001, section 14.” Judge Curiel held that such an allegation was insufficient to meet PAGA’s standards. As he noted, plaintiffs must detail the “facts and theories” supporting their alleged violations. But here, the plaintiff’s allegations simply parroted the language of the underlying regulation, amounting to nothing more than a “string of legal conclusions” devoid of any of the facts or theories required by the Labor Code. The court rejected the plaintiff’s contention that facts could be implied by his allegations (i.e., that the class of employees at issue would not include office employees because they have seats).
The most notable aspect of Judge Curiel’s opinion, however, was his denial of the plaintiff’s request for leave to amend. Although the court recognized leave to amend tends to be granted freely, he disagreed that applied to defective PAGA notices. The court stated that “courts have granted PAGA claimants leave to amend only when the plaintiff’s complaint failed to adequately plead exhaustion, not when Plaintiff provided defective notice to the LWDA” (emphasis added). Indeed, granting the plaintiff leave here would tacitly endorse a strategy that precludes the LWDA from receiving the information necessary “to intelligently assess the seriousness of the alleged violation,” thereby frustrating the purpose of PAGA’s statutory notice requirement.
While the unpublished opinion in Gunn will not likely mark a sea change in how courts treat PAGA actions, it is nevertheless a victory for California employers. Those facing suitable seats claims, which are based on a notoriously ambiguous statute, may have the most to gain.
Your employees may spend their time daydreaming about how to spend the vacation hours they accumulate each pay period – and in California, they are entitled to be paid out upon termination for any accrued, unused vacation time or paid time off. But that doesn’t mean they are entitled to see a breakdown of the monetary value of accrued vacation or paid time off (PTO) on each wage statement, according to a recent ruling from a California state appellate court. That said, employers still have an obligation to list an employee’s accrued sick leave on pay stubs consistent with California’s sick leave law. READ MORE
This afternoon, as anticipated, President Barack Obama signed the Defend Trade Secrets Act into law, wrapping up a lengthy bipartisan effort to bring trade secrets under federal system law. Some observed that the fact that President Obama chose to sign the bill into law publicly indicates the importance of the new law to the administration.
In an issue of first impression, the California Court of Appeals held that employers have a duty under California’s Fair Employment and Housing Act (FEHA) to provide reasonable accommodations to an applicant or employee who is associated with a disabled person, even if the employee is not disabled. Castro-Ramirez v. Dependable Highway Express, Inc. No. B261165, 2016 Cal. App. LEXIS 255 (Cal. Ct. App. April 4, 2016). This holding confirms that FEHA provides broader protections for employees associated with a disabled person than the federal Americans with Disabilities Act (ADA), which does not contain the same requirement.
Asia Employment Law Update
Proposed Regulations May Complicate Reductions in Force in China
On December 31st, 2014, Ministry of Human Resources and Social Security (“MOHRSS”) issued a notice to solicit public opinions on the draft Regulations on Personnel Cutbacks by Enterprises (“Draft Regulations”). The Draft Regulations set out detailed implementing rules for “mass layoffs” (defined under the Labor Contract Law as being a layoff of more than 10% of the workforce or more than 20 employees) and, if adopted in their current form, will further complicate the process for conducting reductions in force in China.
The Ninth Circuit recently held that during the course of an investigation, the EEOC can force employers to produce “pedigree information” (i.e., name, telephone number, address, and Social Security number) of applicants and workers other than the charging party if the information is relevant to the underlying investigation.
A recent federal district court decision denying a motion for class certification of wage-and-hour claims reflects continuing disagreement among courts in California regarding the suitability for class treatment of meal and rest break claims when an employer has no written break policy.
In Mendiola v. CPS Security Solutions, Inc., issued on January 8, 2015, the California Supreme Court ruled that security guards are entitled to compensation for all on-call hours spent at their assigned worksites, even when they are engaged in certain personal activities or sleep.