President's Message-What will ACCA-SoCal look like in 2010?

Bernard Gaffaney

With the winter holidays now upon us, it seems like an appropriate time to look ahead to some of the things that 2010 is likely to have in store for ACCA-SoCal. 

First, there is a new president of the Chapter . . . me!  I have the pleasure and challenge of following in the footsteps of Renee Benjamin, now the immediate past president of ACCA-SoCal.  (I note that Renee looks unusually happy and relaxed ever since she handed the gavel over to me on October 1st, whereas my hair seems to be graying even more rapidly!)  Renee has left the ACCA-SoCal house in good order, as evidenced by the Chapter being recognized once again as the most outstanding chapter among ACC’s many chapters across the nation and world – in fact, ACCA-SoCal has received the title a record 7 times in the last 13 years!  (You will surely get sick of me repeating this fact over and over again in 2010.)  Although ACCA-SoCal is not eligible to win the title next year (chapters cannot win two years in a row), it is my hope to bring ACCA-SoCal to even greater heights in 2010 so that we are in a favorable position for another title run in the years that follow.  

Webcasts are another thing to look forward to in 2010.  Starting in January, all ACCA-SoCal programs (but not purely social events/receptions) will be videotaped.  Within several days after a given program, a video file will be created with most of the screen acreage devoted to the presentation slides from the program and a smaller portion of the screen simultaneously showing the presenters.  Each video file will then be compressed and made into files that can be streamed or downloaded for free from ACCA-SoCal’s website (the “Past Program Materials & Webcasts” page).  In addition, links to the presentation slides, speaker bios and other materials relevant to the program will be placed on the same “Past Program Materials & Webcasts” page.  Attendees of the program will be sent emails with links to all of the above-mentioned materials.  At this time, MCLE credit will only be offered for in-person attendance of ACCA-SoCal’s programs, but this could change, depending upon what members want and what is financially feasible.

The coming year may also bring a new on-line registration tool and email communication system to ACCA-SoCal.  The Chapter is currently researching the possibility of switching providers.  If that occurs, the new on-line registration tool and email communication system would improve the way that ACCA-SoCal communicates with you, including the way that you sign up for Chapter programs/events.  Here is a partial list of changes you may notice (if a switch is made):
• Smoother log-in process to sign-up to attend ACCA-SoCal programs/events, and greater ease modifying your status for a program/event that you have already signed-up to attend (e.g., bringing guest, cancelling attendance, etc.)
• Improved look-and-feel and functionality of the weekly emails sent to all members providing details about upcoming programs/events and other important announcements
• Ability to click one button to add a program/event directly to your calendar (supports Outlook Calendar, Google Calendar, Yahoo Calendar, MSN Calendar)
• Ability to pre-populate the start address and end address for driving directions to a program/event
• Ability to share programs/events with colleagues by inputting their email addresses or by sharing the event on social media sites (LinkedIn, Twitter, etc.)
• Ability for the Chapter to more easily create standardized name tags (using color coding such as ribbons) to identify at each program/event “new” Chapter members (i.e., members of ACCA-SoCal for less than one year), members of ACCA-SoCal’s Board of Directors, sponsors of the program/event, and special guests

An evening with Condoleezza Rice (former Secretary of State, 2005-2009) is also forthcoming in 2010.  She has agreed to be the keynote speaker for ACCA-SoCal’s 15th Annual Gala Dinner & Pro Bono Silent Auction.  The event will be held on April 30, 2010 at the Westin Bonaventure Hotel in downtown Los Angeles.  Dr. Rice promises to be yet another fabulous keynote speaker at this prestigious event, following the likes of Bill Clinton, Tony Blair, George H.W. Bush, Al Gore, Colin Powell, and other luminaries.

Finally, in addition to the usual slate of Chapter programs and events (Annual Gala Dinner, DoubleHeaders, RoundTables, ACCess MCLE (f/k/a Monthly Multi-Venue), In-house Counsel Conference (all-day MCLE program in late January), In-house Connections (career development programs), Family Fun Day, and various receptions, there will be a few relatively new programs/events in 2010:  (1) ACC Value Challenge (recently there has been increased interest in the ACC Value Challenge and the related ACC Value Index  – we plan to have at least two events in 2010 focusing on these important initiatives); (2) Food, Drug & Healthcare Law and Entertainment Law (these programs will be tailored in-house attorneys practicing in those areas, and could possibly lead to the creation of permanent committees within ACCA-SoCal being created to plan programs and events for those substantive practice groups); and, (3) possibly another Mini-MBA (the Chapter staged its first event in the fall of 2009, which was well attended and received, however, we have not yet been able to locate a sponsor interested in staging another Mini-MBA for 2010 – please let me know if you have any leads). 

As you can see, we have not only much to be thankful for this past year (did you hear that ACCA-SoCal won the Chapter of Year Award for the 7th time in the last 13 years?), but also a myriad of things to look forward to in 2010.  On behalf of ACCA-SoCal’s Board of Directors, I look forward to seeing you at the Chapter’s many programs and events in the coming year.  Happy holidays and best wishes for a prosperous new year!

Warmest regards,

Bernard A. Gaffaney (2009-2010 President)

SAVE THE DATE: January 20, 2010 In-House Counsel Conference

The 6th Annual In-House Counsel Conference will be held on Wednesday, January 20, 2010, just in time to meet your MCLE needs for the February 1st deadline!

The theme of this year’s Conference is “Practical Approaches for Survival and Success.”  The program will focus on providing in-house counsel with practical tips and useful tools for every-day use.

Receive up to 8 hours of MCLE credit (6 hours live; 2 hours on CDs).

The Conference will be held at the elegant Millennium Biltmore Hotel in the Financial District of downtown Los Angeles, with easy access by public transportation and parking at the hotel and right next door to Pershing Square.

More details will follow soon. We look forward to seeing you there!

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SAVE THE DATE: April 30, 2010 Gala Dinner with Speaker Condoleezza Rice

ACCA-SoCal is pleased to announce that the keynote speaker at its 15th Annual Gala Dinner & Pro Bono Silent Auction will be Condoleezza Rice, Secretary of State (2005-2009).  The event will be held on April 30, 2010 at the Westin Bonaventure Hotel in downtown Los Angeles.

Condoleezza Rice is the Thomas and Barbara Stephenson Senior Fellow on Public Policy at the Hoover Institution and professor of political science at Stanford University.

From January 2005 to 2009, she served as the 66th Secretary of State of the United States. Before serving as America’s chief diplomat, she served as assistant to the president for national security affairs (national security advisor) from January 2001 to 2005.

Rice joined the Stanford University faculty as a professor of political science in 1981 and served as Stanford University’s provost from 1993 to 1999. She was a senior fellow at the Hoover Institution from 1991 to 1993 and returned to the Hoover Institution after serving as provost until 2001. As a professor, Rice won two of the highest teaching honors: the 1984 Walter J. Gores Award for Excellence in Teaching and the 1993 School of Humanities and Sciences Dean’s Award for Distinguished Teaching.

Learn more here about becoming a sponsor of the 15th Annual Gala Dinner which includes a preferred table at the event.  Individual table sales and individual tickets will be available for sale in early 2010 – please check our website for the latest information.

 
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Government Agencies Focus on “Fairer Workplaces”

David G. Hoiles, Jackson Lewis LLP

President Barack Obama and the Democratic Party-controlled Congress have made robust enforcement of workplace laws by regulatory agencies, such as the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs, a high priority.  This means businesses must be out front with diversity and workplace law compliance programs and training.

The Administration’s early actions signaling a commitment to “fairer workplaces” include: 1) signing into law the Ledbetter Fair Pay Act (the first law the new President signed); 2) quickly issuing three pro-labor Executive Orders; and 3) increasing the enforcement budgets at the EEOC, the OFCCP, and the Department of Justice Civil Rights Division.  Attorney General Eric Holder has announced that the Civil Rights Division will “fight discrimination and inequality just as fiercely as the Criminal Division fights crime.”

The EEOC and OFCCP are slated for hefty increases in the fiscal year 2010 budget.  Government regulators at the EEOC and the Department of Labor are hiring more investigators and prosecutors and are initiating more audits and investigations.

According to a recent report of the EEOC General Counsel, implementation of the agency’s systemic program to address “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location” is a priority.  The report notes the agency has made “substantial progress” with the systemic program, including a sizeable increase in the number of systemic investigations.  Additionally, the EEOC has filed class action lawsuits nationwide under every statute it enforces (see EEOC's Newsroom).  These include a broad set of issues and against a wide variety of industries, particularly in regards to race and color discrimination under its Eradicating Racism and Colorism in Employment Initiative (see The E-RACE Initiative at www.eeoc.gov).

Even though this strategy leads to a decline in the total number of lawsuits filed each year, the agency maintains that individual cases will be important and “will continue to be strategically selected to have impact beyond their individual circumstances.”  (See Fiscal Year 2008 Performance and Accountability Report.)

The EEOC is not the only government regulator increasing scrutiny of employer practices for evidence of systemic discrimination.  The Department of Labor’s OFCCP expects to get more serious about its enforcement efforts against systemic compensation discrimination by federal contractors subject to its oversight.  Labor Secretary Hilda Solis has announced that a significant percentage of the agency’s substantially larger budget for FY 2010 will be used to support enforcement of its systemic compensation discrimination and self-evaluation guidelines implemented in 2006.

The additional funding will enable the OFCCP to emphasize examination of compensation practices during compliance reviews.  It also will be able to develop a new case management system, hire an additional 213 compliance officers and other enforcement personnel, increase the number of compliance evaluations and complaint investigations, and bolster enforcement strategies.  With the new budget increase, Secretary Solis has indicated that the OFCCP will be able to improve outreach and training, as well as approaches and investigative techniques used to evaluate compensation.

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For questions on this article, please contact David G. Hoiles, Partner in the Los Angeles Office of Jackson Lewis LLP.  Mr. Hoiles can be reached at hoilesd@jacksonlewis.com or (213) 630-8251.

 
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ACCA-SoCal's New Mentor Program-Seeking Mentors and Mentees

New to In-House?  Or do you have war stories to share?  The Diversity Committee is sponsoring a Mentoring Program for members of ACCA-SoCal.  We are looking to identify members of ACCA-SoCal who are willing to serve as mentors and those seeking mentors.  The qualifications are as follows:

Mentors:
1.    At least 5 years experience in an in-house setting
2.    Availability to attend face-to-face meetings at least 3 times throughout the year, with availability by phone throughout the year
3.    Commitment to the program for 1 year
4.    Willingness to learn as well as share

Mentees:
1.    Less than 5 years experience in an in-house setting
2.    Availability to attend face-to-face meetings at least 3 times throughout the year
3.    Commitment to the program for 1 year
4.    Willingness to share as well as learn

If you are interested and meet with qualifications above, please fill out the mentorship application. 

Don't miss out on this great opportunity to expand your network and gain valuable insights.

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Unauthorized Computer Access in the Workplace Environment

Gary L. Urwin and Jennifer L. Wagman

A company experiencing uninvited computer access has at least three potential remedies against the e-trespasser:  trespass to chattels, the Computer Fraud and Abuse Act (CFAA), and the California illegal computer access law, California Penal Code § 502 (“§ 502”).     

In the late 1990s, case law began to resurrect an old and largely dormant tort theory, trespass to chattels, by applying it to wrongful computer access.  Under California law, the tort of trespass to chattels encompasses “intermeddling with or use of or damages to” personal property not amounting to a conversion.

The court in eBay v. Bidder's Edge, Inc., 100 F.Supp.2d 1058 (N.D. Cal. 2000), transported the doctrine into the digital age, issuing a preliminary injunction on the basis of unauthorized access to eBay's system and a possibility of damage to eBay's system, stemming not only from defendant's use but also from the potential cumulative effect of other hypothetical users.  Intel Corp. v. Hamidi, 30 Cal.4th 1342 (2003), by contrast, significantly limited the doctrine, holding a trespass to chattels claim is unavailable absent tangible interference to or impairment of the computer’s use or operation. 

Common companion claims to trespass to chattels include the CFAA, which creates liability for “intentionally access[ing] a computer without authorization or exceed[ing] authorized access,” 18 U.S.C. § 1030(a)(2)(C), and civil liability under § 502, making it unlawful to “knowingly access and without permission” alter/use/damage/destroy computer files.

When interpreting “unauthorized” access under the CFAA in the employer-employee context, courts first consider whether the access was pre- or post-termination.  Post-termination access is uniformly considered “unauthorized.”  However, the circuits split over whether pre-termination access is “unauthorized,” taking either an expansive or narrow view.  Under the expansive view, an employee who “disloyally” accesses an employer’s computer, such as to email himself employer’s files to use competitively in the future, is “unauthorized.”  Contrarily, the narrow view holds that an employee’s access is not “unauthorized” when he is granted access to and uses an employer’s computer, even if for improper purposes.  The Ninth Circuit adopts the narrow pre-termination view.  LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009). 

Similarly, California courts interpreting § 502 narrowly construe wrongful access, holding for example that an employee who utilized a computer in a way against company policy did not violate § 502.  Chrisman v. Los Angeles, 155 Cal.App.4th 29, 34-35 (2007).       

How successful then are claims against unwanted computer access?  In the context of trespass to chattels, significant consideration must be given to the procedural timeframe.  Courts tend to approach pleading stage motions somewhat leniently in finding a computer use rises to the level of "damage" or "impairment", but are significantly more rigorous at the summary judgment or trial stage, requiring a concrete showing of harm to a computer.  In the context of unauthorized use under the CFAA and § 502, specifically in the employer-employee context, an employer is likely to prevail against an employee’s post-termination access, but unlikely to recover on access pre-termination given the Ninth Circuit’s and California’s narrow interpretation of wrongful access. 

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Gary L. Urwin, a partner in the Los Angeles office of Hogan & Hartson LLP, specializes in business litigation with emphasis on the areas of intellectual property, media and entertainment, technology and Internet/IT systems, and complex commercial litigation. Gary can be reached at glurwin@hhlaw.com or 310-785-4669.

Jennifer L. Wagman, an associate in the Los Angeles office of Hogan & Hartson LLP, practices in the litigation group with an emphasis on complex commercial litigation and labor and employment. Jennifer can be reached at jlwagman@hhlaw.com or 310-785-4798.
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“Sold Out” Mini MBA a Huge Success!

Teigue Thomas

ACCA-SoCal and Dorsey & Whitney, LLP hosted a free Mini-MBA program on October 8 at the Center Club in Costa Mesa for 100 in-house counsel.

Four panels were presented at the “standing room only” program which provided the attendees with information and useful tools regarding MBA essentials.  The panels offered information on different levels of business acumen to an audience that represented many different levels of experience and expertise.

The program ended with an alfresco, networking cocktail reception where delicious hors d'oeuvres and drinks were enjoyed by the attendees and sponsors. 

                               
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ACCA-SoCal Tees Up For OC Public Law Center at 11th Annual Charity Golf Classic

William Harn and Julie McKinney

On Monday, October 13, at the premier golf venue of Trump National Golf Club in Rancho Palos Verdes, ACCA-SoCal hosted about 120 golfers at its 11th Annual Charity Golf Classic.  Supported by the generosity of our Platinum Sponsor, LexisNexis, as well as other ACCA-SoCal sponsors and player guests, ACCA-SoCal raised $10,000 for the Public Law Center of Orange County bringing ACCA-SoCal’s total donations over the eleven-year history of the event to more than $160,000! 

While navigating the challenging course, the golfers enjoyed the sun breaking through the clouds illuminating the spectacular Pacific Ocean vistas.  Following a spirited post-play cocktail reception, Joe Craciun served as master of ceremonies for the awards dinner and donation presentation.  Low Gross Honors went to the Jackson Lewis team and Low Net Honors to the Troy Gould team.  Chapter President, Bernard Gaffaney, and Grace Wang of LexisNexis, presented the chapter’s award of $10,000 to Public Law Center’s representatives, Kenneth Babcock, Executive Director, and Charlotte Finklea, Director of Development, thanking them for their service to the community, provision of volunteers to staff the event and efforts in obtaining donations for the charity drawings. 

Special thanks to Tournament Co-Chair Julie McKinney and the tournament committee for all their efforts:  Zachary Zaharak, Michelle Lancaster, Joe Craciun, Derrick Roselli, Harry Field, legal intern volunteers from Princess Cruise Lines and Betty St Marie (Chapter Administrator). 

                   
    

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Members Learn and Watch World Champion Lakers at DoubleHeader®

James Wong

In November, ACCA-SoCal members attended another sold-out Doubleheader® at the downtown Staples Center^TM.  This enormously popular and fun night was graciously hosted by Winston & Strawn.

The MCLE program, entitled “Preparing for the Rebound: The Forecast for Complex Litigation & Government Enforcement”, was presented by a panel of litigation partners from Winston & Strawn.  The topics covered Trends in Class Action Litigation; California’s Electronic Discovery Act & The Myths and Realities of Legal Outsourcing; Best Practices for Defending Claims Under the Consumer Legal Remedies Act; New Antitrust Enforcement Policies; SEC Enforcement: Top Trends; and Foreign Corrupt Practices Act Enforcement and Compliance Strategies. 

After the MCLE program, ACCA-SoCal members enjoyed watching the World Champion Los Angeles Lakers defeat the Detroit Pistons from an Events Suite above the arena.

Attendees also had a chance to win an autographed Clippers jersey, compliments of our sponsor.  A webcast of the program will be available on ACCA-SoCal’s website for those who missed the program.

                    
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Welcome New Members!

Please welcome the following new members who joined ACCA-SoCal in October and November 2009. 

 
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