Category Archives: News

Of Counsel William E. Wegner speaks on panel about persuasion in the courtroom

By | Arbitration, News, Speaking Engagements, Trial | No Comments

William E. Wegner, Of Counsel to the Firm, joined California Supreme Court Justice Ming W. Chin, Loyola Law School Professor Robert D. Brain, and Gibson Dunn partner Perlette M. Jura to present a three-hour program on persuasion techniques both in and outside the courtroom. The Rutter Group presentation, entitled Negotiating Rough Waters: What You Don’t Know…And Must! took place live in San Francisco on June 16, 2017, and again in Los Angeles on June 22, 2017. A veteran presenter on Rutter Group panels, Bill Wegner is co-author of the Rutter Group’s California Practice Guide: Civil Trials and Evidence and Rutter Group Practice Guide: Federal Civil Trials and Evidence, both of which are established trial practice treatises.

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Brown Wegner McNamara LLP weighs in on the Supreme Court’s landmark T.C. Heartland decision

By | News, Patent Law, Supreme Court | No Comments

The United States Supreme Court’s recent decision in T.C. Heartland, LLC v. Kraft Foods Group Brands, LLC (Case No. 16-341) addressed the venue rules in patent infringement cases. As counsel for the Orange County Intellectual Property Law Association, Brown Wegner McNamara LLP filed an amicus brief in the United States Supreme Court supporting the petitioner. The Firm argued that, properly construed, 28 U.S.C. section 1400(b) is the sole and exclusive provision governing venue in patent infringement actions, and that as a result, a corporate defendant may only be sued in the district in which it “resides”—not any state in which it may be subject to personal jurisdiction. On May 22, 2017, the Supreme Court agreed with petitioner’s and the Firm’s position, holding in an 8-0 decision that a domestic corporation “resides” only in the state of incorporation for purposes of the patent venue statute, and that plaintiff in a patent…

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Chatbot Contracts: Enforcing TOS Agreements in Computer-Generated Conversations

By | Arbitration Agreements, Internet Law, News | No Comments

[Originally published by Lily Li in the Spring 2017 Orange County ABTL Report]   Humanity has long imagined self-aware computers that can pilot our vehicles, purchase goods, and even sing songs for us, whether as the malevolent Hal in 2001: A Space Odyssey or the spunky Samantha in Her. Though fully sentient artificial intelligence is still science fiction (as far as we know), computer software has become “smart” enough to converse with us through text-based services like Facebook messenger, WhatsApp, or WeChat, or voice-operated services like Amazon’s Alexa or Apple’s Siri. As more e-commerce transactions are completed via these “chatbots” or “chatterbots” and away from browser-based websites, this begs the question: Will courts enforce the Terms of Service for chatbot contracts when the terms no longer appear on the same page – or even the same medium – as the transaction itself? The Rise of Chatbots Consumer appetite for on-demand…

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FLSA Wage Claims Are on the Rise! — How to Prevent and Defend Against Unpaid Wage Claims

By | Employment Law, News | No Comments

On September 17, 2016 Valerie McNamara and Lily Li of Brown Wegner McNamara LLP presented at the 30th Annual Education Conference for the Orange County Paralegal Association. The presentation, entitled “FLSA Wage Claims Are on the Rise! How to Prevent and Defend Against Unpaid Wage Claims”, discussed the differences between the California Labor Code and the federal Fair Labor Standards Act, and analyzed recent California case developments under both statutory schemes. At the end of the presentation, Valerie McNamara and Lily Li shared best practices for avoiding and defending against FLSA claims, from internal record-keeping and management processes to external indemnification and arbitration agreements. For a copy of the presentation, please contact us.

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Help! What Are My (Immediate) Defenses to a Federal Trade Secret Claim?

By | Bonding, Defend Trade Secrets Act of 2016, News, Trade Secrets | No Comments

[Originally published as Help! What Are My (Immediate) Defenses to a Federal Trade Secret Claim?, by Lily Li and Andrea Paris, in Orange County Lawyer Magazine, September 2016, Vol. 58 No.9 on page 52.] The Defend Trade Secrets Act of 2016 (DTSA), signed into law by President Obama on May 11, 2016 creates a new federal cause of action for trade secret theft. Not only does the DTSA open the doors of the U.S. district courts to trade secret plaintiffs, it weaponizes complaints. Now, upon a showing of immediate and irreparable injury, plaintiffs in trade secret cases can request extraordinary relief: court-ordered seizure of the misappropriated trade secrets without notice to the defendant. This relief is above and beyond what is provided for by the Uniform Trade Secrets Act (UTSA), the trade secret law adopted by most states, including California, and copies many of the civil seizure remedies previously available to…

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Motion for Disentitlement Granted by California Appellate Court

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Following a confirmed arbitration award in favor of a Brown Wegner McNamara client, the opposing side appealed the judgment. The firm filed a successful motion to dismiss the appeal, citing the disentitlement doctrine. The California appellate court agreed to dismiss the appeal, and awarded Brown Wegner McNamara costs on appeal. What is the Disentitlement Doctrine? The disentitlement doctrine is an infrequently-used method to dismiss an appeal prior to the appellate court’s consideration of the merits of the case. The doctrine allows an appellate court to use its “inherent power” to dismiss an appeal, in situations where the appellant has refused to comply with a lower court order. Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229. This doctrine is founded in fundamental principles of equity. As noted by the California Supreme Court, a “party to an action cannot, with right or reason, ask the aid and assistance of a…

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RFAs: The Underutilized Strategy for Recovering Attorney’s Fees

By | News | One Comment

[Originally published as RFAs: The Underutilized Strategy for Recovering Attorney’s Fees, by Lily Li, in Orange County Lawyer Magazine, December 2015, Vol. 57 No.12 on page 40.] A successful motion for attorney’s fees can be just as important as winning at trial, especially when it comes to your client’s satisfaction with the outcome of litigation. What are your options, however, when there are no obvious attorney fee-shifting provisions in your case? A recent decision out of the Fourth Appellate District bolstered the use of a “costs of proof” motion under Code of Civil Procedure § 2033.420, based on defendants’ unreasonable denials of various requests for admissions. Grace v. Mansourian, No. G0495 at 6-7 (9th Cir. filed Aug. 17, 2015) (certified for publication on Sep. 15, 2015), available at http://www.courts.ca.gov/opinions/nonpub/G049590.PDF. In Grace, plaintiffs served requests for admission in the lower court concerning a traffic collision. These requests asked the defendant to admit…

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Spoliation of Evidence: Bill Brown, Hon. Nakamura, and Hon. Derek Hunt Speak at OCBA Event

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The rise of numerous and varied forms of Electronically-Stored Information [ESI] has significantly changed the landscape regarding destruction, suppression and oversight of evidence, particularly concerning non-traditional forms of ESI such as Facebook, text messages, and online video. On December 4, 2015, in a presentation before the Orange County Bar Association Business Litigation section, speakers Hon. Nakamura, Hon. Derek Hunt, and Bill Brown discussed the growth of ESI, best practices in preserving ESI, and the latest case law and guidance concerning spoliation of evidence. Hon. Nakamura began the discussion with an overview of spoliation causes of action in California state courts. Overall, he noted, the recent trend in California is clear. California appellate courts, through decisions in Strong v. State, 201 Cal.App.4th 1439 (2011) and Rosen v. St. Joseph Hosp. of Orange Cnty., 193 Cal. App. 4th 453 (2011) have narrowed the scope of spoliation causes of action. Under current case law, there…

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Robot Price Wars: Minimum Advertised Pricing (“MAP”) Policies and the Colgate Doctrine in the Era of Smart Web Crawlers

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[Originally published in the Fall 2015 issue of the Federal Bar Association/Orange County Chapter Newsletter. See the original article here.] A growing number of manufacturers and wholesalers are using minimum advertised pricing (“MAP”) policies to control how retailers showcase the price of their goods. Whether the products are smartphones, luxury handbags, or golf clubs, manufacturers use MAP policies to protect brand integrity, to encourage retail investment in product display, customer service, and sales, and to avoid the ever-present “free-rider” problem that results when retailers who do not expend resources on brand promotion take advantage of those who do by out-pricing them. In contrast with a resale price maintenance (“RPM”) policy, which controls downstream pricing, a MAP policy places restrictions on the price at which downstream retailers display prices in fliers, store windows – and with increasing importance, on their websites. A thoughtfully drafted—and consistently enforced—MAP policy may avoid some of…

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