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Augmented reality, data breaches, and a leaning tower in San Francisco. These are just some of the issues that courts in California will be grappling with in the coming year. Here’s a shortlist of the novel, quirky and consequential legal battles dotting the state’s legal landscape in 2017.

Wadler v. Bio-Rad Laboratories (N.D. Cal. – San Francisco)

The trial against Bio-Rad Laboratories Inc. set for January will be a rare and combative spectacle. Not only is the case one of the few whistleblower retaliation suits poised to actually go to trial—in front of U.S. Magistrate Judge Joseph Spero—but it was brought on behalf of the company’s longtime lawyer, former general counsel Sanford Wadler.

The trial promises to air both sides’ dirty laundry. Wadler filed suit with counsel from Kerr & Wagstaffe in 2015 claiming that he was “abruptly fired” after raising concerns about potential Foreign Corrupt Practices Act violations by Bio-Rad in China. Thanks to a recent ruling from Spero, the company’s deliberations about Wadler’s FCPA claims, including the details of an internal investigation by outside lawyers at Steptoe & Johnson and a presentation by lawyers at Davis, Polk & Wardwell made to federal investigators, are likely to come up at trial.

Meanwhile, Bio-Rad’s lawyers at Quinn Emanuel Urquhart & Sullivan, who subbed in for prior counsel from Latham & Watkins this fall, aren’t likely to hold back on Wadler. The company claims he was let go because of poor performance and behavioral problems, and Quinn’s John Potter said in a recent hearing that Wadler had become a “monster” for colleagues to work with by the time he was let go.

In re Pokemon Go Nuisance Litigation (N.D. Cal. – San Francisco)

What happens when people playing an “augmented reality” game on their smartphone become a real-world nuisance? U.S. District Judge James Donato of the Northern District of California is set to oversee test cases delving into that question.

Property owners from across the country have sued the companies behind Pokémon Go, the wildly popular mobile game that unleashed hordes of players on the physical world this summer in search of virtual creatures to catch, train, and do combat with on their smartphones. Lawyers at Pomerantz are pursuing nuisance claims on behalf a proposed nationwide class of people whose property abuts locations where rare Pokémon spawn and players gather en masse at odd hours.

The defendants have taken a fighting posture by bringing on top-flight privacy defense lawyers. Niantic Inc., the software developer behind the game, has brought on Cooley’s Michael Rhodes and The Pokemon Co., which shares in the revenues from the game, has hired Greenberg Traurig’s Ian Ballon. Donato is set to hold the first hearing in the cases in late January.

Millennium Tower litigation (San Francisco Superior Court)

San Francisco’s very own leaning tower has touched off a messy bout of litigation that is sure to get messier. Two lawsuits brought on behalf of homeowners in the Millennium Tower, pending in front of Judge Curtis Karnow in San Francisco Superior Court, have already spawned more cases. City Attorney Dennis Herrera launched a countersuit in November against the developers of the tower, while the authority in charge of the Transbay Transit Center being built in the adjacent lot is suing in an attempt to get off the hook for damages. The building’s architects and engineers have also been roped into the litigation as defendants.

Meanwhile, Bay Area IP litigator Gerald “Jerry” Dodson—a resident of the tower­—has come out of retirement and is planning his own lawsuit against the developers and city officials on behalf of himself and other residents. The building’s homeowners association also has litigation in the works. The developers, Millennium Partners, have tapped a team at Paul Hastings to fend off the claims. Expect a melee over who is really responsible for the building’s sinking and tilting, which lawyers should represent the interests of the homeowners, and whether the building can be fixed.

In re Yahoo Inc. Customer Data Security Breach Litigation (N.D. Cal. – San Jose)

The multidistrict litigation targeting Yahoo Inc. with data breach claims provided the rare moment of agreement between the plaintiffs bar and a defendant. U.S. District Judge Lucy Koh was the consensus pick to handle the case by both sides, cementing her place as one of the leading thinkers on privacy law on the federal bench.

Koh is already overseeing more than 100 class actions targeting health insurer Anthem Inc. over its 2015 data breach, which affected 70 million customers. But Yahoo’s potential liabilities would seem to be an order of magnitude greater. Just a week after the Judicial Panel on Multidistrict Litigation assigned the Yahoo cases to Koh in early December, the company announced an additional breach, bringing the total number of Yahoo accounts affected to more than 1 billion. Koh is set to hear lead counsel pitches from plaintiffs in February.

Hunter v. Fisher (Los Angeles Superior Court)

One way or another, the lawsuit filed against the National Basketball Players Association by former union chief Billy Hunter is set to heat up this year. Hunter sued the union for $10.5 million in May 2013 after being fired earlier in the year. The union has pursued counterclaims against Hunter largely based on a report by Ted Wells at Paul, Weiss, Rifkind, Wharton & Garrison, which found that Hunter acted in his own interests rather than the players’ at times during his tenure.

Issues surrounding the Wells report have side-tracked the litigation even as Los Angeles Superior Court Judge Huey Cotton Jr. has the case poised for a potential 2017 trial date. Cotton has ordered the union to hand over Wells’ work files. The judge has also found the union can’t invoke the shield of attorney-client privilege on the report, since it wielded the findings as a sword in the litigation.

The union’s lawyers, led by Lynne Hermle at Orrick, Herrington & Sutcliffe, have refused to comply with Cotton so far and are asking the Court of Appeal to weigh in. Meanwhile, Hunter’s lawyers, led by Sidley Austin’s David Anderson, are moving ahead with discovery, including recently deposing LeBron James. With other stars including Chris Paul potentially poised to testify, the witness list could read like an All-Star NBA team roster.

Rabin v. PricewaterhouseCoopers (N.D. Cal. – San Francisco)

PricewaterhouseCoopers, one of the “Big 4″ of the accounting world, was hit last May with a federal lawsuit in San Francisco alleging that it has systematically attempted to fill its ranks with “millennials” while denying work opportunities to older accountants. It’s one of a stream of recent age discrimination suits—others have targeted Silicon Valley firms like Hewlett-Packard—and attempts to take on common corporate practices like university campus recruiting.

The case also has the potential to be huge: attorneys at plaintiffs firm Outten & Golden are bringing class-action claims not only on behalf of people who were actually turned down from jobs, but those who were deterred from even applying. That could include thousands of people, they say.

Unsurprisingly, one of the things PwC’s lawyers at Kirkland & Ellis will try to do in the New Year is whittle that number down. They’ll be arguing before U.S. District Judge Jon Tigar in January, with support from this U.S. Court of Appeals for the Eleventh Circuit decision, that the federal Age Discrimination in Employment Act doesn’t allow “disparate impact” claims for job applicants, only for employees.

Dynamex Operations West v. Superior Court (California Supreme Court)

There has been much hubbub over the labor class actions brought against “gig-economy” upstarts like Uber Technologies Inc. and Lyft Inc. But a lesser-known case pending before the California Supreme Court involving package delivery company Dynamex could end up blindsiding the industry.

At stake is whether a worker should be considered an employee—and not an independent contractor—only if the employer demonstrates “control” over the laborer, or if broader factors set out by the state’s Industrial Welfare Commission should be considered as well. Those encompass both control over wages and hours, or just requiring or permitting work (known as the “suffer-or-permit” standard).

If the Supreme Court affirms the 2014 Los Angeles appellate court’s ruling, the U.S. Chamber of Commerce warns, that “would effectively eliminate independent contractor status in California.” It’s not clear that any outcome would be that dramatic, but attorneys agree that the Supreme Court’s opinion will be consequential for the future of the on-demand economy.

 

Copyright The Recorder. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Augmented reality, data breaches, and a leaning tower in San Francisco. These are just some of the issues that courts in California will be grappling with in the coming year. Here’s a shortlist of the novel, quirky and consequential legal battles dotting the state’s legal landscape in 2017.

Wadler v. Bio-Rad Laboratories (N.D. Cal. – San Francisco)

The trial against Bio-Rad Laboratories Inc. set for January will be a rare and combative spectacle. Not only is the case one of the few whistleblower retaliation suits poised to actually go to trial—in front of U.S. Magistrate Judge Joseph Spero—but it was brought on behalf of the company’s longtime lawyer, former general counsel Sanford Wadler.

The trial promises to air both sides’ dirty laundry. Wadler filed suit with counsel from Kerr & Wagstaffe in 2015 claiming that he was “abruptly fired” after raising concerns about potential Foreign Corrupt Practices Act violations by Bio-Rad in China. Thanks to a recent ruling from Spero, the company’s deliberations about Wadler’s FCPA claims, including the details of an internal investigation by outside lawyers at Steptoe & Johnson and a presentation by lawyers at Davis, Polk & Wardwell made to federal investigators, are likely to come up at trial.

Meanwhile, Bio-Rad’s lawyers at Quinn Emanuel Urquhart & Sullivan , who subbed in for prior counsel from Latham & Watkins this fall, aren’t likely to hold back on Wadler. The company claims he was let go because of poor performance and behavioral problems, and Quinn’s John Potter said in a recent hearing that Wadler had become a “monster” for colleagues to work with by the time he was let go.

In re Pokemon Go Nuisance Litigation (N.D. Cal. – San Francisco)

What happens when people playing an “augmented reality” game on their smartphone become a real-world nuisance? U.S. District Judge James Donato of the Northern District of California is set to oversee test cases delving into that question.

Property owners from across the country have sued the companies behind Pokémon Go, the wildly popular mobile game that unleashed hordes of players on the physical world this summer in search of virtual creatures to catch, train, and do combat with on their smartphones. Lawyers at Pomerantz are pursuing nuisance claims on behalf a proposed nationwide class of people whose property abuts locations where rare Pokémon spawn and players gather en masse at odd hours.

The defendants have taken a fighting posture by bringing on top-flight privacy defense lawyers. Niantic Inc., the software developer behind the game, has brought on Cooley ‘s Michael Rhodes and The Pokemon Co., which shares in the revenues from the game, has hired Greenberg Traurig ‘s Ian Ballon. Donato is set to hold the first hearing in the cases in late January.

Millennium Tower litigation (San Francisco Superior Court)

San Francisco’s very own leaning tower has touched off a messy bout of litigation that is sure to get messier. Two lawsuits brought on behalf of homeowners in the Millennium Tower, pending in front of Judge Curtis Karnow in San Francisco Superior Court, have already spawned more cases. City Attorney Dennis Herrera launched a countersuit in November against the developers of the tower, while the authority in charge of the Transbay Transit Center being built in the adjacent lot is suing in an attempt to get off the hook for damages. The building’s architects and engineers have also been roped into the litigation as defendants.

Meanwhile, Bay Area IP litigator Gerald “Jerry” Dodson—a resident of the tower­—has come out of retirement and is planning his own lawsuit against the developers and city officials on behalf of himself and other residents. The building’s homeowners association also has litigation in the works. The developers, Millennium Partners, have tapped a team at Paul Hastings to fend off the claims. Expect a melee over who is really responsible for the building’s sinking and tilting, which lawyers should represent the interests of the homeowners, and whether the building can be fixed.

In re Yahoo Inc. Customer Data Security Breach Litigation (N.D. Cal. – San Jose)

The multidistrict litigation targeting Yahoo Inc. with data breach claims provided the rare moment of agreement between the plaintiffs bar and a defendant. U.S. District Judge Lucy Koh was the consensus pick to handle the case by both sides, cementing her place as one of the leading thinkers on privacy law on the federal bench.

Koh is already overseeing more than 100 class actions targeting health insurer Anthem Inc. over its 2015 data breach, which affected 70 million customers. But Yahoo’s potential liabilities would seem to be an order of magnitude greater. Just a week after the Judicial Panel on Multidistrict Litigation assigned the Yahoo cases to Koh in early December, the company announced an additional breach, bringing the total number of Yahoo accounts affected to more than 1 billion. Koh is set to hear lead counsel pitches from plaintiffs in February.

Hunter v. Fisher (Los Angeles Superior Court)

One way or another, the lawsuit filed against the National Basketball Players Association by former union chief Billy Hunter is set to heat up this year. Hunter sued the union for $10.5 million in May 2013 after being fired earlier in the year. The union has pursued counterclaims against Hunter largely based on a report by Ted Wells at Paul, Weiss, Rifkind, Wharton & Garrison , which found that Hunter acted in his own interests rather than the players’ at times during his tenure.

Issues surrounding the Wells report have side-tracked the litigation even as Los Angeles Superior Court Judge Huey Cotton Jr. has the case poised for a potential 2017 trial date. Cotton has ordered the union to hand over Wells’ work files. The judge has also found the union can’t invoke the shield of attorney-client privilege on the report, since it wielded the findings as a sword in the litigation.

The union’s lawyers, led by Lynne Hermle at Orrick, Herrington & Sutcliffe, have refused to comply with Cotton so far and are asking the Court of Appeal to weigh in. Meanwhile, Hunter’s lawyers, led by Sidley Austin ‘s David Anderson, are moving ahead with discovery, including recently deposing LeBron James. With other stars including Chris Paul potentially poised to testify, the witness list could read like an All-Star NBA team roster.

Rabin v. PricewaterhouseCoopers (N.D. Cal. – San Francisco)

PricewaterhouseCoopers, one of the “Big 4″ of the accounting world, was hit last May with a federal lawsuit in San Francisco alleging that it has systematically attempted to fill its ranks with “millennials” while denying work opportunities to older accountants. It’s one of a stream of recent age discrimination suits—others have targeted Silicon Valley firms like Hewlett-Packard —and attempts to take on common corporate practices like university campus recruiting.

The case also has the potential to be huge: attorneys at plaintiffs firm Outten & Golden are bringing class-action claims not only on behalf of people who were actually turned down from jobs, but those who were deterred from even applying. That could include thousands of people, they say.

Unsurprisingly, one of the things PwC’s lawyers at Kirkland & Ellis will try to do in the New Year is whittle that number down. They’ll be arguing before U.S. District Judge Jon Tigar in January, with support from this U.S. Court of Appeals for the Eleventh Circuit decision, that the federal Age Discrimination in Employment Act doesn’t allow “disparate impact” claims for job applicants, only for employees.

Dynamex Operations West v. Superior Court (California Supreme Court)

There has been much hubbub over the labor class actions brought against “gig-economy” upstarts like Uber Technologies Inc. and Lyft Inc. But a lesser-known case pending before the California Supreme Court involving package delivery company Dynamex could end up blindsiding the industry.

At stake is whether a worker should be considered an employee—and not an independent contractor—only if the employer demonstrates “control” over the laborer, or if broader factors set out by the state’s Industrial Welfare Commission should be considered as well. Those encompass both control over wages and hours, or just requiring or permitting work (known as the “suffer-or-permit” standard).

If the Supreme Court affirms the 2014 Los Angeles appellate court’s ruling, the U.S. Chamber of Commerce warns, that “would effectively eliminate independent contractor status in California.” It’s not clear that any outcome would be that dramatic, but attorneys agree that the Supreme Court’s opinion will be consequential for the future of the on-demand economy.

 

Copyright The Recorder. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.