A review of efforts by U.S. trading partners to protect and enforce intellectual property around the world was published by the Office of the United States Trade Representative on May 1, 2013. The Special 301 Report is an annual review  required by law. Highlights of the report include:

• continued deterioration in IPR protection, enforcement, and market access for persons relying on IPR in Ukraine
• the growing problem of misappropriation of trade secrets in China and elsewhere
• troubling “indigenous innovation” policies that may unfairly disadvantage U.S. rights holders in China
• the continuing challenges of copyright piracy over the Internet in countries such as Brazil, Italy, and Russia

U.S. based companies entering into contracts and doing business internationally need to develop effective strategies for dealing with IP-related enforcement and protection issues.

We have previously written about issues related to doing business in China, the world’s most populous nation, featured prominently in the Special 301 Report. Our articles have included:

Enforcing Contractual Indemnity Litigation Against Chinese Companies

Top Ten China Mistakes For Businessmen

Chinese Contracting Best Practices

The Importance Of China Due Diligence And Corporate Seals

The Special 301 Report designates Ukraine as the country of greatest concern. The Ukraine is the first trading partner listed as a Priority Foreign Country (PFC) in seven years. As the Report notes:

The PFC designation is reserved by statute for countries with the most egregious IPR-related acts, policies and practices with the greatest adverse impact on relevant U.S. products, and that are not entering into good faith negotiations or making significant progress in negotiations to provide adequate and effective IPR protection.

China is one of ten countries designated on the Priority Watch List, one step below. The Priority Watch List includes:

Algeria
Argentina
Chile
China
India
Indonesia
Pakistan
Russia
Thailand
Venezuela

The Special 301 Report is another reminder to domestic companies about the risks associated with doing business in China and other nations whose protection and enforcement efforts for intellectual property including patents, copyrights and trade secrets remain a concern.

For over 35 years small businesses, major corporations, public entities, individuals and insurance companies have depended on Tharpe & Howell, LLP, to deliver pragmatic, innovative, cost-effective civil litigation and transactional solutions.  For more information, please contact us at (805) 962-4000 or email your request to dmurray@tharpe-howell.com.

Larry Hagman, the former Dallas TV star who recently passed away, has posthumously received good news from the 2^nd District Court of Appeal in California. The court affirmed a trial decision in favor of Hagman’s trust quieting title to a piece of land that Hagman inadvertently fenced and later improved. The property at issue is less than half an acre adjacent to a 30 acre parcel that Hagman owned in Ojai.

What makes the case even more interesting is noted in the opening paragraph of the court’s opinion:

The unusual twist is that the neighboring land on which the adverse possession took place belongs to a nonprofit religious organization.

Because of its status as a public benefit corporation, the religious organization argued that it qualified as a “public entity” and, as such, was “immune from adverse possession under Civil Code section 1007.” That section provides, in part:

no possession by any person, firm or corporation no matter how long continued of any land, water, water right, easement, or other property whatsoever dedicated to  public use by a public utility, or dedicated to or owned by the state or any public entity, shall ever ripen into any title, interest or right against the owner thereof

But the court disagreed, holding that Section 1007 did not apply because a public benefit corporation is not a public entity and the religious organization lacked any element of sovereign authority. It also expressly disagreed with one cited case, decided in 1964, that suggested “‘property held under a charitable trust would have the same immunity’ to adverse possession as the government.” [Mosk v. Summerland Spiritualist Association (1964) 225 Cal.App.2d 376] The court noted that charitable trusts in 1964 could only be enforced by the Attorney General, and that the Attorney General no longer has exclusive authority to do so.

The court delivered even more good news to the Hagman trust, also holding that it was excused for paying property taxes during the five year period necessary to establish adverse possession, because the religious organization’s welfare exemption from property taxes applied during such period.

For over 35 years small businesses, major corporations, public entities, individuals and insurance companies have depended on Tharpe & Howell, LLP, to deliver pragmatic, innovative, cost-effective civil litigation and transactional solutions.  For more information, please contact us at (805) 962-4000 or email your request to dmurray@tharpe-howell.com. [This publication is for informational purposes only and does not constitute legal advice. Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]

What city has the worst traffic in the United States? That’s right, the City of Angels. But there’s nothing heavenly about this title.

What cities place and show in this dubious horse race?

Honolulu and San Francisco.

The Hawaiian capitol claimed the top prize in 2011 but was overtaken by Los Angeles last year. Another California city, San Jose, ranked seventh.

A few interesting (or depressing) facts about traffic in Los Angeles from data company Inrix which compiled the list, as reported by the Los Angeles Times:

• The average driver in Los Angeles spent 59 hours sitting in traffic in 2012
• 35 of the 162 most congested sections of highway in the U.S. are in Los Angeles
• Four LA freeways are in the top 10 most congested
  • Southbound 405
  • Eastbound 10
  • Northbound 405
  • Southbound 5

Unfortunately, things aren’t getting better in the short run. Congestion increased during the first part of 2013 by 6%.

The traffic title for Los Angeles serves as a reminder to truckers and transportation companies that drivers need to exercise special care when traversing local roads and freeways.

As for alternatives, the California State Rail Plan, which we’ve previously written about, should offer the promise of some relief when issued in final form this summer. As the CEO of the California High-Speed Rail Authority stated, the plan aims to modernize the rail system by investing in “urban, commuter, intercity, and high-speed rail lines to meet the state’s 21st century transportation needs.”

At Tharpe & Howell, we assist transportation carriers and their insurers with complex challenges 24 hours a day, 7 days a week.  We know that if an issue is not investigated, contained, assessed and resolved quickly and cost effectively, it can keep our clients “off the road” and cost their business dearly.  For over three decades, we have partnered with transportation clients, bringing them the knowledge, experience and creativity needed to successfully meet this challenge. We’re intimately familiar with the legal and operational needs of the transportation industry, and work with our clients in avoiding pitfalls and preventing liability risk whenever possible.  When claims do arise, we help tailor and implement concise, expedient and cost-effective plans for resolution.  Our team of specialists includes the industry’s best field investigators and accident recon experts, and we are available around the clock to meet your needs – from immediate direction of catastrophic loss investigations, through trial of any matter, large or small.  For more information, please contact us at (805) 962-4000 or email your request to dmurray@tharpe-howell.com.  [This publication is for informational purposes only and does not constitute legal advice. Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]

The question faced by California’s 2^nd District Court of Appeal in Gonzalez v. Downtown LA Motors (March 6, 2013, published April 2, 2013) was stated succinctly by the court as follows:

whether California’s minimum wage law requires an employer that compensates its automotive service technicians on a ‘piece-rate’ basis for repair work must also pay those technicians a separate hourly minimum wage for time spent during their work shifts waiting for vehicles to repair or performing other non-repair tasks directed by the employer.

The employer argued it was not responsible for doing so because the total compensation paid to its technicians never fell below the minimum wage required for all hours worked, including waiting time. This was accomplished by supplementing pay, if necessary, to cover any shortfalls between piece-rate wages and the minimum wage.

But the court found differently, affirming the trial court’s decision, based on Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314, that “California law does not allow an employer to avoid paying its employees for all hours worked by averaging total compensation over total hours worked in a given pay period.”  As a result, the court held that:

class members were entitled to separate hourly compensation for time spent waiting for repair work or performing other non-repair tasks directed by the employer during their work shifts, as well as penalties under Labor Code section 203, subdivision (a).

Statutory interpretation of the minimum wage law and Wage Order No. 4, which applied to the piece-rate employees at question, was crucial. The minimum wage law is susceptible to two different interpretations on the central issue in the case. Does the law require payment of minimum wage for each and every separate hour worked? Or can minimum wage be determined based on the total hours worked in the pay period without considering any hour in isolation?

It’s worth noting that Federal law uses the averaging method. But as the court stated:

subdivision 4(B) of Wage Order No. 4 requires payment of the minimum wage for ‘all hours worked’ whereas the federal statute requires payment of minimum wage to employees who, ‘in any work week’ are engaged in commerce.

For this and other reasons, the court found that California law is more protective than federal law when it comes to protecting minimum wage rights of employees, and affirmed the trial court’s decision in favor of the employees.

At Tharpe & Howell LLP, our attorneys understand the issues faced by employers, because we’ve been there – serving companies in critical rules including Vice President, Human Resources; Vice President, Administration; Corporate Counsel; and Operations Manager.  For more information on how we can help you with employment and labor law matters, please contact us at (805) 962-4000 or email your request to dmurray@tharpe-howell.com. [This publication is for informational purposes only and does not constitute legal advice.  Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]

Home prices in California and Los Angeles keep on rising, a sign that the rebound continues from the housing decline of recent years. Prices rose 8.3% statewide in March, compared to February, and 24.7% from a year earlier.

Meanwhile, Los Angeles area homebuyers paid a median price of $345,500 in March, an 8% increase from February. The median price rose 23.4% as compared to March 2012.

The latest numbers from DataQuick confirm fears by some of another housing bubble. But according to a report in the Los Angeles Times, “many real estate experts believe that the price increases will slow and that the market remains on solid footing.”

Foreclosed properties continue to represent a significant portion of the home sales market, though the number of properties foreclosed upon in the past year made up a lower percentage of March resales (15.2%) than in any month since September 2007.

No one can predict for certain whether home prices will continue to rise and at what rate. Property owners, lenders, developers, contractors, brokers and insurers need to remain vigilant in their real estate dealings.

For over 35 years small businesses, major corporations, public entities, individuals and insurance companies have depended on Tharpe & Howell, LLP, to deliver pragmatic, innovative, cost-effective civil litigation and transactional solutions.  For more information, please contact us at (805) 962-4000 or email your request to dmurray@tharpe-howell.com. [This publication is for informational purposes only and does not constitute legal advice. Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]

The US Patent and Trademark Office offers an IP Awareness Assessment Tool on its website that allows individual inventors, small business owners and others to answer pre-set questions that help to assess whether such persons or businesses have intellectual property (IP) that may need protection.

The IP Awareness Assessment Tool is not a substitute for legal advice, nor does it register IP assets or take any steps to protect IP under the law. It merely helps to identify whether IP rights may exist.

The IP Awareness Assessment Tool offers a pre-assessment of five questions that allows for a quick determination of potential IP. A full assessment that includes 62 questions is also available. There is also a customized assessment available based on the results of a pre-assessment.

The pre-assessment asks questions such as:

Does your business have proprietary information that gives you advantage over your competitors such as product formulas, manufacturing processes, customer lists, marketing strategies, computer source code, pricing information, financial data, supplier lists?

Does your business employ a unique name, symbol, logo or phrase to distinguish your business from others?

These questions are used to assess whether your business may have trade secrets and trademarks, respectively.

After answering the five pre-assessment questions, the IP Awareness Assessment Tool provides a list of potential IP your business may have or be using, including:

• Trademarks
• Copyrights
• Design Patents
• Trade Secrets
• Utility Patents

Although the IP Awareness Assessment Tool can be informative, the usefulness of the information it provides is limited by the questions asked and the check list of answers provided.  Almost any business is likely to have or be using IP in some form. Seeking legal counsel from an experienced IP attorney is the best way to identify IP assets and plan for their protection.

For over 35 years small businesses, major corporations, public entities, individuals and insurance companies have depended on Tharpe & Howell, LLP, to deliver pragmatic, innovative, cost-effective civil litigation and transactional solutions.  For more information, please contact us at (805) 962-4000 or email your request to dmurray@tharpe-howell.com.

A new report from the California Transportation Department details actions taken by Caltrans to reduce greenhouse gas emissions from its operations “and adapt the State's highway system to prepare for the impacts of climate change.” The Caltrans Climate Change Report (Caltrans Activities to Address Climate Change) was issued in April 2013.

The newly issued Caltrans publication reports that strategies implemented by Caltrans “have reduced GHG emissions by more than 161,500 tons annually, which is the equivalent of removing approximately 31,000 passenger vehicles from the road for a year.” These achievements have come primarily in two areas:

• Using alternatives to conventional concrete and asphalt in the construction of highways. The revised forms of concrete and asphalt used for construction can be produced and implemented through manufacturing and/or construction processes that emit fewer greenhouse gases.

• Innovative roadway lighting that includes LED traffic and pedestrian signals. LED signals reduce green house gas emissions associated with electricity use.

Reductions have also been achieved by Caltrans through use of alternative fuels and vehicles in fleets, renewable energy products, building energy and water efficiency and workplace commuter programs.

Among the many initiatives detailed in the report is the California State Rail Plan which we have written about on this blog. According to the Caltrans Climate Change Report, the Rail Plan:

works to reduce GHG emissions in two ways. First, by improving the capacity and efficiency of the state’s rail system, Caltrans can help encourage more passenger and freight movement by rail, which is typically less GHG-intensive than highway travel for long-distance trips. Second, the plan encourages technological improvements such as emissions-control technologies for locomotive engines and new energy-efficient switchers that can reduce the operating GHG emissions of the rail system.

Caltrans efforts are noteworthy. But on a broader basis the major contributor to greenhouse gas emissions from the transportation sector continues to be the automobile. Primary efforts to reduce car emissions depend primarily upon action by others, including Congress, the EPA and private industry.

At Tharpe & Howell, we assist transportation carriers and their insurers with complex challenges 24 hours a day, 7 days a week.  We know that if an issue is not investigated, contained, assessed and resolved quickly and cost effectively, it can keep our clients “off the road” and cost their business dearly.  For over three decades, we have partnered with transportation clients, bringing them the knowledge, experience and creativity needed to successfully meet this challenge. We’re intimately familiar with the legal and operational needs of the transportation industry, and work with our clients in avoiding pitfalls and preventing liability risk whenever possible.  When claims do arise, we help tailor and implement concise, expedient and cost-effective plans for resolution.  Our team of specialists includes the industry’s best field investigators and accident recon experts, and we are available around the clock to meet your needs – from immediate direction of catastrophic loss investigations, through trial of any matter, large or small.  For more information, please contact us at (805) 962-4000 or email your request to dmurray@tharpe-howell.com.  [This publication is for informational purposes only and does not constitute legal advice. Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]

After Placer County, California certified an Environmental Impact Report (EIR) for a large commercial building, a local environmental group, Alliance For The Protection Of The Auburn Community Environment (APACE), challenged the decision. A public hearing followed after which the Country affirmed its certification of the EIR and issued a Notice of Determination. APACE had 30 days to file suit under CEQA and continue its challenge, but its lawsuit was filed three days late. A motion seeking relief on the grounds of mistake or excusable delay followed, but the motion was denied at trial, and the County’s demurrer sustained, based on CEQA’s statute of limitations.

The Third District Court of Appeal in California affirmed the trial court decision in  Alliance For The Protection Of The Auburn Community Environment v. County of Placer (filed February 28, 2013, published April 2, 2013). The primary argument advanced by APACE in its appeal was that Code of Civil Procedure Section 473 provided relief from its excusable mistake. As the court noted, Section 473 provides:

that a “court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect” provided that relief is sought within a reasonable time, not exceeding six months after the judgment, dismissal, order, or proceeding was taken.

Specifically, APACE argued their was a miscommunication from its attorney service which resulted in the service arriving too late to file on the last permitted day.

But the court took note of the California Supreme Court decision in Maynard v. Brandon (2005) 36 Cal.4th 364, in which the Supreme Court stated: “Nor does Section 473, subdivision (b) generally apply to dismissals attributable to a party’s failure to comply with the applicable limitations period in which to institute an action, whether by complaint [citations] or by writ petition [citation].”

It went on to distinguish the facts of other cases in which plaintiffs were granted relief from CEQA’s short limitations period. Those cases involved, among other things, failure by a city clerk to act timely as required, and a counsel’s failure to request a hearing based on an honest mistake.

By contrast, the APACE suit involved an undisputed statute of limitations and a plaintiff who argued that the late filing was excusable, rather than “a mistake in interpreting an unclear statute.”

Finding Maynard persuasive, the trial court decision was affirmed, and the APACE lawsuit barred, notwithstanding Section 473.

For over 35 years small businesses, major corporations, public entities, individuals and insurance companies have depended on Tharpe & Howell, LLP, to deliver pragmatic, innovative, cost-effective civil litigation and transactional solutions.  For more information, please contact us at (805) 962-4000 or email your request to dmurray@tharpe-howell.com. [This publication is for informational purposes only and does not constitute legal advice. Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]

The Equal Employment Opportunity Commission (EEOC) has settled a pregnancy-related discrimination, disability and retaliation claim on behalf of two married Nevada workers whose employer:

• made alleged derogatory remarks to the woman
• denied her request to move her “office closer to the restroom to accommodate her severe nausea and vomiting”
• changed the job description for her technical assistant position while she was out on pregnancy leave to require certification “to carry live ammunition  and explosives”
• terminated her while she was on leave
• demoted and eventually terminated her husband “after complaining of his wife's  treatment and participating in the EEOC's  investigation of his wife's case”

The couple will share $70,000 and negative references in their personnel files will be expunged. They will also receive letters of recommendation for future employment.

The settlement, announced by the EEOC on April 15, 2013, includes a four year consent decree under which the company will “hire an  equal employment opportunity (EEO) consultant to create and implement  anti-discrimination policies, complaint procedures, a centralized tracking  system for discrimination complaints, and live, annual EEO training for all management and human resources personnel.”

Workplace retaliation claims are a major source of employment-related litigation. The EEOC press release for the case notes that 38% of all EEOC charges filed in 2012 involved workplace retaliation, including 47% of all EEOC charges in Nevada.

Employers in Nevada and elsewhere should takes steps to ensure that federal and state employment discrimination laws related to pregnant workers are complied with, and seek the advice of legal counsel before taking steps that might be considered retaliatory in nature. In addition to monetary settlements, EEOC actions can lead to ongoing monitoring for compliance by EEOC or state agencies charged with enforcement of workplace discrimination laws.

At Tharpe & Howell LLP, our attorneys understand the issues faced by employers, because we’ve been there – serving companies in critical rules including Vice President, Human Resources; Vice President, Administration; Corporate Counsel; and Operations Manager.  For more information on how we can help you with employment and labor law matters, please contact us at (805) 962-4000 or email your request to dmurray@tharpe-howell.com. [This publication is for informational purposes only and does not constitute legal advice.  Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]

High speed rail is a key component of the California Rail Plan, expected this summer. The Plan will establish a vision and set priorities and implementation strategies for passenger and freight rail service in the Golden State . We previously wrote on this topic and the draft plan already issued.

California’s high speed rail project, known as the bullet train, has been a subject of controversy since it was first announced. Critics claim the project is a boondoggle based on cost estimates (currently $68 billion), not to mention technology issues and environmental and energy concerns.

The latest twist in the saga of high speed rail has Governor Brown courting the Chinese as investors in the state’s high speed rail project during his April trade mission to the country. According to a report in the Los Angeles Times, Brown’s efforts are not without interest by the Chinese, who have their own bullet train system. In fact, cooperation dates back to the Schwarzenegger administration and the parties “have already made preliminary agreements to work together on construction of the bullet train.”

Whether trade missions and preliminary agreements lead to actual investment remains to be seen. But with voters having approved only $10 billion in bonds in 2008, and the federal government contributing $3 billion more, the project needs more than $50 billion in additional funds to cover anticipated construction costs. Considering the current environment and controversy surrounding the project, courting the Chinese is understandable for those who remain sold on the vision and promise of high speed rail.

At Tharpe & Howell, we assist transportation carriers and their insurers with complex challenges 24 hours a day, 7 days a week.  We know that if an issue is not investigated, contained, assessed and resolved quickly and cost effectively, it can keep our clients “off the road” and cost their business dearly.  For over three decades, we have partnered with transportation clients, bringing them the knowledge, experience and creativity needed to successfully meet this challenge. We’re intimately familiar with the legal and operational needs of the transportation industry, and work with our clients in avoiding pitfalls and preventing liability risk whenever possible.  When claims do arise, we help tailor and implement concise, expedient and cost-effective plans for resolution.  Our team of specialists includes the industry’s best field investigators and accident recon experts, and we are available around the clock to meet your needs – from immediate direction of catastrophic loss investigations, through trial of any matter, large or small.  For more information, please contact us at (805) 962-4000 or email your request to dmurray@tharpe-howell.com.  [This publication is for informational purposes only and does not constitute legal advice. Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]

Bisphenol-A, commonly known as BPA, has been added by the State of California to its list of chemicals known to cause cancer or reproductive toxicity, a list required to be maintained under the Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as Proposition 65.

The Office of Environmental Health Hazard Assessment (OEHHA) is responsible for administering the list. OEHHA is part of the State of California Environmental Protection Agency.

Under Prop 65 businesses are, among other things, required “to notify Californians about significant amounts of chemicals in the products they purchase, in their homes or workplaces, or that are released into the environment.” [OEHHA website]

As reported by the San Francisco Chronicle, BPA is found in hard plastic bottles and dental sealants, in addition to food and beverage cans. Research has linked BPA to infertility and other problems base on the chemical being an endocrine disruptor. Having been placed on the Prop 65 list, BPA may now show up on warning labels associated with products that contain it.

But the American Chemistry Council has filed suit to have BPA removed from the Prop 65 list, stating that “[t]he consensus of major government agencies around the world, including the U.S. Food and Drug Administration . . . supports the safety of BPA in food contact materials.”

Read the American Chemistry Council news release on the lawsuit here.

For the current list of chemicals identified by the State under Prop 65 as known to cause cancer or reproductive toxicity click here.

For over 35 years small businesses, major corporations, public entities, individuals and insurance companies have depended on Tharpe & Howell, LLP, to deliver pragmatic, innovative, cost-effective civil litigation and transactional solutions.  For more information, please contact us at (805) 962-4000 or email your request to dmurray@tharpe-howell.com. [This publication is for informational purposes only and does not constitute legal advice. Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]