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California Extends Privacy Protection to
Confidential Settlement Agreements |
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by Tuan V. Uong, Associate, Reed Smith LLP |
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In Hinshaw, et al. v. Super. Ct., 51 Cal. App. 4th 233 (1996) ("Hinshaw"), the court held, as a matter of first impression in California, that confidential settlement agreements are entitled to privacy protection given the strong public policy favoring settlements. See Hinshaw, 51 Cal. App. 4th at 241 (noting the privacy of a settlement "is generally understood and accepted in our legal system, which favors settlement and therefore supports attendant needs for confidentiality"); see also Doe 1 v. Super. Ct., 132 Cal. App. 4th 1160, 1171 (2005) (affirming that there is no legitimate public interest in disclosing confidential settlement agreements because such agreements serve the interests of the public and the parties). Therefore, the burden rests on the requesting party to show a "compelling" interest. Hinshaw, 51 Cal. App. 4th at 241; see also Volkswagen of America, Inc. v. Super. Ct., 139 Cal. App. 4th 1481, 1492 (2006).
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Attorney Spotlight:
Norma Williams, Principal, Williams & Associates |
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by Tulasi Hosain, The Business Advocate |
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Ms. Norma Williams is the principal of Williams and Associates, a commercial real estate law firm based in Los Angeles. Her firm provides a variety of transactional commercial real estate services to various categories of clients, including banks, developers, pension funds and other institutional and entrepreneurial interests.
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Business Development Series:
The Next Step in Business Development: Following Up |
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by Martha Sullivan, Thornton Marketing |
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Although Woody Allen insists that 80% of success is just showing up, I would argue that following up is critical to your success at business development. You can have the most comprehensive marketing plan in your firm and be the best networker on the planet, but if you don’t pay attention to the follow up tasks, you won’t achieve results.
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January / February 2012 |
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California Extends Privacy Protection to Confidential Settlement Agreements |
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by Tuan V. Uong, Associate, Reed Smith LLP |
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The good news: The case has settled and the settlement agreement is confidential.
The bad news: Another lawsuit arises and the confidential settlement agreement is requested in discovery.
The dilemma: Honor the contractual obligation of confidentiality or comply with the discovery demand?
In Hinshaw, et al. v. Super. Ct., 51 Cal. App. 4th 233 (1996) ("Hinshaw"), the court held, as a matter of first impression in California, that confidential settlement agreements are entitled to privacy protection given the strong public policy favoring settlements. See Hinshaw, 51 Cal. App. 4th at 241 (noting the privacy of a settlement "is generally understood and accepted in our legal system, which favors settlement and therefore supports attendant needs for confidentiality"); see also Doe 1 v. Super. Ct., 132 Cal. App. 4th 1160, 1171 (2005) (affirming that there is no legitimate public interest in disclosing confidential settlement agreements because such agreements serve the interests of the public and the parties). Therefore, the burden rests on the requesting party to show a "compelling" interest. Hinshaw, 51 Cal. App. 4th at 241; see also Volkswagen of America, Inc. v. Super. Ct., 139 Cal. App. 4th 1481, 1492 (2006).
Hinshaw involved a legal malpractice case. Plaintiffs were part of a group of physicians represented by the Hinshaw Law Firm ("Firm") against Kaiser. For disputed reasons, the Hinshaw plaintiffs dismissed their claims and the remaining plaintiffs settled pursuant to a confidential settlement agreement. Later, another group of physicians sued Kaiser for similar claims; the Hinshaw plaintiffs tried to join the second action, but were barred due to their participation in the first case. As a result, the Hinshaw plaintiffs sued the Firm for legal malpractice. In the suit against the Firm, the Hinshaw plaintiffs requested copies of the confidential settlement agreements reached in the first and second actions against Kaiser to calculate their damages. The court rejected this demand because of the "public policy favoring settlements, the parties' expressed desire for confidentiality, and the speculative nature of measuring plaintiffs' damages by these settlements." Hinshaw, 51 Cal. App. 4th at 242.
Possible Limitation Under Hinshaw
Hinshaw was primarily concerned with the privacy interests of third parties, i.e., the other settling plaintiffs. No California cases have specifically addressed the privacy interests of a party in the context of a confidential settlement agreement. However, Hinshaw indicates that even if no third-party interests are at stake, a court must still balance "the need for the information against the magnitude of the invasion of privacy." Hinshaw, 51 Cal. App. 4th at 238. Thus, regardless if the interests of a party or third party are implicated, it appears that confidential settlement agreements are afforded privacy protection under California law.
Federal Courts Require Good Cause To Protect Confidential Settlement Agreements From Disclosure
In federal court, confidential settlement agreements are protected from disclosure by the issuance of a protective order upon a showing of good cause. Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F. 3d 1206, 1212 (9th Cir. 2002) ("Phillips"). Good cause is not defined-rather, it is left to the broad discretion of the trial court. Id. at 1211. In contrast to the Hinshaw standard, however, the burden is on the party seeking protection to demonstrate that a "specific prejudice or harm will result if no protective order is granted." Id. at 1210-11.
That said, some federal district courts in California have recognized that California's strong public policy favoring settlements supports "heightened scrutiny" regarding the production of confidential settlement agreements. See, e.g., Big Baboon Corp. v. Dell, Inc., 2010 WL 3955831 *4 (C.D. Cal. 2010); MedImmune, L.L.C. v. PDL BioPharma, Inc., 2010 WL 3636211 *2 (N.D. Cal. 2010). Accordingly, California federal courts will likely still balance one party's "interest in the discovery of potentially relevant information against [the other party's] interest in protecting a settlement negotiated with the expectation of confidentiality." MedImmune, L.L.C., 2010 WL 3636211 at *2. Ultimately, disputes regarding disclosure are often resolved by requiring the party seeking protection to file the settlement agreement under seal for an in camera review. See e.g., Big Baboon Corp., 2010 WL 3955831 at *4.
Summary
Given the strong public policy favoring confidential settlements, California courts will generally rule in favor of nondisclosure. As a result, in most cases, it is reasonable to resist the production of confidential settlement agreements in discovery. However, it is important to note that in state court, the burden is on the party seeking disclosure to make a "compelling" showing; while in federal court, the burden is on the party seeking protection to demonstrate good cause.
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Tuan V. Uong, is an Associate at Reed Smith LLP in Los Angeles.
He can be reached at tuong@reedsmith.com or (213) 457-8152. |
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Attorney Spotlight: Norma Williams, Principal, Williams & Associates |
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by Tulasi Hosain, The Business Advocate |
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Ms. Norma Williams is the principal of Williams and Associates, a commercial real estate law firm based in Los Angeles. Her firm provides a variety of transactional commercial real estate services to various categories of clients, including banks, developers, pension funds and other institutional and entrepreneurial interests.
Her firm was originally founded in 1985. She has been practicing in the area of transactional commercial real estate law since 1977, when she first began practicing law. Her practice includes acquisition and sales transactions, financing, leasing, and loan workout and portfolio representation, among other areas of real estate law.
Ms. Williams grew up in New York City and went to Wesleyan University prior to attending University of California’s Boalt Hall School of Law. After graduation from law school and prior to setting up her own firm, she worked at several large and medium sized law firms and in a corporate legal department.
As a young person, Ms. Williams wanted to be a teacher. At Wesleyan, she took courses in the teacher education program while majoring in American Studies. Ms. Williams said that the role models that she had growing up influenced her to want to become a teacher. However, after a series of discussions with her older brother, who had not had the educational opportunities that she had and who strongly encouraged her to explore other opportunities because of her Wesleyan education, she decided in her senior year of college to pursue law school. It is a decision she has not regretted. By her second year of law school, she decided that her focus would be commercial real estate. After graduation, she had an opportunity to return to large firm practice in New York, but opted instead for a job opportunity at a California law firm.
The early years were difficult. People were not ready for women and minorities in the large law firms, and she was both. There were few, if any, women or minority partners at any of the large firms, including the ones where she worked. Those early experiences influenced her to vow to be a mentor to other attorneys. Everyone needs a guiding hand, especially when they are starting out, and if she can help new attorneys navigate their early years, she is more than happy to oblige.
Despite the challenges, she believes that her large firm training was invaluable. It gave her the training and skill to handle complex and challenging cases. She encourages young attorneys to seek opportunities at large or boutique firms as part of the early training for their professional careers.
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Ms. Williams noted that there has been a change from when she started practicing, when a young associate may have spent the first three or four years in the library researching legal issues, and there was no pressure on young associates to market their services to bring clients into the firm. All of that has changed. Associates are handed cases much sooner, and there is far more pressure to bring in clients at an earlier stage in their career. Excellent attorneys can be trained in this way as well but it is quite different than the model when she started to practice.
Having her own firm has made it possible for Ms. Williams to balance her life. She has been married for the past twenty-two years to her husband, who is a space physicist. Her oldest son is a senior in high school and is getting ready for college. Her younger son is a freshman in high school. She has been able to savor and enjoy her time with her family, and is proud of the fact that she is able to be an engaged parent who has not missed opportunities to be with her family.
Ms. Williams’ large firm training has helped her maintain a level of sophistication, no matter where she has practiced. It is not always easy to start your own firm. After practicing in her own firm from 1985-1998, she joined a large firm in 1998, but decided to go back out on her own again in 2003. She is proud to be the “go to” person, the real estate guru. She speaks at seminars and writes articles in her area of law.
Her philosophy is to be zealously focused on client services and client satisfaction, while she strongly advocating for her clients’ interests.
Ms. Williams is nationally recognized as an authority on commercial real estate law, and has won numerous awards. She has served as Chair of the Real Property Section of the Los Angeles County Bar Association. She has been selected as a “Southern California Super Lawyer” by Los Angeles Magazine for each year from 2006 through 2011. Forbes Magazine wrote a profile on her in their December 2010 issue. She was honored by Commercial Real Estate Women – Los Angeles in June, 2011 as a “Woman at the Top”.
Ms. Williams served as Chair of the State Bar Real Property Section committee that drafted California Civil Code Section 2938. That Code section was the model for the Uniform Assignment of Rents Act (the “Act”). She was asked to be an Observer on the Uniform Law Commission Committee that was tasked to draft the Act. That Act has now been adopted by various states, including Utah, New Mexico, and Nevada and served as a model for the Texas statute.
She encourages people to network at organizations such as CMCP. She has been a member of CMCP most years since its founding in 1989 and has been a member of the Board. She says that she has received significant work as a result of her association with CMCP. It is not just the Corporate Connection opportunities that are important, but also the casual networking in the hallways. Like many things, it is not something that necessarily happens quickly, it is about relationship building and getting to know the people individually. It requires patience and a commitment to stay involved and engaged.
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The Next Step in Business Development: Following Up |
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by Martha Sullivan, Thornton Marketing |
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Although Woody Allen insists that 80% of success is just showing up, I would argue that following up is critical to your success at business development. You can have the most comprehensive marketing plan in your firm and be the best networker on the planet, but if you don’t pay attention to the follow up tasks, you won’t achieve results.
I know that it’s difficult to balance billable hours with non-billable business development activities. There’s an inherent tension between the predictability of income based on hours, and the relative unpredictability of your business development efforts. But if you keep postponing the non-billable activities, you reduce the likelihood of generating additional work from your current clients and referral sources, or acquiring new clients. The longer you wait to start, the longer it will take to have positive results.
What Keeps Us From Following Up?
Many of my coaching clients have told me that various business development tactics simply don’t work. When I have asked for more specific information about what hasn’t worked in the past, what I’ve found is that most of these lawyers haven’t actually completed all of the follow-up tasks they knew they should be doing.
The main issue for many of my clients is that they get distracted if they don’t have a systematic way of planning and implementing business development activities. It seems to me that we are surrounded by a culture of distraction, enabled by an amazing variety of electronic devices. Those magic boxes provide hours of activities that can be so much more compelling than those non-billable tasks. Eventually, however, we realize that the distractions are keeping us from important work, and that avoidance actually takes more time and energy than simply getting the work done.
Which is a good segue into “Getting Things Done” by David Allen. I’ve started to recommend this book to many of my coaching clients. Allen’s system is quite detailed and quite specific about how to handle all of the tasks in your life. This seems to be promising way too much in one system, but it turns out that this methodology is effective. You really can organize all of your short- and long-term personal and business tasks in one place.
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It can take a significant amount of time upfront to implement the system, but when you use it consistently, you will notice that you have fewer incomplete tasks. You will learn how to organize your follow-up tasks and incorporate them into your calendar. Once those tasks are complete, your mind will be free to focus on the next important task.
Take Action Today
If you haven’t read “Getting Things Done” yet, you can get yourself “unstuck” by committing to the two actions below. Even if it has been an embarrassingly long time since you promised to get back to a client or referral source, make it a priority today. I’ve said before that you should spend two-thirds of your business development time on client retention, and one-third on new clients, but I’ll make an exception for the moment, and suggest that you simply complete these two actions.
1. Schedule a meeting with a client that you haven’t seen for six months or more. This should be a non-billable meeting to discuss whatever your client wants to discuss.
2. Call or send an email to someone you met at a networking event and schedule a face to face meeting.
Once you complete these actions, you may have other follow-up tasks that you want to add to your calendar. If you have a written marketing plan, review it and plan your next steps.
If you have specific business development questions that you would like me to address in future columns, please call or email me any time.
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Reprising & updating the highly successful panel at CMCP's 2011 Annual Business Conference, "Does Tweeting Beat Meeting?". This program will address the ethical considerations involved in a lawyer's use of social networking in both professional and personal capacities -- the Dos and Don'ts, the Pros & Cons. |
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Followed by a Networking Reception |
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Sponsored By: |
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Wednesday, March 14, 2012 - 5:00 - 8:00pm
Program at 5:30 followed by Networking Reception |
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Sempra Energy/SDGE
101 Ash Street
San Diego, CA |
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No Cost to CMCP Members, ACC-SD Members & Members of the Judiciary
All Others: $25.00 |
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Leadership Connections
Qualcomm and Qualcomm Women In Science and Engineering (QWISE) invite you to join esteemed women leaders to celebrate International Women's Day. Come hear how you can leverage their experience into your leadership style.
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Thursday, March 8
Complimentary Event. Click here to register or go to http://qcsurvey.qualcomm.com/survey.asp?pub=y&survey_id=7689
6:00 - 9:00pm Program and Pre/Post-Reception
7:00 Program
8:30 Coffee and Networking
Qualcomm Hall
5775 Morehouse Drive
San Diego, CA 92121
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Carol Lam
Qualcomm Senior Vice-President and Deputy General Counsel
Carol was the United States Attorney for the Southern District of California. Prior to her confirmation as United States Attorney, Ms. Lam was a judge of the Superior Court in San Diego, where she presided over a criminal trial calendar. Ms. Lam is a recipient of the Attorney General's Award for Distinguished Service and the Director's Award for Superior Performance as an Assistant United States Attorney.
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Dr. Lois Frankel
Author
President of Corporate Coaching International, a Pasadena, California consulting firm, Lois literally wrote the book on coaching people to succeed in businesses large and small around the globe. Her book Nice Girls Don't Get The Corner Office and others are international bestsellers translated into over twenty-five languages worldwide.
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Attendees will have the opportunity to connect with organizations such as:
Connected Women of Influence, Hera Hub, San Diego Industry Liaison Group, Society of Women Engineers, Urban League of San Diego County, Women in Information Technology (WITI)
Dr. Lois Frankel will sign books beginning at 6pm
Please forward this invitation to others you believe may be interested in attending.
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Black History Month Celebration Lunch
by Tambry L. Bradford, Senior Associate, Fulbright & Jaworski L.L.P.
On February 15, 2012, SNR Denton and Nossaman partnered to sponsor CMCP’s Black History Month Celebration Lunch, which was held at SNR Denton’s Los Angeles office. CMCP members and non-members enjoyed a chance to network and, rather than the typical sandwiches and potato chips, an authentic soul food lunch featuring dishes embedded in black history such as mac & cheese, fried chicken, yams and greens.
Keynote speaker John Page, Vice President, General Counsel and Corporate Secretary of Golden State Foods Corp., and President-Elect of the National Bar Association, provided attendees with thought-provoking historical and current statistics concerning the number of African-Americans in the legal profession. Did you know that 1845 was the first year that an African-American was admitted to practice law in the United States, and that 1865 was the first year that an African-American was admitted to practice before the United States Supreme Court? Yet, nearly a century and a half later, despite the fact that there are 3,000,000 African-Americans in California, there are only 237,000 in the legal profession. Why? Mr. Page left attendees with a challenge: Resist the temptation to market and advertise the current numbers as a success. Instead, do what you can to contribute to the growth of this number, and to help pull down the current barriers to entry into the legal profession faced by African-Americans.
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Welcome! - Our Newest Members of 2012! |
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Diversity Scholarship |
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This year, Keker & Van Nest will award up to $50,000 in scholarship grants to be divided equally among approximately three or four law student recipients. The exact amount and number of scholarships will depend on the number and quality of applicants.
Scholarship applicants must be current first-year or second-year law students who are students of color, members of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, disabled, or whose background or experience would otherwise contribute to the diversity of litigators in the Bay Area.
Recipients must attend University of California, Berkeley School of Law; University of California, Hastings College of the Law; or Stanford Law School as a full-time student and remain in academic good standing for the academic year of the award. While financial need is not required, it will be considered along with other factors, including the applicant’s academic record, demonstrated interest in complex litigation, employment history, background and the extent to which the candidate would contribute to diversity among the complex litigation practice, obligations, clinical or other non-academic legal experience, community service, and commitment to remaining in the Bay Area after graduation.
More information about our scholarship, including the application, can be found here:
http://www.kvn.com/careers/diversity/Diversity-Scholarship
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Job Announcement: Litigation Associate
Meserve, Mumper & Hughes LLP, Los Angeles, CA
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Downtown Los Angeles office of a well-established Firm seeks experienced 2-4 year litigation associate with top academic credentials and experience in a private law firm. The Firm specializes in the areas of life, health and disability coverage; bad faith; ERISA disputes; and/or employment litigation (defense of management) and commercial litigation.
We offer a competitive compensation and benefits package, substantial case responsibility and direct client contact.
Please send confidential resume via email to recruiting@mmhllp.com |
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March 7, 2012
6:30pm
Networking Mixer
South Asian Bar Association of Southern California.
Orange County.
read more |
March 8, 2012
6:00pm
Annual Noche de Gala
San Francisco La Raza Lawyers Association.
San Francisco.
read more |
March 9, 2012
6:00pm
JABA Installation and Awards Gala
Japanese American Bar Association.
Los Angeles.
read more
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March 9, 2012
7:00pm - 11:00pm
32nd Annual Gala
Bay Area Lawyers for Individual Freedom.
San Francisco.
read more |
March 15, 2012
Lunch
MCLE Lunch
Asian/Pacific Bar Association of Sacramento.
Sacramento.
read more |
March 22, 2012
6:00pm
2nd Annual Persian New Year (Nowrooz)
Iranian American Lawyers Association.
Sherman Oaks.
read more |
March 22, 2012
6:30pm - 9:00pm
Spring Membership Mixer and Wine Tasting
Black Women Lawyers Association of Los Angeles.
Beverly Hills.
read more |
March 30, 2012
6:00pm - 11:00pm
SABA-NC 19th Anniversary Gala
South Asian Bar Association of Northern California.
San Francisco.
read more |
April 4, 2012
6:00pm - 9:00pm
TALA Annual Installation Dinner
Taiwanese American Lawyers Association.
San Gabriel.
read more |
April 11, 2012
5:30pm
ABAS' 31st Anniversary & Awards Dinner
Asian/Pacific Bar Association of Sacramento.
Sacramento.
read more |
April 20, 2012
9:00am - 5:00pm
Annual Conference
California Women Lawyers.
Palo Alto.
read more |
April 19-21, 2012
9th Annual General Counsel Invitational - Diversity Leadership Summit
MCCA - Minority Corporate Counsel Association.
Miami.
read more |
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© Copyright 2012 California Minority Counsel Program
465 California Street, Suite 635
San Francisco, CA 94104
Tel: 415-782-8990 • Email: newsletter@cmcp.org • Web: http://www.cmcp.org |
