Jonathan K.

A recent Bloomberg Law article highlights a notable trend: Major law firms are scaling back their California hiring efforts as profitability pressures rise. While the Golden State has long been a key legal market, firms are now taking a more selective approach, focusing on roles that align with strategic growth and high-value practice areas. At OpusLex Partners, we’re keeping a close eye on these market shifts to ensure our clients and candidates stay informed and positioned for success. Whether you’re a firm refining your hiring strategy or a legal professional navigating new opportunities, understanding these trends is crucial. Read more to see how this evolving landscape could impact your next move. https://lnkd.in/eTVpnhx2

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More Spokeo (and Transunion v. Ramirez) influences in the debt collection space....mere confusion resulting from not following the fair Debt Collection Practices Act (FDCPA) law does not create sufficient standing to bring an action. Folks who are not lawyers or who don't engage in consumer litigation likely wonder why I often reference Spokeo. I am referring to a prior U.S. Supreme Court case that held that even if a party violates the letter of the law, you (as a private litigant) still may be unable to sue them in (federal court) unless you can prove how you were concretely damaged by that violation. In the consumer financial services and privacy law worlds, Congress has created many laws with specific conduct requirements , such as requiring a debt collector to reveal the name of the original creditor in a debt collection communication so the debtor can lookup other details related to the transaction that created the debt. Under the Spokeo doctrine, if these conduct requirements are violated, you still may have no basis to sue unless you can prove some form of concrete damage to you. In the data privacy realm, this sometimes means that those who have had their data improperly leaked (the Leakee ?) have no cause of action against the Leaker unless the Leakee can show he/she was damaged somehow by the violation.

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Last week, California Gov. Newsom vetoed a bill that could have significantly impacted, at minimum, web browser and mobile operating system operators.   Currently, California's comprehensive privacy law (the CCPA) requires companies directly within scope ("businesses", such as a for-profit company that operates in CA with at least $25M in annual global revenue) to recognize certain automatic signals (specifically, opt-out preference signals) sent by CA residents' browsers. These signals currently allow users to opt out of the use of their personal information for things like data sales, targeted advertising, and certain analytics tools. The one tool that can be used for this today, the Global Privacy Control (GPC), is often set up by installing it as a desktop browser add-on; mobile browsers generally do not offer add-ons. CA was the first state with this requirement, but CO has a similar requirement and other states have comprehensive privacy laws that will soon become effective with a GPC-like requirement, like Montana.   The CA legislature recently passed a bill that would have amended the CCPA by essentially requiring browser operators that are "businesses" to enable users to send these signals as a browser feature (with no distinction between desktop and mobile). Further, this requirement would also apply directly to mobile operating system operators (that are "businesses"); as Gov. Newsom says in his veto message, no major mobile operating system provides such a feature today. If enacted, the law would have come into effect on January 1, 2026, but the mobile operating system requirement would not apply until six months after California's chief privacy regulator (the CPPA) published final regulations.   Gov. Newsom focused squarely on the mobile operating system requirements in his veto message, saying that "it's best if design questions are first addressed by developers." Going forward, it will be interesting to see how states and municipalities attempt to regulate digital product design (and what bounds are imposed by the judiciary). Further, the GPC does not provide users with an opt-out for the use of their sensitive personal information, so there is not an obvious pathway to implementing this would-be requirement.

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Today the California Supreme Court overruled prior precedent on arbitration waiver. This ruling has significant implications for practitioners.   Renouncing the St. Agnes multi-factor test for arbitration waiver, which included a prejudice component, the Supreme Court in Quach v. Commerce Club, Inc., S275121, held that the loss of the right to arbitrate must be determined by application of generally applicable contract defenses. In so holding, the Court noted such defenses may include forfeiture, estoppel, laches, or timeliness, in addition to waiver, and that the St. Agnes waiver test had improperly included concepts from several distinct defenses.   Going forward, “a court should be careful to consider only those factors that are relevant to the specific state-law defense the party resisting arbitration has raised.” The Court determined that because Quach had raised the defense of waiver, it need only analyze whether the traditional test for contractual waiver was met. Practitioners resisting a motion to compel arbitration should now be careful to choose the correct contract defense because they will be held to the specific defense asserted. Practitioners compelling arbitration can no longer rely on a lack of prejudice to the other side and should move to compel at the earliest opportunity. The full opinion can be found here: https://lnkd.in/g6WMDEDh

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When Overreach Meets Accountability: 🗽SEC's Dealer Rule Vacated on the Day Gensler Announces Resignation🫡 🔄In a poetic twist of fate, Gary Gensler's SEC tenure ends as the courts deliver a decisive critique of his regulatory overreach. On November 21, 2024, Judge Reed O'Connor of the Northern District of Texas vacated the SEC's controversial Dealer Rule, a decision that reverberates across crypto and financial industries. On the same day, Gensler announced he would step down as SEC Chair effective January 2025. 🛡The Dealer Rule: A Step Too Far The SEC’s Dealer Rule attempted to redefine “dealer” under the Exchange Act, targeting digital asset markets and traders who provided liquidity. The rule’s broad language threatened to sweep DeFi participants—those using liquidity pools, decentralized exchanges, and smart contracts—into the same category as traditional market dealers. But Judge O'Connor’s ruling was a stark rebuke. The Court noted: 🧐The rule erased a century-old distinction between “traders” and “dealers,” violating the Exchange Act’s intent. The SEC overstepped its statutory authority, with Judge O’Connor emphasizing, “The Rule as it currently stands de facto removes the distinction between ‘trader’ and ‘dealer’ as they have commonly been defined for nearly 100 years.” The Impact on DeFi and Innovation DeFi protocols operate without traditional intermediaries, enabling peer-to-peer liquidity through open-source software and smart contracts. The SEC’s attempt to regulate such automated systems as “dealers” was seen as a direct assault on innovation. 😴A Reflection on Gensler’s Leadership Gary Gensler’s tenure at the SEC has been marked by aggressive enforcement, particularly targeting crypto markets. While his policies aimed to increase investor protections, many argue they stifled innovation and lacked clarity. 🫥👮The SEC’s repeated losses in courts—Ripple, Grayscale, and now the Dealer Rule—underscore the growing judicial pushback against regulatory overreach. Gensler’s resignation opens the door for a leadership shift, with potential candidates like Dan Gallagher and Paul Atkins signaling a more industry-friendly regulatory approach. 🧭What’s Next? This ruling is not just a legal victory; it’s a pivotal moment for how regulation adapts to innovation. With Gensler’s departure, the SEC faces a choice: continue on a path of contentious enforcement or work towards a balanced framework that supports both investor protections and technological growth. 🤞🗿For the blockchain industry, this is a reminder that vigilance and advocacy are essential. The Court’s decision reinforces the importance of adhering to legislative intent, especially as regulators grapple with the challenges of emerging technologies. 📢As one of the plaintiffs stated: "This is just the first domino. Innovation must prevail over overreach." #CryptoRegulation #DeFi #SEC #GaryGensler #Blockchain #Innovation

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𝗚𝗠𝗦𝗥'𝘀 𝗖𝗶𝗻𝗱𝘆 𝗧𝗼𝗯𝗶𝘀𝗺𝗮𝗻 𝗔𝗽𝗽𝗲𝗮𝗿𝘀 𝗕𝗲𝗳𝗼𝗿𝗲 𝗧𝗵𝗲 𝗖𝗮𝗹𝗶𝗳𝗼𝗿𝗻𝗶𝗮 𝗦𝘂𝗽𝗿𝗲𝗺𝗲 𝗖𝗼𝘂𝗿𝘁 GMSR co-managing partner Cindy Tobisman appeared yesterday before the California Supreme Court to argue for the petitioner, Michael Rattagan, in a case against Uber Technologies, Inc.  The Ninth Circuit Court of Appeals had asked the Court to decide whether, under California law, claims for fraudulent concealment are exempt from the economic loss rule. In the underlying case, Rattagan alleged that Uber fraudulently concealed information from him when he represented its subsidiaries during a problem-filled launch in Buenos Aires, Argentina, and that the concealed information led to him being arrested and vilified in the media.  The district court held that Rattagan's fraudulent concealment claims were foreclosed by the economic loss rule—a doctrine that prevents a party to a contract from recovering economic damages under tort liability theories—and thus, dismissed his complaint.  The Ninth Circuit Court of Appeals recognized that there is no controlling California precedent addressing whether fraudulent concealment claims are exempt from the economic loss rule, and the answer would be dispositive in the case, so it certified the question to the California Supreme Court. Law360 wrote about the oral argument, providing some highlights:  "There's nothing about [the doctrine] that we would want to shield people who commit fraud just because there’s a contract in the mix," Tobisman said.  "And in fact it would create some kind of perverse incentives for people to draw somebody into a contractual relationship because then they could have their way with them." The high court's decision is expected within the next 90 days. Click here to learn more: Clough, 𝘈𝘵𝘵𝘺'𝘴 𝘈𝘳𝘨𝘦𝘯𝘵𝘪𝘯𝘦 𝘜𝘣𝘦𝘳 𝘋𝘦𝘣𝘶𝘵 𝘍𝘪𝘨𝘩𝘵 𝘓𝘢𝘯𝘥𝘴 𝘈𝘵 𝘊𝘢𝘭𝘪𝘧. 𝘏𝘪𝘨𝘩 𝘊𝘰𝘶𝘳𝘵, Law360 (June 4, 2024), https://lnkd.in/gPFm75CJ (subscription required). #SupremeCourt

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Want to sound erudite? Begin your next memo or brief with: "The Federal Circuit’s decision that the PTO is not subject to notice-and-comment requirements when issuing rules pursuant to 35 U.S.C. § 2(b)(2) conflicts with this Court’s interpretive precedents applying the anti-superfluity cannon." What's this really about? Whether you have to tell the U.S. Patent and Trademark Office (PTO) your home address if you apply for a trademark as an individual and your physical office address as a business. I have bumped into this issue directly in the past year. Even if the Supreme Court agrees to hear the case, I expect there is a low likelihood that the PTO will change its requirements even if it is required to take notice and comment before the rulemaking because the PTO need only show that its rule is not arbitrary and capricious. The PTO will argue that checking domicile helps prevent fraud and that's a good enough (non-arbitrary and non-capricious) reason. So what's the solution for those who want to protect their physical address from the PTO? A giant trademark owning entity that licenses the trademarks out to the "real" trademark owners. It will be just like MERS for mortgages. You read it here first....

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Enforceable regulations and active rulemaking kickoff 2024 for the California Privacy Protection Agency in charge of enforcing CCPA. Catch up on what has been happening in this article!

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In this article, authors Christine Chong and Christine Lyon (Freshfields Bruckhaus Deringer) focus on the prospect of rigorous action from the Federal Trade Commission, state Attorneys General, and the new California Privacy Protection Agency, which are poised for strengthened action on biometric privacy... #techREG #technology #privacy #dataprotection #biometrics #biometry #privacyrights

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Covington & Burling LLP is among the counsel for groups petitioning the California Supreme Court to address the state's court reporter shortage by mandating the use of electronic recording when court reporters are unavailable. https://lnkd.in/e6sMfmgX

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Covington & Burling LLP is among the counsel for groups petitioning the California Supreme Court to address the state's court reporter shortage by mandating the use of electronic recording when court reporters are unavailable. https://lnkd.in/e6sMfmgX

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𝗪𝗵𝘆 𝗛𝗲𝗮𝗱𝗶𝗻𝗴𝘀 𝗠𝗮𝘁𝘁𝗲𝗿 𝗶𝗻 𝗔𝗽𝗽𝗲𝗹𝗹𝗮𝘁𝗲 𝗕𝗿𝗶𝗲𝗳𝘀 Under California appellate rules, briefs must state each point under a separate heading or subheading.  Appellants and respondents alike should heed this requirement, as both persuasion and preservation may depend on it.  Some practice tips to consider: ✅ Many appellate courts will deem an argument forfeited if buried under an unrelated heading, or made only in a footnote. ✅ Headings should be substantive, but not so lengthy that they cease to serve as "headlines" and start to resemble text. ✅ Organizing headings for each distinct contention brings discipline to the drafting process, making the brief more coherent and digestible.  Generating a new Table of Contents for each draft is an excellent editing tool, helping you see whether points flow logically and persuasively. ✅ If the Table of Contents has "gaps" that would confuse a stranger, revise.  Justices often read the TOC to gain a substantive overview of the brief before diving in.   ► 𝗧𝗵𝗲 𝗽𝗿𝗮𝗰𝘁𝗶𝗰𝗮𝗹 𝗺𝗲𝘀𝘀𝗮𝗴𝗲:  Ensure that your brief headings are crisp and clear, and that they smoothly outline all your core contentions on appeal. #appeals Laurie Hepler

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Thompson Hine’s Steven Stransky, partner and co-chair of the privacy and cybersecurity practice group, and Kim Sandell, senior counsel recently met with California State Senator Catherine Blakespear to address the surge in data privacy lawsuits affecting small businesses. They discussed the unintended consequences of the California Invasion of Privacy Act (CIPA) on website tracking technologies. Key Points: 🔹 Impact on Small Businesses: CIPA-related lawsuits are financially straining small businesses. 🔹 Legislative Intent: CIPA was meant for telephone surveillance, not internet privacy, which is covered by the California Consumer Privacy Act (CCPA). 🔹 Call for Action: Legislative updates are needed to align CIPA with current privacy laws and protect small businesses. Read full press release here: https://lnkd.in/geDCA2zQ #DataPrivacy #CIPA #SmallBusiness #LegalReform #ThompsonHine

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Many California lawyers and law firms invest in their clients, particularly those representing emerging companies. This can be a good business decision and also demonstrates a firm's confidence in a client’s success. But, as RJO shareholder Merri A. Baldwin notes in an article for the summer 2024 issue of Business Law News from the California Lawyers Association, there are potential ethical risks. “The most significant ethical concern when a lawyer invests in a client is that of conflict of interest: a lawyer who invests in a client may be at risk of a claim of self-dealing,” writes Baldwin. “Related issues include ensuring fairness to the client (in accordance with the business transactions with clients rule), adequate disclosure, and whether a client may give informed consent.” Merri examines those risks closely and offers practical advice to lawyers and law firms on mitigating liability when investing in clients. Read Merri’s article on our website: https://lnkd.in/gBt52JdQ  #LegalEthics #LegalMalpractice

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Proposed ABS Framework in Washington Could Lead to Broader Legal Industry Shift Washington State is exploring changes that could reshape the legal industry by introducing a pilot program that allows non-lawyers and alternative business structures (ABS) to offer legal services for a limited period. The proposal, which is still under review, aims to improve accessibility and affordability, but it's stirring debate. Proponents see it as a path to modernize the field and improve access to justice. Critics, however, fear it could compromise the quality of legal services. Executive Director of the Washington State Bar Association, Terra Nevitt, pointed out that the legal industry is evolving, while regulatory approaches have largely remained unchanged for the better part of a century. With similar programs in Arizona and Utah, Washington’s decision could set the stage for significant changes in how legal services are delivered nationwide. #alternativebusinessstructure #abs #washingtonstatebarassociation

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Critical Analysis: Hearsay Provisions Clarified in R v BOB & Others [2024] EWCA Crim 1494 📄 Georgia-Mae Chung provides an in-depth exploration of the Court of Appeal’s recent judgment in R v BOB, BYY, AEN, and BEK, in which Sophie Evans and Abigail Penny acted for two of the four respondents. This decision refines the application of hearsay provisions under the Criminal Justice Act 2003. Highlights include: • Key insights into the reformulated Riat steps, emphasising disclosure as a fundamental safeguard. • Practical guidance on assessing reliability and dovetailing evidence. • The Court’s critique of prosecutorial failings in disclosure obligations. 🔗 Read the full analysis here: https://lnkd.in/eJSjd54F

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🎉 Another milestone for The Legal Accountability Project’s Centralized Clerkships Database: more than 1,000 judges represented! 🥳 ✨A few fast facts about LAP’s first-in-the-nation Clerkships Database, which is not only the *largest* clerkships database in the US, but the ONLY source of candid, unbiased information: ⚡️1,460+ surveys about 1,000+ judges ⚡️Info about 650 federal / 350 state judges ⚡️Info represents judges from all 50 states and DC, all 13 federal circuits, and most of the 94 US district courts ⚡️1,000+ active users from nearly every U.S. law school ⚡️4 top law review subscribers (so far!) and some student orgs, too ⚡️Several law school subscribers 📣LAP’s Database has 2-3x the number of post-clerkship surveys as the LARGEST law school internal databases. And, of course, law schools have been struggling to collect info for years, even decades; LAP has been collecting surveys for just 16 months. 🗣️Importantly, LAP does NOT hide the ball about negative or nuanced #clerkship info: that’s why one of the first pieces of info users see when they click on judge profiles in LAP's Database are the ratings: rate the judge as a manager, and rate the overall #clerkship experience. 🗣️🗣️The value of LAP’s information is its candor: we’ve been able to compile honest reviews of judges in a way law schools *have not.* That’s why I’ve encouraged students to do a side-by-side comparison of their school’s database and LAP’s: for dozens of abusive judges, where LAP has the candid (negative) info, law schools either have no info or, disturbingly, misleading *positive* surveys. 📣Applicants: LAP’s Database should be your *primary* source of #clerkship information this year. The various ways #lawschools mislead students or share info selectively are unacceptable: fortunately, now there’s an excellent alternative! ⚡️So, if you’re a law student or recent graduate applying for #clerkships, register today for LAP’s Database for the *real deal* on clerking. ⚡️And if you clerked, share your #clerkship experience with LAP - and with thousands of aspiring clerks - and contribute to LAP’s nationwide clerkship #transparency movement! #clerkships #courts #judiciary #transparency #lawschools #legaltech #innovation

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Google's recent endorsement of a bill pushing for the disclosure of litigation funders raises concerns about the true motives behind this legislation. While it's framed as promoting transparency, it could disproportionately impact the privacy of plaintiffs and limit access to justice for those who rely on third-party funding. This move might stifle innovation in litigation finance and tilt the scales in favor of powerful corporations. #AccessToJustice #LitigationFinance #LegalChallenges #CorporatePower #ThirdPartyFunding https://lnkd.in/daGw5_rZ

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While this may seem like just another case against the SEC, Bitnomial, with its clean track record, seems to be in a unique position to advocate for a court ruling here that could have significant impacts to the industry. A favorable outcome would not only be another court bolstering Judge Torres' ruling regarding secondary sales, but potentially could extend far beyond that. Should the court rule in favor of Bitnomial, this could establish a precedent that clarifies regulatory jurisdiction within the digital asset derivative space. Such a ruling would confirm that the SEC lacks authority over crypto-based derivatives and, more crucially, affirm that the underlying assets are not classified as securities. Will be interesting to see how this one plays out.

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