Tag Archives: Services

Unlicensed Law School Graduate Still May Be Exempt Under Learned Professions Exemption

Harvey A. Nell, Clerk and Recorder, Anaconda, MT

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The First District Court of Appeal held that summary judgment was properly granted in a wage and hour case because plaintiff unlicensed law school graduate performed duties that brought him within the exemption for learned professionals.  Zelasko-Barrett v. Brayton-Purcell, LLP, — Cal.Rptr.3d —-, 2011 WL 3594015, No. A130540 (1st Dist. Aug. 17, 2011) .

Background

Plaintiff was employed by the Brayton-Purcell, LLP (Brayton) law firm as a Law Clerk II after he graduated from law school but before he passed the bar examination. Id. *1. After being admitted to the bar, plaintiff was designated as an associate attorney, and performed tasks customarily performed by junior attorneys. Id. He drafted pleadings, discover demands and responses, did legal research and drafted memoranda of points and authorities, interviewed witnesses, etc. Id. The trial court granted Brayton’s motion for summary judgment and sustained objections to numerous statements where plaintiff denied he was employed in a professional capacity and performed work covered by the professional exemption. Id.

Plaintiff filed an action after voluntarily departing from the law firm, and alleged that he had been misclassified.  Brayton successfully moved for summary judgment on the ground that in the Law Clerk II position plaintiff had been an “exempt professional employee.” Id. Plaintiff appealed. Id. Continue reading

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Mere Reference to Patent Does Not Confer Federal Jurisdiction Over UTSA Claim

Edward J. Schwartz Courthouse, San Diego, Cali...
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In this next case, Judge James Lorenz of the Southern District of California runs through a federal question analysis and concludes that Plaintiff’s mere reference to the fact his intellectual property is patented does not convert a state law UTSA claim into a federal question that can impart original jurisdiction in the federal courts.  Markey v. Verimatrix, Inc., 2010 WL 2976164 (S.D. Cal. July 22, 2010) (slip op.).

A careful review of plaintiff’s misappropriation of trace secret claim as found in the complaint does not suggest a basis for federal jurisdiction. The issue presented for decision is not whether plaintiff’s patents are valid or invalid or are or are not being infringed but whether his intellectual property was misappropriated. Mere reference to the fact that plaintiff’s intellectual property was patented does not turn on a substantial question of federal law. Plaintiff is not seeking to prove his trade secrets are protected under federal patent law and that defendant infringed on the patent. And the Court is not called to determine in any manner the scope and meaning of plaintiff’s patent in order to consider the alleged trade secret misappropriation. The misappropriation of trade secret claim does not ‘turn on substantial questions of federal law,’ and does not ‘really and substantially involv[e] a dispute or controversy respecting the validity, construction or effect of [federal] law.’ “ Williston Basin, 524 F.3d at 1102. Instead, the sole remaining claim in the complaint is based solely on California law. As a result, the Court does not have original jurisdiction over plaintiff’s claim.

By CHARLES H. JUNG

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