Jan 09 2011
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Articles and Commentary, Security Program

Implementing a Trade Secret Protection Program

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Metropolitan Corporate Counsel has an interview with Alan Gutterman regarding how to implement a trade secret protection program.  Gutterman recites some of the common elements to such a program:

[A]doption of security measures to mark trade secrets, thus, identifying what is or is not considered to be confidential. The programs also include segregation of trade secret information and limitation of access to the trade secret owner or other authorized personnel. I also recommend that a program places employees on notice that the company maintains confidentiality of its trade secret information and that each employee has a duty to assist in protecting such items. Continue reading →

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Jan 09 2011
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Damages, Reasonable Royalty, Unjust Enrichment

Sixth District Holds That Reasonable Royalties Available When a Defendant Has Not Realized a Profit or Other Calculable Benefit

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Today, in Ajaxo Inc. v. E*Trade Financial Corporation, — Cal.Rptr.3d —-, H033631, 2010 WL 3386479 (Cal. Ct. App. 6th Dist. Aug. 30, 2010), the Sixth District held that where a defendant has not realized a profit or other calculable benefit as a result of his or her misappropriation of a trade secret, unjust enrichment is not provable within the meaning of section 3426.3(b). Thus, the trial court had discretion pursuant to section 3426.3(b) to order payment of a reasonable royalty.

Plaintiff Ajaxo Inc. (Ajaxo), sued defendant E*Trade Financial Corporation (E*Trade) for misappropriation of trade secrets under the California Uniform Trade Secret Act.  E*Trade was found liable in a prior jury trial, where a jury determined that E*Trade had willfully and maliciously misappropriated Ajaxo’s trade secrets.  Id. *1.  A second trial determined the extent to which E*Trade had been unjustly enriched by its misappropriation.  Id. Continue reading →

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Jan 09 2011
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Demurrer/Motion to Dismiss, Preliminary Injunction

Northern District Holds No Cause of Action Exists for Misappropriation of “Ideas”

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The Northern District held that no cause of action exists for “misappropriation of business ideas”.  Interserve, Inc. v. Fusion Garage PTE. Ltd., No. C 09-5812 RS (PVT), 2010 WL 3339520 (N.D. Cal. Aug. 24, 2010) (slip op.).

Plaintiff Interserve, Inc. and Fusion Garage collaborated in an attempt to bring to market a tablet computer, which they intended to call the “CrunchPad.”  Id. *1.  Shortly before the parties had planned to announce that the product would soon be released, defendant Fusion Garage advised plaintiffs that it would proceed on its own, and market a tablet computer under the name “joojoo” instead. Id. Plaintiffs brought suit, alleging that they are co-owners of the joojoo.  Id. They sought a preliminary injunction requiring defendant to sequester all proceeds it obtains from selling the product. Id. Defendant opposed the motion for preliminary injunction, and moved to dismiss the complaint, including a claim for misappropriation of “business ideas”. Id. Continue reading →

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Jan 09 2011
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Demurrer/Motion to Dismiss

In Software Distribution Case, Northern District Holds That Improper Disclosure Element of UTSA Claim Properly Pled Where Acknowledgment of EULA Alleged

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In BMMSoft, Inc. v. White Oaks Technology, Inc., No. C-09-4562 MMC, 2010 WL 3340555 (N.D. Cal. Aug. 25, 2010), the court denied a motion to dismiss a misappropriation of trade secrets claim in an unauthorized software distribution case.  The court held that the improper disclosure element was properly pled where the complaint included an allegation that defendant clicked “I agree” to an end user license agreement restricting unauthorized disclosure. Continue reading →

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Jan 09 2011
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Articles and Commentary

Top 10 List of Things to Know About California’s Wage & Hour Laws

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Jim Brown and Marc Koonin of the California Employment Law Letter offer a useful Top 10 list of “Need to Knows” about California wage & hour laws:

  1. Know California’s daily and weekly overtime rates for various hours worked;
  2. Overtime requirements apply to almost all types of wages, not just hourly wages or salaries;
  3. You must compensate employees for all hours you “suffer or permit” them to work;
  4. Be familiar with the specific “wage order” that applies to your workforce;
  5. Just because an employee is exempt as an executive, administrative, or professional employee under federal law, it doesn’t make him exempt under California law; Continue reading →
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Jan 09 2011
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Trial, Verdicts

Defense Verdict in Bartender Overtime and Meal Break Case

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After a bench trial, a San Francisco Superior Court rendered a defense verdict in an overtime and meal break case.  Tun Cun vs. Cafe Tiramisu, No. CGC08482090, 36 Trials Digest 13th 19 (Verdict Date March 26, 2009).  According to court records: Plaintiff Evangelina Tun Cun was a bartender under an oral employment agreement who worked form 4 pm to midnight. Ms. Tun Cun alleged she was owed wages from defendant Cafe Tiramisu LLC.  Plaintiff alleged she was also employed by MMP Restaurants LLC dba Campannina from 9 a.m. to 3 p.m. each day. She claimed the two employers jointly employed her, and she was not paid overtime, though she worked for 11 to 15 hours of work per day. Plaintiff claimed she was not given meal breaks, was not paid overtime, and was owed waiting-time penalties. Continue reading →

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Jan 09 2011
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Jury

Northern District Strikes Jury Demand in Wage & Hour Class Action for Failure to Timely Plead

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The Northern District struck a jury trial demand in a putative wage and hour class action.  Rodriguez v. Sears Holding Corporation, No. 10-1268 SC, 2010 WL 3341656 (N.D. Cal. Aug. 24, 2010).  Plaintiff originally filed his complaint in Alameda Superior Court.  Id. *1.  Plaintiff was an employee of Defendants, and brought a putative class action on behalf of himself and others similarly situated for violations of various provisions of California’s Labor Code and Business and Professions Code, including failure to pay overtime wages, failure to allow and pay for meal and rest periods, failure to pay compensation upon discharge, and failure to provide proper wage statements. Id. Continue reading →

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Jan 09 2011
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Protective Orders

Central District Issues Rare Opinion Rejecting Stipulated Protective Order

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Magistrate Judge Fernando M. Olguin issued a rare opinion about a stipulated protective order, rejecting the proposed  stipulated order in Murphy v. Continental Tire North America, Inc., No. CV 09-3004 GHK (FMOx), 2010 WL 3260183 (C.D. Cal. Aug. 9, 2010).  The court gave six  reasons for the rejection, including the failure to include a good cause statement (citing Makar-Wellbon v. Sony Elecs., Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good cause showing)), lack of specificity in the description of the material to be protected (the parties used conclusory terms such as “confidential technical information”), and duration (“once a case proceeds to trial, all of the information that was designated as confidential and/or kept and maintained pursuant to the terms of a protective order becomes public and will be presumptively available to all members of the public, including the press, unless good cause is shown to the district judge in advance of the trial to proceed otherwise”).   Continue reading →

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Jan 09 2011
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Collective Bargaining, Waiver

Collective Bargaining Agreement That Mentions “Breaks” Does Not Clearly and Unmistakably Waive Right to Sue

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In Martinez v. J. Fletcher Creamer & Son, Inc., 2010 WL 3359372 (C.D. Cal. Aug. 13, 2010), the court held that a collective bargaining agreement that mentions “breaks” did not clearly and unmistakably waive plaintiff’s right to sue.

Plaintiff Antonio Martinez  (“Plaintiff”) worked for Defendant J. Fletcher Creamer & Son, Inc. (“Defendant”) as a construction worker. Id. *1. Plaintiff’s terms of employment were governed by a CBA, which provides for a grievance procedure for “enforcing all the terms and provisions contained in this Agreement .” Id. If an employee has “a grievance or dispute,” he must first raise the issue with Defendant. The CBA outlined the terms of employment relating to holidays, payment of wages, meal periods, and breaks, and in a section entitled “Breaks,” the CBA stated: Continue reading →

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Jan 09 2011
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IWC Orders

Southern District Rejects Argument That Wage Order 7-2001 Invalid

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In Kilby v. CVS Pharmacy, Inc., Civil No. 09cv2051-L(CAB), 2010 WL 3339464 (S.D. Cal. Aug. 23, 2010) (slip op.) Defendant argued that provisions of Wage Order 7-2001 were invalid because the IWC, before adopting any new rules, regulations or policies, was required by Labor Code section 1173 to consult with the California Occupational Safety and Health Standards Board to determine areas of potential overlap, which it is alleged to have failed to do because it delegated too much to the staff. Id. *2.  The court rejected this argument, agreeing with the California Court of Appeal in California Manufacturers Association v. Industrial Welfare Commission, 109 Cal. App. 3d 95, 122-23 (1980).

Defendant also argued that the action should be dismissed because the pertinent provision of Wage Order 7-2001 is not incorporated into Labor Code Section 1198. Section 1198 provides: Continue reading →

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