California Alliance of Paralegal Associates This program is geared towards individuals at the start of their legal careers and
30th Annual Conference making their first court appearance or assisting their attorney in a courtroom
Toronto, Canada setting.
Courtroom Etiquette, Demeanor and Civility in the Practice of Your presenter is Eric V. Isaac, Riverside Superior Court Commissioner and a
Law seasoned trial attorney. My previous career was as a Deputy Public Defender. The
practice of law evolves on a daily basis. You will make mistakes and most will be
1 Hour MCLE (.5 Ethics) forgiven. That is why it is called “the practice of law.” Enjoy and learn!
Hon. Eric V. Isaac
Superior Court of California
Commissioner, Riverside
Sources of Law and References Attorney Civility and
Professionalism
California Rules of Professional ABA Model Rules of
Conduct and the State Bar Act Professional Conduct (2003
www.calbar.ca.gov Edition)
Hereafter “MR”
Hereafter “RPC” California appellate courts
1-100(A): “The following rules are frequently cite the ABA Model
intended to regulate professional Rules
conduct of members of the State Nation-wide trend to adopt
Bar through discipline . . . They ABA Model Rules
have been adopted . . . To protect California Attorney Guidelines
the public and to promote respect for Civility and
and confidence in the legal
profession.” Professionalism
CJP: Code on Judicial Performance
California Judicial Conduct (Adopted 07/20/07)
Handbook (West Group) www.calbar.ca.gov
Does Civility and Courtroom Decorum and Etiquette-
Professionalism Matter? A thru Z
“Public confidence in the judicial institution is one of the essential A
elements of the preservation of the rule of law.”
(David M. Rothman, California Judicial Conduct Handbook, West Always be on time. If you are
Group, § 1.20, p. 5.) going to be late for a court
appearance, a quick phone call to
• Justice system depends on it the court does wonders and avoids
• Parties notice sanctions.
• Jurors notice
• Judges and counsel notice Announce your appearance clearly,
succinctly and whether it is a
special or general appearance.
1
B C
Be polite and courteous to the court Client control is essential and you should
clerk, staff and bailiff. They have a acquaint/advise your client with your
direct line to the judge who will be clues/signs when it is time for the client
hearing your case. to stop talking to the judge (i.e., quit
while you are ahead or do not let your
CAAGC&P- Section 14: Conduct in client dig his own grave any deeper).
Court However, be aware that the client has
the right to allocution – to speak to the
An attorney should maintain respect for judge during sentencing.
and confidence in a judicial office by
displaying courtesy, dignity and respect CAAGC&P: Section 4: Communications
towards the court and courtroom As an officer of the court, an attorney should not allow clients to
personnel. prevail upon the attorney to engage in uncivil behavior.
D E/F
Do not make personal attacks against or Eagerly and earnestly give legal
disparage opposing counsel while in open advice/assistance to the attorneys who may
court in front of the judge or a jury. Not only have their cases heard during the same
will you lose points, opposing counsel may be time you are in court and may appear to be
judging you one day. struggling or need help.
Find the time to go to court and watch other
experienced paralegals and attorneys in
action. You will pick
up pointers (good or bad) to make your
appearances smoother and learn to avoid
making future mistakes.
G/H I
Gum chewing is very unprofessional. It’s your professional reputation, so take it
Same advice goes for having other seriously!
objects in your mouth when addressing Your attorney and you are responsible for all
the judge in court, such as breath mints your cases and appearances.
or throat lozenges. It is not a defense just because someone, such
as a colleague or supervisor, gave you bad
Have your dates ready when asking for advice.
a continuance or for a case to trail. It is
helpful to check with opposing counsel If you don’t know how to do a particular motion,
as well as the court clerk in advance of then research it or just ask. There are other
the case being called to make sure the knowledgeable paralegals and attorneys who
dates are convenient for everyone will be more than happy to assist you with any
before going on the record. questions.
2
J K/L
Join your local paralegal member associations and other • Know the local rules where you will be appearing
professional legal groups. Not only will you meet other paralegals and the nuances of the judge who will be hearing
with a lot of experience and who may have had similar situations, your case. Do your own research on the judge and
but you will get good advice that you can use in your career. elicit insight from other paralegals and attorneys
Inland County Association of Paralegals who have experience before the judge and the
Los Angeles Paralegal Association judge’s clerk.
Orange County Paralegal Association
Kern County Paralegal Association • Let others who have multiple appearances in other
San Francisco Paralegal Association courtrooms go before you if you have the time to
San Diego Paralegal Association spare. They may return the favor some day.
Ventura County Paralegal Association
Fresno Paralegal Association
M N
Make sure you are FAR away from the Never make representations that you cannot
microphone in the courtroom or podium before later support. And never misstate the law or
making statements to your client or disparaging facts. It will come back to haunt you.
comments about the judge or opposing counsel.
(That is why you have a legal pad to pass Bryan v. Bank of America (2001) 86 Cal. App.4th 185: A Court of
Appeal may sanction an attorney who misrepresented facts to get
notes.) a continuance to file an opening brief and for improper motion to
recall the remittitur. The attorney concealed from the court that
Please do not hold conversations the client was incompetent and unwilling or unable to proceed.
in the courtroom while court is in
session. Never challenge a judge in front of jurors. You
will always lose in the confrontation with the
The court reporter needs to judge and lose points as the jurors look up to
be able to accurately record the judge and not you. Although you must make
the proceedings. a record, try to do it at sidebar. (CJP - PC 170.6)
O Business and Professions Code
Section 6460 “Paralegal”
Only take cases that you are prepared or experienced to
handle. Again seek advice from other experienced counsel for “Paralegal” means a person who holds himself or herself out to be a
assistance. paralegal, who is qualified by education, training, or work experience,
RPC 3-110: A lawyer must provide competent legal services. who either contracts with or is employed by an attorney, law firm,
This rule includes a duty to supervise the work of subordinate corporation, governmental agency, or other entity, and who performs
attorneys, agents, and/or other employees. (See Waysman v. substantial legal work under the direction and supervision of an active
State Bar (1986) 41 Cal.3d 452) member of the State Bar of California, as defined in Section 6060, or
RPC 3-110(B): A lawyer should not accept a case if she lacks an attorney practicing law in the federal courts of this state, that has
the time, skill, and “mental, emotional, and physical ability been specifically delegated by the attorney to him or her. Tasks
reasonably necessary for the performance of such service.” performed by a paralegal include, but are not limited to, case
RPC 3-110(C): If a member does not have sufficient learning planning, development, and management; legal research; interviewing
and skill when the legal services is undertaken, the member clients; fact gathering and retrieving information; drafting and
may nonetheless perform such services competently by 1) analyzing legal documents; collecting, compiling, and utilizing technical
associating with . . . Another lawyer reasonably believed to be information to make an independent decision and recommendation to
competent, or 2) by acquiring sufficient learning and skill the supervising attorney; and representing clients before a state or
before performance is required.” federal administrative agency if that representation is permitted by
.statute, court rule, or administrative rule or regulation
3
Q R
Quit arguing with the judge once a ruling Refer to the judge as “your honor” when
has been made. You will never win against he/she is on the bench. It is “judge” when
the judge, especially with an armed bailiff in not in session.
the courtroom. Do not interrupt the judge or
opposing counsel when they are speaking. Respect the judge at all times, even if you
CAAGC&P Section 14: Conduct in Court disagree with a ruling, in order to avoid
While appearing before the court, an sanctions. Do not make any flippant remarks
attorney should address all arguments, or improper arguments that would offend
objections and requests to the court, rather the sensibilities of a reasonable person. This
than directly to opposing counsel. includes statements made in court and out
of court.
S T
Security is always a concern while in the Thank the judge for his or her ruling even if you disagree with the
courthouse. If you know that a client, ruling. (It is just polite and may even convince you and the jurors
witnesses or family members have been a that you really didn’t lose that one).
problem in the past, alert the bailiff or
court security officer. CAAGC&P Section 14: Conduct in Court
It is for your protection as well as others To promote a positive image of the profession, an
in the courthouse. attorney should always act respectfully and with dignity
in court and assist the court in proper handling of a case.
An attorney’s conduct should avoid disorder or
disruption and preserve the right to a fair trial
Take your time when making your points. The court reporter needs
to record each word that is spoken and is likely to miss important
information if you speak too fast.
Unlawful Conduct Unlawful Conduct Cont.
It is unlawful for a paralegal to perform any It is unlawful for a person to identify himself or herself as a
services for a consumer except as performed paralegal on any advertisement, letterhead, business card or sign,
under the direction and supervision of the or elsewhere unless he or she has met the qualifications of
attorney, law firm, corporation, government subdivision (c) of Section 6450 and performs all services under the
agency, or other entity that employs or contracts direction and supervision of an attorney who is an active member of
with the paralegal. Nothing in this chapter shall the State Bar of California or an attorney practicing law in the
prohibit a paralegal who is employed by an federal courts of this state who is responsible for all of the services
attorney, law firm, governmental agency, or other performed by the paralegal. The business card of a paralegal shall
entity from providing services to a consumer include the name of the law firm where he or she is employed or a
served by one of these entities if those services statement that he or she is employed by or contracting with a
are specifically allowed by statute, case law, court licensed attorney. (BPC sect. 6452(a))
rule, or federal or state administrative rule or
regulation. (BPC sect. 6451)
4
V W
Verify information about representations Wait until the judge/baliff/court clerk calls
your client has made to you before the case on the record before you start
making a statement on the record. This talking.
will avoid the appearance of misleading
the court and opposing counsel. The court reporter is making a record for the
case. You need to make sure everything is
CAAGC&P Section 4: Communications recorded so that the transcripts (which may
be needed for clarification of what was said
An attorney should not create a false or misleading for read backs, motions or appeals.)
record of events, or attribute to an opposing counsel
a position not taken.
X/Y/Z
‘X’tra verbiage is not necessary. Quit while you are ahead.
Your reputation is everything. Guard it wisely. Keep in mind that the
legal community is smaller than you think and your reputation as an
advocate will follow you for the rest of your legal career. It is easier
to keep a good reputation than to repair a bad one.
Zealous advocacy is good. Although you are an advocate, you are
also an officer of the court. Always practice by the law and not by
the case.
CAAGC&P Section 1: Responsibilities to the Justice System
The dignity, decorum and courtesy that have traditionally
characterized the courts and legal profession of civilized nations
are not empty formalities. They are essential to an atmosphere
that promotes justice and to an attorney’s responsibility for the
fair administration of justice.
5
César PortilloEmployment/Labor:
Elimination of Bias
Speaker: Cesar Portillo, Director HR (CSUSB)
Identifying and Addressing Biases in the Selection Process
This interactive and information filled presentation
will provide you with tools to recognize, address and over-
come biases in the selection process. The knowledge gained
form this presentation is easily transferable to all aspects of
both your person and professional life.
César serves as AVP of Human Resources at Cal State San Ber-
nardino and provides service in the areas of benefits, compen-
sation, employee and labor relations, employment, payroll, performance management, recognition, training
and development, leaves of absence and other HR programs.
6/11/2018
Addressing Presentation Identifying
Biases in Objectives macroaggressions and
the Search discussing them
Process
Identifying biases and
Presented by Cesar Portillo, discussing them
Associate Vice President and Chief
Diversity Officer Techniques to address
CSU San Bernardino biases and facilitating
challenging behaviors
[email protected]
(909) 537-3100 June 2018
Training Ground Rules 1. Active Listening 1) Describe how you normally
2. Respect communicate difficult
3. “I” versus “We” Group Exercise information to a
4. Step Up Listening / Step Up colleague.
Involvement 2) How do you like to receive
5. Confidentiality difficult or uncomfortable
6. Dialogue Not Debate information?
7. Have an Open Mind
3) Why is this exercise
helpful?
Microaggressions Handout 1
“Microaggressions are brief and commonplace daily Recognizing Microaggressions
verbal, behavioral, and environmental indignities,
whether intentional or unintentional, that
communicate hostile, derogatory, or negative racial,
gender, sexual-orientation, and religious slights and
insults to the target a person or group. Perpetrators
of microaggressions are often unaware that they have
engaged in an exchange that demeans the recipient of
communication.”
- Derald Wing Sue 2010
1
How do macroaggressions 6/11/2018
manifest?
Group Exercise
• Stereotype(s): a widely held but fixed and
oversimplified image or idea of a particular Share an experience where you may have
type of person or thing. experienced microaggression.
How did you feel?
• Negative personal viewpoints of groups How were your intentions thwarted?
and/or associated groups.
Group Exercise
• Fear of change
• Fear of being challenged or losing status What do
• Retribution you see?
Biases In The Sometimes Called Common Rating
Search Process Errors
The challenge for many is understanding the Similarity: Seeing qualities possessed by the interviewer in the
various types of bias in the hiring process. Some candidate, possibly leading to overlooking other characteristics.
organizations may not have considered that
their hiring process may be biased. Others may First Impression: Judging or drawing conclusions on a candidate by
focus on one type of bias, but neglect the the first impression the interviewer has of the candidate.
others. The various types of bias that could be
embedded within an agency’s hiring practices Halo/Horn: Allowing on characteristic to influence the overall rating
include. of the candidate.
We all have biases that can be positive and
negative. Leniency/Severity: Exhibiting extreme leniency or harshness in
evaluating candidates.
Page 12
Restriction of range: Unwilling to use the extreme ends of the scale,
Handout 2 which results in all candidates being rated in the middle range.
Group Exercise
Stereotyping: Judging based on broad generalizations instead of
Keeping your bias specific information about the candidate
“In- Check” – Exercise
2
6/11/2018
Behavior Based Questions Good and
Not so Good Questions
A job interviewing technique whereby the applicant is asked
to describe past behavior in order to determine whether she Not this… Try this…
is suitable for a position. Please describe your experience using Excel.
Are you good at Excel?
Goal: Find out what the candidate has done in the past in order to (closed question)
best predict what the candidate would do in the future
You wouldn’t have any problem being here The job requires working from 7 a.m. to 4
Ask about specific experiences that the candidate has had where at 7 a.m., would you? p.m., Monday through Friday. To what extent
that candidate exhibited the competencies that are needed for the (Leading question) do those hours work for you?
job
Did you like your last job? Tell me what you liked at your last job?
Consider asking questions that require the candidate to show (closed question)
increasing competency in the subject matter.
You like a variety of tasks, right? Please describe the variety of tasks you
(Leading question) performed in your former job. Which tasks did
you enjoy the most?
Discussing Bias During Handout 3
Selection Process Exercise
Develop an environment of trust Imagine an instance where you felt that bias was a
factor in the discussion. Share with your partner using
Work collaboratively to establish ground the starter phrases in handout.
rules
Keep deliberations on skills rather than
feelings
Use “I” rather than “you”
Handout 4 Create a welcoming
environment
Facilitating Challenging Behaviors
They are interviewing us as much as we are
interviewing them.
Make sure the room is set up prior to
interview
Outline who will ask questions
Hiring Committee should have a good idea of
who their interviewing
Know when the hiring committee/
department will intend on filling the position
Identify who will be the candidates main
contact person
3
6/11/2018
Use wisdom when Wrap Up • Questions?
drawing
conclusions about
candidates.
4
Toni Marsh, JDAdvanced Litigation:
Who/What/Why/ How Paralegals with examples of UPL
Speaker: Toni Marsh, JD Director (George Washington University Paralegal Studies)
This presentation explains WHO today’s paralegals
are, WHAT they know and WHAT they can and can’t
do, WHY law offices should use more paralegals to
do more things, HOW to use paralegals for maximum
benefit and WHERE paralegals are working to ad-
vance the legal profession and serve the public. It
will also include some examples of UPL.
Toni Marsh is the founding director of the award-winning George Washington University paralegal studies pro-
grams and an Associate Professor of Paralegal Studies. She designed and launched the paralegal studies program at
the University of North Carolina at Charlotte and designed the first ever formal paralegal program in the nation of
Tanzania at the University of Bagamoyo. The curriculum she designed is now in use throughout the nation of Tan-
zania. She will continue that work among Native American tribes in the southwest this year.
She is the author of Juvenile Law and a frequent speaker on access to justice and paralegal utilization.
Professor Marsh is also a member of the Executive Board of the GW Global Women’s Institute and the Faculty Advisory Board of the
GW Women’s Studies Program.
6/11/2018
WHO are paralegals?
Chose the profession & will make it a career
Educated, savvy, sophisticated
Contributing members of legal teams
PARALEGALS
and the Unauthorized Practice of Law
“A legal assistant or paralegal is a person, WHAT do paralegals
qualified by education, training or work
experience who is employed or retained by know?
a lawyer, law office, corporation,
governmental agency or other entity and Curriculum subject to rigorous review
who performs specifically delegated
substantive legal work for which a lawyer is Geared to local market
responsible.”
Current and relevant
ABA 1997
Practical skills & substantive law
WHAT can paralegals Specifically authorized:
do? Print & electronic research Any task normally performed by a lawyer
Written & oral communication
Technology As long as lawyer is ultimately
responsible
Unless proscribed by:
Statute
Court rule
Administrative rule or regulation
Controlling case law
Rule of professional conduct in the
jurisdiction in which the lawyer
practices
ABA guidelines
1
6/11/2018
CAN’TWhat paralegals Two classes of prohibited
conduct:
do?
Things paralegals can’t do unless an
attorney is supervising
Things paralegals can’t do at all ever
Things paralegals can’t do
at all ever
Establish lawyer/client relationship
Advocate in court
Take a deposition
Set fees in cases
Sign legal pleadings
Give legal advice
WHAT is legal advice? Things paralegals can’t do
unless an attorney is
Use independent supervising
judgment
Everything else
To alter the
legal position
Of a lay person
2
NFPA Model Code of Ethics and 6/11/2018
Professional Responsibility
NALA Code of Ethics
1.8 A PARALEGAL SHALL NOT ENGAGE IN
THE UNAUTHORIZED PRACTICE OF LAW. Canon 2. A paralegal may perform any task which
Ethical Considerations EC-1.8 is properly delegated and supervised by an
(a) A paralegal shall comply with the applicable attorney, as long as the attorney is ultimately
legal authority governing the unauthorized practice responsible to the client, maintains a direct
of law in the jurisdiction in which the paralegal relationship with the client, and assumes
practices. professional responsibility for the work product.
ABA Model Rules of Professional How do courts and bars define
Conduct
“practicing law”?
If a paralegal is working for a lawyer or law firm,
the lawyer should ensure paralegal’s behavior “It is neither necessary nor desirable to
comports with lawyer’s professional obligations attempt the formulation of a single, specific
definition of what constitutes the practice of
Lawyers are responsible of conduct of nonlawyers law.”
that would violate rules if a lawyer engaged in it if
the lawyer authorized it or knew of it and ratified it ~ABA EC 3‐5
Rendering services for others that call for “…the Committee will not provide a specific
professional judgment of a lawyer definition of what legal services constitute
the practice of law other than to refer to the
~ABA EC 3‐5 general definition in State Bar of Arizona v.
Arizona Land Title & Trust Co”
~AZ Ethics Opinion 96-06
3
…anything that lawyers have done throughout 6/11/2018
time
State Bar of Arizona Ethics Opinion
~06 98-08
AZ Ethics Opinion 96-
Refers to State Bar of Arizona v. Arizona Land
Title & Trust Co, which states that “the practice
of law is anything that lawyers have done
throughout time”
May assist in initial interviews and signing Examples of UPL
documents in real estate closings when contracted
to do so with an attorney as long as: Nevada: Paralegal licensed as attorney in AZ but not NV
conducted negotiations with Progressive, including preparing
Acts under the supervision of the attorney; and transmitting policy limits demand letters between April and
June 2005
Doesn’t share fees with the attorney;
Florida: Paralegal engaged in the unauthorized practice of law
The initial interviews are with existing clients, by engaging in settlement negotiations, including discussing
and no new business is gained from the case authority and legal strategy with clients; speaking on
interaction. clients' behalf; and arguing the legal merits of the clients' cases
This has been viewed as paralegals not being Colorado: Advising a client about his or her legal rights and
permitted to conduct closings. recommending future actions
Nevada: Negotiating settlement of a client's claims
Kansas: Preparing and signing demand letters
IN RE: DISCIPLINE OF Glen LERNER, IN RE: DISCIPLINE OF Glen LERNER, Esq.,
Esq., Bar No. 4314. Bar No. 4314.
No. 49331. No. 49331.
Decided: December 24, 2008 Decided: December 24, 2008
…a legal issue that cannot be handled by
Attorney licensed in Arizona but not Nevada resort to routine forms or customs
…the services include the applying the
What constitutes the practice of law must be general body of legal knowledge to a client's
determined on a case-by-case basis, bearing in specific problem
mind the overarching principle that the practice
of law is involved when the activity requires the 4
exercise of judgment in applying general legal
knowledge to a client's specific problem
6/11/2018
A key distinction: whether the services apply general body of legal knowledge
to a client's specific problem
Colorado Supreme Court: A “touchstone” of whether an activity constitutes UPL
is whether an unlicensed person offers “advice or judgment about legal matters
to another person for use in a specific legal setting.”
Tennessee bankruptcy court: The practice of law “relates to the rendition of
services for others that call for the professional judgment of a lawyer, that is, the
lawyer's educated ability to relate the general body and philosophy of law to a
specific legal problem of a client.”
The Ninth Circuit, Oregon: “‘The exercise of professional judgment in applying
legal principles to address another person's individualized needs through
analysis, advice, or other assistance.’ ”
For example, simply providing forms or offering to type client-provided
information onto the forms was not the practice of law, but advising the client
about how to complete a form, e.g., what information to include and on what
portions of the form, was the practice of law.
5
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Jeff Bennion, Esq.E-Tech:
Trial Director Update
Speaker: Jeff Bennion, Esq.
Trial Director software recently underwent some modifica-
tions. Mr. Bennion was one of the beta testers and he will
go over and demonstrate some of the changes and revisions
of the program.
Jeff Bennion is a San Diego native. He earned his dual
BA degrees in Political Science: International Relations and
Russian and Soviet Studies at the University of California, San
Diego in 2004 and began pursuing a career as a paralegal while
tak- ing night school paralegal courses. In 2005, Jeff entered the
University of San Diego School of Law while continuing to work full time in in San Diego's largest law firm,
where he was immediately put on the team handling multi-million dollar insurance bad faith cases all over the
country on behalf of one of the nation's largest insurers.
Prior to opening his own practice, Jeff worked in one of San Diego's largest firms, in an insurance defense
firm, and a commercial litigation firm, where he gained valuable experience working in all stages of litigation
from Complaint to appeal primarily in the areas of personal injury, employment law, business transactions,
and commercial disputes.
He also serves as a member of the Board of Directors for Consumer Attorneys of San Diego, an organization of
trial attorneys dedicated to helping people fight unfair insurance companies and large businesses.
Since opening his practice in 2011, Jeff has dedicated his practice to helping people stand up to bully corpora-
tions and large businesses, helping injured people recover millions.
Mr. Bennion will discuss recent changes to the Trial Director software and demonstrate its effectiveness for
trial presentation
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[email protected]
[email protected]
Eric Sloan, Esq.Corporate Law:
Mergers & Acquisitions
Speakers: Eric Sloan, Esq. with Ari Lanin, Esq., Ben Ross, Esq. and
Taylor Hathaway-Zepeda, Esq.
Global mergers and acquisitions activity hit a record-
breaking high during the first quarter of 2018. Indus-
try insiders foresee a continuation of that trend, both
in the number of deals and the size of those transac-
tions. This timely presentation will explore the anato-
my of an M&A transaction and deal dynamics, includ-
ing the more significant tax aspects, deal documents
and structuring considerations.
Eric Sloan is a partner in the New York and Washington DC offices of Gibson,
Dunn & Crutcher and a member of the Firm's Tax Practice
Group. With more than 25 years of broad transactional and structuring expe-
rience, Mr. Sloan focuses his tax practice on the use of
partnerships and limited liability companies in domestic and cross-border
mergers and acquisitions, financing transactions, and
restructurings. He also has developed substantial experience in initial public offerings, including advising on many "UP-C"
IPOs in a range of industries.
Mr. Sloan has represented four of the largest private equity firms and the two largest privately held companies in the
United States, as well as many publicly traded companies. He advised on the first publicly traded "permanent capital
fund" launched by a major U.S.-based
private equity firm and the first pass-through portfolio company investments made by four of the largest U.S.-based pri-
vate equity firms.
He has substantial experience in the formation of domestic and cross-border joint ventures and acquisitions and disposi-
tions of businesses and interests in joint ventures, including the largest joint venture in the United States and a complex
multi-billion dollar cross-border
commodities joint venture. He has also handled restructurings of partnerships, as well as private equity fund structuring
and leveraged recapitalizations of private equity portfolio companies.
In 2016, Mr. Sloan was recognized as an "Expert" in Corporate Tax by Who's Who Legal.
Mr. Sloan started his legal career as an associate with lrell & Manella in Los Angeles and practiced law in Washington, D.C.
before joining Deloitte as a principal, where he was asked to establish and lead Deloitte's National Office Partnership Tax-
ation group in 1997.
Mr. Sloan is a Fellow of the American College ofTax Counsel. He currently serves as Co-Chair of the Committee on Partner-
ships and as an Executive Committee Member of the New York State Bar Association Tax Section. He is Conference Co-
Chair of Practising Law lnstitute's Tax Planning for Domestic & Foreign Partnerships, LLCs, Joint Ventures & Other Strate-
gic Alliances conference, and serves on Bloomberg BNA's Pass-Through Entities Advisory Board. He has also been active
with the Section ofTaxation of the American Bar Association, having served as a Chair of its Committee on Partnerships
and as a Council Director. In addition, for more than a decade he was an adjunct professor at Georgetown University Law
Center, and he has been a guest lecturer at the Wharton School of the University of Pennsylvania.
Mr. Sloan received his Juris Doctor from the University of Chicago in 1990. He also earned an LL.M. with distinction in tax-
ation from Georgetown University Law Center in 1994.
Ben Ross, Esq. Ari Lanin is a partner in Gibson Dunn’s Century City office and Co-Chair of
Ari Lanin, Esq. the firm’s Private Equity practice group. He advises companies, private eq-
uity firms and investment banks across a wide range of industries, focusing
on public and private merger transactions, stock and asset sales, joint ven-
tures and strategic partnerships, contests for corporate control and public
and private (including Rule144A) capital-raising transactions. Mr. Lanin also
advises public companies with respect to securities regulation and corpo-
rate governance matters, including periodic reporting and disclosure
matters, Section 16, Rule 144, insider trading and the implementation of
Rule 10b5-1(c) plans.
Mr. Lanin is a member of the firm’s Mergers and Acquisitions, Capital Mar-
kets, Securities Regulation and Corporate Governance, and Media, Enter-
tainment and Technology practice groups.
In 2016 and 2017, Mr. Lanin was ranked by Chambers USA in the category of Corporate/M&A: Private
Equity, where clients described him as "an emerging presence in the private equity market,"
"outstanding from a technology perspective" and noted he "sees all the angles of risk and opportunity."
Variety named Mr. Lanin to its Dealmakers Impact Report in 2014, 2015 and 2017, its 2017 Legal Im-
pact Report, an annual list of the leading attorneys in the entertainment industry, and its "Hollywood’s
New Leaders" list in 2012. The Hollywood Reporter named Mr. Lanin to its 2017 Power Lawyers List,
which features 100 of the entertainment industry’s most powerful attorneys. He was also recognized
by Super Lawyers as a Rising Star for Business/Corporate from 2013 to 2015.
Mr. Lanin is Chair of the Board of Directors of the Youth Policy Institute.
Ben Ross is a partner in the Los Angeles office of Gibson, Dunn
& Crutcher. He advises companies, private equity and venture
capital firms, and high-net-worth individuals in mergers and
acquisitions, equity investments, joint ventures, restructuring
transactions and general commercial agreements. Ben works
with companies in a broad array of industries ranging from
consumer products to energy, and has extensive experience
working with entertainment and technology companies.
17
Taylor Hathaway-Zepeda is an associate in the Los Angeles T. Hathaway Zepeda, Esq.
office of Gibson, Dunn & Crutcher. She practices in the firm’s
Corporate Department. Prior to joining Gibson Dunn, Ms.
Hathaway-Zepeda served as managing law clerk to Chief Judge
Sandra Lynch of the U.S. Court of Appeals for the First Circuit.
Ms. Hathaway-Zepeda is a graduate of Harvard Law School,
where she was an editor of the Harvard Law Review and a fi-
nalist in the 100th Ames Moot Court Competition. Prior to law
school, she earned a Master of Philosophy degree in Develop-
ment Studies – with a focus on international economics – from
the University of Cambridge in the United Kingdom as a recipi-
ent of the Frank Knox Memorial Fellowship.
Ms. Hathaway-Zepeda received her undergraduate degree magna cum laude in Economics from Harvard
University, where she was also elected to Phi Beta Kappa and served as Editor-in-Chief of the Harvard In-
ternational Review.
18
6/13/2018
M&A Process
M&A: Process and
Integration
Overview of Buy-Side M&A Process Overview of Buy-Side M&A Process (cont’d)
1 Assess Proposed • Identify opportunity and analyze available information regarding Target 3 Due Diligence and • Conduct due diligence review
Transaction • Identify key corporate and regulatory approvals and consider impact on timing Negotiation of Definitive • Develop negotiation strategy and positions
and Other Party • Identify other key issues relating to transaction Agreements • Prepare, review and negotiate definitive agreements
• Develop transaction timeline • Review and negotiate disclosure schedules
2 The Initial Approach: • Consider employee retention strategy for Target’s employees 4 Execute Definitive • Coordinate implementation of employee retention plans
Preliminary Discussions • Evaluate transaction structures Agreements & Announce • Plan and implement thorough process to provide Board of Directors with all
and Early Stage Transaction
Documents • Review, negotiate and sign Non-Disclosure Agreement information reasonably necessary to make informed decision
• Develop procedures for sharing sensitive information in accordance with 5 From Signing to Closing
and Post-Closing • Sign definitive agreements
applicable antitrust regulations (i.e., “clean room” procedures) • Develop communications to investment community, employees, customers and
• Prepare or review, and negotiate, Term Sheet or Letter of Intent
• Prepare or review, and negotiate, Exclusivity Agreement, if applicable strategic partners
• Evaluate due diligence process • Prepare necessary regulatory filings and interact with state, federal or foreign
• Develop negotiation strategy for transaction
regulators
• Drive transaction to closing, including:
• Coordinating working group’s activities
• Directing closing mechanics
• Obtaining necessary consents and approvals
• Identify, organize and execute post-closing activities
• Implement business and employee integration efforts
• Monitor operation of retention plans
• Monitor post-closing compliance with definitive agreements
3 4
Illustrative Timeline of Private M&A Process Buy-Side versus Sell-Side
~1-2 months ~2-4 weeks ~4 weeks Whether you are the Buyer or the Seller (/Target) has a dramatic impact on
the issues you care about and how you will negotiate those issues
Evaluation / Negotiations Approvals
and Consents The key difference between the Buyer and the Seller (/Target) relates to
Auction Process and Diligence Signing Closing allocation of risk
• The Seller wants no risk – wants to be quickly paid the full purchase price and
• Review Confidential • Negotiate acquisition • Sign acquisition • Make HSR filings • Close financing, if then simply walk away
Information agreement agreement applicable • The Buyer assumes most of the risk (and all of the potential future reward)
Memorandum and • Obtain third-party • This disparate allocation of risk flows through the entire process, and
other available • Negotiate ancillary • Potentially announce consents and other • Pay consideration to underpins many topics of negotiation
materials agreements transaction regulatory approvals, Seller / Target
as applicable stockholders 6
• Sign confidentiality • Complete due
agreements diligence • Execute employment 1
agreements and other
• If auction, potentially • Negotiate financing ancillary documentation,
several rounds of bids arrangements, if as applicable
applicable
Depending upon the size of the transaction and regulatory or third-party consents, if any, after a price is
agreed, it may be possible to sign and close a transaction within a matter of days.
5
6/13/2018
Preliminary Considerations for Buyer
Assessment of • Identify key assets/liabilities Due Diligence
Proposed • Identify key employees, if any
Transaction • Determine whether any employment arrangements will be required at signing or as condition to closing
• Consider requirement for management rollover or other equity participation
Structure • Determine purchase price, including form and timing of consideration (i.e., post-closing adjustments and
Financing earnouts)
• Requirement to obtain financing?
Employees • If so, develop financing construct
Approvals • Will transaction be structured as a stock purchase, asset purchase or merger?
• We will discuss transaction structures in detail subsequently
• Consider whether there is sufficient cash on hand or from available sources of financing to complete acquisition
without any financing contingency
• Need for financing may increase risk in Seller’s eyes
• Consider employee retention strategy between signing / closing, and between closing / post-closing
• Consider employee integration strategy and potential employment synergies (corporate functions, HR, legal,
etc.)
• May request non-compete and non-solicitation of employees covenant in acquisition agreement or standalone
employment arrangements
• Consider whether any approvals, consents or notices are required from third parties or other regulators
• Consider required internal approvals
7
What Is “Due Diligence”? What Is “Due Diligence”? (cont’d)
Due Diligence is the exercise of investigating the business being sold. Both Buyer and Seller Because of the allocation of risk in most M&A deals (with Buyer bearing almost all of the post-closing
engage in due diligence, albeit for different purposes. risk), due diligence is inherently much more important to Buyer than to Seller
• It’s rare and difficult for Seller to “miss” something of material importance in diligence, as (a) Seller has a
Buy Side Diligence: Buyer is primarily attempting to understand what it is buying huge informational advantage over Buyer and (b) the sale process itself will tend to flush out all material
• Validate its assumptions about Target’s business information that Seller didn’t already know
• Financial assumptions, such as projections • It’s much easier for Buyer to “miss” something of material importance, and then have to live with the
• Operational assumptions, such as relationships with customers and suppliers consequences post-closing
• Employee related assumptions, such as around labor unions
• Confirm that Target does not contain any hidden liabilities / risks What to look for in buy-side diligence is driven by what you are attempting to accomplish:
• Determine the information necessary to structure the transaction • Business team is usually attempting to validate financial assumptions and analysis
• Identify and define areas of negotiation / key deal terms • Operations team is usually attempting to plan for integration and identify potential operational issues
• Plan for the post-closing integration and operation of Target • Tax team is usually attempting to understand tax implications of transaction and how tax costs can be
minimized
Sell Side Diligence: Seller is primarily attempting to understand what it is selling, and how that business can • HR/Employee team is usually attempting to plan for integration and identify potential employee related
be best marketed to a potential buyer risks and retention requirements
• Prepare a confidential information memorandum that describes the business being sold in great detail • Legal team is usually looking for potential risks and liabilities, and information necessary to structure and
• Prepare financial projections that are suitable for sharing with bidders negotiate the transaction
• Assemble and review a data room
• Confirm that Target’s business contains all of the assets and liabilities that Seller actually wants to dispose of In all instances, the goal is to not be surprised by information discovered after signing the deal
• Confirm that Target’s business does not contain any assets that Seller wants to retain
• Determine the information necessary to structure the transaction 10
• Identify and define areas of negotiation / key deal terms
9
What Is “Due Diligence”? (cont’d)
One of the most Common failures: Structuring the Transaction
common problems • Deal team (people negotiating deal) fails to communicate
encountered in buy-side diligence discoveries to people doing integration planning or
due diligence is the people who will run the business post-closing
difficulty of conveying • Operations team (people doing integration planning) fails to
information to the people communicate diligence discoveries to deal team so that
who need to know it. appropriate legal terms can be negotiated with Seller
• Deal team or operations team fails to adequately explain risks
and uncertainties to management
No silver bullet solution to this problem
Best practice is for each functional team to have a point person
who is expressly responsible for making sure that information
is conveyed to the right people
11
2
6/13/2018
Private Acquisitions: Structures You Are Likely to See Stock Purchase vs. Merger vs. Asset Purchase
Acquisition of a Private Acquisition of Subsidiary Acquisition of Assets Acquisition of a Stock Purchase Merger Asset Purchase
Company with Few (as an entity) Private Company with Agreement Agreement
Stockholders (Selected assets, all assets, • Creature of state law allowing stockholders to vote to
product line, etc.) Broad Ownership • Contemplates each selling cause merger of their corporation with another • Allows Buyer to acquire
stockholder signing corporation assets of business without
Stock Purchase Stock Purchase Asset Purchase One-step Merger agreement and becoming • Principal parties to definitive agreement are the necessarily assuming
party to it two corporations merging corresponding liabilities
(each stockholder signs (Target is entity that “sells” • If Target has more • Often, Buyer establishes subsidiary to technically • Risk that Buyer will not
Purchase Agreement) assets. Proceeds from sale are than a handful of merge with Target acquire all assets
stockholders, becomes • Target’s stockholders vote to approve merger necessary to operate
received by Target) complex process to • Required vote is set by state law and acquired business
negotiate lengthy Target’s charter documents • Any contractual rights
agreement with • Typically, majority vote is required, although that are acquired need
numerous higher threshold may be necessary to be assigned, which
stockholders-- holdouts • Once merger is approved and consummated, could necessitate third-
are inevitable 100% of Target’s shares are converted into party consents
right to receive consideration defined in • Also allows Buyer to
merger agreement buy discrete assets
• Merger structure may provide cleaner and
simpler mechanism to convey 100% of
outstanding shares of Target
13 14
Entity Acquisition – Stock Purchase Entity Acquisition – One-Step Merger
Reverse Triangular Merger
MECHANICS RESULT
MECHANICS RESULT Buyer
Stockholders
Cash (or Stock) Buyer (and Former Target BACKGROUND
Target Stock Stockholders Stockholders, if stock NOTES:
as consideration) • Reverse triangular
Buyer Target Buyer Former Target
Stockholders Buyer merger is most
Stockholders common form of
Target merger used in cash
(with consideration (assets and liabilities and all-stock deals
received) • With Buyer Sub
of Target) merging with and
Buyer Cash (or Stock) Target into Target, Target
Target Stock Stockholders remains in place as
an entity, helping to
Target Target avoid arguments
(assets and that assets have
liabilities of Target) Buyer Sub Target been assigned,
which would
possibly necessitate
third-party consents
Merger of Buyer
Sub with and into
Target
15 16
Entity Acquisition – One-Step Merger Asset Purchase
Forward Triangular Merger
MECHANICS RESULT KEY ISSUES: ● Must Target pay corporate-level tax on sale?
● Do Target’s key contracts contain anti- ● If yes, are NOLs available to offset some of income?
Buyer Buyer assignment provisions, requiring third-party ● Is state sales tax applicable?
Stockholders Stockholders consents?
(and Former Target RESULT
Stockholders, if stock MECHANICS
as consideration)
Cash (or Stock) BACKGROUND Target Buyer Target
Target Stock Buyer NOTES: Stockholders Stockholders
• In a forward
Buyer Target Buyer Sub
Stockholders (assets and liabilities triangular merger,
Target “disappears”
of Target) Buyer Cash (or Stock) Target Specified Target (Seller),
as an entity (Seller) Target with remaining
• Typically, forward Specified Target Target Assets and
Assets and Liabilities Assets and Liabilities, plus
triangular mergers Liabilities Consideration
are used when they Received
can qualify stock
and cash
consideration deals
as tax-free
reorganizations
Buyer Sub Target
Merger of Target
with and into
Buyer Sub
17 18
3
6/13/2018
Key Initial Documents and Agreements
Kicking off (and Controlling) the Talks Between the Parties
Key Documents NDA LOI
Non-Disclosure Letter of Intent
Term Sheet
Agreement
Mechanism by which Target and OR
Buyer may provide one another Also sets forth basic terms of
with information necessary for
Sets forth basic terms of proposed transaction, generally
each to determine whether to proposed transaction, typically in in non-binding manner. However,
proceed with transaction while
minimizing risk that information non-binding manner LOI is usually executed by the
parties and usually contains
will be misused
some binding provisions
Typically, parties use either term sheet approach or LOI. In private deals, approaches tend to blend
together, with signed document sometimes including a binding exclusivity provision.
20
Additional Key Documents
Exclusivity • Agreement between Target and Buyer that prohibits Target (and sometimes The Acquisition Agreement
Agreement Buyer) from pursuing acquisition or other material transaction with any other
party for specified period; may be contained in term sheet or LOI
Ancillary
Agreements • Negotiated alongside acquisition agreements and may include
• Stockholder voting agreements
Acquisition • Escrow agreements
Agreement • Transitional services agreements
• Other
• And most important, the Acquisition Agreement….
21
Structure of Acquisition Agreement Acquisition Agreement – Key Terms
Purchase Price (including Mechanics and Adjustments) Purchase Price Issues
Representations and Warranties • Cash-free/debt-free deal with target level of net working capital
Covenants (including Interim Operating Covenants) • Post-closing adjustment process
Conditions and Termination • Earn-out or other contingent payment following closing
Indemnification Provisions Risk Allocation
• Representations and warranties / closing conditions / indemnification provisions
All private company acquisition agreements follow the same general format. • Exceptions to representations and warranties based on disclosure schedules
• Updates to disclosure schedule between sign and close
23 • Rep and Warranty Insurance
Covenants
• Pre-closing covenants with respect to matters such as exclusivity, obligations to take efforts to consummate transaction
and restrictions on operation of business between signing and closing
• Post-closing covenants with respect to matters such as obligations to file pre-closing tax returns, indemnification
obligations and similar
Deal Certainty / Termination
• Scope and terms of closing conditions (i.e., financing contingency)
• Stockholder consents
• Recourse to specific performance or “specific performance light” remedy
• Termination (and reverse termination) fees
24
4
6/13/2018
Purpose of Representations and Warranties Key Reps to Address Important Risks
For a private company target, “reps” serve three purposes: Financial • Representation that requires delivery of Target’s financial statements to Buyer and
• Obtain maximum amount of disclosure about Target prior to Buyer undertaking Statements provides assurances regarding quality of those financial statements (e.g., compliance with
binding commitment GAAP)
• Force Target to formally confirm or provide certain information to Buyer about Undisclosed
Target Liabilities • Statements typically include audited annual financial statements and unaudited interim
• Provide mechanism for Buyer to walk away if facts develop that make it unwise statements for period subsequent to last fiscal year end
to consummate transaction Absence of
• Acquisition agreements provide as condition to Buyer’s obligation to close that Changes • Representation that there are no liabilities or obligations of Target except those reflected
reps of Target be true as of closing date, subject to negotiated materiality on most recently available balance sheet or incurred in ordinary course of business
standard Other Key Reps
• During their “survival” period, reps provide basis for post-closing indemnification • Often negotiation of this representation revolves around whether or not it will be GAAP
of Buyer in event that a representation was untrue qualified
25 • Representation that since date of most recently available balance sheet there has not been
any material adverse effect on business, operations, properties, assets or condition of
Target, and no event has occurred or circumstance exists that may result in such a material
adverse effect
• Definition of “Material Adverse Effect” is heavily negotiated and typically includes various
exceptions
• Also impacts closing conditions
• Material contracts • Employee benefits • Consents and approvals
• Environmental matters • Taxes
26
Covenants: Defining Actions to Be Taken by Parties After Conditions to Closing
Agreement Is Signed
Acquisition agreements typically set forth conditions that must be satisfied
While reps are descriptive statements about a party’s business at point in time, covenants are before party is obligated to close. If, for example, a condition to Buyer’s
agreements by parties about actions they agree to take, or refrain from taking, between signing obligation to close is not satisfied, Buyer can walk away from transaction
without penalty.
and closing or thereafter.
Closing conditions also serve as risk allocation tool:
Pre-closing covenants • For example, as “remedy” for material breaches of reps, Buyer may elect not to
• Relating to conduct of Target’s business close transaction
• Target generally agrees to conduct Target’s business in ordinary course of business and consistent with past • Other closing conditions may allocate risk of other unknowns at signing, such as:
practice and to refrain from taking certain actions (e.g., issuing stock, declaring dividends, incurring debt, etc.) • Obtaining regulatory approvals
• Relating to activities parties must take to consummate transaction • Employee retention
• Filing documents with government agencies • Resolution of unresolved third-party litigation
• Obtaining third-party consents • Ability to obtain financing
• Allowing purchaser access to Target’s business
• Buyer obtaining necessary financing 28
Post-closing covenants
• Often some need for on-going transactions and relationships between parties after closing
• Some private acquisition agreements contain covenants to agree to take, or refrain from taking, actions after
closing as well as between signing and closing
• Further assurances
• Taxes
• Transition services
27
Key Conditions to Address Important Risks Key Regulatory Items - HSR
• Party’s obligation to close contingent upon representations of other party being true Size of Transaction Test (value of voting securities or assets acquired):
when made (i.e., at signing) and on closing date
Bring-Down of • Condition is subject to negotiated materiality standard; typically, “MAE” standard No filing Filing may be required. Filing
Representations or representations true and correct “in all material respects” necessary Apply “Size of Person” test below required
Compliance with • Party’s obligation to close contingent upon other party having performed and $84.4 $337.6
Covenants complied with all covenants million million
• Typically subject to materiality standard (e.g., compliance “in all material
Material respects”) Size of Person Test:
Adverse Effect
• Provides that Buyer not obligated to close if during period between signing and 1. Do both parties have more than $16.9 million in total assets or
Governmental closing there has occurred a “material adverse effect” in Target’s business annual net sales?
and Third-Party • “Material Adverse Effect” is a defined term and is heavily negotiated
2. Does at least one party have more than $168.8 million in total
Consents • Parties’ obligations to close conditioned on receipt of all required consents from assets or annual sales?
governmental bodies (e.g., expiration of Hart-Scott-Rodino waiting period)
• Important to consider governmental and third-party consents early in process to If “Yes” to both, then a filing is required
avoid roadblocks later down the line
29 30
5
6/13/2018
Indemnification Indemnification Key Terms
Private acquisition agreements typically contain provisions for Survival • Party is indemnified for breaches during “survival” period
indemnification of a party for liabilities, losses and damages resulting from, Scope • Length of survival period is heavily negotiated
among other potential liabilities: Limitations • Claims for breaches of general representations and warranties generally survive for
• Breach of any of other party’s reps or covenants
• Liabilities not reflected on financial statements of Target and arising prior to 12-24 months following closing, with fundamental representations (regarding certain
closing corporate matters) to survive for extended period
• Taxes imposed on Target for periods ending prior to closing • Covenants typically survive in accordance with their terms
An indemnification provision is intended to offer Buyer some protection in • Sellers typically indemnify Buyers for breaches of representations, warranties and
the event the condition of Target is not as represented covenants
In some sale processes, Target may insist upon Buyer obtaining a Representation and • Sellers also often indemnify Buyers for any pre-closing tax liabilities
Warranty insurance policy to supplement (or in lieu of) Seller indemnities. • Transaction specific indemnities based on issues identified in due diligence
31 • Indemnification for breaches of non-fundamental representations are typically subject to
threshold (which in some instances may be “tipping basket” and other instances true
deductible) of 0.25-1.5% of purchase price
• Indemnification for breaches of non-fundamental representations are typically also
subject to cap of anywhere from 7.5-20% of purchase price
• Buyers often seek escrow in amount equal to cap
• Parties will typically negotiate other limitations on Buyer’s right to recovery, including
limitations on types of damages that are recoverable, extent to which Buyer must make
mitigation efforts, etc.
32
Closing Process
Once acquisition • Following satisfaction of all conditions precedent in acquisition M&A Integration
agreement has been agreement, transaction will be ready to close and acquisition
will be consummated
signed, parties will
work together to • While closings vary, they typically include:
finalize closing • Pre-closing discussions among parties’ counsel to
documents and ensure confirm that all documents are finalized
closing conditions are • On closing date, all-hands call to confirm that transaction
is ready to be consummated
satisfied. • Release of signature pages
• Transfer of funds
• For acquisitions structured as a merger, filing of merger
documents with necessary state offices
33
Critical Importance of Post-Closing Integration The Integration Process
Post-closing integration is one of the most challenging aspects of an M&A • Buyer needs a coherent integration plan to realize post-transaction synergies and benefits
transaction
• Integration planning should begin early in the transaction
Integration is the often overlooked key to a successful acquisition
Value of transaction can be decreased or eliminated without effective Formulate • Both Buyer’s and Target’s core business functions (workstreams) must be cognizant of
Integration Plan
means to integrate the newly acquired business post-transaction goals and contemplated operational structure
Most buyers aim to complete integration within 6-12 month period Define Integration
However, the first 100 days after closing is often viewed as the critical Model • Question Buyer’s departments pre-closing to determine their level of comfort with
window for post-acquisition integration Involve All Relevant transaction and plan for issues
Workstreams
35 • Have workstreams weigh in at regular intervals post-closing on an ongoing basis while
integration is being assessed
• Key elements of the integration plan for each workstream will include:
• Priorities • Status report
• Timetable • Further actions
• Point people required
• Tasks
• Refers to Buyer’s vision of overall integration scheme
• Will Buyer largely absorb Target’s management and functions or will Target be fully
absorbed into Buyer’s operations?
• Model will impact timing and depth/complexity required for integration effort
• Legal • Technology • Health, Safety &
• IP • HR Environment
• Finance • Real Estate
• Tax • Sales & Marketing • Communications
• Risk Management
36
6
6/13/2018
The Integration Process (cont’d) The Integration Team
Establish Integration • This is the core unit that will be responsible for detailed implementation of Building and establishing • Leader
Team strategic goals for the acquisition an effective integration • Select leader for integration process, generally from inside Buyer organization
team leader will provide • Functions:
Establish • Discussed in detail on next slide • Monitor overall integration process
Governance necessary direction to the • Coordinate with workstreams to implement integration vision and goals
• Determine who will have general oversight and decision-making responsibility overall endeavor. • Keep board of directors apprised of status of integration efforts
Structure regarding integration effort • Work to establish transition services, as required
• Manage and escalate issues, as required
Focus on Cultural • Establish timetable and reporting structure for governing group to monitor post-
Integration closing integration efforts • Team
• Need open lines of communication between team members, team leaders • Appoint full-time integration team member from each critical workstream to
Develop and governing committee lead integration efforts
Communications • Must be able to dedicate sufficient resources to ensure effective, timely,
• Key to success lies not only in business and function components but in cultural and complete integration of Target into Buyer
Strategy integration among Buyer / Target personnel • Coordinate with team leader
• Should include employees of both Buyer and Target
• Develop mechanisms for dealing with conflicts and bridging gaps to promote • Provide regular reports to Buyer management
cohesiveness • Antitrust concerns may limit discussions and sharing of information between
Buyer / Target personnel prior to closing
• Management’s communications with employees
• Communications with business partners, market, customers and investment 38
community
• Be prepared so you can control the script
37
“Top Ten” for a Successful Integration
Maintain Communication, Coordination and Continuity Among Sectors
Create a Qualified and Energized Integration Team
Discuss Parties’ Respective Team Composition, Documentation Procedures
and Operations
Secure Early Involvement of Senior Management
Secure Early Involvement of Buyer / Target Workstreams
Communicate the Integration Plan Consistently, Clearly and Continuously
Steer Clear of the HSR Gun-Jumping Trap
View the Transaction from the Perspective of Rank-and-File Employees
Emphasize the Need for Speed During Integration
Learn from Your Successes and Mistakes
39
7
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Blake Bertagna, Esq.Employment/Labor:
Me Too/ Sexual Harassment & Responding to Complaints
Speaker: Blake Bertagna, Esq.
This presentation will cover sexual harassment in the
workplace, which will address relevant legal princi-
ples, definitions, and guidance in the post-Me Too
Movement landscape.
Blake Bertagna is an associate in the Employment Law Department and
is based in the firm's Orange County office. Mr. Bertagna defends em-
ployers in both the federal and state courts in complex employment liti-
gation, including class action and multiplaintiff employment discrimina-
tion lawsuits, wage and hour class and collective actions, and trade se-
crets and restrictive covenant matters, as well as individual cases for dis-
crimination, harassment, retaliation, wrongful discharge, and oth-
er statutory, contract, and tort claims. Mr. Bertagna also represents cli-
ents who are undergoing OFCCP audits, regularly provides preventative
advice on employee leave, affirmative action compliance, employment policies, wage and hour compli-
ance, investigations, and employment practices reviews.
Mr. Bertagna represents major corporations in such diverse fields as financial services, technology,
transportation, sports and entertainment, retail, and health care.
Mr. Bertagna has authored numerous articles on a range of employment topics, which have appeared in
publications such as Bloomberg BNA, Law360, Bender’s Labor and Employment Bulletin, and Cornell HR
Review.
Before joining Paul Hastings, he served as a law clerk to the Honorable Robert C. Jones of the United
States District Court for the District of Nevada and the Honorable Milan D. Smith, Jr. of the United States
Court of Appeals for the Ninth Circuit. Mr. Bertagna is admitted to the bars of California and the District of
Columbia.
6/11/2018
2017 2
HARASSMENT IN THE WORKPLACE: A million dollar offer won’t make it go away…
THE STAKES ARE MAGNIFIED A wildly popular Netflix series doesn’t matter.
The Huxstable defense is no longer available.
Presented by: The “venue” is no longer simply the civil courts or
Blake R. Bertagna
Paul Hastings LLP arbitration.
June 23, 2018
2
THIS ISN’T THE FAME THEY WANTED 3 NOR DID THEIR FAMILIES, INVESTORS OR FORMER 4
EMPLOYERS …
34
THE TABLES HAVE TURNED… 5 6
HARASSMENT IS WRONG AND CONTRARY TO OUR VALUES
Weinstein Company Investigated for Possible Civil Rights Violations Employers needs to be committed to preventing
harassment in the workplace, as well as responding
O’Reilly Out at Fox News appropriately to situations involving actual or potential
sexual harassment.
Roy Price Quits Amazon Studios After Sexual Harassment Claim
The Consequences of Harassment
Chef John Besh Steps Down Amid Sexual Harassment Scandal
Leon Wieseltier Admits ‘Offenses’ Against Female Colleagues as . Compliance
New Magazine Is Killed Resources Good
3 Dartmouth Professors Are Target of State Attorney General’s business
‘Sexual Misconduct’ Investigation Reputation Risk
NBC News and MSNBC Cut Ties With Mark Halperin management
The Revenge of Roger’s Angels: How Fox News women took down
the most powerful, and predatory, man in media
5 6
1
6/11/2018
THE CONSEQUENCES OF HARASSMENT 7 A NEW ERA 8
Legal Remedies for Harassment The “Weinstein Effect” has changed victims’ responses
to harassment.
Compensatory Equitable Relief Claims to employers and law enforcement are
Damages flooding in.
Hiring, promotion, or
Back pay, front pay, reinstatement; an More victims are feeling empowered to take cases to
other monetary injunction ordering trial if exorbitant settlement demands are not met.
that certain conduct
losses, emotional be stopped or A new generation is fighting back using the tool they
pain and suffering, know best: the internet.
requiring changes to
and other non- policies or practices
monetary losses
Attorneys’ fees, Punitive
expert witness damages
fees, and/or
court costs
7 8
A SINGLE TWEET ON OCTOBER 15, 2017 9 … WENT VIRAL 10
Within 48 hours, #metoo had over one
million responses.
Within 24 hours, Milano’s “metoo”
Facebook campaign had 12 million
posts.
9 10
WOMEN ARE USING SOCIAL MEDIA TO SUPPORT ONE
25 DAYS AFTER ALYSSA MILANO’S TWEET… 11 ANOTHER AND TURN THE TIDE 12
“One fifth of Americans know
someone who said #MeToo”
– CNN Poll – November 9, 2017
11 “This is my dog. His favorite food is steak. He is eye level with my plate.
He won’t get any closer because I said no. If a dog is better behaved
than you are, you need to reevaluate your life.”
Facebook.com/Bree Wiseman (July, 2017)
318+K shares
12
2
ALMOST HALF OF AMERICA’S WORKING WOMEN 6/11/2018
SAY THEY’VE BEEN HARASSED ON THEIR JOBS… 13
A WISE PERSPECTIVE, BUT TOO LITTLE, TOO LATE? 14
A poll conducted by NBC News and the Wall
Street Journal in October 2017 found: Louis C.K: “… what I learned later in life, too late, is that when you have power
48% of currently employed women in the over another person, asking them to look at your … isn’t a question. It’s a
U.S. have experienced unwelcome predicament for them. The power I had over these women is that they admired
sexual / verbal / physical harassment at me. And I wielded that power irresponsibly. … There is nothing about this that
work I forgive myself for. And I have to reconcile it with who I am. Which is nothing
41% of men in the poll said they have compared to the task I left them with. I wish I had reacted to their admiration of
personally witnessed mistreatment of me by being a good example to them as a man and given them some guidance
women in the workplace as a comedian, including because I admired their work. … I have spent my long
and lucky career talking and saying anything I want. I will now step back and
13 take a long time to listen.”
14
15 CNN’S NOVEMBER 9, 2017 POLL 16
The Weinstein Effect isn’t “44% think the amount of
going away… attention the accusations are
getting will make it harder for
men and women to interact in
the workplace.”
15 16
APPLICABLE LEGISLATION 17 THE ONLINE SAFETY MODERNIZATION ACT OF 18
2017
Title VII of the Civil Rights Act of 1964 Proposed federal legislation to outlaw internet harassment-based
California’s Fair Employment and Housing Act crimes:
(“FEHA”) Sextortion: threatening to post graphic/sexual pictures unless
The Department of Justice defines sexual certain demands are met (“Temecula Student Sentenced to
Federal Prison in ‘Sextortion’ Case” – USA v Abrahams, No.
assault as:
“…any type of sexual contact or behavior that 8:13CR00199 (C.D. Cal. filed Oct. 25, 2013)
occurs without the explicit consent of the
recipient,” including a wide spectrum of Doxing: releasing personal information like a home address or
behaviors from “grabbing or fondling” to “forced cellphone number
sexual intercourse.”
Swatting: prank calling the police so a swat team shows up at
17 the victim’s address
18
3
6/11/2018
WORKPLACE HARASSMENT: TWO TYPES 19 SEXUAL HARASSMENT AT THE WORKPLACE: 20
Quid Pro Quo: Conditioning job benefits for sex, Any unwelcome sexual advances, requests for sexual
such as promotions, pay increases, favorable job acts, and other verbal or physical conduct of a sexual
assignments, hiring, and termination nature when:
Acquiescence is a condition of employment;
Hostile Work Environment: Creating or permitting Acquiescence or rejection of the demand is the basis
offensive sexual or other conduct that makes it for an employment decision; or
difficult or uncomfortable for a person or group of
like people to work
When such conduct interferes with an individual’s
work performance and/or creates a hostile work
environment
19 20
“I ONLY PULLED MY PANTS DOWN FOR A 21 EXPLICIT/IMPLICIT QUID PRO QUO 22
SECOND…”
• Conduct must be UNWELCOME. Explicit
• “UNWELCOME” = uninvited,
uninitiated, unwanted “The last woman who showed me her _______ got to
• Passive acceptance or mere go to trial with me.”
participation in the conduct by the Peyton
offended employee does not mean Manning “If you want to keep on that partnership track, you
that the conduct is OK (i.e., won’t tell anyone about this.”
“welcome”)
• Offended employee does not have a Implicit
legal obligation to confront a
harasser by saying that the conduct “I’m going to keep on asking you out until you say
is offensive or unwelcome yes!”
21 “One good turn deserves another!” (wink/wink)
22
IMPLICIT/EXPLICIT QUID PRO QUO 23 HOSTILE WORK ENVIRONMENT 24
Terminating an employee because he/she Isolated incidents don’t usually suffice to establish a
broke off an affair. hostile work environment
Downgrading an employee’s performance BUT courts have found that even a single episode
evaluation because he/she rebuffs sexual of harassment can establish a hostile work
advances. environment
Withholding information someone needs to Reasonable victim standard applies
get the job done because he/she doesn’t Intent of the harasser is not relevant
“play along” with crude jokes, flirtation, or Comments do not have to be about the victim
other forms of sex talk or activity. The harassment was based on sex or gender
The harassment actually affected tangible aspects
23
of compensation, terms, conditions or privileges of
employment
24
4
6/11/2018
THE HUGGER: LOVABLE OR HARASSER? 25 DO NOT DO LIST EXAMPLES 26
Daryl is just one of those guys. He loves Derogatory or offensive comments relating to sex.
everyone, and shows it. He shakes hands, pats
people on the back, hugs everyone after Sexually oriented or explicit remarks, including written or oral
meetings, squeezes a shoulder here and there. references to sexual conduct, gossip regarding one's sex life,
He just can’t seem to keep his hands off. body or sexual activities, deficiencies, or prowess.
Arlete is the exact opposite. She doesn’t like to
touch anything, including door handles, which Questions or comments about another’s sex life or
she opens using a kleenex. experiences.
Daryl hugs Arlete after a client services meeting.
She complains. Lewd, off-color or suggestive language, racial, ethnic or
sexual jokes or teasing, repeated questions about an
individual’s personal life, innuendoes, use of terms, such as
“sweetie,” “baby,” and “boy.”
Touching, such as rubbing or massaging someone’s neck or
shoulders, stroking someone’s hair, brushing against
another’s body, kissing, groping or fondling.
Sexually suggestive motions.
25 26
DO NOT DO LIST EXAMPLES 27 JUST GIVE ME ADVICE AND KEEP IT 28
CONFIDENTIAL
Inappropriate gestures, leering, staring, or stalking.
Suggestive whistling. Marty confides in Gary, his
Suggestive or sexually explicit or offensive posters, calendars, supervisor, that John, a co-worker,
has made sexually suggestive
photographs, graffiti, or cartoons. comments to him. Marty isn’t gay,
Unwanted or offensive letters, poems, pictures, or drawings. has a good working relationship
Sitting or gesturing in a sexually suggestive manner. with John, and says he doesn’t
Offensive e-mail, voice-mail, or text messages. want to make waves. He asks
Repeated requests for dates. that the information be kept
Unwanted sexual advances. “confidential” but wants to know
Sexual favors in return for employment rewards, or threats if what he should do about John.
sexual favors are not provided.
Sexual assault or rape.
Violating someone’s “personal space” or impeding or blocking
movements.
27 28
ALCOHOL – YET AGAIN 29 IT WAS ALL OUT OF WORK 30
This year at the office holiday party, Bill, a supervisor in Hilary and Hamed, two first-year associates, go to an out-of-state
the mailroom, starts hitting on Sheela, a clerk in the Tax ABA conference. The trip is firm-funded. While there, they text each
department. Although the mailroom is staffed and other constantly, have meals together, and generally “hang out.”
managed by an outside vendor, their employees are When they get back to the office, Hilary keeps flirtatiously texting
always included in firm events. Sheela gets very drunk at Hamed. He tells Hilary he wants her to stop. She persists, then
the open bar, and ends up accepting a ride home from sends him a “sexually suggestive” picture of herself, which he posts
Bill. He, in turn, gets grabby in the car, and Sheela on Instagram. Hilary complains to HR about the post.
reports him the next day for sexual harassment.
30
29
5
6/11/2018
EXAMPLES OF ACTIONABLE CONDUCT 31 EXAMPLES OF ACTIONABLE CONDUCT 32
Chopourian v. Mercy General Hospital and Mercy General Hospital Chopourian v. Mercy General Hospital and Mercy General
Hospital
Cardiac Surgery Physician Assistant in the Cardio Vascular
Operation Department: The jury unanimously decided Choupourian was
Male coworkers made repeated unwelcome and crude sexual subject to a hostile work environment, retaliation for
advances and propositions. protected workplace complaints, defamation and
Vulgarity, obscene facial gestures, buttocks slapping, intentional interference with economic advantage.
objectification of women and trash talk were daily occurrences.
During open heart surgery in the operative suite, unwelcome Jury awarded Chopourian $168 million, potentially the
sexual behavior was a daily occurrence for a prominent heart largest judgment in U.S. history for a single victim of
surgeon whose daily salutation was "I'm horny." workplace sexual harassment.
In addition to detailed reports concerning lack of sex with his
wife, this heart surgeon regularly discussed his sexual adoration 32
of coworkers and pop stars.
Witnesses confirmed a Harvard-educated heart surgeon also
made frequent inappropriate references to women's breasts and
had a particularly misogynist attitude concerning females
including pop star Rihanna, who according to this Harvard
surgeon, "got what she deserved" after she was brutally beaten
by pop star Chris Brown.
31
OTHER FORMS OF HARASSMENT 33 DISCRIMINATION LITIGATION OVERVIEW 34
Same principles developed in the area of U.S. Title VII and/California law prohibit
sexual harassment apply to harassment harassment and discrimination based on:
based on any protected category.
Gender
A hostile environment also can be created if Sexual Orientation
an employee reasonably would feel Marital Status
uncomfortable at work because of: Pregnancy
Race
racial jokes National Origin
Religion
ethnic comments, or Age
Disability
degrading remarks about gender, race,
religion, age or other protected California law now protects workers against
characteristics. “abusive conduct” and general bullying.
33 34
EXAMPLES OF ACTIONABLE CONDUCT 35 EXAMPLES OF ACTIONABLE CONDUCT 36
Reid v. Google Reid v. Google
Held:
Fifty-two year old employee alleged co-workers
made age-related remarks: Discriminatory comments by coworkers are not
“Obsolete” irrelevant under the “stray remarks doctrine”
“Too old to matter”
“Slow” Those remarks should be considered with all the
“Fuzzy” evidence in the record
“Sluggish”
“Old man” 36
“Old guy”
“Old fuddy-duddy”
35
6
6/11/2018
EXAMPLES OF ACTIONABLE CONDUCT 37 EXAMPLES OF ACTIONABLE CONDUCT 38
Velez v. Novartis Pharmaceutical Corp. Velez v. Novartis Pharmaceutical Corp.
Jury awarded $250M in punitive damages
Pregnancy and gender discrimination class action Additional $3.4M in compensatory damages
Only 7 women out of class of 5,600 testified
38
One said her manager told her he did not like to hire
young females because “[f]irst comes love, then
comes marriage, then comes flex time and a baby
carriage.”
Another claimed that her boss suggested she have an
abortion
37
THE SUMMER ASSOCIATES 39 SOCIALLY ACCEPTABLE OR HARASSMENT? 40
At Sandra’s barbecue for the summer associates, Andy and Mario end (from Huey’s point-of-view)
up in the pool – fully dressed. Sandra sends them home via Uber, and
the following Monday, questions them about the disturbance. Mario
reports that Andy used racial slurs during what he says was a fight;
Andy reports that they had too much to drink, fell into the pool
accidentally, and there’s no grievance. Their mentors report Andy and
Mario are doing good work, and each will be recommended for an offer
of employment. No one’s heard Andy make any inappropriate
remarks, but everyone agrees there’s a lot of friction between the two.
39 40
CLIENT’S RIGHTS V. EMPLOYEE’S RIGHTS 41 THE $12 MILLION DEAL 42
Michelle is in a real bind. She’s going to Who gets to wear it? Fatima, a Muslim associate from 42
41 the United Arab Emirates, wears a
trial next week in Alabama, and wants the hijab. She is doing a great job
leading the due diligence team
associates who have been working on the working on the sale of Backwards
Company.
case to come with her, at least for Day 1.
After its General Counsel belittles
Corrine is openly lesbian, has a very Fatima for the third straight day
masculine haircut, and wears men’s clothes, about her hijab and bends her ear
about how America would be safer
including vests and ties. Jennifer is afraid if Middle Easterners were banned,
that Corrine’s appearance and demeanor she tells you that the GC’s
commentary is harassment and
will alienate the jury and the client, who has discrimination. She adds: “I expect
made clear that “homosexuality is a sin in you to stop it now. I told my team
his religion.” Corrine’s been working hard not to show up at Backwards until
you let everyone know by email that
for six months, helping out with the trial you have called out the GC for his
work, and Michelle doesn’t want to exclude behavior and can assure us that it
will not occur again.”
her. Besides, there are two other
associates who’ve also been working on the
case.
7
6/11/2018
FISHING IN THE WRONG POND 43 CALIFORNIA’S ANTI-BULLYING LAW 44
Julie and Eric met as first-years and were
married four years ago. They work in different
departments of the firm. Julie made partner this
year; Eric did not.
Unbeknownst to Eric, Julie and Doug, a senior partner in Julie’s
department, slept together six months ago after a late-night office
celebration over a trial victory. Instead of a one-night oopsie, the
tryst turned into a full-blown affair. When Eric finds out, he comes to
you and complains that he was passed over for partnership because
of Doug’s affair with Eric’s wife. He also insinuates that the affair is
the reason Julie – from whom he is now separated – made partner.
43 44
PROHIBITS “ABUSIVE CONDUCT” 45 WHY? 46
Conduct – “with malice, that a reasonable person Gary, a sixth-year associate, and his wife are
would find hostile, offensive, and unrelated to an expecting their first child. Gary is planning a
employer’s legitimate business interests.” three-month paternity leave so that his
physician-wife can return to her solo medical
May include “repeated infliction of verbal abuse,” practice.
such as use of:
Derogatory remarks, In the presence of Anita, a pregnant ninth-year
Insults, associate, young partners Rick and Tom talk
Epithets, or about how Gary’s leave will put a big dent in
Verbal or physical conduct his career. Rick adds that he has 3 kids, and
“that a reasonable person would find threatening, his wife just “sucked it up” so he could build a
intimidating, or humiliating, or the gratuitous future at the firm to care for the family. Tom
sabotage or undermining of a person’s work responds, “Anita, I feel for you. You’re coming
performance.” up against Phil. He never fails to bill 3000
hours a year. It’s impossible to have it all and
go up against Phil who will be burning the
midnight oil here while you’re trying to get your
baby to sleep.”
Note: Phil was the best man at Tom’s
wedding.
45 46
RESPONDING TO COMPLAINTS 47 RESPONSIBILITIES OF SUPERVISORS 48
Anti-Sexual Harassment Policy Supervisors/Managers share a responsibility to:
• Defines harassment and improper conduct
• Individual is designated in the complaint procedure as person to whom Monitor the work environment for potentially sensitive
complaints can be made situations that could be perceived as creating a hostile work
• If you receive such a complaint, you should promptly contact that environment and respond immediately to such situations.
person
• All complaints will be promptly and impartially investigated and kept Report complaints and incidents to the persons responsible
confidential to the extent possible for human resources issues and cooperate with them to
• Policy absolutely prohibits retaliation ensure that each is handled promptly, fairly and discreetly
• Personnel found to have engaged in prohibited conduct will be subject and that accurate records are made and kept.
to appropriate disciplinary action, which may include termination
• Personnel are required to read and acknowledge Anti-Sexual Ensure no retaliation is taken against claimants or witnesses
Harassment Policy who assist in investigations.
47 48
8
RESPONSIBILITIES OF SUPERVISORS: 6/11/2018
HOW SHOULD YOU RESPOND TO A COMPLAINT? 49
RESPONSIBILITIES OF SUPERVISORS:
Listen carefully to the specifics of the complaint, being certain to HOW SHOULD YOU RESPOND TO A COMPLAINT? 50
treat the employee with respect.
Remind the employee of the policy against retaliation.
Ask questions. Get as much information as you can. Make a record of the details of the complaint either during or
Do not guarantee confidentiality. There is an obligation to immediately after meeting with the employee.
investigate the complaint, which includes interviewing witnesses Promptly report the complaint, along with these details and
(including the accused).
any other potentially relevant information.
Thank the employee for coming forward and let him/her know the
complaint will be reported to one of the partners listed in the 50
company’s policy for further action.
49
RESPONSIBILITY OF SUPERVISORS 51 RESPONSIBILITY OF SUPERVISORS: 3RD PARTIES 52
What happens after a complaint? Remember it is also unlawful for third parties who
come into the workplace (co-counsel, clients, vendors)
Once an investigation begins, you are required to: to sexually harass employees or to be subjected to
Provide input or assistance to the internal or harassment by an employee.
external person conducting investigation to the
extent it is requested Must assure that third parties are neither creating a
Assist and cooperate in carrying out any hostile work environment for our employees nor being
remedial measures taken as a result of the subjected to harassment by our employees.
investigation
52
Note: If an employee is not satisfied with the remedial
measures taken by the company, he or she may file a
complaint with the DFEH and/or the EEOC or
commence an arbitration proceeding/lawsuit against
the company and the wrongdoer.
51
COMMUNICATIONS AND CORRESPONDENCE 53 COMMUNICATIONS AND CORRESPONDENCE 54
Correspondence of all types (email, text Tips to remember for all written
messages, etc.) may be entered into correspondence:
evidence. Act professionally
Do not curse
Consider every email as an exhibit at Do not use derogatory terms
trial. Do not put anything in an email, a text
message, etc. that you would not put on
Company letterhead
53 54
9
6/11/2018
PREVENTING RETALIATION 55 PREVENTING RETALIATION 56
State and federal law also make it Policy should prohibit supervisors from taking
unlawful for employers to retaliate adverse actions against employees
against employees who report sexual because they:
harassment or who testify or otherwise report what they believe in good faith is
take part in an investigation or sexual harassment, or
proceeding related to a report of sexual
harassment. in good faith participate in an
investigation.
Special care should be taken to avoid even
the perception of retaliation.
55 56
RETALIATION OR SMART SEPARATION? 57 WHO CAN BE HELD LIABLE IN CALIFORNIA? 58
Brandi, a first-year, starts working on trial prep with Glenn, a fifth-year. Employers. A company can be found liable for harassment of
After a string of late nights, Glenn asks Brandi to have a drink with him its employees by:
at the hotel bar across the street. Brandi politely says no, she’s tired,
but the next night Glenn is much more persistent. She goes for the Supervisors (strict liability)
drink but is upset when Glenn starts rubbing her leg, kissing her neck, Fellow employees (negligence standard)
and telling her how nice she smells. She manages to break away, but
spends the whole next day upset, worried that he’ll ask her out again. 1) Employer knew or should have known of harassing
conduct and
Brandi finally goes to Glenn’s office and tells him she’s in a relationship.
2) Employer failed to take immediate and appropriate
He calls her a tease, and storms out. When she finishes the trial corrective action
exhibits she’s been working on, Glenn, who’s been ignoring her,
doesn’t give her any more assignments. She isn’t included in an all- Third parties, e.g., co-counsel, clients, or vendors (negligence
standard)
hands meeting about the trial.
Individuals. Leaders and employees can be found individually
liable if they engage in unlawful sexual harassment of
employees or third parties.
57 58
BE PART OF THE SOLUTION 59 AVOIDING HARASSMENT CLAIMS 60
Consider how you can intervene. Respectful and work-appropriate small talk,
Everyone has a responsibility to create a healthy even in informal settings.
workplace culture.
Interrupt and stop inappropriate commentary or Best management practices: performance-
behavior. related discipline or termination should not
Figure out what it looks like when a person is come as a surprise to an associate or staff-
uncomfortable. member.
Decide that you will take a stand and make people
aware of where you stand. Exercise extra caution when alcohol is
If you think you witnessed something that made a consumed.
person uncomfortable, affirm it or ask her or him. Step in and act when you observe others
Be prepared that when you ask, the person will gloss out of control.
over or diminish the sexist incident or remark.
You’ve helped by bearing witness and checking in. Don’t date within the company.
59 60
10
6/11/2018
“ME TOO” EVIDENCE 61 “ME TOO” EVIDENCE 62
Plaintiff Position: Character Evidence Is Generally Prohibited
Evidence that the employer discriminated, harassed, or retaliated Federal Rules of Evidence 404(a)(1):
against co-employees is relevant to proving the same against
employee “Prohibited Uses. Evidence of a person’s character or character trait
is not admissible to prove that on a particular occasion the person
Defense Position: acted in accordance with the character or trait.”
Evidence regarding other employees is not relevant to the
requirement that the plaintiff prove what occurred in this instance; California Evidence Code § 1101(a):
evidence is more prejudicial than probative at trial “[E]vidence of a person’s character or a trait of his or her character
(whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible
when offered to prove his or her conduct on a specified occasion.”
61 62
“ME TOO” EVIDENCE 63 “ME TOO” EVIDENCE 64
Mendelsohn v. Sprint/United Mgmt. Co., 587 F. Supp. 2d 1201 (D. Mendelsohn v. Sprint/United Mgmt. Co., 587 F. Supp. 2d 1201 (D. Kan.
Kan. 2008) 2008)
Plaintiff terminated during reduction in force occurring over 18 (continued)
District Court agreed, excluding proffered testimony
months
Plaintiff, age 51, complained of violation of Age Discrimination in Tenth Circuit Overturned
District court had improperly applied the “same supervisor” rule to
Employment Act create a per se bar on “me-too” evidence in reduction in force cases
At trial, sought to introduce testimony from five other former Evidence itself was relevant and not unduly prejudicial and should have
been admitted at trial
employees
All over 40 64
All lost jobs in the reduction in force
All believed they, too, were victims of age discrimination
Sprint objected to the proffered testimony—arguing testimony not
relevant to Mendelsohn’s claims because
None had the same supervisor
Many were terminated long after Mendelsohn
63
“ME TOO” EVIDENCE 65 “ME TOO” EVIDENCE 66
Sprint/United Mgmt. Co. v. Mendelsohn , 552 U.S. 379 (2008) Pantoja v. Anton, 198 Cal. App. 4th 87 (2011)
The plaintiff, a legal secretary, sued for sexual harassment after her
Supreme Court unanimously reversed Tenth Circuit
employment termination.
No bright-line rule at trial She claimed her supervisor inappropriately touched and slapped
Discretion and deference to district courts
Not clear whether district court applying per se bar to her, and, among other things, asked for a back massage.
“me-too” evidence At trial, she attempted to introduce the testimony of witnesses who
Tenth Circuit should have remanded case, rather than evaluating the had experienced the same and similar behavior from the supervisor.
evidence But the trial court excluded the evidence since she had not
District court must clarify rationale for blocking personally witnessed the other alleged acts of harassment.
“me-too” testimony or reconsider decision and convene a new trial The California Court of Appeal reversed and held evidence that the
supervisor had harassed other employees outside the plaintiff’s
presence could have shown the supervisor harbored a
discriminatory intent based on gender and would allow the jury to
evaluate the credibility of the defendant and his witnesses who
denied harassment.
65 66
11
6/11/2018
“ME TOO” EVIDENCE 67 “NOT ME” EVIDENCE 68
Hatai v. Dep’t of Transportation, 14 Cal. App. 4th 1287 (2013) Evidence that other employees in a protected class did not suffer
Plaintiff initially alleged that he was discriminated against by his discrimination.
supervisor because of his Asian race and Japanese national origin. Example: in a pregnancy case, the employer will show evidence that
At the time of trial, Hatai sought to expand his claims by arguing that other pregnant women were not discharged like plaintiff
his supervisor, an Arab, discriminated against all employees who Connecticut v. Teal, 457 U.S. 440, 443-44 (1982): “principal focus”
were not of Arab descent. of the anti-discrimination laws is “the protection of the individual
The Department of Transportation moved in limine to exclude any employee, rather than the protection of the minority group as a
evidence that the supervisor had discriminated against non-Asians, whole.”
arguing that the discrimination against employees of non-Arab
descent was not the claim Hatai had pled. Individualized assessment of the employee
The trial court agreed, and limited the “me too” evidence to
employees subject to alleged anti-Asian discrimination.
The appeals court agreed, holding that the evidence of anti-Arab
discrimination or harassment was not sufficiently related to Plaintiff’s
anti-Asian and anti-Japanese claims.
67 68
QUESTIONS? 69 70
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the courts, local attorneys and government • Complex large projects to smaller
agencies.
. Morning and afternoon service. simple copy jobs
• On location document scanning
• Scanning to DVD/CD
• Page by page quality control
• Bates stamping
• Pick-up and delivery
661/ 324-8018 o ce
661/ 324-0415 fax
31 H Street, Bakers eld, CA 93304
www.amslegal.net
[email protected]
[email protected]
Lenden Webb, Esq.Advanced Litigation:
Tips & Tricks for Collecting on Judgments
Speaker: Lenden Webb, Esq.
This one hour presentation will provide tips,
tricks, and best practices for collecting on
post-trial judgments.
Lenden F. Webb represents corporations, limited liability companies,
partnerships and their principals in a wide array of matters, includ-
ing breach of contract, business and partnership disputes, bad faith
insurance disputes, class actions, employment, creditor collection
issues, general contract and business matters. Mr. Webb has taken
cases to final verdict with success in both bench and jury trials in 18
Counties throughout California.
Mr. Webb received his law degree from California Western School of
Law where he was a published member of Law Review. Before es-
tablishing his law office, Mr. Webb attained Junior Partner status
just prior to entering his fourth year with the law firm of Wild, Carter & Tipton, APC. Mr. Webb serves as paneled
mediator for two California County Superior Courts and as Judge Pro Tem for the Superior Court of California.
Mr. Webb obtained a Masters of Business Administration degree from the University of Redlands. He also finished
the Honors curriculum while earning his Bachelor’s degree in Speech Communication from Walla Walla University
with minors in Religion and Business.
Enforcing Judgment 6/11/2018
Seminar
ALMOST ALWAYS…
Lenden F. Webb
[email protected] • Demand Letter
• Notice of Entry of Judgment
www.WBLawGroup.com • Abstract of Judgment (EJ-001)
619-399-7700 • Background Report
559-431-4888 • Skip Trace Letters
• Writ of Execution (EJ-130)
Often Used... Rarely Used... (part 1)
• Notice of Judgment Lien (JL1) • Renew Judgment (10 year)
• Debtor's Exam w Subpoena Duces Tecum & • Memorandum of Costs (MC-12)
• Calculation of Damages (LFW Form)
demand (EJ-125)(or 3rd party exam) • Turnover Orders
• Bank Levies • Charging Orders
• Assignment Orders • Order for Entry To Seize
• Wage Garnishment • Keeper & Tilltaps
• Written Discovery • Writ of Attachment
• Inspection Demands • Designation of Spouse
Rarely Used... (part 2) DEMAND LETTERS
• Amend Judgment Debtor Name • Is Statement Accurate: “Our records show you
• Fraudulent transfer Lawsuit owe $____ on your account” “If you
• Vehicle Levy disagree let us know immediately”
• Real Property Levy
• Appointment of Receiver • What Payment Plan Can You Afford “Contact
• Attorney Fees Provision us promptly to set up a payment plan or we
• Temporary Restraining Order will take action”
• Don’t insult, Don’t argue
1
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FINAL 2018 CAPA Syllabus
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