CMCP Diversity Matters - January/February 2019

CMCP@30: 

TAKING THE 

MISSION FORWARD 

2019 NEWSLETTER 

COMMITTEE MEMBERS 

David A. Shimkin (Chair) 

Member 

Cozen O’Connor 

Michael Chung 

Senior Attorney 

Bowman and Brooke LLP 

Robert White 

Executive Director 

CMCP turns thirty this 

year. What a remarkable 

ride, from an idea born 

from impatience with the 

lack of diversity in firms 

and legal departments – 

and commitment to 

actually doing something 

about it, to a thriving 

organization recognized 

nationally for its efforts. 

Continued on page 2 

Karen A. Henry 

Counsel 

Davis Wright Tremaine LLP 

Gagandeep B. Kaur 

Assistant General Counsel 

State Bar of California, 

Office of the GC 

Sweta H. Patel 

Partner 

Klein, Hockel, Iezza & Patel P.C. 

Kelly Perigoe 

Partner 

Boies Schiller Flexner LLP 

Julia Y. Trankiem 

Partner 

Hunton Andrews Kurth LLP 

Jonathan M. Turner 

Partner 

Mitchell Silberberg & Knupp LLP 

Raffi V. Zerounian 

Partner 

Hanson Bridgett LLP 

MINORITY 

Published quarterly by 

California Minority Counsel Program 

465 California Street, Suite 635 

San Francisco, CA 94104 

Tel: 415-782-8990 

Email: newsletter@cmcp.org 

Web: cmcp.org 

© Copyright 2019

CONTENTS 

CALIFORNIA MINORITY COUNSEL PROGRAM | JANUARY/FEBRUARY 2019 

2 

4 

8 

11 

Letter from the ED 

Substantive Article 


Feature 

CMCP@30: Taking 

the Mission Forward 

CMCP turns thirty this 

year. What a remarkable 

ride, from an idea born 

from impatience... 

#MeToo Movement 

Prompts California 

Legislature to 

Expand the Ban on 

“Secret Settlements” 

While the California 

Legislature 

acknowledges... 

A Recent Court of 

Appeals Ruling Chips 

Away at the Validity 

of Non-Solicitation 

Provisions 

California Business 

and Professions Code 

section 16600... 

Marc Jones, Chair of 

Corporate and 

Business Transactions 

Group for Mitchell 

Silberberg & Knupp 

The responsibilities that 

come with heading up 

the corporate and... 

13 

20 

23 

26 

CMCP Annual 

Business Conference 

2018 - Recap of 

Recaps 

Diversity in Law 

Kick Out the 

Imposter: How 

Young or Diverse 

Attorneys Can 

Overcome the 

Imposter Syndrome 

You’re in a crowded 

courtroom filled with 

other attorneys,... 


California Court 

of Appeal Follows 

Dynamex to Apply 

ABC Test to Wage 

Order Claims 

In our last newsletter we 

discussed the California 

Supreme... 


The 2018-2019 

Amendments to 

the Federal Rules 

of Civil Procedure: 

A Few Practical 

Changes That Close 

Procedural Gaps 

and Better Align 

Procedure with 

Practice 

32 

Diversity Calendar 

In addition to holiday 

cheer, this past 

December ushered in...

Letter from the Executive Director 

We have much to be proud of, and to appreciate, 

about CMCP’s successes over 30 years: the 

number of law firms and legal departments that 

have come on board to advance diversity in their 

own organizations and in the field; the number 

of fruitful connections members have made, the 

richness of programs promoting business and 

professional development for attorneys of color. 

If you were fortunate to attend our 29th Annual 

Business Conference in October, you witnessed 

some of the best of the CMCP conference 

experience. We took a very difficult situation, 

having to cross a picket line, and created an 

even stronger sense of community and shared 

commitment to our mission among attendees. Our 

Opening GC Panel featured leaders who brought 

a different perspective to how they view diversity 

and their involvement. “Being the She-EO of 

Your Career: Perspectives of Women Attorneys 

of Color” bravely explored real world issues with 

amazing candor and was standing room only. Our 

scheduling conflict with other organizations’ events 

meant some of our regulars could not attend, but 

in their place we had a wave of new faces who 

were embraced and had a remarkable experience 

attending the conference for the first time. 

CMCP has built a great legacy, and the legal 

community has made a lot of advances since 1989, 

but challenges remain, and progress is slow. We 

still hear refrains of “the legal profession is not 

diverse, and nothing seems to make a real impact.” 

Slow progress does not mean failure; it means 

opportunity to try harder. Everyone has a theory 

about why we haven’t done better at achieving 

diverse and inclusive workplaces in our law firms 

and legal departments. I have at least two theories 

which are also opportunities for us to do even more. 

First, in trying to get more business opportunities 

and career advancement opportunities, we cannot 

risk losing focus on principles of fairness and 

doing the right thing. Case-in-point, I have 

participated in numerous conversations with 

attorneys about programming and CMCP 

involvement where it was clear the real interest 

for law firms was in recruiting clients, and for inhouse 

counsel in promoting their company brand 

and giving a platform for lawyers to boost their 

profile for future career opportunities. Neither of 

these motivations is wrong, but when they become 

the driver for diversity events it is problematic. 

At our best we are able to balance promoting 

the success of individual member organizations 

and minority attorneys and service to the entire 

community. I am grateful for the many attorneys 

and organizations we are able to partner with in 

that spirit and invite others to come work with us. 

Second, in today’s legal profession there are more 

diversity councils and committees, more diversity 

professionals and more diversity initiatives than 

anyone could have imagined years ago. Everywhere 

we look there are new calls to action, initiatives and 

events celebrating diversity award winners. 

I wonder if in the growing attention to and 

commercialization of diversity in the legal 

community we lost our way somewhat. 

We’ve created a resource-rich environment 

for advancing diversity in many ways. The 

opportunity we have now is to use this energy and 

these resources to effect systemic changes, and 

also to drive for meaningful personal engagement 

2 | California Minority Counsel Program

y mentors and sponsors which can make a real 

difference for diverse lawyers. The 2018 Annual 

Business Conference special session, “Power Up 

Your Diversity and Inclusion Committee” featured 

information sharing about best practices and 

also frank conversation about the tough issues in 

making diversity efforts effective. I love that CMCP 

was able to do this and look forward to creating 

more spaces for conversation and collaboration. 

conversation with a diverse attorney you see 

but seldom talk to 

• Push your boundaries by attending a 

program of a group you don’t know much 

about; step into being that person who 

brings up the diversity thing in business 

meetings 

• Invite colleagues to join you when you attend 

CMCP or other diversity organization events. 

When I look at the people and organizations that 

have carried CMCP forward, a common theme 

is the buy-in of individuals who advocate for 

CMCP, call their organizations to account for their 

diversity efforts and stay personally involved in 

mentoring and sponsoring attorneys. They provide 

energy and a sleeves rolled up effort that helps 

us in building our programs and resources for 

members. These were and are the true believers, 

and we need a reawakening of their spirit and 

a new wave of committed individuals who put 

diversity and the community first. 

All these actions make a difference. 

And look for CMCP this year to recognize and 

find ways to leverage the many individuals on our 

community who give of themselves, and who value 

advancement of the community of attorneys of color. 

True Believers, we appreciate you and need you 

more than ever. 

Moving forward in solidarity, 

For CMCP’s 25th anniversary we created the 

Diversity Leader Hall of Fame to recognize the 

many individuals who supported CMCP in its early 

years and laid the groundwork for the community 

we enjoy today. This year, for our celebration of 

CMCP’s 30th anniversary, let’s focus on what we 

have learned over 30 years that we can use to 

sharpen our focus and redouble our efforts to 

advance our mission. 

My ask of you this year is to please lend us and 

the community your energy and support: 

• Be an informal mentor and sponsor by 

slowing down enough to have a meaningful 

January/February 2019 | 3

#METOO MOVEMENT PROMPTS 

CALIFORNIA LEGISLATURE TO 

EXPAND THE BAN ON 

“SECRET SETTLEMENTS” 

BY: KAREN A. HENRY 

COUNSEL, DAVIS WRIGHT TREMAINE LLP 

4 | CMCP Diversity Matters

In the wake of the #MeToo Movement, the 

Legislature found that the public policy arguments 

justifying the ban on secret settlements of the 

types of civil actions listed in Section 1002 

apply with equal force to the spate of sexual 

harassment, sexual assault and workplace 

harassment cases that have flooded the headlines 

since October 2017. Using one recent high-profile 

case as an example, an analyst for the Assembly 

Committee on Judiciary noted: 

While the California Legislature 

acknowledges settlement 

agreements as “the grease that 

keeps the wheels of the civil 

justice system moving,” 1 it 

also has declared that requiring confidentiality 

as a condition of settling certain kinds of civil 

and administrative actions is against public 

policy. Such “secret settlements” generally are 

considered inappropriate in cases “involving 

particularly vulnerable victims, highly dangerous 

behavior, or especially egregious conduct that can 

present an ongoing hazard.” 2 Thus, California 

Code of Civil Procedure Section 1002 proscribes 

the inclusion of confidentiality provisions in 

agreements to settle any civil action the factual 

basis for which is an act that may be prosecuted 

as a felony sex offense, an act of childhood sexual 

abuse, an act of sexual exploitation of a minor, 

or an act of sexual assault against an elder or 

dependent adult. These proscriptions were 

enacted recognizing that “secret settlement of 

these claims could endanger the public, including 

other potential victims, and allow perpetrators to 

escape public scrutiny just because they have the 

financial means to pay the cost of settlements.” 3 

[A prominent film executive] has been 

accused by at least 80 women of sexual 

misconduct, including rape, sexual 

assault and harassment. For decades, 

his predatory behavior was kept secret 

in part due to the legal instruments that 

allowed him to hide behind the guise of 

confidentiality through secret settlements 

or lifelong nondisclosure agreements 

(NDAs) created to protect him. The 

settlements commonly included draconian 

penalties for breach of confidentiality or 

disclosure. Such agreements effectively 

barred victims from ever sharing their 

stories. The use of NDAs or secret 

settlements in these cases allows repeat 

offenders to continue to harass while 

silencing victims. 4 

Enter Senate Bill 820. Introduced by Senator 

Connie M. Leyva, Senate Bill 820 adds Section 

1001 to the Code of Civil Procedure, which 

expands the ban on “secret settlements” to civil 

and administrative actions involving claims 

of sexual assault, sexual harassment and 

harassment or discrimination based on sex. 

More precisely, Section 1001(a) expressly 

prohibits “a provision within a settlement 

agreement that prevents the disclosure of factual 

information related to a claim filed in a civil 

Continued on next page... 


action or a complaint filed in an administrative 

action, regarding any of the following”: 

• An act of sexual assault that is not governed 

by Section 1002(a); 

• An act of sexual harassment, as defined in 

Section 51.9 of the Civil Code; 

• An act of workplace harassment or 

discrimination based on sex (or failure to 

prevent such harassment or discrimination) 

or an act of retaliation against a person 

for reporting harassment or discrimination 

based on sex, as described in Government 

Code sections 12940 (h)-(k); or 

• An act of harassment or discrimination 

based on sex, or an act of retaliation against 

a person for reporting harassment or 

discrimination based on sex, by the owner of 

a housing accommodation, as described in 

Government Code section 12955. 5 

Notably, any provision in a settlement agreement 

entered into on or after January 1, 2019 

purporting to prevent the disclosure of factual 

information related to the claims described in 

Section 1001(a) is void as a matter of law and 

against public policy. 6 As the California Supreme 

Court observed in Yvanova v. New Century 

Mortg. Corp., 7 a void provision “is without legal 

effect.” “It binds no one and is a mere nullity.” 8 

This means that a confidentiality provision in 

a settlement agreement entered on or after 

January 1, 2019 that runs afoul of Section 

1001(a) will be entirely unenforceable. 

The Legislature has carved out two exceptions, 

however. First, the parties are permitted to 

keep confidential the amount paid to settle a 

claim. 9 So a provision in a settlement agreement 

that precludes the disclosure of the settlement 

amount will not violate Section 1001(a). Second, 

at the plaintiff’s or claimant’s request, the 

parties may include in a settlement agreement 

a provision that prohibits the disclosure of the 

plaintiff’s or claimant’s identity, including any 

facts that could lead to the discovery of his or 

her identity. 10 This latter exception does not 

apply, however, if a government agency or public 

official is a party to the settlement agreement. 11 

Given that the effective date for Section 1001 was 

January 1, 2019, practitioners should be mindful 

of two important things: 

1. The proscriptions in Section 1001(a) 

apply only after a civil or administrative 

action is filed. Thus, if you represent 

a plaintiff or claimant with a cause 

of action that falls within Section 

1001(a) and his or her main objective 

is settlement, don’t file the action 

too soon. Filing the action severely 

restricts the scope of any confidentiality 

provision, which may hinder your ability 

to settle. Rather than using a complaint 

or other initiating document to get the 

defendant’s attention, draft a detailed 

and persuasive demand letter, carefully 

laying out the basis of your client’s 

case. 12 Note in the demand letter that, 

to the extent a robust confidentiality 

provision would be material to 

settlement, the parties must reach 

agreement before your client files his or 

her action. 

2. If you represent a defendant who has 

received a demand letter asserting 

claims that fall within Section 1001(a), 

evaluate the possibility of settlement 

as early as possible and make sure you 


advise your client that the possibility 

of including a broad confidentiality 

provision in a settlement agreement 

disappears once the action is filed. 13 

Opponents of Senate Bill 820 cautioned that its 

enactment would expose employers to a public 

presumption of guilt, forcing employers to try 

cases to preserve their public image/brand that 

they otherwise would have settled. If settlement 

agreements really are the grease that keeps the 

wheels of the civil justice system moving, only 

time will tell whether Senate Bill 820’s enactment 

will cause those wheels to grind to a halt or simply 

move a bit slower. 

Karen Henry is an attorney in Davis Wright Tremaine's Los Angeles office. 

She maintains a broad and diverse practice, focusing primarily on media, 

IP, and entertainment law. For more info about Karen, click here. 

1 Assem. Com. on Judiciary, Analysis of Sen. Bill No. 820 (2017-2018 Reg. Sess.) as amended June 20, 2018, p. 4. 

2 See id. 

3 See id. at 5. 

4 See id. at 4. 

5 Courts also are prohibited from entering any orders (by stipulation or otherwise) that restricts the disclosure of factual information 

related to these types of claims filed in civil or administrative actions. See Cal. Civ. Proc. Code § 1001(b). Thus, for example, in 

civil and administrative cases alleging claims that fall within the categories enumerated in Section 1001(a), courts cannot approve 

stipulated protective orders that allow the parties to designate as confidential documents, deposition transcripts or other discovery 

material containing factual information related to those claims. 

6 See Cal. Civ. Proc. Code § 1001(d). 

7 62 Cal. 4th 919, 929 (2016). 

8 Id. 

9 See Cal. Civ. Proc. Code § 1001(e). 

10 See Cal. Civ. Proc. Code § 1001(c). 

11 See id. 

12 Alternatively, you could enclose an unfiled draft of a complaint or other initiating document with your demand letter. 

13 It is unclear whether a deal memorandum agreed to by all parties on or before December 31, 2018 will permit a broad confidentiality 

provision to be included in a long-form, final settlement agreement papered and executed on or after January 1, 2019. The statutory 

language indicates that the proscriptions on confidentiality provisions apply to settlement agreements “entered” on or after January 

1, 2019. In theory, a deal memorandum may show that the parties’ agreement was “entered,” but the legislation offers no specific 

guidance on this point. 


A RECENT COURT 

OF APPEALS 

RULING CHIPS 

AWAY AT THE 

VALIDITY OF NON- 

SOLICITATION 

PROVISIONS 

BY: SWETA H. PATEL 

PARTNER, KLEIN, HOCKEL, IEZZA & PATEL P.C. 

California Business and Professions 

Code section 16600 invalidates any 

agreement, with limited exceptions, 

that restrains a person “from 

engaging in a lawful profession, 

trade, or business of any kind.” Although section 

16600 has been interpreted to prohibit noncompete 

agreements, non-solicitation agreements 

have generally been upheld such that former 

employees could not solicit employees of their 

former employer. However, on November 1, 2018, 

the California Court of Appeal, Fourth Appellate 

District departed from the norm and refused to 

uphold a non-solicitation agreement. Instead, the 

Court affirmed the trial court’s ruling in AMN 

Healthcare, Inc. v. Aya Healthcare Services, Inc. 


et al., No. D071924, 2018 WL 5669154 (Cal. App. 

2018), which held that a non-solicitation provision 

could not prevent a recruiter from recruiting 

employees from his or her former employer. 

TRIAL COURT’S RULING 

AMN Healthcare, Inc. (“AMN”) sued its competitor 

Aya Healthcare Services, Inc. (“AYA”) and its 

former employees for violating a non-solicitation 

agreement. The former employees had been 

recruiters for AMN and executed Confidentiality 

and Non-Disclosure Agreements preventing them 

from soliciting any AMN employees for at least one 

year after their employment at AMN ended. These 

recruiters left AMN and went to work for AYA, 

which like AMN provides temporary healthcare 

professionals, in particular "travel nurses," to 

medical care facilities. AMN’s lawsuit alleged that 

the former employees had breached the terms of 

that agreement by recruiting temporary workers 

that AMN had previously employed. 

The former employees countersued alleging that 

AMN was engaged in unfair competition, and 

sought declaratory relief. AYA alleged that the 

non-solicitation provisions were an unlawful 

restraint of trade and that AMN was enforcing 

them to discourage former employees from 

obtaining employment with AMN’s competitors. 

The trial court granted AYA’s and the former 

employees’ motion for summary judgment, 

determining that the non-solicitation provision 

was invalid under section 16600 and awarded 

$190,000 in attorneys’ fees against AMN. The trial 

court explained that since the recruiters were in 

the business of recruiting, any restriction on their 

ability to solicit would necessarily restrain their 

right to engage in their chosen profession, and 

would thus violate section 16600. The trial court 

also issued a statewide injunction against AMN 

with respect to the non-solicitation agreement. 

The trial court’s decision and injunction prevented 

AMN from “using, enforcing or attempting to 

enforce any contract or employment agreement in 

the State of California which purports to restrain 

its former employees from directly or indirectly 

soliciting or inducing or causing others to solicit 

or induce, any employee of AMN to leave the 

service of AMN.” 

TRIAL COURT RULING AFFIRMED 

The Court of Appeal affirmed the trial court’s 

rulings in its entirety rejecting AMN’s claim 

that the non-solicitation provision was valid 

because it merely prohibited the recruiters 

from soliciting current AMN employees.¹ The 

Court rejected AMN’s attempt to analogize 

its non-solicitation provision to Loral Corp. v. 

Moyes, in which the court determined that the 

employee non-solicitation provision was more 

like a nondisclosure agreement rather than a 

non-compete agreement because the former 

employee was simply prohibited from “raiding” 

the employees of his former employer.² The 

Moyes Court reasoned that the “restriction only 

slightly affects [the plaintiffs'] employees. They are 

not hampered from seeking employment with [the 

defendant's new employer] nor from contacting 

[the defendant]. All they lose is the option of 

being contacted by him first. It does not restrain 

them from being employed by [the defendant's 

employer], contrary to defendant's argument.”³ 

The Court questioned the “reasonableness 

standard” proposed by Moyes and concluded that 

it “doubt[ed] the continuing viability of Moyes 

post-Edwards.” Edwards v. Arthur Andersen LLP 

reasoned that "if the Legislature intended [section 

16600] to apply only to restraints that were 

unreasonable or overbroad, it could have included 

language to that effect," but it did not. 4 



The AMN Court determined that notwithstanding 

the survival of the “reasonableness standard” 

after Edwards, Moyes was factually 

distinguishable. The Court distinguished AMN’s 

former employees’ recruiting role from the role 

of the former executive officer in Moyes, who was 

not similarly burdened by the restrictions set forth 

in the non-solicitation provision. The Court held 

that the provision clearly restrained the recruiters 

from working for AYA in their chosen profession 

– recruiting travel nurses. The non-solicitation 

provision restricted the number of nurses with 

whom a recruiter could work while employed by 

his or her new employer, which meant that the 

non-solicitation provision was limiting the amount 

of compensation a recruiter would receive from 

the new employer. 

Employers with California operations and 

California employees should review their nonsolicitation 

agreements to assess whether the 

provision restricts an employee’s mobility and 

competitiveness. If the answer is yes, then the 

provision is likely to be held unenforceable in light 

of the AMN decision unless a trade secret is at 

issue. For the time being, it is entirely possible for 

an employer to determine that its non-solicitation 

provision would be upheld for one employee, but 

be unenforceable for another employee. Given the 

uncertainty of the law, and given the potential for 

attorney’s fees if a non-solicitation provision is 

unenforceable, employers must be cautious before 

deciding to enforce such a provision. 

KEY TAKEAWAYS FOR EMPLOYERS 

In light of the AMN decision, employers should 

not assume that post-employment restrictions 

on employee solicitation are enforceable. A nonsolicitation 

provision for a recruiter would likely 

be unenforceable in light of the AMN decision. 

What does AMN mean for non-recruiter 

employees in California? It is unclear whether 

AMN means the end of non-solicitation 

agreements or whether courts will limit the 

application of the decision to recruiters. 

Sweta Patel is a Partner at Klein, Hockel, 

Iezza, & Patel, PC, who focuses her 

practice on labor and employment and 

pharmacy law. Sweta also represents 

businesses in a variety of general 

commercial litigation matters, including 

lease disputes and breach of contract 

claims. For more info on Sweta and her 

practice, Click Here. 

1 In addition to contending that the recruiters breached their agreement, AMN argued that the identity of AMN’s employees was 

confidential information, and that the recruiters and AYA improperly used that information in recruiting the AMN employees. However, 

the Court found that the identity of employees was not a protectable trade secret. Moreover, the undisputed evidence showed that 

the identity and contact information of travel nurses that AMN claimed to be "secret" were already known to AYA before any of 

individual defendants left AMN and went to work for AYA. 

2 Loral Corp. v. Moyes (1985) 174 Cal. App. 3d 268, 279. 

3 Id. 

4 Edwards v. Arthur Andersen LLP (2008) 44 Cal. 4th 937, 950. 


Member Attorney 

Spotlight 

MARC 

JONES 

CHAIR OF CORPORATE 

AND BUSINESS 

TRANSACTIONS 

GROUP FOR MITCHELL 

SILBERBERG & KNUPP 

BY JONATHAN M. TURNER, PARTNER 

MITCHELL SILBERBERG & KNUPP LLP 

The responsibilities that come 

with heading up the corporate 

and business transactions group 

for Mitchell Silberberg & Knupp 

(“MSK”) are heavy, but Marc Jones 

is no stranger to professional challenges. Marc’s 

strength as a leader and important player in the 

management of MSK was forged years before 

he made the decision to pursue a legal career, 

at a time when serious obstacles obscured his 

path towards success. Marc recalls, for example, 

when his elementary school teachers concluded 

that because of his “disruptive behavior” in class, 

whenever he finished his class work early, he 

should be placed in the school’s remedial program. 

Fortunately, Marc’s parents did not accept this 

assessment and scraped enough money together 

to move his family to a new school district with 

a better elementary school. The teachers in that 

school determined that the curriculum offered 

in the prior school simply failed to meet Marc’s 

need to be better stimulated and challenged in 



class and Marc tended to talk to other students 

when he finished work early. This new school also 

determined that Marc was gifted in mathematics 

and immediately gave him much advanced 

coursework for his grade level. 

While Marc’s parents did their best with what 

they had, neither had graduated from college, let 

alone professional school, so they could not be the 

doting and engaged stewards of Marc’s college 

education the way many well-educated parents 

are these days. Furthermore, due to increasing 

discord with his parents, Marc moved out shortly 

after his 18th birthday. Not surprisingly, the 

simple procedures for adding and dropping 

college classes and completing all the financial 

aid paperwork for scholarships and loans to pay 

his tuition on time were a complete mystery to 

him. As a result of all these factors, when Marc 

began his studies at UC Davis, there were a few 

“false starts” -- he struggled in his humanities 

coursework and got kicked out of school after 

his first year. He began working as a laborer in a 

canning factory in the nearby city of Sacramento 

during his hiatus from school before deciding to 

give school another try. Marc continued to work 

at the canning plant in Sacramento during the 

graveyard shift for four more years while he 

completed his education at UC Davis. 

When asked what motivated Marc to resume 

and complete his undergraduate studies at UC 

Davis, and thereafter pursue and obtain his law 

degree and MBA from UCLA, Marc credits certain 

teachers who served as mentors and motivators. 

One professor in particular – his first philosophy 

professor -- took a special interest in Marc, 

making him his research assistant and teaching 

him how to write effectively and communicate 

persuasively. These skills, of course, are essential 

tools of the trade for most lawyers, and they 

have served Marc well in his time at MSK. He 

now serves as chair for MSK's corporate and 

business transactions practice group. Marc’s 

entrepreneurial nature has helped to guide his 

department into the forefront of modern corporate 

transactional practice. Not an easy task for a firm 

that was established in 1908! 

In addition to being the first African American 

partner to chair MSK’s corporate and business 

transactions department, or any other major 

department, Marc also serves on the firm’s 

hiring committee and ethics committee. In those 

additional roles, Marc works closely with the 

firm’s diversity committee to ensure that MSK 

continues its strong commitment to achieving 

and maintaining attorney diversity at the firm. 

This is an important goal for Marc. He notes 

that recruiting diverse attorneys should be the 

beginning, not the end of a hiring process. New 

lawyers need to be encouraged to stay and they 

need to feel there is meaningful advancement 

opportunity if they do. This becomes a more 

complicated challenge with new attorneys who 

come from diverse backgrounds and who are 

not sure whether they will fit in with the other 

attorneys. Having a person of color who not only 

is a partner in the firm but who chairs one of the 

firm’s major practice groups makes a difference 

for many new attorneys looking for role models 

and mentors. And, it goes without saying, but 

we’ll say it anyways -- diversity is the bedrock 

factor that contributes to creative, effective legal 

solutions to client issues! 

Jonathan Turner is a labor & 

employment partner in the Los Angeles 

office of Mitchell Silberberg & Knupp 

LLP (MSK). He represents studios and 

other employers in labor arbitrations, 

administrative proceedings, court 

litigation, union avoidance issues, and 

collective bargaining negotiations. 

Jonathan also defends employers 

at trial and on appeal in wrongful 

termination cases involving claims for 

racial discrimination, age discrimination, 

sexual harassment, and breach of 

employment contract. 


CMCP ANNUAL 

CONFERENCE 2018 

RECAP OF RECAPS 

BY: MARTHA SULLIVAN, PRINCIPAL, THORNTON MARKETING AND 

SHEENIKA S. GANDHI, DIRECTOR OF MARKETING & BUSINESS DEVELOPMENT, PAYNE & FEARS LLP 

POWER UP YOUR DIVERSITY AND INCLUSION COMMITTEE: 

Best Practices and Innovative Approaches for Maximum Impact 

Two-part session on October 11, 2018 

Sponsored by Latham & Watkins LLP 

MODERATORS: 

Adriene Plescia Lynch, Associate, Alston & Bird LLP 

Philip I. Person, Senior Associate, Greenberg Traurig, LLP 

PANELISTS: 

Hannah Birnbaum, Doctoral Student, Kellogg School of Management at Northwestern University 

Rekha Chiruvolu, Director of Diversity and Inclusion, Nixon Peabody LLP 

Sylvia F. James, Director of Diversity and Inclusion, Winston & Strawn LLP 

Mike H. Madokoro, Managing Partner, Bowman and Brooke LLP 

Tamara Y. Morgan, Senior Counsel/Strategic Leader of Equity Inclusion & Diversity, 

Kaiser Foundation Health Plan, Inc. 

The first session started with the question, “Does your workplace look like this room?” For many law 

firms, the workplace is still largely white and male, in stark contrast with the CMCP attendees at these 

sessions. 

Hannah Birnbaum presented information from her study of law firms. In her chart titled “Inequality in the 

Legal Profession,” there was an obvious gender and racial gap. Information on the slide was provided by 

a recent ABA study that indicated that the profession is 88% white. The “persistence of inequality” exists 

for attorneys, more than other professions. 



Birnbaum discussed the business case for diversity and cautioned that this is a long-term solution, not a 

short-term fix. The benefits of a diverse workforce include improved decision-making, more innovation and 

creativity, and a reduction in conformity. The best outcomes result from the commitment of management. 

TAKEAWAYS FROM BIRNBAUM’S SURVEY 

• It is not enough to simply create a diversity committee 

• Diversity committees can backfire if not implemented carefully 

• Commitment from the top is essential for effectiveness 

• Positives of involvement: 

○○ 

Personally rewarding 

○○ 

Social support of community 

○○ 

Improved visibility and reputation 

• Negatives of involvement: 

○ ○ “Office homework” 

○○ 

Extra work created frustration and burnout 

○○ 

D&I work overshadowed legal work that was important for compensation 

• Tactics to get commitment: 

○○ 

Social accountability 

○○ 

Personal Experiences 

○○ 

Business Case for Diversity 

The audience was polled on the five questions below, and discussed by the panel at both sessions. 

1. Do you feel that top management at your workplace is truly supportive of diversity and inclusion? 

○○ 

Firm leadership and senior management has to be included. Passion without power is not effective. 

○○ 

For diverse members, the committee has provided leadership opportunities and visibility. 

○○ 

D&I issues are elevated by having a representative from management present at every meeting. 

○○ 

Management’s role at these meetings is to listen. 

○○ 

Budget is always an issue, so ROI is important. The committee has to understand the other 

priorities of the company and become a “tool of leadership.” 

2. Do you feel that the leadership at your workplace is effectively promoting diversity and inclusion? 

(Audience response: No – 61%; Yes – 38%) 

○○ 

Bowman and Brooke has a checklist of 60 “acts of inclusion” to promote diversity and empower 

others. Mike Madokoro said it is important to take white partners to conferences like CMCP, and 

to teach those who “don’t get it.” 

○○ 

Nixon Peabody has a diversity challenge that recommends spending 40 hours per year on D&I 

issues. They track the time spent by each attorney under a nonbillable code, and this work is part 

of an associate’s annual evaluation. 

○ ○ Winston & Strawn has established metrics that are included in the firm’s strategic plan, with 

information about how they will achieve their goals. 

3. Are you aware of your diversity and inclusion committee’s strategic plan? (Yes – 51%; No – 48%) 

○○ 

The D&I plan is part of the overall strategic plan, with realistic goals from each affinity group. 


○○ 

There are regional and national goals, as well as internal and external goals. Leadership buy-in 

is a given. 

○○ 

There is a five-year strategic plan with ten goals, one of which is to enhance D&I. 

○○ 

The Executive Committee sets ambitious goals with specific benchmarks. 

○○ 

The strategic plan is more than numbers, and it changes yearly. 

4. Should a D&I committee include persons who are not diverse? (Yes – 97%) 

○○ 

You will have more impact if different perspectives are represented in the room. If only one 

group is represented, you will be preaching to the choir. When diverse members are brave 

enough to talk about their experiences, their colleagues will understand them more and probably 

feel more comfortable around them. 

○○ 

There is a place for straight white men, as long as they don’t make up the majority of the 

members. Serving on a D&I committee provides an opportunity to educate SWM on diversity 

issues. 

○○ 

The D&I committee should be treated the way any firmwide committee would be: include 

representatives of different “tribes” so that all of them have a voice. 

5. Do you feel that your D&I committee has played a significant role in increasing the retention and 

promotion rate of diverse individuals? (Yes – 32%; No – 68%) 

○○ 

The committee can elevate information about associates and make recommendations for career 

path development and for promotions. 

○○ 

○○ 

○○ 

The committee has partnered with the leadership group to create training programs to increase 

retention, and they have done unconscious bias training that includes the neuroscience of 

decision-making. 

The committee can raise awareness of issues and teach people how to be more “culturally 

agile” about interacting with others. 

Retention and promotion are part of the firm’s DNA. When diversity is client-driven, it happens. 

BEING THE SHE-EO OF YOUR CAREER: PERSPECTIVES FROM WOMEN ATTORNEYS 

OF COLOR 

MODERATOR: 

Christiane A. Roussell, Counsel, Davis Wright Tremaine LLP 

PANELISTS: 

Clothilde Hewlett, Executive Director, Cal Alumni Association 

Hon. Sallie Kim, U.S. Magistrate Judge, U.S. District Court for the Central District of California 

Laura J. Maechtlen, Partner, Seyfarth Shaw LLP 

Leila S. Narvid, Partner, Payne & Fears LLP 

What does a successful career for a female, minority business attorney look like? In addition to financial 

success, recognition, balance, and a sense of purpose and progress toward their goals, the path to 

success for women of color in particular is marked by difficult decisions, sacrifice, risk and planning. 



The distinguished panelists shared honest and “real-talk” advice to help navigate through tough life 

decisions impacting their careers, workload, family and social lives on their journey to success. 

How do I choose a practice area? 

• Some people choose a practice area as a summer associate, and others change roles throughout 

their careers. 

• Be true to who you are in your circumstances at the time in your life. Consider what you are 

passionate about and let that influence your decision. 

• Be nimble. 

What is the toughest lesson you learned in your career? 

• Life isn’t fair. You can be the greatest lawyer in the world, but if your facts are bad, you still won’t win. 

• Not being your authentic self. 

• Grappling with the business of the law as a managing partner of an office. 

• Real success is mastering the adversity in the situation that you are in right now and enjoying the 

climb – life is so colorful because of all of the obstacles. 

How do I choose between my career and family? 

• Find a life partner who is not intimidated by a woman’s success. 

• Ditch the superwoman mentality. You can do whatever you want, but likely it will happen at different 

points in your life. 

• Give up control. Because lawyers are control freaks, they find it hard to let things go. Forgive yourself 

for having a messy living room because you just had a 12-hour work day. 

• Be okay with being imperfect, especially with your interests outside of work. 

• Don’t be ashamed of self-indulgence. Treat yourself. 

• If you want something, ask for it. We advocate for our clients, but forget to advocate for ourselves. 

YES, THEY REALLY SAID THAT! NOW WHAT? 

MODERATOR: 

Belinda S. Lee, Partner, Latham & Watkins LLP 

PANELISTS: 

Evelyn R. Carter, PhD, Research Scientist, UCLA Office of Equity, Diversity and Inclusion 

Jerry J. Ruiz, Shareholder, AlvaradoSmith, APC 

Jaron Shipp, Senior Legal Counsel, Litigation, Apple Inc. 

This session was an excellent practical exploration of the ways in which implicit biases can result in 

conduct ranging from the uncomfortable to the inappropriate and unlawful – and the effect on attorneys of 

color. A range of hypothetical scenarios focused on grey areas that are difficult to identify or navigate, and 

the panelists provided advice and practical tools for responding to questionable conduct. 


Have you ever been faced with a comment that was subtle, but still offensive? Many of us deal with 

these micro-aggressions on a daily basis. You could file a complaint (not always realistic), say something 

yourself (now or later), have someone else say something, or say nothing at all. Your options will depend 

on the context of the situation and the status of the other person involved, as well as the culture of your 

organization. 

The panel offered a suggestion that everyone can benefit from: create a cheat sheet. First, write down the 

top three micro-aggressions you experience. Then, write down the sentence stems you could use if you 

responded yourself, or if you asked someone to respond for you. Having a plan takes the mental calculus 

out of the way. If you choose not to say anything, write down ways you will employ self-care to avoid the 

negative consequence of rumination. For example, you could call someone for a vent session, get a 

massage or go on a shopping spree. 

The panel gracefully ended the panel with sage advice: 

• Believe someone when they tell you they are dealing with a micro-aggression. 

• Be kind to yourself. 

• We’re all allies together. When you have the opportunity to educate someone in the moment about 

another minority, gender group, then take it. 

• All of us need to fight racial and cultural bias. Confront it and interrupt it. 

BLOCKCHAIN: WHAT ALL LAWYERS NEED TO KNOW 

MODERATOR: 

Carolyn Sha, Associate, Mintz Levin Cohn Ferris Glovsky and Popeo PC 

PANELISTS: 

Kostas Gakis, Senior Business Analyst, Propy, Inc. 

Curtis L. Mo, Partner, DLA Piper LLP (US) 

Thomas Lloyd Smith, Attorney, Meyers Nave Riback Silver & Wilson, PLC 

Ellisen Shelton Turner, Managing Partner, Irell & Manella LLP 

Blockchain is a digital registry that is permanent, secure and decentralized. A history of transactions 

exists on a peer-to-peer network, meaning many servers have copies of the information. Each user is 

a node on the blockchain, and when connected, they each have a copy of the history of transactions. 

Blockchain is known for its permanent and secure nature. Blockchain allows for transparency, 

accountability, and increases trust. 

If you are considering blockchain technology, keep these important questions in mind: 

• Is a central database sufficient? If so, there is no need for blockchain. 

• Do you want to be in charge? Consider that blockchain involves multiple writers and requires 

consensus where each participant has to agree on the process. If there is mistrust among the 

group, blockchain can help keep everyone honest. 



• How many transactions will be recorded? 

• How many transactions per second are needed? 

• How much information needs to remain confidential? 

The panelists provided examples of blockchain usage: 

• A company could store IP registrations, so you could see who owns particular rights across multiple 

countries. 

• Real estate “smart contracts” could result in eliminating paper and making it hard to forge 

documents. 

• Bitcoin is an example of a financial application of blockchain. Bitcoin allows a user to mine, solve 

a computerized puzzle, and then trade coins. Bitcoin is just binary code and it is not backed by a 

precious metal, but rather by smart contracts that are self-executed. 

• The panelists believe that securities trading on a blockchain is inevitable because transactions can 

be executed through smart contracts and regulation will be easier. 

• Another potential use is for insurance. Blockchain technology could replace policies with selfexecuted 

smart contracts, where the rates are set and the forms are easier. This could improve the 

claims processing significantly. 

BUSINESS DEVELOPMENT BOOTCAMP 

Part One: Keeping it Real on Business Development 

MODERATOR: 

Michael H. Davis, Associate, Greenberg Traurig, LLP 

PANELISTS: 

Janice P. Brown, Founding Partner, Brown Law Group 

Catherine Y. Lui, Partner, Orrick, Herrington & Sutcliffe LLP 

Sandy Sakamoto, Partner, LimNexus LLP 

Joseph K. West, Partner and Chief Diversity and Inclusion Officer, Duane Morris LLP 

Many associates are motivated and excited about business development. But, as expressed by one young 

attorney, “Business development is my jam, but I don’t know how to spread it.” 

The panel offered practical suggestions on several topics, starting with strategy and planning. 

• Every attorney needs to have a business plan that focuses squarely on meeting new people and 

building a professional network. 

• A good business development plan can have a goal of bringing in one new client, because the 

exercise itself will pay dividends further down the road. 

• A critical component to any business development plan is a focus on relationships. Stay connected, 

be curious, ask questions, and you will see positive impacts! 

• The panel encouraged young lawyers to pay tribute to those people who help you. This demonstrates 


that you are a trustworthy person when you acknowledge and show gratitude for what other people 

have done for you. 

• Success in relationship building is completely dependent on what you put into it. You must be 

relentless in following up and following through on relationship-building activities, and you must be 

willing to expand relationships in all directions – above and below you in seniority, and stretched 

across geographies, practice areas, and industries. Put effort into building these relationships, but 

do so without an expectation for reciprocity. 

• If you are worried about asking a friend for business, know that asking for business isn’t going to 

destroy your relationship, even if they say no. That relationship may lead to business some day in 

the future. 

• The panel stressed that business development is a crucial component for a junior partner or 

associate’s development as a professional. You never know where your colleagues may go, so you 

must continue to build relationships over time; because, whether you know it or not, you are always 

interviewing for your next opportunity. 

• Attorneys have two types of currency: your skillset and your network. Far too many people focus on 

their skillset, and not their network, shying away from relationship-building because it is an organic 

exercise that isn’t transactional. 

• Diverse associates need to recognize that different perspectives and different thought-processes 

are valuable and can produce better results for their clients. 

Martha Sullivan is a business development coach 

for attorneys and other professional service 

providers. She is certified as a professional coach 

and has more than 25 years of experience in 

marketing and business development. For more 

info about Martha, click here. 

Sheenika leads the development, oversight 

and implementation of strategic marketing and 

business development objectives at Payne & 

Fears in Irvine. She is a strong project manager, 

creative thinker, and a trusted advisor for the firm’s 

attorneys and management. Her recent notable 

projects include: an integrated thought leadership 

strategy, a business development coaching 

program, and centralized budget and operational 

processes. For more about Sheenika, click here. 


KICK OUT THE 

IMPOSTER: 

HOW YOUNG OR 

DIVERSE ATTORNEYS 

CAN OVERCOME THE 

IMPOSTER SYNDROME 

BY NATASSIA KWAN 

ASSOCIATE, GREENBERG TRAURIG, LLP 

You’re in a crowded 

courtroom filled with 

other attorneys, and you 

realize you are surrounded 

by senior partners and 

seasoned attorneys with decades of 

experience in your practice area. What’s 

worse, none of these other attorneys 

around you “look like you.” You’re asked 

to stand and announce yourself to the 

judge and court reporter. As you stand 

and find your voice, you can’t help but 

feel like an imposter: do I belong here? Is 

this really happening? 

If you’re a young lawyer, or a diverse 

attorney, you’re not alone. The “imposter 

syndrome” has been called a secret 


compliments, women or minorities will 

deflect and say they “got lucky” or even 

point to what they could have done 

better, instead of simply saying thank you 

or owning the praise. In my experience as 

a Chinese American, graciously receiving 

praise is surprisingly difficult because 

many Asian cultures emphasize humility. 

But owning your accomplishments will 

help you internalize your own abilities 

and strengths. Deflecting praise and 

writing it off as “luck” reinforces feelings 

that you don’t belong and aren’t worthy 

of praise. Consider instead keeping an 

electronic or physical folder where you 

store the praise you receive for work 

you did, and revisit it periodically to 

remember the good work you have done 

recently and the praise you received for 

projects you worked hard to complete. 

epidemic in the legal profession, and 

describes the experience of highachieving 

individuals who feel fraudulent, 

and have difficulty internalizing their 

success and achievements. (Oregon State 

Bar Bulletin 36, Sept. 2017). This is a 

common phenomenon among women 

and diverse attorneys, as well as young 

new attorneys. Differing in any way from 

your peers - whether by race, gender, 

age, sexual orientation, or some other 

characteristic – can fuel the sense of 

being a fraud. How can we shake that 

imposter feeling that sneaks into our 

subconscious? I offer four suggestions. 

Don’t deflect praise, embrace it: Studies 

have shown that when receiving 

If you’re there, you deserve a seat at 

the table: Women and minorities often 

feel they need to “work harder” than 

their counterparts to fit in or prove their 

capabilities. That mentality can become 

a hindrance because they feel as though 

their efforts will never be enough to show 

that they truly belong. Those feelings may 

be deep-rooted in our upbringing, if in 

fact we did have to work harder, more 

hours, and later nights to get to the same 

point that our counterparts did. However, 

find comfort in the fact that if you are 

called into an important meeting, asked 

to go to court, or are accepted to work 

at your law firm, then you are worthy of 

a seat at the table. You earned that spot 

and are valued as a contributor, or you 

wouldn’t have been asked to take on that 

role, right? Resist the urge to compare 



yourself to the most accomplished person 

in the room. You have your own strengths 

to offer. Remind yourself what you can 

contribute and have already contributed, 

and remember: If you’re in the room, it’s 

because you deserve to be! 

Diversify the room: Some of you reading 

this article will have the opportunity 

to provide needed diversity to the 

aforementioned meeting, law firm, 

or court hearing. Maybe that means 

bringing along a junior associate, 

summer associate, or intern as you head 

off to court, or participating in hiring and 

staffing decisions. Don’t underestimate 

the impact this small action can have 

on that young attorney’s development 

and understanding of what a lawyer 

leader looks like. Pay it forward and be 

that mentor/leader you always wanted. 

Mentoring younger, diverse attorneys 

can also help you realize how far you’ve 

come and how much knowledge you have 

to impart – further reinforcing that you 

are not an imposter at all. 

Spread the message that the imposter 

syndrome is common: By definition, most 

people with imposter syndrome suffer in 

silence and don’t talk about it, because 

part of the syndrome is the fear that they 

will be outed as an imposter. But talking 

about it normalizes and deflates the 

feelings, particularly as those you talk to 

reinforce your value and contributions. 

Lawyers are known for their anxiety, 

stress, and self-doubt, and for younger 

lawyers especially, they live in a sea of 

worry. If you mentor or work with other 

attorneys that express or imply that they 

feel like an imposter and doubt their 

abilities – don’t be afraid to share your 

own experiences. Conversely, cultivate 

a relationship with a mentor who you 

trust, and create a safe space to share 

your doubts. Having someone who can 

offer a reality check can help keep things 

in perspective. Personally, I have found 

comfort in the surprising number of 

peers and colleagues who have shared 

their own experiences where they felt as 

if they didn’t belong. Ultimately, we did fit 

in and were valued members of the team 

all along, but sharing that we had all 

privately felt that way helped to explode 

the imposter myth and show that each of 

us did deserve to be here. 

Natassia Kwan is an associate attorney at 

Greenberg Traurig, LLP in San Francisco, California. 

She specializes in product liability and mass 

tort litigation, and has experience with medical 

device, pharmaceutical, automotive, and women’s 

health products. She is part of the ABA Section of 

Litigation’s Young Lawyer Leadership Program, and 

serves as a Young Lawyer Subcommittee Co-chair 

for the Mass Torts Committee. For more info about 

Natassia, click here. 


CALIFORNIA COURT 

OF APPEAL FOLLOWS 

DYNAMEX TO APPLY 

ABC TEST TO WAGE 

ORDER CLAIMS 

BY BETHANIE THAU 

ASSOCIATE, MITCHELL SILBERBERG & KNUPP LLP 

In our last newsletter we 

discussed the California 

Supreme Court’s decision 

in Dynamex Operations 

West, Inc. v. Superior 

Court, 4 Cal.5 th 903 (2018), 

which set a new standard for 

determining whether a worker 

is an employee or independent 

contractor under the Industrial 

Welfare Commission (IWC) 

wage orders. In the landmark 

decision, the Court adopted 

the so-called “ABC” test, which 

presumes that all workers are 

employees unless the hiring 

party proves otherwise under its 

stringent three-part test. 

Recently, in Garcia v. Border 

Transportation Group, LLC, 

a California Court of Appeal 

retroactively applied the “ABC” 

test to hold that summary 

judgment could not be granted 

in favor of a taxicab company 

that purported to engage drivers 

as independent contractors, 

and not as employees. While 

the Garcia Court provided 

additional guidance on part 

“C” of the ABC test, it arguably 

raised new questions that 

need to be answered in future 

cases involving wage and hour 

overtime claims that are being 



pursued not under a wage order 

but directly under the California 

Labor Code. 

GARCIA’S APPLICATION 

OF THE ABC TEST; 

FOCUS ON THE “C” 

FACTOR 

Under the ABC test, it is the 

hiring party’s burden to show: 

(A) that the worker is free from 

the control and direction of 

the hirer in connection with 

the performance of the work, 

both under the contract for 

the performance of such work 

and in fact; (B) that the worker 

performs work that is outside 

the usual course of the hiring 

entity’s business; and (C) that the 

worker is customarily engaged 

in an independently established 

trade, occupation, or business 

of the same nature as the work 

performed for the hiring entity. 

Under the ABC test, the hiring 

party bears the burden of 

overcoming the presumption 

of an employment relationship 

by proving each of the A-B-C’s. 

Failure to prove any one of the 

three criteria results in a finding 

of an employment relationship; 

accordingly, a court may address 

them in any order. The Garcia 

Court focused its attention on 

part C: the requirement that 

the worker be engaged in an 

independent trade. In reviewing 

this aspect of the test, the 

Garcia Court determined that 

the hiring party must show that 

the worker actually is engaged 

in an existing, independent 

business operation – a worker’s 

mere capability to engage 

in independent business is 

insufficient. Relying on the 

California Supreme Court’s 

discussion of this factor in 

Dynamex, the Garcia Court 

put emphasis on the worker’s 

independent decision – free 

from hiring party persuasion 

– to engage in an autonomous 

business. Evidence of such a 

decision could be found where 

the worker takes steps in 

furtherance of setting up that 

business, such as incorporating 

or obtaining relevant licensure, 

and placing advertisements or 

otherwise offering services to 

the public. 

The takeaway from this part 

of the Garcia Court’s decision 

is that when a hiring party 

engages a worker who did 

not have an established trade 

or business prior to such 

engagement, then part C of 

the Dynamex test has not been 

satisfied; hence, the worker 

could not be appropriately 

classified as an independent 

contractor. 

DOES GARCIA RAISE 

MORE QUESTIONS 

THAN IT ANSWERS 

REGARDING WHAT 

TYPES OF CLAIMS 

ARE GOVERNED BY 

THE ABC TEST UNDER 

DYNAMEX? 

The Garcia decision leaves 

labor and employment 

law practitioners with a 

bit of confusion and some 

unanswered questions. It seems 

to categorically state that the 

common law “right to control” 

standard established by the 

California Supreme Court in S.G. 

Borello & Sons, Inc. v. Dept. of 

Industrial Relations, 48 Cal.3d 

341 (1989), and not the threepart 

“ABC” test in Dynamex, 

applied to determine whether 

the plaintiff was an independent 

contractor for purposes of his 

“non-wage order” claims; yet, 

it is not clear which of the 

plaintiff’s claims actually fell in 

that category. Among the several 

claims the plaintiff pursued in 

Garcia were alleged violations 

of labor code sections 1194 and 

1197. Even before Dynamex, 

the California Supreme Court 

held, in Martinez v Combs, 49 

Cal. 4th 35 (2010,) that the 

three alternative definitions for 

employment that are contained 

in the IWC wage orders 

would control for purposes 

of determining wage claim 

violations under Labor Code of 

1194 and 1197. The reasoning 

was that the 1913 legislative 

history revealed that the IWC 


was tasked with determining 

when an employment 

relationship exists for purposes 

of those statutes. Id. at 64 

(“As we now have shown, an 

examination of section 1194 in 

its full historical and statutory 

context shows unmistakably 

that the Legislature intended to 

defer to the IWC’s definition of 

the employment relationship in 

actions under the statute.”) 

Notably, Dynamex did not 

overrule Martinez; rather, it 

cited Martinez with approval 

and merely expanded on one 

of those alternative definitions 

(i.e., the “suffer or permit to 

work” definition). Consequently, 

while Garcia expressly stated 

that the plaintiff’s overtime 

claims in that case were “nonwage 

order” claims, and that 

the ABC test therefore did not 

apply to those claims, this part 

of the court’s decision must 

be viewed within the context 

of the fact that the governing 

wage order in that case -- Wage 

Order 9, which covers, among 

other things, taxicab drivers in 

the transportation industry -- 

contains a provision specifically 

excluding taxicab drivers from 

certain protections under that 

wage order, including overtime 

protections. Because taxicab 

drivers do not have overtime 

protections under Wage Order 

9, the Garcia court appeared 

to hold that their status as 

employees for purposes of 

their overtime claims under 

labor code sections 1194 and 

1197, supra, would have to be 

reviewed under the Borello 

“right to control” standard. 

Whether or not that analysis 

is correct, it would seem that 

Garcia will have limited value 

to employers seeking to argue 

that the more favorable Borello 

test applies to overtime claims 

that are being pursued under 

the labor code, as distinguished 

from overtime claims pursued 

under the wage orders. This is 

because in most wage and hour 

cases, the claims are based 

on the wage orders (minimum 

wages, overtime, meal and rest 

breaks, paystub violations). 

The only types of claims that 

still might benefit from Borello 

are claims for waiting time 

penalties brought under labor 

code section 203, and claims 

for expense reimbursements 

brought under labor code 

section 2802. 

Bethanie represents management in a variety of labor 

and employment matters, including discrimination, 

harassment, retaliation, wrongful termination, and wage 

and hour. She defends employers in administrative, 

single plaintiff, and class action claims, and counsels 

clients regarding various employment-related issues, 

including evaluating personnel policies and payment 

practices. For more info about Bethanie, click here. 


THE 2018-2019 

AMENDMENTS 

TO THE FEDERAL 

RULES OF CIVIL 

PROCEDURE: 

A Few Practical Changes That Close 

Procedural Gaps and Better Align 

Procedure with Practice 

BY: KAREN A. HENRY, COUNSEL AND DIANA PALACIOS, ASSOCIATE 

DAVIS WRIGHT TREMAINE LLP 


In addition to holiday cheer, this past December 

ushered in changes to the Federal Rules of 

Civil Procedure. These amendments went into 

effect December 1, 2018, and while they are not 

extensive, they are meaningful. 

Rule No. 

Summary of Amendments 

5 Updated to mandate the use of e-filing and acceptance of e-service of documents 

filed by the court in all cases where the parties are represented by counsel. It also 

establishes a national rule on digital signatures. 

23(e) 

Updated the class action notice, settlement, and objection requirements and 

procedures. 

62 Updated to extend the automatic stay of enforcement following entry of judgment 

and to clarify that a bond is not the only form of security an appellant may post to 

obtain a stay pending resolution of an appeal. 

65.1 Updated to recognize that forms of security, other than a bond, may be posted to 

obtain a stay pending resolution of an appeal. 

Below is a more detailed explanation of the 

amendments. 

FEDERAL RULE OF CIVIL 

PROCEDURE 5: 

The amendments to Rule 5 are intended to 

acknowledge electronic communications as a 

regular and ordinary form of communication by 

normalizing electronic service. 

Former Rule 5(b) allowed electronic service only 

with the written consent of the receiving party. 

This rule went into effect at a time when electronic 

communication was not as widespread or reliable 

as it is now. Recognizing the prevalence of 

electronic communications, Rule 5(b) was amended 

to provide that a person who registers to submit 

files to the court electronically using the federal 

court’s Case Management and Electronic Case 



Files (CM/ECF) system also agrees to accept 

service through the CM/ECF system, unless the 

court orders otherwise. No additional consent is 

required. However, written consent still is required 

to serve papers by some other electronic means 

(other than CM/ECF). Service is complete upon 

filing the paper through CM/ECF or when the paper 

is sent to the recipient by another electronic means 

that the recipient has consented to in writing, 

unless the filing/serving party learns that the paper 

did not reach the recipient.² Notably, Rule 5(b) 

does not make the court responsible for notifying a 

filer of a failed CM/ECF transmission. 

Former Rule 5(d)(1) provided that any paper, after 

the complaint, required to be served had to be filed 

“within a reasonable time after service.” The use of 

the word “within” in the rule suggested that papers 

must be served before they are filed. New Rule 5(d) 

(1) corrects this misconception by replacing the 

word “within” with the phrase “no later than,” such 

that the amended rule reads: “Any paper after the 

complaint that is required to be served -- must be 

filed no later than a reasonable time after service.” 

Rule 5(d)(1) also clarifies that a certificate of 

service is not required when a paper is filed 

through CM/ECF. When service is made by some 

other electronic means, however, a certificate of 

service must be filed with the paper or within a 

reasonable time after the paper is served, and the 

certificate should specify the date and manner of 

service.³ 

Amended Rule 5(d)(3) makes electronic filing 

mandatory for all parties who are represented by 

counsel, with limited exception. Pro se litigants, on 

the other hand, are permitted to file electronically 

only if allowed by local rule or court order and may 

be required to file electronically only by a court 

order or by a local rule that includes reasonable 

exceptions. The Advisory Committee Note cautions, 

“[c]are should be taken to ensure that an order to 

file electronically does not impede access to the 

court[.]” 

Rule 5(d)(3) also establishes a national standard 

on digital signatures, confirming that “[a] filing 

made through a person’s electronic-filing account 

and authorized by that person, together with that 

person’s name on a signature block, constitutes 

the person’s signature.” 


PROCEDURE 23: 

Overall, the changes to Rule 23 bring much needed 

clarification and guidance to class action litigation. 

First, the 2018-2019 amendments to Rule 23 have 

modernized the notice requirements to potential 

class members. While courts have traditionally 

required that notice to individual class members be 

given by first-class mail, Rule 23(c)(2) now makes 

clear that “the best notice that is practicable 

under the circumstances” “may be by United 

States mail, electronic means, or other appropriate 

means.” The Advisory Committee Note explains 

that technological changes have “introduced other 

means of communication that may sometimes 

provide a reliable additional or alternative method 

for giving notice,” such as email, but the Committee 

cautions that “it is important to keep in mind that 

a significant portion of class members in certain 

cases may have limited or no access to email or 

the Internet.” Thus, there is no preferred method 

for notice. Parties, however, should be prepared to 

discuss with the court which method or methods of 

notice will be most effective. 

Second, the amendments now mandate additional 

substantive requirements for preliminary approval 

under Rule 23(e). 4 Under the new Rule, the court 

“must” direct notice to all class members if the 


parties show that the court will likely approve the 

settlement proposal and will likely certify the class 

for purposes of judgment on the proposal. If the 

class has been certified, the Advisory Committee 

explains that the “only information ordinarily 

necessary is whether the proposed settlement 

calls for any change in the class certified, or of 

the claims, defenses, or issues regarding which 

certification was granted.” However, “if a class has 

not been certified, the parties must ensure that the 

court has a basis for concluding that it likely will be 

able, after the final hearing, to certify the class.” 5 

Further, while the Rule previously required courts 

to ensure a settlement was “fair, reasonable, and 

adequate,” it provided no guidance. The amended 

Rule now outlines factors that courts must consider 

when approving a settlement: 

only by the objector, by a subset of the class, or 

by the entire class. Under the new Rule, objectors 

may freely withdraw their objection without court 

approval unless they are receiving payment or 

“other consideration,” which must be broadly 

construed, in connection with their withdrawal. This 

change is meant to deter objectors who “may be 

seeking only personal gain, and using objections to 

obtain benefits for themselves rather than assisting 

in the settlement-review process.” 

Finally, Rule 23(f) has been changed to clarify that 

no appeal may be taken from an order requiring 

notice of a proposed settlement. Therefore, as the 

Advisory Committee explains, “[t]his amendment 

makes it clear that an appeal under this rule is not 

permitted until the district court decides whether to 

certify the class.” 

• Whether “the class representatives and class 

counsel have adequately represented the 

class”; 

• Whether the proposal was “negotiated at 

arm’s length”; 

• Whether “the relief provided for the class is 

adequate, taking into account” (the costs, 

risks, and delay of trial and appeal; the 

effectiveness of any proposed method of 

distributing relief to the class, including the 

method of processing class-member claims; 

the terms of any proposed award of attorney’s 

fees, including timing of payment; and any 

agreement required to be identified under 

Rule 23(e)(3)); and 

• Whether “the proposal treats class members 

equitably relative to each other.” 6 

Third, the 2018-2019 amendments to Rule 23 

now impose new obligations and procedures to 

object to proposed settlements, requiring the 

objector to state “with specificity” the basis for any 

objection and whether the objection is being made 


PROCEDURE 62 AND 65.1: 

Former Federal Rule of Civil Procedure 62(a) 

required a judgment creditor to wait a period of 

14 days after entry of judgment before initiating 

proceedings to enforce a judgment in federal 

district court. This 14-day stay of enforcement is 

automatic and designed to provide to the judgment 

debtor a period of time to challenge the judgment 

by appealing or by filing a post-trial motion, like a 

motion under Rule 50 (for judgment as a matter 

of law), Rule 52(b) (to amend the district court’s 

findings), Rule 59 (for a new trial) or Rule 60 (for 

relief from judgment). 

Before the implementation of the 2009 Federal 

Time Computation Project (the “FTCP”), 7 the 

deadline to file a Rule 50, 52 or 59 motion was 

10 days after entry of judgment, and the automatic 

stay also expired 10 days after entry of judgment. 

As a result of the FTCP, however, the deadlines for 



filing a Rule 50, 52, or 59 motion was extended 

to 28 days after entry of judgment; but oddly, the 

FTCP set the expiration of the automatic stay at 

14 days after entry of judgment. The unintended 

consequence of these changes was that the 

automatic stay of enforcement provided in Rule 

62(a) expired half-way through the time allowed to 

challenge the judgment through a Rule 50, 52, or 

59 post-trial motion. 

The 2018-2019 amendments to Rule 62 make 

three changes. First, the automatic-stay is 

extended from 14 days after entry of judgment 

to 30 days after entry of judgment. This change 

eliminates the gap in the former rule between 

the expiration of automatic stay and the deadline 

to file one of the permissible post-trial motions. 8 

The rule further provides that the automatic stay 

takes effect “unless the court orders otherwise,” 

expressly recognizing the authority of the district 

court to dissolve the automatic stay or to 

supersede it with a court-ordered stay. 9 

when the court approves the security and remains 

in effect for the time specified in the security. 

Third, the amendments carry forward with only 

minor, stylistic changes the provisions for staying 

judgments in actions for injunctions, receiverships 

or directing an accounting in an action for patent 

infringement. While the provisions for staying these 

types of actions are reorganized by consolidating 

them in new subdivisions (c) and (d), there is no 

change in meaning. 

CONCLUSION: 

The 2018-2019 amendments to the Federal Rules 

of Civil Procedure modernize certain outmoded 

rules, close unintended gaps in procedure, and 

better align federal procedure with the realities of 

daily life and practice. 

Second, the amendments continue Rule 62’s 

supersedeas bond provisions, albeit with 

modifications. The former Rule 62 permitted a 

judgment debtor who had appealed the judgment 

to stay enforcement of the judgment pending a 

resolution of an appeal by filing a supersedeas 

bond, generally in the amount of the judgment. 

The stay becomes effective when the supersedeas 

bond is approved by the district court. 

Amended Rule 62 makes explicit the ability to post 

security in a form other than a bond, 10 expands to 

all parties (not just an appellant) the right to obtain 

a stay by posting security, 11 and allows the security 

to be provided at any time after the judgment is 

entered (even before an appeal is taken, before the 

automatic stay expires, or after the automatic stay 

has been lifted by the court). The stay takes effect 

Karen Henry is an attorney in Davis Wright Tremaine LLP’s Los 

Angeles office. She maintains a broad and diverse practice, 

focusing primarily on media, IP, and entertainment law. For 

more info about Karen, click here. 

Diana Palacios focuses her practice on media, First 

Amendment, and intellectual property litigation and counseling. 

In her practice, she works on a range of matters, including 

defamation, records and courtroom access, privacy, right of 

publicity, false advertising, copyright, and trademark issues. 

She also provides pre-publication and pre-broadcast counseling 

both in English and Spanish for studios, television networks, 

production companies, and newspapers. For more info about 

Diana, click here. 


1 This article is intended to provide a high-level discussion of the 2018-2019 amendments to the Federal Rules of Civil Procedure. For 

a more detailed understanding of these amendments, readers are encouraged to personally review the amendment at https://www. 

federalrulesofcivilprocedure.org/2018-2019-amendments-to-the-federal-rules-of-civil-procedure-approved/. 

2 A filer who learns that the transmission failed is responsible for making effective service. 

3 For papers that must be served, but are not required to be filed until used in the litigation or the court requires filing, the certificate 

of service need not be filed until the papers is filed, unless filing is required by local rule or court order. 

4 Another subtle change is the extension of Rule 23(e)’s procedural safeguards to a “class proposed to be certified for purposes of 

settlement.” Therefore, the notice required under the new Rule 23(e)(1), according to the Advisory Committee, “should also satisfy 

the notice requirements of amended Rule 23(c)(2)(B) for a class to be certified under Rule 23(b)(3), and trigger the class members’ 

time to request exclusion.” 

5 The Committee recognizes that although “the standards for certification differ for settlement and litigation purposes, the court 

cannot make the decision regarding the prospects for certification without a suitable basis in the record.” 

6 The Advisory Committee also suggests that parties “supply information to the court on any other topic that they regard as pertinent 

to the determination whether the proposal is fair, reasonable, and adequate.” 

7 The FTCP was an effort by the Appellate, Civil and Criminal Rules Advisory Committees to make the method of computing time 

consistent, simpler and clearer across all Federal Rules. The FTCP was launched in 2007 in response to frequent complaints about 

the time, energy and anxiety expended in calculating time periods, the potential for error, and the anomalous results of the thencurrent 

computation provisions. The time computation amendments went into effect on December 1, 2009. 

8 While the 30-day automatic stay coincides with the timing for appealing most civil actions, the Advisory Committee concluded that a 

30-day automatic stay also suffices in cases governed by a 60-day appeal period. 

9 As the Advisory Committee Note explains, “[o]ne reason for dissolving the automatic stay may be a risk that the judgment debtor’s 

assets will be dissipated. Similarly, it may be important to allow immediate enforcement of a judgment that does not involve a 

payment of money. The court may address the risks of immediate execution by ordering dissolution of the stay only on condition that 

security be posted by the judgment creditor.” The Advisory Committee also notes that “[r]ather than dissolve the stay, the court may 

choose to supersede it by ordering a stay that lasts longer or requires security.” 

10 The amendments to Rule 65.1 are intended to reflect the expansion of Rule 62 to include forms of security other than a bond. 

11 “For example, a party may wish to secure a stay pending disposition of post-judgment proceedings after expiration of the automatic 

stay, not yet knowing whether it will want to appeal.” Fed. R. Civ. P. 62, Advisory Committee Notes. 


Diversity Calendar 

The CMCP Diversity Calendar highlights upcoming events of interest 

organized by and presented for minority attorneys in California. 

FEBRUARY 

07 

09 

13 

19 

MABA's 2019 Law Student, Judge and 

Attorney Mixer 

The Mexican Bar Association 

FF 

6:00 PM - 8:30 PM 

 

Loyola Law School Fritz B Burns 

Lounge-B112 (A1) - Los Angeles 

18th Annual BAPALSA Conference 2019 

Bay Area Asian Pacific American Law 

Students Association 

FF 

8:00 AM - 5:00 PM 

 

Santa Clara University School of Law - 

Santa Clara 

In-House Mixer - BASF 

The Bar Association of San Francisco 

FF 

5:30 PM - 7:30 PM 

 

Sidley Austin - San Francisco 

9th Annual Litigation Awards Dinner 

The Beverly Hills Bar Association 

FF 

5:30 PM - 9:30 PM 

 

Four Seasons Hotel - LA 

20 

21 

OCBA Presiding Judge Reception 

Orange County Bar Association 

FF 

5:30 PM - 7:30 PM 

 

Bowers Museum - Santa Ana 

Barristers Night Out Warriors v Sacramento 

Kings - ACBA 

Alameda County Bar Association 

FF 

6:00 PM 

 

Oracle Arena - Oakland 

MARCH 

01 

06 

BALIF 39th Annual Gala 

Bay Area Lawyers for Individual Freedom - 

An LGBTQI Bar Association 

FF 

7:00 PM - 11:00 PM 

 

Bently Reserve - San Francisco 

AABA's 43rd Annual Dinner 

Asian American Bar Association of the 

Greater Bay Area 

FF 

5:00 PM - 9:00 PM 

 

Hyatt Regency - San Francisco 

32 | California Minority Counsel Program

09 

The OCHBA's 41st Annual Scholarship 

Fundraiser & Installation Dinner 

The Orange County Hispanic Bar 

Association 

FF 

5:00 PM - 11:00 PM 

 

Irvine Marriott Hotel - Irvine 

09 

MABA's 59th Annual Installation of Officers 

& Awards Gala 

The Mexican Bar Association 

FF 

5:30 PM - 11:00 PM 

 

Millennium Biltmore Hotel - Los 

Angeles 

APRIL 

04 

Noche de Gala 2019 

San Francisco La Raza Lawyers 

Association 

FF 

6:00 PM - 9:00 PM 

 

InterContinental - San Francisco 

05 

SABA-NC's 26th Annual Gala 

The South Asian Bar Association of 

Northern California 

FF 

6:00 PM - 10:00 PM 

 

San Francisco Design Center - San 

Francisco 

List your organization’s diversity 

in the legal profession event here. 

Email it to: newsletter@cmcp.org 


ABOUT CMCP 

The California Minority Counsel Program (CMCP) is a 501(c)(6) 

non-profit mutual benefit corporation, dedicated to promoting 

diversity in the legal profession by providing attorneys of color with 

access and opportunity for business and professional development. 

CMCP is a state-wide organization that brings business lawyers 

of all races together as members and colleagues, regardless of 

the type of organization in which they practice, for the purpose of 

achieving diversity and inclusion within law firms and in-house law 

departments, and in the outside counsel spend of corporations and 

government agencies. 

For more information about CMCP, activities, events, and how you 

can get more actively involved, visit www.cmcp.org or give us a call 

at 415-782-8990. 

MINORITY

CMCP Diversity Matters - January/February 2019

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