Klinedinst PC

By Fred M. Heiser

For many in the retail and hospitality industry, business is paused by the spread of the novel coronavirus, awaiting word that it is safe to resume. Other essential businesses that avoided complete shutdown still face significant pandemic-related disruptions. Now more stores are gradually beginning to reopen with the prospect of returning to some semblance of “business as usual.” But, as they do, measures should be taken to address another anticipated crisis: a wave of COVID-19 exposure claims in the courts. 

In part, this potential litigation is the logical result of an increase in human contact as restrictions lift and people return to stores and restaurants. When this occurs, people diagnosed with COVID-19 (or their families) will seek to hold liable the businesses where they claim they contracted the virus. Thus, many of the principles that help companies thrive in the best of times will become even more critical as the pandemic continues to play out. 

Ways COVID-19 Claims Could Play Out

As of this writing, court dockets reflect only a few COVID-19 case filings. It is, therefore, too soon to tell how these types of cases will fare in the courts. But exposure claims are nothing new. Reviewing past infectious disease cases is instructive, providing a glimpse into how current and future COVID-19 claims may ultimately unfold. For example, cases involving exposure to tuberculosis or valley fever (a fungal infection) include allegations centered around a defendant’s failure to warn of the possibility of contracting an illness, failure to employ adequate controls to prevent transmission, and failure to prevent employees that displayed symptoms of an ailment from infecting others. 

Many COVID-19 claims will likely be similar. It will not be surprising to see, for instance, cases about a restaurant’s failure to mitigate transmission among its employees, customers, or the general public; a retailer’s failure to warn customers of risks that it either knew or should have known about; or vicarious liability stemming from an employee’s careless decision to work despite displaying COVID-19 symptoms.

To help forestall widespread litigation, some states have already passed laws enacting certain COVID-19 business immunities. Legislation in California and in other states is still evolving. Federal immunities may even be in the works in Congress. Nevertheless, no one should expect absolute immunity. Immunity is unlikely to protect companies from liability for gross negligence, recklessness, or intentional harm. Thus, COVID-19 plaintiffs may simply “plead around” negligence and accuse defendants of reckless or intentional wrongdoing instead. For example, a plaintiff may assert that a company was reckless because it failed to enact adequate procedures to prevent COVID-19 transmission, despite well-publicized standards.

Naturally, causation will be a primary line of defense and one on which many in the industry already seem to be relying. Yet defenses centered around causation will be costly and are not guaranteed. First, they will require efforts like contact tracing, social media analysis, and other investigation into where else a plaintiff was and who else a plaintiff was near. Second, many defenses will require the retention of experts that are likely to include epidemiologists, infectious disease specialists, and industrial hygienists. Third, to prevail, it is unlikely that a COVID-19 plaintiff will be required to rule out every other possible means for contracting the virus. Rather, plaintiff experts will probably rely on a “reasonable degree of medical certainty” standard. Defendants could then essentially be tasked with establishing other viable ways a plaintiff may have contracted the virus, and how potential exposure at a defendant’s premises was limited or non-existent. As litigation in this area continues to evolve, so too will strategies for anticipating and handling these claims.

Initial Tips For Venues Opening-up

As with other liability issues, initial steps for addressing anticipated COVID-19 claims must include implementing proper policies and procedures. Adopting protocols that protect employees and customers from exposure and transmission is key. Practices to consider include: 

• Follow (or exceed) industry and CDC standards for hygiene, sanitation, and safety.
• Follow (or exceed) local, state, and federal prevention guidelines and recommendations. 
• Display signs that warn about COVID-19 risks and encourage practices that limit person-to-person contact and promote social distancing (e.g. employees wearing masks, mobile orders available, curbside pickup made easy).
• Develop and implement investigation procedures for all potential COVID-19 related claims, including workers’ compensation and liability.
• Retain documents that confirm enforcement of the daily precautions, policies, and procedures in place.

A few words on COVID-19 waivers. Their enforceability is still up in the air and will likely depend on each jurisdiction’s determination about whether they violate public policy. Nevertheless, venues that routinely use liability waivers should consider creating ones for COVID-19 to provide an additional layer of protection for the business and an increased level of awareness for its customers. To avoid uncertainty, this waiver should be on a form that is separate from any existing release so that it remains conspicuous. Additionally, it should: (1) be specifically tailored to the business; (2) include a choice of law provision with a connection to the venue’s location; (3) cover the release of negligence claims but not reckless or intentional misconduct; (4) incorporate a discussion about the inherent risks of COVID-19 to the particular industry; and (5) identify what preventative measures the company is taking to help protect against transmission.           

Of course, not everything related to COVID-19 claims can be anticipated. The retail and hospitality industry will need to adjust to changes. Still, knowledgeable counsel remains a resource for businesses trying to figure out what’s next. Trusted counsel can help navigate through issues that are predictable, like the need to create policies and procedures designed to protect businesses, their employees, and customers. And as litigation in this area continues to develop in the months and years ahead, counsel will remain a steady “go-to” for up-to-date trends and determining what impact those trends have on handling these cases moving forward. As with COVID-19 itself, the old adage applies: An ounce of prevention is worth a pound of cure.

Fred M. Heiser is Shareholder in Klinedinst PC’s Los Angeles and Orange County offices. His clients include local entrepreneurs, small family businesses, and Fortune 500 companies. Mr. Heiser is regularly called on by general counsel, business owners, and claims representatives to protect their interests and to provide hands-on, strategic, and efficient direction for complex civil cases. In addition to litigation, Mr. Heiser partners with companies to strategically develop policies and procedures to minimize their liability risks. He can be reached at fheiser@klinedinstlaw.com

About Klinedinst

Klinedinst has become the go-to firm for clients across California, across the West, and across the globe. Our litigators, trial attorneys, and transactional lawyers guide clients through every problem, finding solutions at every turn. The firm serves clients from offices in Irvine, Los Angeles, Sacramento, San Diego, and Seattle. Whether representing businesses in court, helping negotiate transactions, or handling matters in state, federal, or appellate courts, Klinedinst attorneys help to get the job done.

By Sylvia V. Panosian

As some California businesses prepare to re-open, they should be aware of the Government’s requirements and guidelines regarding risk assessment, protection plans, employee trainings and additional steps for their safe re-opening. On May 4, 2020, the Governor’s Executive Order announced that as California moves to allow reopening of lower-risk businesses and spaces (“Stage Two”), and later the reopening of higher-risk businesses and spaces (“Stage Three”), they may do so under new modifications and guidance provided by the State Public Health Officer’s May 7, 2020 Public Health Order.

The Public Health Order announced that all local health jurisdictions in the state may begin gradual movement into Stage Two. However, each jurisdiction will have some discretion regarding the transition. On the one hand, a given jurisdiction may implement or continue more restrictive public health measures if they believe it is warranted. On the other hand, the California Department of Health has also set forth criteria to help local health officers assess their jurisdiction’s ability to move through Stage Two more quickly than the State as a whole, and reopen additional low-risk businesses before the rest of the state if they choose to do so. Importantly, for businesses wondering if they are one of those that can reopen, the Public Health Order notes that “a list of the sectors, businesses, establishments, or activities, and any necessary modifications, that such a qualifying jurisdiction may choose to reopen will be available” here. For now, the jurisdictions that have met the criteria to move through Stage Two of the resilience roadmap, and have been approved for accelerated reopening, can be found here.

The Government’s Statewide Industry Guidance page provides that, if permitted to re-open, each business facility must do the following:

1. Perform a detailed risk assessment and implement a site-specific protection plan
2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them
3. Implement individual control measures and screenings
4. Implement disinfecting protocols
5. Implement physical distancing guidelines

Additionally, if an employee needs to self-isolate because of COVID-19, that employee should be encouraged to stay at home, with supporting sick leave policies in place.

The Government has instructed businesses to review the guidance that is relevant to their workplace or business sector, prepare a plan based on the guidance for their industry, and then put it into action. The steps outlined above are addressed in detail for each specific industry within that industry’s guideline page. For now, industries with posted guidelines and checklists can be found here, and include agriculture and livestock, auto dealerships, child care, communications infrastructure, construction, delivery services, energy and utilities, food packing, hotels and lodging, life sciences, limited services, logistics and warehouse facilities, manufacturing, mining and logging, outdoor museums, office workspaces, places of worship, ports, public transit and intercity passenger rail, real estate transaction, retail, and shopping centers. For regions approved to move more quickly through Stage Two, hair salons, barber shops, and dine-in restaurants may also reopen with modifications. Their guidelines and checklists can be found here: https://covid19.ca.gov/safer-economy/

A careful reading of these guidelines is important, as they provide direction on a number of modifications for the safe re-opening of the business in question, including the requirement that some businesses post checklists to show customers and employees that they have reduced risks and are open for business. Moreover, the guidelines cross-reference additional applicable guidelines and safe practices provided by other government agencies such as Cal/OSHA, the U.S. Food and Drug Administration, and the CDC, which should also be carefully reviewed and implemented.

As Governor Newson indicated during his update over the Memorial Day weekend, in addition to the statewide guidance and modifications, the regional variances allow for adjustments and announcements related to guidelines on a regional basis as well. However, they are making modifications in real-time and not waiting for news conferences to announce them. Therefore, employers in all California counties should continue to monitor changes in the law and consult with legal counsel regarding updates to the employer’s obligations in response to the COVID-19 pandemic and safe business re-openings. Please contact Sylvia V. Panosian or Klinedinst’s employment team if you have any questions.

About the Author

Sylvia V. Panosian is an attorney in the firm’s Los Angeles office where she represents clients in general liability, employment, and business litigation in both state and federal courts. Ms. Panosian has practiced civil litigation in a range of issues, including gender violence, sexual harassment, assault/battery, whistleblower, disability, age, race, gender, and sexual orientation discrimination, as well as wage and hour violations for individual wage cases and PAGA actions.

About Klinedinst

Klinedinst is the go-to firm for clients looking for litigation, trial experience, transactional representation, and legal counsel.  The firm’s offices in Los Angeles, Sacramento, San Diego, Irvine, and Seattle service the entire West Coast. What sets Klinedinst apart is the relationship our attorneys foster with each and every client. Klinedinst lawyers are indispensable strategic partners to business leaders, helping to achieve business objectives and create proactive solutions to resolve the many legal challenges that businesses are confronted with every day.  Whether vigorously advocating for business clients in court, or guiding business transactions and negotiations, Klinedinst is the trusted legal advisor to have by your side.

This article is intended to be for informational purposes only. This information does not constitute legal advice. The law is constantly changing and the information may not be complete or correct depending on the date of the article and your particular legal problem. The use of information from this article does not create any type of attorney-client relationship.

By James D. Snyder

With the majority of the world working remotely due to COVID-19, we are all trying to adjust and continue to be productive in these very uncertain times.  When we are in the office, we take for granted the data security and privacy protections that are readily available. At home, there are certain risks involving data privacy that we should be aware of. This brief article will identify some of the data privacy issues to consider while working remotely for the foreseeable future to ensure that when we transition back to office-life, our data (and our customers, clients, patients, etc.) will be safe and protected.

When working from home, you connect to your home Wi-Fi network and the risk of a data breach is generally higher at home given less protection. The security built into the office’s network is not as robust at home generally making home an easier target for things like malware and malicious attacks. If you are using an unsecured Wi-Fi connection, always refrain from using your login information because your data can be intercepted by third parties. All of your data can be accessed in these circumstances while on the unsecured network. If the company has a virtual private network (VPN) option, it is a great idea to use the VPN access because the VPN establishes a secure and encrypted connection.  This will provide greater privacy and security protection than a secured Wi-Fi! It is a good idea to, therefore, follow company guidelines and if possible, secure your home network (or use a VPN) and use commercially available antivirus software or firewalls.

While it may be easier and quicker to send that quick email on your personal device when you are working at the house, keep in mind that your personal laptop (as an example) likely has less security and backup software access and therefore it is riskier than your company-issued devices.  Your personal device is much more likely to be infected with malware (without you even being aware) and accessing company data through your personal device can, therefore, infect the company’s data.  Using a personal laptop at home could also potentially open up access to your personal data stored on your computer to your employer.  Neither your employer nor you want that…

One simple way to safeguard data is to lock your computer when leaving your home work station.  This is a good practice even while in the office and should be followed regularly.  Much of what we do nowadays can be done on your smartphone as well so protecting your phone (and computer) with an appropriate password is highly recommended.  It is likely that your company already requires you to change your passwords every 30, 60, or 90 days.  Following this and using challenging passwords is really necessary as hackers are becoming more and more capable (get in the practice of updating your phone’s password with your computer at the same time).  

In addition to locking your devices down, another simple measure is to not leave your devices unattended.  Leaving your laptop or smartphone can create an opportunity for someone to access the device without your knowledge.  If your device were to be taken or accessed the device’s data can be downloaded or deleted (even if there is not a breach, losing data can be disastrous).  Of course, if the devices are locked you may be in the clear, but keeping the devices in a secure location is a good idea as well.

Regardless of whether you have a secure network, backing up your data is critical these days.  No one wants to have to recreate massive amounts of data due to a data loss.  Loss of data may also be considered a data breach and under the California Consumer Privacy Act (CCPA), your company may require access to the data to produce data due to consumer requests.  Given working from home increases your vulnerability to security attacks, and given computers can simply be damaged or fail, backing up data can really be a lifesaver if something were to go wrong.  There are ample cloud-based backup options and your company may already provide you with access.  Consult your company’s IT group (if applicable) and discuss your back up options—you’ll be happy you did if you, unfortunately, have a data loss.

Finally, if you deal with personal health information (PHI) then the Health Insurance Portability and Accountably Act (HIPAA) applies and needs to be considered.  The Department of Health and Human Services (HHS) regularly levies hefty penalties for the failure to properly manage remote worker’s access and protection of PHI.  There are many examples of penalties levied by the HHS, but one that comes to recent memory include a $750,000 settlement between Cancer Care Group and HHS due to a remote employee losing a laptop when the employee’s car was broken into (link:  https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/examples/cancer-care-group/index.html).  Another example is a settlement between Lincare and HHS for $240,000, where a remote employee failed to safeguard PMI by exposing and abandoning the records (link:  https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/lincare/index.html).  All of the above suggestions will certainly help protect PMI but employers should note which employees are remote workers and record the level of information to which these employees have access to (with respect to PMI).  If your company deals with PMI it is good to have robust data privacy and security policy and train all staff that has access to the PMI.  

Given the majority of the world’s workforce is working remotely now, it is a great time to revisit our data privacy and security practices and procedures.  Taking these steps will ensure the company is compliant with applicable data privacy laws (CCPA, GDPR, HIPAA, etc) and help you (the employee) keep data safe and secure.   

Should you or your company need help to secure your own or your employees homework environment, Klinedinst PC can help!  Our team of data privacy professionals can help customize a data privacy solution and training for you. We will work with you to understand your business’ needs and prepare a holistic solution to include data privacy and security policies and procedures, disaster recovery policies, confidentiality agreements, and data privacy agreements as well as policies for human resources such as a Bring Your Own Device (BYOD) policy.

About the Author

In his practice, Mr. Snyder represents clients in business transactions, M&A, and data privacy issues. He provides legal and compliance counsel to emerging startups and established companies in areas involving licensing, finance and investments, data privacy and security, corporate structuring, contracts, patent, trademark, copyright, and domain portfolios. He has built a reputation as an outside General Counsel, providing legal guidance on a wide range of issues. For questions about policies, documentation, or best practices for remote employees, contact Mr. Snyder at jsnyder@klinedinstlaw.com.

About Klinedinst

Klinedinst is the go-to firm for clients looking for litigation, trial experience, transactional representation, and legal counsel.  The firm’s offices in Los Angeles, Sacramento, San Diego, Irvine, and Seattle service the entire West Coast. What sets Klinedinst apart is the relationship our attorneys foster with each and every client. Klinedinst lawyers are indispensable strategic partners to business leaders, helping to achieve business objectives and create proactive solutions to resolve the many legal challenges that businesses are confronted with every day.  Whether vigorously advocating for business clients in court, or guiding business transactions and negotiations, Klinedinst is the trusted legal advisor to have by your side.

This article is intended to be for informational purposes only. This information does not constitute legal advice. The law is constantly changing and the information may not be complete or correct depending on the date of the article and your particular legal problem. The use of information from this article does not create any type of attorney-client relationship.

The following is an analysis of new emergency rules enacted by the California Judicial Council impacting both appeals and writ petitions. The analysis is written by Robert M. Shaughnessy, Shareholder and Certified Specialist in Appellate Law by the State Bar of California Board of Legal Specialization.

On March 19, 2020, Governor Newsom issued California’s stay-home order amidst the rising COVID-19 pandemic. Within days, the state’s trial courts were effectively closed to most civil litigants. Skeleton crews remained at shuttered courthouses to process criminal cases due to constitutional concerns. But to protect the health and safety of judicial officers, court staff, parties, and attorneys, only limited civil matters presenting emergency circumstances could access these scarce judicial resources.

Now in late April, it appears that anything resembling a return to normal operations for civil litigation matters at the trial court is months away. The current understanding is that the stay-home order will remain in place until California sees 14 consecutive days of decreasing new cases. Accordingly, the trial courts anticipate extending their current closures well into May.

Even assuming the stay-home order flattens the curve, and the courts reopen in four weeks, criminal cases will continue to receive priority over all civil matters for at least the next few months. Social distancing will also likely remain in place, resulting in reduced court staff and a further decreased capacity to hear civil trials and law and motion matters. In addition, the backlog of canceled civil law and motion hearings that must be rescheduled will number well into the thousands in the larger courthouses by the end of May. In other words, delayed and restricted access to justice will likely continue to hamper civil litigants well into the Fall, even under the best of circumstances. In San Diego alone, the number of civil matters which will need to be re-set by May 22 is estimated to approximate 15,000. Under a best-case scenario, in-person civil hearings would not resume until August.

California’s Judicial Council adopted a set of Emergency Rules on April 6, 2020, to address the court closures. These rules included “Emergency Rule 8: Emergency orders: temporary restraining or protective orders.” The rule applies “to any emergency protective order, temporary restraining order, or criminal protective order that was requested, issued, or set to expire during the state of emergency related to the COVID-19 pandemic.” (Em. Rule 8(a).) And it includes language providing that courts must provide a means for the filing of ex parte requests for temporary restraining orders. (Em. Rule 8(c).) But Rule 8’s application seems limited to matters of domestic violence, harassment including workplace harassment, threatened gun violence, and juvenile protective proceedings. (Em. Rule 8(a).) Even if the rule applied to requests to restrain conduct causing severe economic harm in a business-litigation context, it is not clear that trial courts currently have the judicial resources to timely consider restraining order applications in civil and business litigation matters where their judicial resources are halved, stretched to the breaking point, and focused on criminal matters. 

Klinedinst’s appellate attorneys can explore possible remedies in the Court of Appeal, either through an appeal, or a petition seeking a writ directing the trial court to grant relief. Access to the remedies of the appellate court may be available whether or not an appealable judgment or order exists. And unlike the trial courts, under the shut-down order California’s appellate courts continue to accept filings electronically, and continue to move forward with the processing of motions, appeals, and writ proceedings in civil and criminal matters. Oral arguments are also going forward by remote access. Klinedinst’s appellate attorneys are ready and able now to explore potential appellate court remedies, where access to the trial court is hindered by the severe conditions which prevail in this unprecedented time. 

About the Author

A seasoned litigator, Robert M. Shaughnessy  brings nearly twenty years of complex law-and-motion and appellate experience to the firm’s Appellate Practice Group. Mr. Shaughnessy frequently authors articles on various legal topics including the unauthorized practice of law, malicious prosecution, the Unfair Competition Law, and California’s Anti-SLAPP statute. He is a leader in the legal community, and currently serves as Chair of the San Diego County Bar Association’s (SDCBA) Appellate Practice Section, where he has held past positions as Program Chair and Civil Rules Comment Chair. Mr. Shaughnessy can be reached at rshaughnessy@klinedinstlaw.com.

Please Note

This article is intended to be for informational purposes only. This information does not constitute legal advice. The law is constantly changing and the information may not be complete or correct depending on the date of the article and your particular legal problem. The use of information from this article does not create any type of attorney-client relationship.

About Klinedinst

Klinedinst is the go-to firm for clients looking for litigation, trial experience, transactional representation, and legal counsel.  The firm’s offices in Los Angeles, Sacramento, San Diego, Irvine, and Seattle service the entire West Coast. What sets Klinedinst apart is the relationship our attorneys foster with each and every client. Klinedinst lawyers are indispensable strategic partners to business leaders, helping to achieve business objectives and create proactive solutions to resolve the many legal challenges that businesses are confronted with every day.  Whether vigorously advocating for business clients in court, or guiding business transactions and negotiations, Klinedinst is the trusted legal advisor to have by your side.

Klinedinst’s newest web-based tool helps connect clients with lawyers using the latest virtual teleconference services. It provides how-to guides, best practices, and links to useful resources as businesses and individuals increasingly connect with one another remotely.

SAN DIEGO, CALIFORNIA – With shelter-in-place orders remaining in place, many clients and legal professionals are trying to figure out best practices for connecting online. The use of teleconferencing services, such as Zoom, Webex, GoToMeeting, and others, is now helping connect clients with the legal resources they need in real-time.

To help navigate through the evolving world of web-based conferencing, Klinedinst has launched the new Lawyer Meeting Center, a new feature designed to offer useful tips and guides for individuals connecting with one another. The Lawyer Meeting Center covers a wide range of subjects, including:

• Teleconferencing Services
• Virtual Deposition Services
  
• Mediation Companies Offering Remote Services
  

Klinedinst’s Lawyer Meeting Center includes how-to guides and setup instructions, along with best practices for using these virtual tools. It also provides pros and cons for many of the different services, an online listing of the major providers. as well as useful links and articles.

“The Lawyer Meeting Center is designed to specifically help facilitate teleconferences, which are fulfilling an important role while we shelter in place,” said Scott Carr, who oversees marketing and communications for Klinedinst PC. “Many clients are new to teleconferencing, as are opposing counsel and mediators. This is a virtual resource guide that we hope will be helpful for connecting with lawyers, long after the COVID-19 pandemic has come and gone.”

The Lawyer Meeting Center is now available online.

About Klinedinst

Klinedinst is the go-to firm for clients looking for litigation, trial experience, transactional representation, and legal counsel.  The firm’s offices in Irvine, Los Angeles, Sacramento, San Diego, and Seattle service the entire West Coast. What sets Klinedinst apart is the relationship our attorneys foster with each and every client. Klinedinst lawyers are indispensable strategic partners to business leaders, helping to achieve business objectives and create proactive solutions to resolve the many legal challenges that businesses are confronted with every day.  Whether vigorously advocating for business clients in court, or guiding business transactions and negotiations, Klinedinst is the trusted legal advisor to have by your side.