July 2020 Update
The California Supreme Court has granted review in Quidel Corp. v Superior Court (review granted Nov. 13, 2019, S258283; superseded opinion at 39 CA5th 530). The court will determine if Bus & P C §16600 voids a contract by which a business is restrained from engaging in a lawful trade or business with another business. Also to be determined is whether the requirement that a plaintiff must plead an independently wrongful act in order to state a claim for intentional interference with a contract that can be terminated by a party at any time applies only to at-will employment contracts. See §3.10.
In Techno Lite, Inc., v Emcod, LLC (2019) 44 CA5th 462, employees who diverted their employer’s customer accounts to a separate company owned by the employees were liable for fraud based on their violation of a noncompete agreement. See §3.16.
In Texas Indus. v Radcliff Materials, Inc. (1981) 451 US 630, 101 S Ct 2061, the United States Supreme Court, resolving a split in the circuits, held that federal courts have no power to fashion a common law rule of contribution among joint antitrust defendants. The Court stated that it was for Congress and not for the judiciary to implement such a rule. Similarly, in Rodriguez v FDIC (2020) ___ US ___, 140 S Ct 713, the Court rejected the judicial federal common law rule of In re Bob Richards Chrysler-Plymouth Corp. (9th Cir 1973) 473 F2d 262 (the “Bob Richards Rule”). See §5.22.
In Iancu v Brunetti (2019) 588 US ___, 139 S Ct 2294, respondent sought federal registration of the trademark FUCT, described as the equivalent of a profane word. The United States Patent and Trademark Office (USPTO) denied the application under the Lanham Act. Respondent brought a First Amendment challenge to the “immoral or scandalous” bar in the Federal Circuit, and the Supreme Court invalidated that provision. See §6.33.
As of February 15, 2020, new requirements for e-mail addresses and other elements of trademark applications went into effect. In addition, as of February 15, 2020, all submissions to the USPTO must be filed electronically, with very limited exceptions. See §6.48.
In Erickson Prods., Inc. v Kast (9th Cir 2019) 921 F3d 822, the Ninth Circuit held that a copyright owner’s vicarious infringement claim was not supported by a showing of direct financial benefit to the infringer. The court addressed an issue of first impression: whether the avoidance of paying a licensing fee for use of the infringed copyright work (in this instance, three photographs used on Kast’s website) constituted a “direct financial benefit.” The court determined there was no such benefit to Kast, as the website owner, as a matter of law. See §7.71B.
In Halyard Health, Inc. v Kimberly-Clark Corp. (2019) 43 CA5th 1062, 1075, the court concluded that gown sales in California were insufficiently connected to an indemnity claim to establish jurisdiction on the basis of that claim. See §9.5.
In Zehia v Superior Court (2020) 45 CA5th 543, 557, private social media posts specifically directed at California, reputational injury effects connecting conduct to California rather than merely to a California resident, and defamatory conversations with a California focus all supported specific jurisdiction. See §9.6.
The CFAA limits damages for loss aggregating at least $5000 in a year to “economic damages.” 18 USC §1030(c)(4)(A)(i)(I), (g). In Andrews v Sirius XM Radio Inc. (9th Cir 2019) 932 F3d 1253, the court in a footnote distinguished the question of whether a lost business opportunity constitutes a loss that gives rise to a civil CFAA action from whether the lost business opportunity is a loss that can be recovered as economic damages. 932 F3d at 1263 n10. See §9.24A.
In FilmOn.com Inc. v DoubleVerify, Inc. (2019) 7 C5th 133, an anti-SLAPP motion to strike was not proper because a for-profit authentication company’s confidential reports were too tenuously tethered to issues of public interest, and too remotely connected to the public conversation about those issues, to merit protection under the catchall provision of CCP §425.16(e)(4). See §9.56M.
On or after January 1, 2020, it is an unlawful employment practice for an employer as a condition of employment, continued employment, or the receipt of any employment-related benefit to require a person to waive any right, forum, or procedure provided under FEHA. An employer may not threaten a person for the refusal to execute a waiver. Govt C §12953; Lab C §432. See §§11.74, 13.87.
In Mathews v Becerra (2019) 8 C5th 756, 782, the California Supreme Court evaluated whether a requirement that therapists report psychotherapy patients’ disclosures that they have accessed child pornography violated the patients’ constitutional right to privacy. The court declined to establish “whether the proper standard of justification here is the compelling interest test or a general balancing test” because the lower court had the obligation to determine if the requirement achieved the purpose of preventing the sexual exploitation and abuse of children. The case was remanded. See §11.36.
In OTO, LLC v Kho (2019) 8 C5th 111, 136 (petition for certiorari filed Jan. 13, 2020), the California Supreme Court examined a case in which an unsophisticated worker who had been employed for 3 years essentially was coerced to sign an arbitration agreement covering wage claims. The court found the arbitration agreement to be unconscionable given the facts of the case. See §13.79A.