Attorney Journals, Orange County, Volume 189

ORANGE COUNTY

Volume 189, 2021 $6.95

California Case Summaries

Monty McIntyre Can Using Business Development Give You a Competitive Edge?

Lindsay Griffiths Legal Practice Areas That Are Thriving During the Pandemic

Esquire Deposition Solutions

10 Science-Based Practices to Master Your Time

Ashley LeCroy

How to Build and Sustain an Inclusive Internal Communications Strategy at Your Firm

Katie Hunt

Performance Advertising Has a New Marketing Rule

Law Firm of the Month

Jaqueline Hummel

Chris and Frank Accident Attorneys Costa Mesa and Newport Beach Take It to the Bank, Chris and Frank

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2021 EDITION—NO.189

TABLE OF CONTENTS 6 Legal Practice Areas That Are Thriving During the Pandemic

by Esquire Deposition Solutions

10 Can Using Business Development Effectively Give You a Competitive Edge?

by Lindsay Griffiths

12 Roll up Your Sleeves: Advisors Using Performance Advertising Have a Heavy Lift Under New Marketing Rule

EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price CREATIVE SERVICES Penn Creative

by Jaqueline Hummel

CIRCULATION Angela Watson

LAW FIRM OF THE MONTH

PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Esquire Deposition Solutions Lindsay Griffiths Jaqueline Hummel Katie Hunt Ashley LeCroy Monty McIntyre ADVERTISING INQUIRIES Info@AttorneyJournals.com SUBMIT AN ARTICLE Editorial@AttorneyJournals.com OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournals.com

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16 Chris and Frank Accident Attorneys, Costa Mesa and Newport Beach Take It to the Bank, Chris and Frank

by Dan Baldwin

22 Ten Science-Based Practices to Master Your Time and Focus

by Ashley LeCroy

24 California Case Summaries

by Monty McIntyre

28 How to Build and Sustain an Inclusive Internal Communications Strategy at Your Firm

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by Katie Hunt

ADDRESS CHANGES Address corrections can be made via email or postal mail.

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Attorney Journals is a trademark of Sticky Media. Not affiliated with any other trade publication or association. Copyright 2021 by Sticky Media. All rights reserved. Contents may not be reproduced without written permission from Sticky Media.

Printed in the USA

Legal Practice Areas That Are Thriving During the Pandemic

by Esquire Deposition Solutions

T

he economist John Kenneth Galbraith lumped all forecasters into two groups: those who don’t know what the future will bring, and those who don’t know they don’t know what the future will bring. This observation, while being both self-evident and humbling, hasn’t diminished one bit the business community’s ardor for the forecasting game.

Some predictions actually come true, and those who act upon them are often handsomely rewarded.

Take, for example, early predictions that some legal practice areas would benefit from the Covid-19 pandemic. In 2020, no one really knew what the virus’s impact on the economy would be or how federal and state policymakers across the country would respond. Likewise, no one really knew whether social distancing requirements would check the spread of the virus, or whether personal protective equipment would be effective, or whether a vaccine could be developed.

But we do know this: new legislation and new social and economic arrangements always lead to an increase in litigation and demand for legal services. New laws bring new compliance obligations. Economic stress triggers increased business disputes. And any change in the status quo forces a re-calibration of business risk and triggers a dash to the courthouse to sort out responsibility for unanticipated business and personal losses.

It’s ironic that a profession with a reputation for being resistant to change is, in fact, one of the prime beneficiaries of changing and challenging times. That is proving to be the case again with Covid-19.

Litigators and Labor Lawyers Are Busy Now There was broad consensus in early 2020 that several legal practice areas would see increased demand due to the Covid-19 pandemic. The American Bar Association’s Task Force on Legal Needs Arising Out of the 2020 Pandemic surveyed several hundred lawyers in May 2020 regarding the changes Covid-19 would have on substantive legal areas (PDF). Respondents at the time predicted an increase in demand for lawyers to handle

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Attorney Journals Orange County | Volume 189, 2021

employment-related issues, insurance coverage disputes, estate planning, bankruptcies, housing issues, and CARES Act assistance.

Business consulting firm McKinsey & Co. predicted a favorable business climate for litigators, pointing out that historically, during economic downturns, litigation practices significantly outpaced transactional law practices.

According to legal industry recruiter Robert Half International, the Covid-19 pandemic will generate increased demand for these practice areas: litigation, contracts, cybersecurity/privacy, and health care.

So how prescient were these forecasters? Very prescient, as it turns out. The following legal practice areas all met predictions for increased Covid-19-related legal services demands.

Insurance Litigation This was an easy one. The insurance industry, which mitigates risk based on consensus assessments of foreseeable events and business conditions, was upended overnight by Covid-19 as everyone—businesses and consumers alike—scanned their insurance policies for relief from Covid-19-related losses.

The most recent report from Thomson Reuters Peer Monitor Index, a widely consulted source of metrics for law firm activity, indicated that litigation practices grew 7.7% from the first quarter of 2020 to first quarter 2021.

For the most part, insurers have been successful in defeating novel coverage claims arising from the pandemic—particularly business interruption claims, which threatened to swamp the industry. However, there are signs that plaintiffs’ litigation strategies—like the virus itself—are evolving in ways that make them less vulnerable to motions to dismiss. Insurance Journal recently reported on a North Carolina case in which the trial judge declined to summarily dismiss a claim for business interruption coverage premised on the argument that Covid-19 caused “damage to the air” breathed by the plaintiff’s employees and patients. Most business interruption claims have foundered on a lack of physical damage to the insured’s premises, a requirement for coverage under business interruption insurance policies.

Labor and Employment One didn’t need much of a crystal ball to anticipate a spike in demand for the services of employment law advisers and litigators to help cope with workplace issues during the pandemic. Covid-19 has upended conventional expectations regarding nearly every aspect of the employeremployee relationship: wage and hour rules, remote working arrangements, illness, disability, productivity, discrimination, and promotion, to name just a few litigationrich facets of work life that have been significantly impacted

by Covid-19.

Every day it seems a novel legal claim sprouts from Covid19’s fertile soil. Last month, in Pennsylvania, a federal trial court ruled that a woman terminated from her employment allegedly because she contracted Covid-19 had stated a viable claim for “regarded as disabled” discrimination under the Americans With Disabilities Act. The legal question in the case was whether Covid-19 is a minor, transitory illness such as cold or flu (in which case it is not a disability), or whether Covid-19 is in fact a disability protected by the ADA. The case is Matias v. Terrapin House, No. 5:21-cv-02288 (E.D. Pa. Sept. 16, 2021).

During the one-year period spanning first quarter 2020 to first quarter 2021, labor and employment law practice groups grew 5.7%, again according to the latest Thomson Reuters Peer Monitor Index.

Trusts and Estates Many legal industry watchers predicted an increased demand for the services of estate planning attorneys during Covid-19, and that has been the case so far. This practice area undoubtedly benefited from the general public’s increased awareness of mortality during the pandemic, the legal profession’s willingness to serve clients outside their physical offices, and also from the enactment of legislation enabling remote notarization and attestation of testamentary documents.

Law practice management software provider Themis Solutions Inc. (Clio) has been surveying attorneys since the pandemic began in early 2020. Clio’s latest Covid-19 Impact Research Briefing, dated Sept. 16, reports a steady increase in “wills and estates” caseloads during the summer of 2021.

Other strong practice area performers identified by Clio were real estate and intellectual property.

Cybersecurity Covid-19 gave additional impetus to the growth of cybersecurity and data privacy practices—fields that were on a growth trajectory prior to the pandemic. As predicted, the

rapid rise of pervasive remote working arrangements, along with the increased use of digital technologies to reach and serve customers, have made cybersecurity and privacy law specialists a hot commodity in 2021.

Earlier this year, legal industry consultancy Firm Prospects LLC told Law360 that the pandemic has caused law firms to beef up headcount in their data privacy, bankruptcy, telecommunications and antitrust practice groups.

Other In-Demand Practice Areas Other legal practice areas currently in-demand due to Covid-19 are white collar crime defense, health care (particularly groups with Food and Drug Administration expertise), mergers and acquisitions, and finally restructuring and bankruptcy practices.

Lateral Link, a legal talent recruiting service, recently reported a very hot job market in Washington, D.C., for bankruptcy litigators, employment lawyers, cybersecurity lawyers, and health care lawyers.

Seizing the Opportunity What can law firms do to respond to an increased demand for these types of legal services? First, law firms can hire lawyers who have Covid-related, in-demand legal skills. Clearly, that is already happening. A second strategy is to “skill up” existing personnel. Investing now in education—whether it’s CLE training from a bar association or work toward a formal degree from a university—will build the expertise needed to serve current and future clients. Investments in technology will also play a role in reaching clients who are newly receptive to digital-only or mostly digital legal service offerings.

Finally, lawyers should strongly consider making changes to their website, directory, and social media listings to inform would-be clients that they have the ability to deliver legal services for Covid-19-related problems. According to Firm Prospects, the number of lawyers mentioning “bankruptcy” in their professional biographies rose by a mere 47 occurrences during a recent survey, while the number of lawyers mentioning “restructuring” leapt by 506 during the same time period.

Small changes like these capitalize on the fact that, while hiring can be a slow-moving, deliberate process, screening decisions are often hastily made—in many cases with the assistance of keyword-scanning software. Even a minor change to a professional biography will capture interest from prospective clients and employers. n This article provided by Esquire Deposition Solutions. Learn more at www.esquiresolutions.com.

Attorney Journals Orange County | Volume 189, 2021

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Can Using Business Development Effectively Give You a Competitive Edge?

by Lindsay Griffiths

T

he obvious answer to the title question is of course, yes.

Last night, I had the opportunity to join William McLaughlin, the Business Development Manager for Southeast Asia at ZICO Law, on a webinar for NEXL, a business development platform. We had a robust discussion around this topic which I’ll share when the recording is available, but in the meantime, let’s delve into some of the questions that I’d considered in advance and where lawyers and law firms are today when it comes to business development.

Is Business Development Different from Marketing?

I really hope that everyone reading this already knows that the answer to this question is yes. Historically, law firm professionals (meaning those in your marketing departments) have always understood the difference, but lawyers and law firms have expected them to wear both hats. However, over the last several years, firms have begun to understand the difference and are heeding the professionals’ advice to segment out these two functions within firms. Although some smaller and mid-sized firms still have only one person (or one person per function) in many cases, you’re seeing more finely delineated actions associated with both roles.

This will also be dependent on geography (as we discussed during the session last night).

How Have Clients’ Expectations Changed Over the Last 1-3 Years Regarding Business Development?

Firms don’t do anything unless their clients drive it. And while we still do business based on the adage that clients want to do business with those they know, like and trust, there is an expectation and understanding now, depending on the type of work and clients, that some firms will begin that process or include in that process a business development and, in some cases, operations professional, who is responsible for the “professional” side of the transaction.

That person understands the clients’ business, the industry, the market factors, and will then bring in the relationship partner when the timing is right. As firms become more sophisticated and recognize that they are more profitable and efficient when run as businesses, and their clients demand this more and more, this will and has become more common.

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What Are Some Effective, Competitive Business Development Strategies?

Is there anything new when it comes to business development?

Not really—the tried-and-true methods are successful for a reason.

Sally Schmidt, President of Schmidt Marketing, Inc. authored a fantastic piece for Attorney at Work on “Six Business Development Strategies for Lawyers,” which suggests how traditional methods can be adapted for pandemic times (or dare we say “normal” times?). These ideas are ones to lean on and hone to be successful and effective—I’ll delve into a couple, but first and foremost, you need to come into any business development activity with goals and a plan—what is it that you want to achieve and why? Know who you want your clients and potential clients to be, and the techniques and strategies you’ll use to get them will become evident.

• Cross-selling: I know a lot of lawyers hate this term, and so we’ve changed it to become a lot of different things, but let’s all be grown-ups and admit that when we put down our swords and share the table with each other, these tactics actually work. Take an honest look at your existing clients and referral sources (this includes those of you with a membership network like the ILN) and do a gap analysis—Sally discusses this in detail, saying that you want to look at where you’ve represented them in the past, both substantively and geographically. Then, put together a client team that can cover these services and jurisdictions. If your firm doesn’t have that coverage, look at your referral partners for those teams—clients don’t care about the details, they just want you to get the work done effectively and efficiently. If you already work well with your referral sources (again, think membership networks!) why not leverage them in this way?

• Stay visible to clients: People often think of content as “marketing” and it often is, but you can easily translate it to business development. Is there a particular client that you’ve been trying to get more work from or a meeting with? Ask them to co-author an article or be a guest on your podcast.

Look at what their company has been doing lately and write about some of their issues (broadly, of course), and then drop them an email with a link and why it might be useful.

Content isn’t just for marketing.

• Make proactive pitches: Similar to the cross-selling suggestion above, this is another great time to connect with referral colleagues or your colleagues in other offices or practice and industry areas to see where you may be stronger together in pitching for new work.

• Expand institutional relationships: Previously, we’d do a lot of this in person. You can choose to do some of that on a limited basis in person now, depending on your clients’ locations and tolerance, or you can get creative—offer to host a webinar for their in-house team or set up one-on-one calls without video for people who are fed up with video.

Consider too for some that hiring a business development coach may be a great answer. It’s not for everyone, but creating an environment within the firm where groups of lawyers are accountable to each other for their business development activities can be helpful, as can giving people guidance on developing their goals, strategies, and tactics.

What Are the Emerging Trends in Business Development?

There are a few key trends in BD at the moment—why do these matter? If it’s not something that your firm is doing or considering, it may mean that another firm has a competitive advantage over you when it comes to winning business.

• Overall, we’ve seen an increase in investment in business development, with marketing and BD leaders becoming

more of a part of the strategic operations of law firms.

[LexisNexis, January 2021] • Firms are creating more of a defined business development process. [LexisNexis, January 2021] • We’re seeing greater use of tracking, though whether the input of data is effective is still questionable. [Attorney at Work, March 2021] • Firms are being more collaborative—this is a trend that started in past years but has been accelerated because of the pandemic and the accessibility of tools like Teams and Zoom. [Attorney at Work, March 2021] Law firms have gotten increasingly sophisticated in the almost twenty years that I’ve been in the legal industry, which continues to benefit both the clients and the firms themselves. The more we focus on the twin goals of adding client value and increasing law firm efficiency (both of which lead to profitability), the more I believe we’ll see the importance of the law firm business professional rise. n Lindsay Griffiths is a law firm network executive responsible for the oversight and management of dayto-day operations of the International Lawyers Network.

Develops strategies and implementation plans to achieve the ILN’s goals. Responsible for recruitment, member retention, and a high level of service to members. Engages in the legal industry to stay on top of trends, both in law firms and with law firm networks.

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Attorney Journals Orange County | Volume 189, 2021

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Roll up Your Sleeves: Advisors Using Performance Advertising Have a Heavy Lift Under New Marketing Rule

by Jaqueline Hummel

A

side from trading errors, a primary source of gray hair for compliance officers is reviewing marketing materials, especially advertisements containing firm performance.

The rules governing performance advertising are complicated and require digging into SEC No-Action letters going back decades.

Moreover, the marketing team’s creativity can pose significant challenges to compliance officers in drafting disclosures for advertising non-standard performance information. The SEC’s new Marketing Rule (Rule 206(4)-1), the “Marketing Rule,” makes the task a little easier by imposing ground rules for investment advisors showing performance data, whether for separately managed accounts or private funds.

Before getting into the details of performance advertising, advisors and their marketing teams must keep in mind that every advertisement must comply with seven general prohibitions, discussed in my prior article, The New Marketing Rule and the Seven Prohibitions: Sneaky, Sloppy, Tricky, Shifty, Iffy, Flimsy, and Dicey. In addition to meeting the requirements for advertising performance data, marketing materials prepared under the new rule must also be fair and balanced, not include any untrue statements or omissions and not be materially misleading. Simply put, the Advisers Act Section 206 fraud standard still applies.

Don’t Be Gross Compliance officers can save their breath by no longer having to explain the very limited situations when a firm is allowed to show gross performance without accompanying net numbers.

The ICI No-Action letter allowed advisors to use gross-of-fees performance in one-on-one presentations to wealthy individuals, pension funds, universities, and other institutions, as long as specific disclosure was included about fees. This practice will no longer be allowed under the new Marketing Rule, which states that an investment advisor may not include in any advertisements “any presentation of gross performance, unless the advertisement also presents net performance” in equal prominence to, and calculated over the same time, as the gross performance. Like the honey badger, the SEC just does not care that institutional investors might prefer gross performance figures.

The Marketing Rule defines “net performance” as the performance results of a portfolio “after the deduction of all fees 12

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and expenses that a client or investor has paid or would have paid in connection with the investment advisor’s investment advisory services to the relevant portfolio.” In the definitions, the rule states that net performance includes asset-based advisory fees, performance-based fees, and carried interest and excludes items such as capital gains taxes or costs the advisor agrees to bear. Custodial fees paid to a third party are not required to be included in the calculation of net performance. However, if a client or investor pays an advisor for custodial services instead of a third party, “then the advisor must deduct the custodial fee in calculating net performance for purposes of the advertisements.”

For example, if custodial fees are included as part of a wrap fee paid to the advisor, then the advisor must deduct the custodian fees when calculating net of fees performance.

The new rule addresses the use of model fees and follows current guidance. Specifically, an advisor cannot use model fees to make its performance look better than it would have if actual fees had been deducted. An advisor can use a model fee equal to the highest fee that would be charged to the advertisement’s intended audience.

Don’t Play Favorites The Marketing Rule requires that all performance data used in advertisements be presented using standardized time periods of one, five, and ten years. Portfolios managed for shorter time periods should include performance information for the life of the portfolio. Advisors can include performance from other time periods if they include the required periods. Do not be tempted to play around with sizing and fonts to highlight better performance—the time periods required by the rule must be shown with “equal prominence.”

Private fund managers, however, do not have to provide performance data for the standardized time periods. They may choose the time periods for presenting performance as long as the presentation is fair and balanced.

It’s All or Nothing Another area where the SEC provides clarity is an advisor’s ability to show related performance in advertisements. The staff took a page out of the Global Investment Performance

Standards’ (GIPS®) book by requiring advisors using “related performance” in advertising to include the performance of all portfolios with substantially similar investment objectives, subject to the following caveats. First, portfolios managed in the same investment style can be excluded if the advertised results are not materially higher than they would have been if the portfolios were included. Second, portfolios can be excluded if doing so would not affect the prescribed time periods for the performance returns. The new rule allows an advisor to show the performance either on a portfolio-by-portfolio basis or as a composite aggregation of all portfolios. For firms that decide to go the portfolio-by-portfolio route, they will need to include the amount of assets in each portfolio and the selection criteria (e.g., accounts managed in the small cap value style).

What about advisors that do not want to show related performance and prefer using a single representative account?

The SEC feels the risk of cherry-picking is just too great. In a footnote, the SEC says: “Under our final rule, advisors may include performance returns of a single portfolio (without also providing the performance of other related portfolios) if the performance is not materially higher than if all related portfolios had been included, and the performance does not violate the rule’s general prohibitions.”

Based on the release, the SEC requires investment advisors that want to advertise their performance to calculate the performance of all accounts managed in the same investment style. Then firms must decide whether to include all portfolios either as a composite of all accounts or on a portfolio-by-portfolio basis. The practical effect is that firms that do not comply with GIPS will need to make some changes to their performance calculation processes.

This includes adopting standards for defining their investment strategies and then creating composites by grouping all portfolios managed in that style for performance calculation purposes. The process must be documented and consistently applied to avoid cherry-picking. The Chartered Financial Institute (CFA)’s Global Investment Performance Standards handbook is an excellent resource for understanding how to create and maintain composites and includes examples of how to present performance data.

Private fund managers must also consider whether they are required to present “related performance” of earlier funds under the Marketing Rule, especially in situations where prior funds have substantially similar investment policies as the new fund being marketed. The SEC gave fund managers an out for situations where “the relevant financial markets or investment advisory personnel have changed over time such that the investment policies, objectives, and strategies of an advisor’s earlier private funds are no longer substantially similar to those of the fund being marketed, the advisor would not be required to include the earlier private funds in its related performance.”

Carve-Outs Permitted The Marketing Rule also sheds light on another murky advertising area: carve-outs, referred to as “extracted performance.” The

rule is very limited, however, and only allows advisors to show the performance of a subset of investments in a single portfolio.

For example, an advisor that manages a fixed income portfolio, but wants to market a new investment style focused on belowinvestment-grade debt, can extract the performance of this asset class from the broader portfolio. The rule requires that an advertisement containing extracted performance must also provide, or offer to provide, the results of the total portfolio from which the performance was extracted.

The big sticking point with this provision is that it only applies to carving out performance of a subset of investments from a single portfolio. The SEC specifically excluded performance carved out from a composite of portfolios from the definition of extracted performance. An advisor that wants to present a composite of extracts would have to comply with the conditions for presenting hypothetical performance (discussed below).

Additionally, the SEC’s anti-fraud standard still applies, meaning that advisors should include disclosure explaining that the data represents a subset of a portfolio’s investments and how the investments were selected.

High Guardrails Around Hypothetical, Model, Back-Tested, and Other Imaginary Performance The Marketing Rule restricts the use of all “non-actual” performance advertising. The SEC dumps model, back-tested and hypothetical performance data into one bucket, including “targeted” or “projected returns” (used in the private fund space), defining them as “performance results that were not actually achieved by any portfolio of the investment advisor.”

Advisors are prohibited from using hypothetical performance in advertisements unless they take these steps: • Adopt policies “reasonably designed” to ensure that the hypothetical performance is relevant to the likely financial situation and investment objectives of the advertisement’s intended audience.

• Include sufficient disclosure so that the intended audience can “understand the criteria used and assumptions made” in calculating the hypothetical performance; and • Provide information “to enable the intended audience to understand the risks and limitations of using such hypothetical performance in making investment decisions to create the performance, its risks, and the limitations of the performance data.”

The SEC strongly emphasizes in the final release that advisors should have a compelling argument for using any kind of hypothetical performance in ads. Moreover, the rule limits the use of hypothetical performance to those investors that have “resources and financial expertise” to assess such performance.

It’s clear that the Staff does not want this type of presentation Attorney Journals Orange County | Volume 189, 2021

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used with retail investors. And it bears repeating that any materials defined as advertisements are subject to the seven prohibitions—so advisors should include robust disclosure to meet the “fair and balanced” standards.

An advisor’s “reasonably designed” policies and procedures for determining whether hypothetical performance is relevant should include a process for determining whether the intended audience has the “expertise and resources to understand hypothetical performance.” Advisors could include criteria such as previous investments with the firm, minimum net worth, and extensive investing experience. In the final release, the SEC said that advisors could also rely on the fact that investors meet certain “regulatory defined categories” such as qualified purchasers, qualified clients, and qualified institutional buyers.

Advisors that want to use hypothetical performance in marketing materials should understand that this is going to be a heavy lift. In addition to having a clearly defined process for producing the performance data, firms must be able to justify its use, develop robust disclosures explaining the way it was calculated and its limitations, and document a process for identifying an audience with “resources and financial expertise” to understand the performance information.

Notable Exclusions Hypothetical performance can be used with current or prospective investors when provided in response to an unsolicited request from a current or prospective client or private fund investor, or to a potential private fund investor in a one-onone communication. These communications are not considered advertising. When providing this information, the advisor should include a statement indicating that it is being provided in response to the potential investor’s request.

The Marketing Rule also excludes performance generated by investment analysis tools from the definition of hypothetical performance if advisors comply with several conditions. The SEC borrowed the definition of “investment analysis tool” from FINRA Rule 2214, which defines it as “an interactive technological tool that produces simulations and statistical analyses that present the likelihood of various investment outcomes if certain investments are made or certain investment strategies or styles are undertaken, thereby serving as an additional resource to investors in the evaluation of the potential risks and returns of investment choices.”

Unlike FINRA, however, the SEC placed additional conditions on an advisor’s ability to use these tools without having the output considered hypothetical performance. First, the investor must participate either by inputting information into the tool themselves or providing it to the advisor to upload.

Additionally, the SEC requires advisors using these tools to include the following disclosures: • A description of the criteria and methodology used, including the investment analysis tool’s limitations and key assumptions; 14

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• A statement that results may vary with each use and over time; • If applicable, a description of the universe of investments considered in the analysis and an explanation of how the investments are selected, whether the tool favors certain investments and, if so, explains why, and states that other investments not considered may have characteristics similar or superior to those being analyzed; and • A statement that the tool generates outcomes that are hypothetical in nature.

The SEC Does NOT Approve Although it seems obvious to compliance professionals, apparently the practice is prevalent enough that the SEC found it necessary to include a prohibition on advisors from making “any statement, express or implied, that the calculation or presentation of performance results in the advertisement has been approved or reviewed by the Commission.”

The Short List Advisors that want to use their performance data in advertisements will need to beef up their compliance policies and procedures to meet the many conditions imposed under the Marketing Rule.

Here’s a short list of the essential items to be included in marketing and advertising policies and procedures: • Gross and net performance data must be presented in equal prominence.

• Net performance must be calculated using actual fees or model fees that are based on the highest fee that would be charged to the advertisement’s intended audience.

• Performance data must include standardized time periods of one, five, and ten years, or the life of the portfolio (if shorter).

• The firm should create a process for classifying portfolios into groups by investment objective, and each new portfolio should be assigned to a group at the time of funding.

• Performance data should be prepared only after analyzing the performance of all portfolios managed in the same investment style, and a determination made about whether to show performance as a composite or on a portfolio-by-portfolio basis.

• Advertisements cannot include any statements implying that the Securities and Exchange Commission approved or reviewed the calculation or presentation of performance results.

• Extracted Performance can only be used if it shows the performance of a subset of investments in a single portfolio, and an advertisement containing extracted performance must also provide, or offer to provide, the results of the total portfolio from which the performance was extracted.

For firms wanting to use hypothetical performance, here’s the “to do” list: • Adopt policies “reasonably designed” to ensure that the hypothetical performance is relevant to the likely financial situation and investment objectives of the advertisement’s intended audience.

• Include disclosure regarding the criteria used and assumptions made in calculating the hypothetical performance.

• Include disclosure about the risks and limitations of the hypothetical performance in making investment decisions to create the performance, its risks, and the limitations of the performance data.

• Adopt a process for determining whether the intended audience has the expertise and resources to understand hypothetical performance. Use criteria such as previous investments with the firm, minimum net worth, and extensive investing experience. Investors that meet certain “regulatory defined categories” such as qualified purchasers, qualified clients, and qualified institutional buyers may also be included.

Firms that use interactive analytical tools with investors or potential investors should provide clients or prospects with the following disclosures:

• A description of the criteria and methodology used, including the investment analysis tool’s limitations and key assumptions.

• A statement that results may vary with each use and over time.

• If applicable, a description of the universe of investments considered in the analysis and an explanation of how the investments are selected, whether the tool favors certain investments and, if so, explains why, and states that other investments not considered may have characteristics similar or superior to those being analyzed.

• A statement that the tool generates outcomes that are hypothetical in nature.

Compliance with the Marketing Rule is going to take time and significant thought. Despite the guidance provided, there are still many gray areas requiring an analysis of the specific facts and circumstances of the situation. Advisors have until November 4, 2022, to comply, so use the time wisely. n Jaqueline Hummel is a Partner and Managing Director at Hardin Compliance Consulting LLC (HCC). HCC established the hardincompliance.com website to discuss regulatory compliance issues and strategies for compliance officers to be more effective. Learn more at www.hardincompliance.com.

Monty A. McIntyre, Esq. Mediator, Arbitrator & Referee ADR Services, Inc.

To schedule, contact Haward Cho: (619) 231-1323 or haward@adrservices.com

Organized, succinct summaries of EVERY new published California civil and family law case, published every month for $50.00 a month. Subscribe at www.cacasesummaries.com

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TAKE IT TO

THE BANK

CHRIS AND FRANK Dramatic Physical Growth Reflects Dramatic Corporate Growth for Accident Attorney Firm Chris and Frank

by Dan Baldwin

“

Our success has led to us building our new corporate headquarters in Newport Beach. This new building is a reflection of our success—from the ground up,” says Co-Founding Partner Frank Fasel of Chris and Frank.

Fasel and his partner, Christopher Guldjian, started their accident attorney firm ten years ago. Their case value, record of success, and list of satisfied clients has grown, and the new building is a direct response to that success and that growth. The structure, due for completion in 2022, occupies nearly an acre of land and the firm will occupy the entire building.

“It’s a clean, modern law building. It’s state-of-theart green building. It’s solar powered and uses recycled materials, eco-friendly materials. We feel we’re not only stewards of our clients’ interests, but also stewards of our community and our environment,” Fasel says.

Like their new building, the Firm is built on a solid foundation of successful cases. One client wrote the following: I’m a business professional with an extremely busy schedule. Anything that disrupts my daily routine can impact my life tremendously, and so it did. Thank God I

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was able to connect with Guldjian Law. They helped me with the team approach and got me back to living my life as they dealt with my case. They were very professional and made sure my best interest was a priority. They shy away from the typical PI lawyer routine ( Let’s get a settlement no matter what it is and move on to the next case). They utilize every option available to make sure you get your fair trial or settlement.

An example of how committed the firm’s attorneys are to client service is revealed by a recent case in which a client needed a spinal fusion. When he went in for the procedure his blood sugar levels were determined to be too high to do the surgery. During the past year it has been very difficult scheduling these types of surgeries, given the Covid situation. The attorneys approached the doctor in charge of the case and got a new surgery date a few months later.

“Our goal was to help our client get healthy enough to undergo this necessary procedure. The surgeon said that getting blood sugar levels down would be very difficult because it requires changing someone’s eating habits.

We found and retained a nutritionist for our client to make sure and to monitor his diet to get his blood sugar

Founders: Frank Fasel, Esq. and Chris Guldjian, Esq. JOURNALS

LAW FIRM

OF THE MONTH

© Christopher Todd Studios

2021

© Christopher Todd Studios The Chris and Frank Accident Attorneys Team: Yan Li, Esq., Kaaveh Zargar, Esq., Chris Guldjian, Esq., Frank Fasel, Esq. and Chad E. Irvin, Esq.

levels down within the allotted two-month period. It worked,” Fasel says. The client’s rescheduled surgery was a success and defendant tendered the entire policy.

Additionally, due to working with the nutritionist, the client permanently changed his diet and eating habits, started eating better, and is currently leading a healthier and happier life.

VETTING MEDICAL PROVIDERS. SERVING SPECIALIZED NEEDS. WINNING CASES. Fasel says the firm hits a lot of home runs with seemingly small cases with low property damage. Most firms are simply looking for a big easy case and don’t pay attention the rest, but Chris and Frank values all cases. They have resolved in pre-litigation and through litigation numerous cases over the past several years in the high six and in the seven figures that many other firms would have likely passed up. Personalized care beyond the norm is one of the reasons.

“A lot of firms will just find out where the client lives and

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then provide a medical provider from that area without vetting that medical provider. Oftentimes our clients will not have health insurance, or they won’t know where to go or what to do or what type of treatment they really need when they’ve been in an accident. We don’t just fire them off to a medical provider who we don’t know. We vet every provider we recommend. Chris and I go to providers’ offices to make sure we feel comfortable sending our clients there.

Other firms are constantly following our lead, but we were the first to provide such comprehensive service,” Fasel says.

The firm has a policy of making sure the medical and related facilities are clean and state-of-the-art and that the medical provider is the best in their field in that area before they send any of their clients. The process does not stop with just vetting the provider. Once a client starts treatment, they make sure that the medical provider has all the documents and records he needs to do the medical treatment that the client needs without wasting any time on the case. If there are any issues with scheduling or referring out to MRI, for example, they work with the

medical provider to get that done as well.

A recent case indicates the depth of the firm’s conviction to vetting providers and then continuing to provide additional services as needed by the individual client.

Their client was rear ended on the freeway as traffic came to a stop. She was in her late fifties, single and had to work extremely hard to make ends meet. The damage to her vehicle was minimal, mostly a scratch to the rear bumper.

But she believed the impact felt much more severe and that she felt the impact aggravated an old neck injury for which she had received treatment.

The resulting pain meant she was having trouble working and having even more challenges making ends meet. The woman had been turned down by two other law firms.

Chris and Frank went to work ordering her prior records and investigating the defendant. They arranged sessions with the best doctors, most of whom were located near her house. When she needed transportation to specialists farther from her home, they provided rides. She had to take several weeks off work, so they assisted in obtaining cash advances so that she could pay rent and her other bills while she was recovering.

During negotiations, the first offers were decent, but the attorneys felt they were not enough. The in-house litigation team filed a lawsuit and went to work taking depositions, hiring experts, and conducting extensive discovery. The hard work paid off, as they were able to show that the low impact did in fact injure her back. The defendant settled for $950,000.

“This was a case that other firms would not even take.

Such cases are honestly a regular occurrence for us. It happens all the time for our deserving clients. We want to let the client recover from the accident without having to worry about the logistics and administrative side of the claim,” Fasel says.

COPING WITH COVID As might be expected considering the firm’s experience with the medical fields, the Covid pandemic had a surprisingly small effect on the firm’s day-to-day operations. “It really didn’t affect the office at all,” Fasel says.

Initially, the staff worked from home during the peak, but they missed the positive office environment. They wanted badly to return. Safety protocols were put in place, which returned everyone back to the office as quickly as possible while making sure it was safe to do so. Everyone working at the firm is vaccinated. The team worked swiftly and carefully to create a safe, clean office environment where everyone feels safe. “We feel it’s completely safe for clients to come visit us in the office if they want to, and they do.” Fasel says.

THE BEST OF TWO WORLDS—REFERRALS Fasel says, “Often when an attorney refers a personal injury case to us, they often earn more money from referring the case than they would had they handled it themselves. It’s because we pay more in referral fees and resolve the cases for much more money.”

Referrals from attorneys and prior clients account for approximately 50 percent of the firm’s business. A primary reason is that the referring attorneys know their client or clients are in good hands.

Chris and Frank pay generous referral fees. They are meticulous in keeping the referring attorney up to date with the progress of the case. They are fast and efficient litigators; the referring attorney knows from experience and track record examples that the case will not drag on and the client they are referring will be taken care of.

TEAMWORK. AGGRESSIVE REPRESENTATION. SATISFIED CLIENTS. Immediate, aggressive, and effective response to client needs is the number-one priority. When a client calls, he speaks immediately to a live representative that day. Dedicated case managers and attorneys are assigned to handle the case from start to finish. Fasel says, “Our firm is customer-service oriented. That’s our primary focus. We look to make sure the client’s questions are answered immediately, that their cases move along quickly. When they’re done with treatment, their demands are sent out immediately. If we need to file a lawsuit, we do those in-house as well. A lot of firms, if they have to file lawsuits, send the case to a different law firm to litigate whereas we handle all our cases in house.”

Clients agree with their personalized approach and attention to the smallest details.

I am a small business owner, and I cannot tell you how impressed I was with attorney Christopher Guldjian. Mr. Guldjian comes to the table with a great deal of knowledge and integrity. He literally takes the time to break things down and explain things and gets to the heart of the matter and then puts an action plan together.

He and his staff were always courteous and treated me with professionalism, which is rare for many attorneys. I have used him twice, once for a small issue and once with a larger one and both times he protected my business and personal assets.

I highly recommend Mr. Guldjian and his law group and as my business grows, I will rely more on his wise counsel.—Kevork

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© Christopher Todd Studios Founders: Chris Guldjian, Esq. and Frank Fasel, Esq.

The hiring policy is to find the best people, place them where they best serve the client and to pay them what they are worth. Chris and Frank maintain an open-door policy.

It’s one big team.

The policies have served the firm well since Chris and Frank founded the firm ten years ago.

Christopher Guldjian trained clerking for the Los Angeles Superior Court in Long Beach and the Huntington Beach City Attorney’s office. His trial experience grew while working for major private firms and renowned plaintiff trial attorneys. He has successfully brought several cases to verdict and has aggressively advocated major plaintiff settlements emulating in the millions of dollars. Recently, he was featured on the front page of the Orange County Register after suing a mental health facility related to his client being raped by another patient.

Guldjian received his B.A. in Political Science and International Relations at California State University, Long Beach. He earned his J.D. from Whittier Law School.

Guldjian has achieved top ratings by Super Lawyer, Nolo, Best Lawyers, and Avvo. He is a member of the Orange County Trial Lawyers Association (OCTLA), Consumer Attorneys of California (CAOC), and Consumer Attorneys Association of Los Angeles (CAALA).

Co-Founding Partner Frank Fasel has represented thousands of clients and has won millions of dollars

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in verdicts and settlements. He is dedicated to helping those in need and who have been injured in any kind of accident, from a simple rear-end auto accident to a complex multi-vehicle collision involving multiple parties. He has been nominated by his peers as a Super Lawyer and a top ten lawyer in California, two of the highest and most prestigious awards in the State. He is licensed to practice law in California and Washington.

Other important members of the firm include, Kaaveh Zargar—Pre litigation managing attorney.

Chad Irvin—managing litigation attorney/chief trial counsel; and Yan Li—CFO and HR manager and attorney “We are always looking to grow, especially when we move into our new corporate headquarters, however we want to retain a small boutique firm feel for our clients. It will be balancing that to ensure as we take on more clients, they will receive the same personalized treatment and focus as we are known in the industry for now,” Fasel says. n Contact Chris and Frank Accident Attorneys 20250 Birch Street Newport Beach, CA 92660 (714) 882-5800 www.chrisandfrank.com

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Attorney Journals Orange County | Volume 189, 2021

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10 Science-Based Practices to Master Your Time and Focus

by Ashley LeCroy

Breaking the Cycle of Overworking, Under-Planning and Time Crunching Time is finite and everyone struggles to manage it. However, learning to control our focus is not only possible but critical to our emotional well-being, sense of self, productivity, and overall success. This has never been more challenging than in these times of “work from home” or “living at work.” Lack of structure and influx of distractions wreak havoc on focus and energy.

Don’t fret. We recently spoke with Jarrett Green, Esq., M.A. Psychology, a former lawyer dedicated to helping those in the profession become the best versions of themselves in high-stress environments. The below is a summary of a one-hour workshop to give you a general sense of the time-management techniques Green suggests. A deeper understanding can be gained through his tailored programs.

Here Are Ten Science-Based Tools You Can Implement Today to Gain Control of Your Time, Energy, and Focus Green says there is no pressure to adopt all the habits. Instead, choose those that fit your style. Start small, take your time, and add more or swap as you go. Much like yoga, learning a new language or skill, taking control of your time is a practice, so be patient and keep practicing.

• Schedule Your Time Management: That’s right, make a regular appointment with yourself to assess and actively reflect on your time management skills. Green suggests following Steven Covey’s advice by setting aside five minutes, two days a week, to do a ‘time audit’ by pulling away from our production and focusing on our “production capacity.” “Reflect on your recent victories, struggles and learning lessons regarding time management, and methodically optimize this over time.”

• Use Time Boxing to Combat Parkinson’s Law: Work expands to fill the time available to complete it—Parkinson’s Law. So, Green advises, don’t start any task or project without giving yourself a false interim deadline. If you need help getting started, why not find an accountability buddy to hold you to those deadlines the same way someone would hold you accountable at the gym.

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• Re-Frame Time Management “Success:” Green says many of our time management problems come from, ironically, time management problems. We tend to self-judge when we’re not productive, leading to a snowballing of time management problems. Instead, he says, let go of inefficient periods, rejuvenate, and come back to it. Don’t let a time management lag become a time management plummet.

• Eliminate and Shorten Micro Decisions: The more cognitive resources we use throughout the day, the more depleted our focus for tasks requiring our primary performance instrument—our brains. Green suggests reducing micro-decisions and mindfully shortening less important tasks will make room for our brains to focus on essential tasks. Think Mark Zuckerberg’s and Barack Obama’s limited wardrobe options.

• Systematize Task Prioritization: Developing a task prioritizing system to avoid mistaking activity for productivity. Green suggests the four quadrants of urgent/ non-urgent/important/not important, the 80/20 rule or his personal favorite, assigning priority levels one through five and completing level five, the most important work, first. “Time management is often not a productivity issue, but a task prioritization issue,” says Green.

• Take Non-Intellectual Short Breaks: “Most people take short breaks that undermine their willpower and ability to focus throughout the day,” says Green. A lawyer’s primary performance instrument is their brain. Professional athletes don’t take breaks during halftime or time-outs by playing their sport recreationally with friends; they rest their bodies by sitting on the bench. Similarly, lawyers should take short breaks that provide mental and cognitive rejuvenation, such as breathing exercises, listening to music, walking (or even looking) outside, meditation and even intentional boredom, versus emotionally enjoyable activities like social media, personal texting, web browsing, in-person interaction, and personal emailing.

• Reduce Multitasking and Increase Uninterrupted Work Blocks: You can walk and chew gum simultaneously, but your brain cannot think about multiple

cognitive tasks at the same time. “What we’re doing is rapidly task-switching throughout every hour of the day,” says Green. “But every time we task switch, our brain suffers from ‘resumption inefficiencies’ and ‘attention residue,’ which destroy our ability to focus and efficiently complete tasks.” Reducing the number of task switches by even 25% per day will significantly improve productivity and time management.

• Adopt Tangible Pre-Boundaries to Defeat Productivity Killers: Research shows that just the sight or sound of our phones destroys our productivity. Green’s suggestion is to silence and stow your cell phone for blocks of time to allow yourself to focus on driving your substantive deadlines forward. Set important contacts (e.g., key partners or clients) on your phone whose calls and emails will override the silent setting, but do not allow yourself to succumb to “death by email” by the countless people messaging you.

Identify a specific boundary of how often you check email throughout the day, rather than impulsively responding to each “email itch.” Choose actual productivity over the appearance of responsiveness.

and “monsterism”—a term Green coined to describe the human brain’s distortion of the relative complexity of a task. “Our attachment to unconstrained perfection and our unconscious exaggeration of the complexity of the pending task causes us to delay starting it,” says Green. Apply the “ten-minute rule” to overcome procrastination by alternating between 10 minutes of “average” work and 10 minutes of break for an entire hour when you begin an onerous project, rather than forcing yourself to begin the project with one hour of genius work. “You will trick your brain into the ‘flow state’ and massive productivity,” notes Green.

• Use Time of Day Discernment: Every brain is wired differently and works better on different types of projects at different times of the day. Green suggests dividing the day into four time periods and categorizing your ten most common tasks into when you best perform that task. “This will enhance your productivity by leveraging your task-specific peak performance windows,” he says. “By mastering the chronology of your projects over the course of the day, you will accomplish far more in far less time.” n

• Attack Procrastination with the Ten-Minute Rule: The two most common causes of procrastination: perfectionism

Ashley LeCroy, has been World Law Group’s Events and Member Program Manager since 2018. Learn more at www.theworldlawgroup.com.

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California Case Summaries New California Civil Cases

by Monty A. McIntyre, Esq. These recent cases summarized by Monty A. McIntyre are from his publication California Case Summaries™. Monty prepares short summaries (one paragraph), organized by legal topic, of every new published California civil and family law case that California lawyers can subscribe to on either a monthly, quarterly or annual basis. Monty also offers specialized practice area annual summaries in the areas of Employment, Family Law, Real Property and Torts. For more information go to cacasesummaries.com. A California civil trial lawyer since 1980, a member of ABOTA since 1995, a past president of the SDCBA and San Diego ABOTA, and also an expert Zoom user, Monty serves as a mediator, arbitrator and referee with ADR Services, Inc. handling cases throughout California in the areas of business, elder abuse, employment/wage & hour, insurance bad faith, legal malpractice, medical malpractice, personal injury, real property and wrongful death. Web: www.adrservices.com/neutrals/mcintyre-monty/ To schedule a matter, contact Monty’s case manager Haward Cho, (619) 233-1323 or haward@adrservices.com.

CALIFORNIA SUPREME COURT Insurance McHugh v. Protective Life Ins. Co. (2021) _ Cal.5th _ , 2021 WL 3853061: The California Supreme Court reversed the Court of Appeal, which had affirmed a judgment for defendant, following a jury trial, concluding that Insurance Code sections 10113.71 and 10113.72 did not apply retroactively to plaintiff’s term life insurance policy, which had been terminated by defendant to failure to pay the premium. The California Supreme Court held that sections 10113.71 and 10113.72 apply to all life insurance policies in force as of January 1, 2013—regardless of when those policies had originally been issued. The case was remanded for proceedings consistent with the opinion. (August 30, 2021.)

Torts Gonzalez v. Mathis (2021) _ Cal.5th _ , 2021 WL 3671594: The California Supreme Court reversed the decision of the Court of Appeal. Declining to create a third exception to the rule in Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court ruled that unless a landowner retains control over any part of the contractor’s work and negligently exercises

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that retained control in a manner that affirmatively contributes to the injury (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202), a landowner will not be liable to an independent contractor or its workers for an injury resulting from a known hazard on the premises. (August 19, 2021.)

Sandoval v. Qualcomm Incorporated (2021) _ Cal.5th _ , 2021 WL 4097782: The California Supreme Court reversed the decision of the Court of Appeal that found that defendant Qualcomm Incorporated (Qualcomm), the hirer of an independent contractor, was liable for the third degree burns that plaintiff (an employee of the independent contractor) suffered to over one-third of the surface area of his body after he triggered an arc flash from a circuit he did not realize was “live” with flowing electricity. The California Supreme Court ruled that defendant Qualcomm owed no tort duty to plaintiff, the parts specialist working for Qualcomm’s contractor, at the time of plaintiff’s injuries. Although Qualcomm performed the partial power-down process that preceded the contractor’s work and resulted in the presence of the live electrical circuit, the Supreme Court concluded that under the facts of this case Qualcomm neither failed to sufficiently disclose the hazard under Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664, nor affirmatively contributed to the injury under Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202. It also concluded that the

pattern jury instruction used in the case—CACI No. 1009B—did not adequately capture the elements of a Hooker claim. (September 9, 2021.)

CALIFORNIA COURTS OF APPEAL Appeals Reddish v. Westamerica Bank (2021) _ Cal.App.5th _ , 2021 WL 3827308: The Court of Appeal dismissed defendant’s appeal of the trial court’s order requiring that defendant and the plaintiffs should share equally the costs of taking thirty plaintiff depositions in a certified class action alleging Labor Code and wage and hour violations. Defendant appealed the trial court’s order claiming it was appealable under the collateral order doctrine. The Court of Appeal rejected defendant’s argument, ruling that because the outcome remained uncertain, the matter had not been finally determined for purposes of the collateral order doctrine. (C.A. 1st, August 27, 2021.)

Arbitration Banc of Cal., NA v. Superior Court (2021) _ Cal.App.5th _ , 2021 WL 4398583: The Court of Appeal granted defendant’s petition for writ of mandate compelling the trial court to vacate its order granting defendant’s petition to compel arbitration in plaintiff’s action for breach of a loan to facilitate defendant’s purchase of a commercial aircraft. The Court of Appeal held the trial court erred in granting the petition to compel arbitration based upon the Supreme Court’s decision in Henry Schein, Inc. v. Archer and White Sales, Inc. (2019) ___ U.S. ___ [139 S.Ct. 524, 529] (Schein), which held that where an arbitration clause contains a delegation provision, the arbitrator should decide the threshold issue of arbitrability even if the argued basis for arbitration is “wholly groundless.” In Schein, the court considered who should decide whether the parties’ dispute arising from a specific contract with an arbitration clause was arbitrable. In this case, however, the issue in defendant’s petition to compel arbitration was whether the parties agreed to arbitrate their dispute over the loan documents which did not have arbitration clauses, and this was a question for the trial court to decide. (C.A. 2nd, September 27, 2021.)

Herrera v. Doctors Medical Center of Modesto (2021) _ Cal.App.5th _ , 2021 WL 3417591: The Court of Appeal affirmed the trial court’s order denying a petition to compel arbitration in an action by former employees to recover civil penalties under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et al.).

Pursuant to Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, PAGA representative claims for civil penalties are not subject to arbitration under a predispute arbitration agreement. (Esparza v.

KS Industries, L.P. (2017) 13 Cal.App.5th 1228, 1234.)

The PAGA claims alleged in the former employees’ complaint were owned by the state and were pursued by the former employees as the state’s agent or proxy. (ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 185.) The arbitration agreements in question were not enforceable as to the PAGA claims because the state was not a party to, and did not ratify, any of those agreements. Also, after the former employees became representatives of the state, they did not agree to arbitrate the PAGA claims. (C.A. 5th, August 5, 2021.)

Attorney Fees Missakian v. Amusement Industry, Inc. (2021) _ Cal. App.5th _ , 2021 WL 4451940: The Court of Appeal reversed the judgment for plaintiff, following a jury trial, on his breach of oral contract and promissory fraud claims against defendant Amusement Industry, Inc. (Amusement). The jury found for plaintiff on both claims, but it found for Amusement’s founder, Allen Alevy, on the promissory fraud claim, and the trial court later granted a judgment notwithstanding the verdict (JNOV) for plaintiff against Amusement. The jury awarded plaintiff $2.525 million on the breach of oral contract claim and awarded plaintiff $750,000 in compensatory damages and $1,750,000 in punitive damages on the promissory fraud claim. Plaintiff had worked as an inhouse attorney for Amusement. Alevy recruited plaintiff to be the in-house attorney for Amusement. Alevy and plaintiff orally agreed that plaintiff would receive a salary of $325,000, and once ongoing litigation in New York (the Stern Litigation) was resolved plaintiff would receive a bonus of $6,250 for each month he had worked on that litigation (Monthly Bonus), and an additional bonus of ten percent of the recovery in the Stern Litigation, excluding ordinary litigation costs (Stern Litigation Bonus). This agreement was never reduced to writing and signed by both parties. The Court of Appeal reversed the judgment for plaintiff on the breach of oral contract claim because that agreement was a contingency fee

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agreement subject to section Business and Professions Code section 6147 and was therefore unenforceable as a matter of law. The Court of Appeal found the jury’s special verdict to be inconsistent because it found Alevy did not make a false promise, but that Amusement (acting only through Alevy) did. Because the trial court could not choose between the jury’s inconsistent responses, the court should have ordered a new trial as to all parties rather than granting a JNOV.(C.A. 2nd., September 29, 2021.)

Attorneys Amjadi v. Brown (2021) _ Cal.App.5th _ , 2021 WL 3855831: The Court of Appeal reversed the trial court’s judgment of dismissal entered after plaintiff’s attorney agreed to a settlement for $150,000 with defendant over plaintiff’s objection, and the trial court’s later order denying plaintiff’s motion to vacate the judgment in her action for personal injuries arising from a car accident.

The settlement was entered by plaintiff’s attorney pursuant to a provision in the attorney’s contingent fee agreement, which allegedly granted the attorney the right to accept settlement offers on the client’s behalf in the attorney’s “sole discretion,” so long as the attorney believed in good faith that the settlement offer was reasonable and in the client’s best interest. The Court of Appeal concluded that such a provision violates the Rules of Professional Conduct and is void to the extent it purports to grant an attorney the right to accept a settlement over the client’s objection. The Court of Appeal held the settlement was void and reversed the judgment. It also referred plaintiff’s former attorneys to the State Bar for potential discipline, as required by law and by Canon 3D(2) of the Code of Judicial Ethics.

(C.A. 4th, August 30, 2021.)

Civil Code Dept. of Fair Employment and Housing v. M&N Financing Corp. (2021) _ Cal.App.5th _ , 2021 WL 4398564: The Court of Appeal affirmed the trial court’s order granting plaintiff’s motion for summary judgment on the first and second causes of action alleging violations of the Unruh Civil Rights Act (Civil Code, section 51) and Civil Code section 51.5, and assessing over $6 million in statutory damages pursuant to Civil Code section 52(a). The Court of Appeal reversed the trial court’s order granting defendant’s motion for judgment on the

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pleadings as to the fifth cause of action alleging that the defendant M&N Financing Corporation (M&N) “knowingly compelled and coerced its employees to engage in practices that violated” FEHA and Civil Code sections 51 and 51.5, in violation of Government Code section 12940(i). Plaintiff sued defendants M&N and Mahmood Nasiry for operating a business that purchased retail installment sales contracts (contracts) from used car dealerships that used a formula that considered the gender of the car purchaser. Defendants would pay more for a contract with a male purchaser than for a contract with a female purchaser or female coborrower. The Court of Appeal rejected all of defendant’s arguments (no standing, lack of injury, etc.) against the $6 million judgment. The trial court had granted the motion for judgment on the pleadings on the basis that section 12940(i) did not apply because employee Khayyam Etemadi and other employees of M&N were not “aggrieved” parties under the statute.

The Court of Appeal disagreed, holding that employees who are coerced by their employer to violate Civil Code sections 51 and 51.5 are “aggrieved” within the meaning of section 12965(a) and have standing to sue their employer pursuant to section 12940(i). (C.A. 2nd, September 27, 2021.)

Employment Becerra v. The McClatchy Co. (2021) _ Cal.App.5th _ , 2021 WL 4472625: The Court of Appeal reversed the judgment for defendants, following a bench trial, in a class action by newspaper home delivery carriers for The Fresno Bee newspaper who alleged that defendants violated the unfair competition law (UCL; Business & Professions Code, 17200 et seq.) by failing to pay the carriers’ mileage expenses as required by Labor Code section 2802. The primary issue at trial was whether the carriers were employees or independent contractors and the trial court concluded they were independent contractors. The Court of Appeal reversed, ruling that the issue of whether the carriers are employees or independent contractors had to be determined under the S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, (Borello) test. The trial court erred in deferring to the Employment Development Department regulations that the Court of Appeal found were inapplicable, and the trial court also failed to properly analyze the factors required by Borello. (C.A. 5th, September 30, 2021.) n

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How to Build and Sustain an Inclusive Internal Communications Strategy at Your Firm

by Katie Hunt

I

’ve recently had many conversations with colleagues and peers about how to write about diversity, equity, and inclusion (DEI) in a firm’s internal communications. We know that generic values statements no longer do enough—our communities want to hear about the actions our leaders have taken to demonstrate these values.

As a white, mid-career woman (a robustly represented demographic across communications teams), I am always learning when I engage in the ever-shifting discussions around DEI. But having focused a lot of time crafting internal messaging over the tumultuous past year, I have picked up a few valuable strategies.

1. First, listen. When someone comes to me to promote a program or tell a story, I want to help quickly and efficiently. But working on internal DEI content always reminds me to prioritize listening. People often need to share frustrations before they dive into a plan. And those frustrations help me do my job better— they help me know what my audience needs.

... people usually appreciate the chance to share their insights and experience in a brief email exchange or phone call.

At my firm, the comms team is lucky to work with an engaged, fulltime DEI staff, who also help connect us with stakeholders from diverse backgrounds across the firm. These stakeholders help us understand what they need to hear in, say, a message from firm leadership about a particular current event. Of course, I never want to burden people with extra work just because they are part of an impacted group. But I’ve found that people usually appreciate the chance to share their insights and experience in a brief email exchange or phone call.

2. Be Specific. This rule holds true for any good content, but it has special resonance for DEI programs.

... tell them what exact initiatives are in place to foster inclusion and professional development.

Your audience has likely seen statement after statement that amount to, “Yes, we are committed to diversity, equity and inclusion,” whether from your organization or from brands they follow elsewhere. So instead, tell them what exact initiatives are in place to foster inclusion and professional development and what results those initiatives have achieved.

At my firm, despite an internally well-publicized audit of our DEI programs a few years ago, we realized that we had not recently updated the firm community on our initiatives. So, I wrote a comprehensive update for our internal website. This update described, for example, leadership committees that focus on DEI, how they set goals for making the firm more inclusive, and specific progress they’d made toward these goals.

A big part of the writing process turned out to be finding information that already existed—many of the facts I wanted to share, such as demographics of firm employees and new hires, 28

Attorney Journals Orange County | Volume 189, 2021

lived in business development and legal personnel materials. So, I collaborated with other departments to gather that information, then wrote an article that would put it in front of our entire community and link it to their lives. For example, I included a count of how many external professional development opportunities the firm supports— e.g., conferences and bar association events—alongside feedback from our participating lawyers about the programs’ value.

One important caveat: specifics on how diversity factors into work assignments or employee evaluations can’t always be shared for legal and privacy reasons, so check with legal personnel and DEI teams before getting too detailed.

3. Don’t Just Write About Diversity. Internal communications at my firm often include profiles of our lawyers and staff, announcements of awards or professional milestones, and other content that ostensibly has nothing to do with DEI. Except that it does—because by featuring a diverse group of people in all types of content, you’re reemphasizing the firm’s commitment to inclusion and advancement for everyone.

Since older generations of lawyers tend to skew white and male— and by virtue of where they are in their careers, they are often the people helming major matters and winning awards—I’ve found it important to seek out stories that spotlight people from traditionally underrepresented backgrounds. ...by featuring a diverse group of people in all types of content, you’re reemphasizing the firm’s commitment to inclusion and advancement for everyone.

My firm’s pro bono program has provided one source—because pro bono work often gives younger lawyers a chance to manage high-impact matters, it can give communications teams the chance to feature the successes of a younger, more diverse pool of people. Internships and fellowships do the same, and we profile everyone we can who completes one of the firm’s internal professional development programs.

4. Make Sure Your Imagery Tells the Right Story. All your imagery—not just when it accompanies DEI-related content— should feature diverse groups of people.

On my firm’s intranet, lawyer and staff headshots often accompany the stories we post. So, it’s painfully obvious when we’re only writing about the achievements of white, male firm members, even to people who are just skimming the homepage and don’t read a word. Again, seek out opportunities to feature diverse groups of people. You can’t simply rely on the news that shows up in your inbox to provide those stories for you. n Katie Hunt is a content strategist focused on internal and external communications at WilmerHale, where she previously managed content on the firm’s internal website.

She lives in Los Angeles.

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