Professional Documents
Culture Documents
www.dailyjournal.com
VOL. 122 NO. 80
TUESDAY, APRIL 26, 2016
Former
dean files
grievance
GUEST COLUMN
Former UC Berkeley
School of Law leader
disputes punishment
DPA, NPA
deals are
not up to
the judge
By Jim Bowman,
Maggie Carter
and David Kirman
In the past 10 years, a number of
federal district judges have balked at
accepting the types of deferred prosecution agreements (DPAs) routinely entered into by corporations and
the Department of Justice because
of disagreements with the terms
of the agreement. This has caused
anxiety on both sides of the aisle, as
companies and prosecutors continue
to rely on DPAs and non-prosecution
agreements (NPAs) to resolve civil
and criminal prosecutions against
corporations. A recently issued and
See Page 8 RULING
CIVIL LAW
Civil Procedure: Erroneous
exclusion, as untimely, of
declaration establishing
existence of agreement to
arbitrate results in reversal of
denial of petition to compel
arbitration and remand.
Espejo v. Southern California
Permanente Medical Group,
C.A. 2nd/4, DAR p. 3943
Copyright: Writers claim
against James Cameron
fails as writer cannot show
required substantial similarity
between his pitched project
and Camerons 2009 film,
Avatar. Ryder v. Lightstorm
Entertainment, C.A. 2nd/8, DAR
p. 3952
Employment Law: In wage
and hour class action, dispute
regarding practicability of
employers combined rest break
schedule precludes summary
adjudication of employees
rest break claim. Rodriguez v.
E.M.E. Inc., C.A. 2nd/4, DAR p.
3935
Workers Compensation:
Workers Compensation Appeals
Board order annulled where
it erroneously interprets and
applies law to find petitioners
psychiatric injury was caused
by extraordinary employment
condition. Travelers Casualty
& Surety Co. v. Workers?
Compensation Appeals Board,
C.A. 1st/4, DAR p. 3949
CRIMINAL LAW
Criminal Law and Procedure:
Habeas relief granted to
Pelican Bay State Prison
inmate who was disciplined for
participating in planned hunger
strike to protest states solitary
confinement practices. In re
Gomez, C.A. 1st/2, DAR p. 3927
Criminal Law and Procedure:
Deputies safety justified brief
detention of second driver
whose vehicle was sandwiched
between patrol car and lead
vehicle that deputies intended
to stop on outstanding warrant.
People v. Steele, C.A. 3rd, DAR
p. 3960
By Phil Johnson
Daily Journal Staff Writer
Justice Laurie D. Zelon of the 2nd District Court of Appeal said Monday that the State Bars access-to-justice work
should remain part of its regulatory mission even if the agency is divided.
sponded in an email that the underlying credit check suit claim would
not be wiped out by an OConnor settlement, but instead a smaller state
Private Attorney General Act claim
that is part of the complaint. The
lawyer stressed a settlement would
only kill off wage-and-hour related
matters in the other lawsuits.
But Andrew P. Lee, partner at
Goldstein, Borgen, Dardarian &
Ho, and plaintiffs lawyer in the
credit check case, noted there is no
See Page 3 PLAINTIFF
Logging In
Pay-to-play in Hollywood
Jonathan Runyan, general counsel of San Franciscobased Okta Inc., focuses on worker data.
Page 4
Dealmakers
Sidley Austin LLP advised Hansen Medical Inc. in its
sale to Auris Surgical Robotics Inc. Page 5
J.S. Hermanson
Superior Court Judge
Amador County (Jackson)
Conditions set on
Led Zeppelin members
Charter-TWC
deal
court appearance in doubt
By Steven Crighton
By Steven Crighton
Daily Journal Staff Writer
OS ANGELES The
venue is set in the copyright infringement lawsuit over Led Zeppelins
Stairway to Heaven, but attorneys say the band might not be
ready to take the stage.
A request for questions by U.S.
District Judge R. Gary Klausner
at the end of a pretrial conference
Monday prompted plaintiffs attorney Francis A. Malofiy to inquire
about appearances by band frontman Robert Plant and guitarist
Jimmy Page.
According to a proposed pretrial
conference order submitted Sunday, Malofiy counsel to plaintiff
Michael Skidmore, representing
the trust of Spirit member Randy
Craig Wolfe argued defense
counsel are refusing to accept
subpoenas on behalf of their clients, including Page and Plant.
Michael Skidmore v. Led Zeppelin
et. al., 15-CV03462 (C.D. Cal., filed
May 31 2014).
Malofiy said that Page and Plant,
who are named defendants in the
case, are hiding behind counsel
in the U.K. to avoid appearing on
the witness stand, despite consent-
things work.
Asked whether a late appearance from Plant and Page could
impact the case, Jacobs said it was
likely irrelevant.
The jury is going to evaluate
based on the evidence. Theyre
obviously going to be waiting to
hear from these guys in particular, because theyre the core of
Led Zeppelin. But whenever they
hear them, first, fourth, fifth it
doesnt matter.
While Page and Plant could appear, arguments based on their
supposed drug and alcohol use will
likely not. Klausner granted tentative approval to a motion seeking
to exclude the topic. He also tentatively blocked arguments based
on the validity of charitable donations made by Wolfes trust and
other lawsuits alleging copyright
infringement by Led Zeppelin.
The judge also laid out a rough
timeline for the case, which he anticipates will take four to five days,
and is demanding a clean fight.
If theres any lack of civility at
all, I wouldnt want to be in your
shoes, Klausner said.
The trial is set to begin May 10.
steven_crighton@dailyjournal.com
Corrections
An April 20 article, State Fund
asks judge to reconsider DQ, incorrectly stated that the State Compensation Insurance Fund sued Paul
Randall in the case State Compensation Insurance Fund v. Michael Drobot et. al. Randall is a third-party defendant. The article also incorrectly
stated that another case, State Compensation Insurance Fund v Capen
et. al., was a consolidated lawsuit.
Capen is a related case.
A profile of Margaret Stevens in
the April 20 Top Women Lawyers
supplement misidentified her role in
the Los Angeles County Bar Association. She is president elect.
The Daily Journal regrets the errors. A corrected version of these articles are at www.dailyjournal.com.
Reprints
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Ellis at jeremy@reprintPros.
com, (949) 702-5390 or online
at www.reprintPros.com.
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ASHINGTON
By Kibkabe Araya
quires and repositions real estate assets in the hospitality, office, retail
and residential spaces.
At Ethika, Bindra said he largely
focuses on compliance subsequent
to the firm receiving Securities and
Exchange Commission approval as
a registered investment adviser.
Earlier this year, Laurus acquired the Vail Cascade Resort and
Spa in Colorado. A $35 million renovation started this month.
With a robust background in
real estate law and an impressive
tenure consulting with Fortune
500 companies, Simran will be an
instrumental member of our team
as we undertake new ventures, expand to different markets and continue the success weve realized
over the past several years, said
Laurus chairman Andres Szita in a
statement.
Before spending two years at
Capital One, Bindra was an associate at Milbank, Tweed, Hadley &
McCloy LLP for two years. He orig-
BINDRA
Logging In
Jonathan Runyan, general counsel of San Francisco-based Okta Inc., focuses on worker data.
By Banks Albach
Daily Journal Staff Writer
he meteorological term
okta, a unit of measurement for cloud cover, is
a good fit for the cloudbased startup that adopted the name
when it launched in 2010.
The company, focused on designing and managing applications that
handle employee login data for large
corporations. Oktas apps range
from mobile to workplace anywhere an employee decides to log in
to any part of their employers digital
presence.
The company boasts more than
2,000 clients including LinkedIn
Corp, Groupon Inc. and Informatica
Corp. Okta is headquartered in San
Francisco with additional offices
in Seattle, London, Sydney and the
Netherlands, employing roughly 700
people in all.
Jonathan T. Runyan joined the
company as lead counsel in January
last year after a lengthy stint with Silicon Valley firms focused on technology startups. He was a senior associate at Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian
LLP for four years before moving to
Goodwin Procter LLP. And he made
partner at Goodwin in late 2013 before going in-house at Okta.
Daily Journal staff writer Banks
Albach recently with Runyan about
his work as Oktas lead counsel. Below is an edited transcript of their
conversation.
Daily Journal: Break down
what Okta does.
Runyan: For our customers employees, Okta is effectively the front
door to work. It is the one single
login they use to access their devices phones, laptops, tablets and
mobile phones and all of the apps
and services they use every day. Its
... one single login for everything,
which makes users lives simpler,
more efficient and more productive.
For the IT leaders that purchase
Okta, we manage and secure identities for every app, service and device
Jonathan T.
Runyan
General Counsel
Okta Inc.
San Francisco
across their organization. Our service helps them ensure that the right
people have the right level of access
at the right times, and that when an
employee changes jobs, their access
level changes, or when an employee
leaves, they can no longer access
corporate systems. We also provide
a mobility management and authentication service, which verifies that
the right people are logging in to
corporate systems. Another growing area of Oktas business is what
we call the Okta Platform. With the
Okta Platform, developers are able
to build Oktas identity services into
applications and portals that they
are building so that they can authenticate, manage and secure customers, partners or contractors.
DJ: The Identity-as-a Service,
or IDaaS, industry is growing
increasingly competitive. What
does Okta offer as an advantage?
Runyan: Okta is the category creator and the leader in the category.
When the team pioneered the IDaaS
industry seven years ago, many of
our current competitors didnt see
the strategic advantage of identity.
Now that the opportunity has been
validated technically and by customer demand, others have rushed into
the market only to discover that the
first mover advantage was gone. In
terms of advantages, unlike many of
our competitors, Okta offers customers the freedom and ability to use
any application and/or architecture
they need to transform their business. We also have the industrys
broadest and deepest set of app in-
My personal North Star is my integrity and I exepect the same from outside
counsel as they are a reflection of Okta
and, by extension, of me.
DJ: How is your legal department structured and sorts of
matters do you keep in-house?
Runyan: Currently, we are a department of six. I obviously head the
department and report to Todd McKinnon, our CEO. I and am very ably
supported by Larissa Schwartz, my
AGC and Maryam Baer, our director
of commercial transactions. They
report directly to me. We also have
a corporate paralegal and a manager
of stock administration who report
into Larissa and Kim Woodward,
our senior corporate counsel, who
reports to Maryam. When I arrived
a little over a year ago, it was just
Maryam so we have been expanding fairly rapidly.
DJ: When do you seek outside
counsel and what firms do you
work with?
Runyan: Goodwin Procter, the
DEALMAKERS
Venture Capital
Waltz Networks lands $8.15M Series A with
help from Fenwick
Venture Capital
Diamanti raises $12.5M Series A with help from
Wilson Sonsini
Fenwick & West LLP advised Waltz Networks Inc., the San Francisco-based operator of a cloud platform for automatic high performance traffic
management applications, in its $8.15 million Series A financing, a deal announced April 19.
The company raised $6.75 million from New Enterprise Associates, a
global venture capital firm, and $1.4 million in National Science Foundation
grants.
Waltz Networks solutions provide real-time network control, allowing
businesses higher bandwidth utilization and lower latency, according to a
news release. The capital will be used to expand hiring and product development efforts, according to a news release.
The Fenwick transaction team was led by Mountain View partner Michael
T. Esquivel (pictured) and associate Debbie Li.
Wilson Sonsini Goodrich & Rosati PC advised Diamanti in its $12.5 million
Series A funding round, a deal announced April 19.
The round included participation from Goldman Sachs Group Inc. along
with Charles River Ventures, Draper Fisher Jurvetson and GSR Ventures.
Diamanti, headquartered in San Jose, is a datacenter infrastructure company. Diamanti products aim to solve networking challenges and storage requirements that organizations face when moving containerized workloads
from development into production.
Robert P. Latta (pictured) and Mark B. Baudler, partners in Palo Alto, coled the Wilson Sonsini team.
LATTA
ESQUIVEL
Energy
Akin Gump advises in energy deal
Akin Gump Strauss Hauer & Feld LLP advised Diamond Generating
Corp., a subsidiary of Mitsubishi Corp., in acquiring a 50 percent stake in
Tenaska Westmoreland Generating Station, a roughly 925 megawatt natural
gas-fueled power project, a deal announced April 19. Financial terms were
not disclosed.
Affiliates of Tenaska Inc., the original developer of the project, will own
the remaining 50 percent. Tenaska is an Omaha, Neb.-based independent
power producer.
The project also closed on about $780 million in commercial financing led
by MUFG Union Bank N.A, BNP Paribas, Citigroup Inc. and Industrial and
Commercial Bank of China.
Construction began on the project in Westmoreland County, Penn., near
BARAJAS
Pittsburgh, earlier this year and is expected to be completed by the end of
2018.
Diamond Generating, headquartered in Los Angeles, owns 11 operating
power generating facilities throughout the country.
Los Angeles partner Dino E. Barajas (pictured) and counsel Vladimir Fet and Courtney Matsuishi led the Akin
Gump team with support from partner Anthony R. Salandra along with associates Rachel A. Ramos and Daniel
Shlomi.
M&A
Trio of firms tapped for technology company
acquisition
Latham & Watkins LLP advised Bridgepoint, a European private equity
firm, and served as lead counsel in its deal with Summit Partners and Calypso Technology Inc., a transaction announced April 19.
Bridgepoint and Summit Partners will acquire Calypso Technology. Financial terms of the transaction were not disclosed.
Wilson Sonsini Goodrich & Rosati PC advised Calypso Technology, a provider of capital markets software headquartered in San Francisco.
Kirkland & Ellis LLP advised Summit Partners, a growth equity investment firm.
Calypso offers an integrated suite of trading and risk management soluBERGSTROM
tions. It has more than 34,000 users in over 60 countries, including professionals at banks, clearing houses, insurance companies and corporations.
The deal will support Calypsos next phase of growth along with the companys work in capital markets technology,
according to a news release.
Goldman Sachs Group Inc., UniCredit S.p.A., Crdit Agricole S.A., Mizuho Bank Ltd. and Bank of Ireland provided
debt for the transaction. The transaction is subject to standard closing conditions and regulatory clearances.
Partners Olivier du Mottay in Paris and Luke J. Bergstrom (pictured) and Chad G. Rolston in Menlo Park led the
Latham team with support from partner John J.D. Marple and associates Saad S. Khanani and Benjamin A. Liss.
Associates Julie D. Crisp in San Francisco and H. Jia Jia Huang in Los Angeles aided the effort.
The Kirkland team was led by partners James L. Learner in London and Brian C. Van Klompenberg in Chicago.
San Francisco partner Michael S. Ringler led the Wilson Sonsini team which included partner John Mao along
with associates John H. Olson, Michelle S. Fernandes, Jennifer L. Sayles Brandon M. Gantus and Jonathan P. Adams.
Palo Alto partners Kira Kimhi, Ivan H. Humphreys, Scott T. McCall and Marina C. Tsatalis provided support along
with associates Tracy D. Rubin, Myra A. Sutanto Shen, Matthew C. Norgard and Dana J. Hall.
M&A
Medical robot makers combine in $80M deal
with help from trio of firms
Sidley Austin LLP advised Hansen Medical Inc. in its sale to Auris Surgical
Robotics Inc., a deal with an equity value of roughly $80 million, announced
April 20.
Auris Surgical will acquire Hansen Medical for $4 per share in cash, representing a premium of about 39.9 percent over the closing sale price of common stock of Hansen Medical a day before the deal was announced. Certain
significant stockholders of Hansen Medical have agreed to invest roughly
$49 million into Auris at the same time the deal closes.
Hansen Medical, headquartered in Mountain View, designs and manufactures medical robotics for positioning and control of catheter-based technolFITCHEN
ogies.
Morris, Nichols, Arsht & Tunnell LLP advised the Hansen Medical special
committee of the board of directors.
Morrison & Foerster LLP advised Auris, a San Carlos-based robotics technology company whose products aim to
assist in medical procedures.
The combined capabilities of Auris and Hansen Medical will accelerate the growth of medical robotics to advance
patient care, said the president and CEO of Hansen Medical in a news release.
Significant stockholders that have about 65 percent of Hansen Medicals outstanding shares, including the companys executive officers and directors, have entered into voting agreements with Auris and have agreed to vote in favor
of the transaction, according to a news release.
The deal is expected to close in the middle of the year if certain customary closing conditions, such as shareholder
approval, are met.
Partners Jennifer F. Fitchen, (pictured) a partner in Palo Alto and Sharon R. Flanagan in San Francisco led the
Sidley team which included associate Sally M. Wagner Partin. Century City partner Russell G. Weiss and Palo Alto
associate Ruchun Ji provided support.
Patricia O. Vella, a partner in Wilmington, Del., led the Morris Nichols team.
Palo Alto partner Michael J. ODonnell led the MoFo team along with partner Mika Reiner Mayer leading on certain aspects. Counsel Walter S. Wu provided support along with associates Jae I. Yoo and Aria Kashefi. San Francisco
partners Aaron P. Rubin and David A. Lipkin aided the effort along with Aaron J. Schohn, an associate.
Venture Capital
Latham helps biopharma company raise $46.2M Series B
Latham & Watkins LLP advised Second Genome Inc., a privately-held biopharmaceutical company based in South
San Francisco, in its $42.6 Million Series B financing, a deal announced April 20.
Pfizer Venture Investments and Roche Venture Fund co-led by the oversubscribed round which included participation from Digitalis Ventures, LifeForce Capital, MBL Venture Capital Co. Ltd., Advanced Technology Ventures and
many others. The latest financing round brings the combined total investment in the company to $59 million.
The funds will be used to further expand the companys products and for clinical investigations, according to a
news release.
The executive director of Pfizer Venture Investments and the head of Roche Venture Fund will join the Second
Genome board of directors.
Lathams team included Menlo Park partner Mark V. Roeder and associate Alexander T. White.
M&A
Fenwick helps HP assets change hands in
$170M deal
Fenwick & West LLP advised Hewlett Packard Inc. in the roughly $170
million sale of certain customer experience software and services assets to
Open Text Corp., a deal announced April 18.
OpenText is an independent software provider of Enterprise Information
Management headquartered in Canada. A spokesperson from the company
could not be reached for comment.
HP TeamSite, a multi-channel digital experience management platform
for web content management, HP MediaBin, a digital asset management
solution and HP Qfiniti, an intelligent workforce optimization solution, are
among the software assets that will change hands, according to a news release.
The customer experience software business is expected to generate between $85 million and $95 million in annual revenues and become a part of
HEALY
the OpenText operating model within the first year after the deal closes. The
transaction is expected to finalize in the fourth quarter the current fiscal
year, subject to customary regulatory approvals and closing conditions.
The acquisition is expected to enhance OpenTexts customers multi-channel digital experience by providing them
with software products in marketing optimization, mobile marketing and voice of the customer programs, according
to a news release.
The Fenwick team was led by Mountain View partner David W. Healy (pictured), with support from partners Mark
S. Ostrau, Stuart P. Meyer, William R. Skinner and Andrew J. Kim. Counsel Glenn Borromeo also advised along with
associates Priscila Bastazin, Christopher N. Gorman, Victoria C. Wong, Alex Y. Galev, Christopher D. Joslyn, Joseph
Schenck and Meng Wu. San Francisco associate Scott A. Behar aided the effort.
IPO
Gemphire Therapeutics will go public with
guidance from Honigman Miller, Cooley
Honigman Miller Schwartz and Cohn LLP is advising Gemphire Therapeutics Inc.in its initial public offering announced with the Securities and
Exchange Commission, April 18. Pricing and share volume details have not
been disclosed.
Gemphire Therapeutics is a Northville, Mich.-based clinical-stage biopharmaceutical company that develops and commercializes therapies that
for cardiovascular disease.
Cooley LLP advised the syndicate of underwriters, led by Jefferies LLC
and Cowen and Co. LLC.
Phillip D. Torrence, Joscelyn C. Boucher and Meredith Ervine, partners in
Kalamazoo, Mich., led the Honigman Miller team.
The Cooley team was led by partners Divakar Gupta in New York, Nicole
C. Brookshire in Boston and Charles S. Kim in San Diego (pictured).
KIM
Financing
Jet engine lessor revs up credit facility with help
from Pillsbury
Pillsbury Winthrop Shaw Pittman LLP advised Willis Lease Finance Corp.,
an independent jet engine lessor headquartered in Novato, in expanding its
$700 million revolving credit facility to $1 billion, a deal announced April 21.
The 5-year term credit facility includes a $110 million accordion feature
and additional flexibility. Willis Lease and its subsidiaries will use the expanded credit facility to continue growing its lease portfolio, which included
nearly $1.5 billion of owned and managed assets as of the end of last year,
according to a news release.
The revolving credit facility is provided by a syndicate of thirteen banks.
MUFG Union Bank N.A. is serving as administrative agent, joint lead arrangTENDLER
er and joint bookrunner, Bank of America N.A. and Wells Fargo Bank N.A.,
are serving as co-syndication agents. Merrill Lynch, Pierce, Fenner & Smith
Inc. and Wells Fargo Securities, LLC are serving as joint lead arrangers and
joint bookrunners. U.S. Bank National Association is the documentation agent, joint lead arranger and joint bookrunner. Capital One, N.A., is the senior managing agent while The Huntington National Bank, serves as managing agent.
CIT Bank, N.A. and Apple Bank for Savings are two new banks that have joined the syndicate.
Willis Lease leases large and regional spare commercial aircraft engines, auxiliary power units and aircrafts to
airlines, aircraft engine manufacturers and maintenance, repair and overhaul providers in 120 countries, according
to a news release.
The company expects this expanded credit facility to be a significant tool for the company as it continues to grow
and prepare for the future, said the chairman and CEO of the company in a news release.
Philip J. Tendler (pictured), a partner in San Francisco, led the Pillsbury team with support from associates Alicia
M. McKnight and Katie P. Vorhis.
Melanie Brisbon
www.dailyjournal.com/dealmakers
PERSPECTIVE
In a recent ruling, the Supreme Court said that an asset freeze violates a defendants Sixth Amendment right to counsel when
the asset freeze prevents the defendant from using untainted funds to retain the counsel of his or her choice in a criminal case.
ernment opposed.
The U.S. District Court for the
Southern District of Florida issued
a published opinion denying Luis
motion for release of assets to retain counsel, holding that there is
no Sixth Amendment right to use
untainted, substitute assets to hire
counsel. Luis appealed the ruling
to the 11th U.S. Circuit Court of
Appeals but was also unsuccessful there. The 11th Circuit issued
a per curiam, unpublished opinion
rejecting the constitutional claims,
finding that the arguments made
by Luis in this appeal were foreclosed by prior U.S. Supreme Court
and 11th Circuit decisions.
Supreme Court Reverses
in a 5-3 Opinion
After the 11th Circuit denied Luis
petition for rehearing en banc, the
Supreme Court issued a writ of certiorari to consider [w]hether the
pretrial restraint of a criminal defendants legitimate, untainted assets (i.e., those not traceable to an
alleged criminal offense) needed
to retain counsel of choice violates
the Fifth and Sixth Amendments.
Notably, all 10 amicus briefs filed
in the Supreme Court case supported Luis position contributing
entities included the U.S. Justice
Foundation, the Cato Institute, the
American Bar Association and the
National Association of State Legislators.
Reversing the judgment of the
11th Circuit, Justice Breyer wrote
the plurality opinion joined by Justices John Roberts, Ruth Bader
Ginsburg and Sonia Sotomayor.
The Application of
Luis to Parallel Proceedings
With the outcome of Luis, courts
overseeing civil actions can expect
to see an uptick in motions for release of frozen funds when parallel
criminal proceedings are pending.
To be clear, Luis itself involved a
motion for release of frozen funds
Conclusion
The Luis holding drastically alters
the landscape of the American
court system reining courts
away from their strong preference
for preserving assets for victims
versus a criminal defendants attorney fees. Counsel and individuals
alike should continue to monitor
this issue as courts provide additional clarity and reasoning to Luis.
Thomas Zaccaro and Nicolas
Morgan are former SEC trial counsel and partners in Zaccaro Morgan
LLP. Jenifer Doan is an associate
with the firm. Zaccaro Morgan is a
boutique trial firm specializing in
complex civil litigation, government
and corporate investigations, and
white collar defense.
[ Office Space ]
Available
PERSPECTIVE
JARED MILRAD
Despite being illegal under the Krekorian Act of 2009, some say pay-to-play schemes, in which actors pay
money to attend workshops for casting directors, are still common in Hollywood.
Yet, the practice of casting directors
charging actors to perform at showcases and later, workshops
continued to worsen. In response,
the CSA formed a Teaching Committee in the 1990s, supposedly to
ensure that members who offered
educational opportunities for actors
were actually offering educational
opportunities instead of sticking
actors with the bill. In 1996, a member of the CSA board of directors,
Joe Reich, wrote that it is vital to
the future activities of those of us
that choose to teach that we make
every possible effort to conform to
our by-laws.
But instead of addressing a festering problem, the CSA board actually voted to disband the Teaching
Committee leaving not even the
fox in charge of guarding the hen
house.
Fast forward to 2001. The California State Labor Board conducted a
lengthy investigation into proliferating pay-to-play workshops, and
determined that such workshops
were presumptively in violation of
the provisions of section 450 of the
Labor Code.
As a result of their investiga-
Classes taught by Casting Directors and Associates must be for instructional purposes only and not a
paid audition. The workshop must
clearly post that taking part in the
class you are teaching is not a guarantee of employment.
As part of these new guidelines,
the CSA required workshop providers to post a disclaimer, which
states in part that the workshop is a
learning experience. It is not an audition or employment opportunity.
Yet, oddly, the practice of paid
workshops continued to grow. Last
year, in the face of a problem obvious to everyone except those profiting from it, L.A. City Attorney
Mike Feuer held a press conference
stating that they would enforce the
Krekorian Act and crack down on
illegal talent scams, including workshops. Rigo Reyes from the L.A.
County Department of Consumer
and Business Affairs, Duncan Crabtree-Ireland, lead counsel for the
SAG-AFTRA, as well as the laws
lead author, Paul Krekorian, now in
the L.A. city council, joined them.
Around this time, I moved to L.A.,
one among thousands angling for
an acting career. But I came to the
normally reiterate the CSA disclaimer about the workshop not being an audition or employment opportunity. For example, at Actors
Link the company now tarnished
by Casting Director Scott Davids
firing at Criminal Minds this
disclaimer was often haphazardly
announced by another actor who
volunteered to run the workshop
for the evening, in exchange for the
chance to read for the visiting casting office. After sharing a version of
the disclaimer in part or full, the volunteer would often add, with a wink:
But you all know why youre here.
And everyone did know why they
were there including the casting
directors and assistants, who often
take home hundreds of dollars per
workshop.
Despite the trend, not all casting directors are onboard with the
workshop gravy train. Casting directors Billy DaMota and Dea Vise
are among its most vocal opponents,
and Marci Liroff (Mean Girls) and
many others wont do them, either.
As increased media attention on
this issue continues to make Hollywood squirm, the CSA recently
announced the formation of yet another Casting Workshop Committee to, you guessed it, preserve
and enhance the educational value
of casting workshops. Ironically,
several of the committees members
regularly host their own pay-to-play
workshops.
Which brings me back to Upton
Sinclairs point from nearly a century ago, revised only slightly for
2016: You cant expect an industry
to change that profits from the very
thing that needs changing.
But what we can expect and,
indeed, should expect is that our
elected officials and enforcement
authorities will do their jobs. They
should, at last, launch immediate
investigations into these so-called
educational workshops, and expose them for what they are: pay-towork schemes that routinely exploit
actors.
In the absence of that, we all
might as well find another line of
work.
Jared Milrad is an actor, lawyer
and entrepreneur living in Southern
California. He created an online petition to Urge Los Angeles Officials to
Stop Pay-To-Work Casting Scams in
Hollywood. To sign, visit thepetitionsite.com. His latest project is Hurry
Up and Wait, a web series about
young entrepreneurs making a difference. Learn more at letshurryup.com.
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DAN LAWTON
Lawton Law Firm
PERSPECTIVE
hether or not to
self-report
violations of the Foreign
Corrupt Practices
Act has constituted a problematic
and vexing question for companies
and their counsel when confronted with internal allegations
of potential foreign bribes. While
the U.S. Department of Justice
has long made vague promises
of rewarding self-disclosure with
credit for cooperation, the lack
of any specific guidance stymied
companies abilities to quantify
that potential credit in any meaningful way.
With the DOJs announcement
earlier this month of their new
pilot program for FCPA enforcement, the DOJ has finally provided
transparency for companies seeking to qualify for mitigation credit.
Notably, the pilot program comes
on the heels of the Yates Memorandum, which emphasized the DOJs
renewed focus on prosecutions of
individuals involved in corporate
misconduct. The pilot program
builds on DOJs focus by offering
leniency to companies in exchange
for relevant information about the
misconduct, including the identities of the offending individuals.
While the focus on individuals is
not something new, establishing
a process where all prosecutors
will engage in an assessment regarding individuals culpability is a
change. Moreover, in conjunction
with the rollout of this new pilot
program, the DOJ is devoting additional resources and personnel
to its FCPA-related investigative
and prosecutorial efforts, as well
as further strengthening coordination with its law enforcement counterparts around the globe.
The Nuts and Bolts
of the New Pilot Program
An accompanying guidance memorandum signed by Andrew Weissmann, chief of the Fraud Section,
outlines the details of the pilot
program. A company must satisfy
three requirements in order to be
eligible for mitigation credit under the pilot program: voluntary
self-disclosure, full cooperation,
and timely and appropriate remediation.
Voluntary self-disclosure.
First, the company must voluntari-
Shutterstock
The pilot program comes on the heels of the Yates Memorandum, which emphasized
the DOJs renewed focus on prosecutions of individuals involved in corporate misconduct.
ly report all relevant facts regarding the FCPA-related misconduct
within a reasonably prompt time
after becoming aware of the offense, and prior to any imminent
threat of disclosure or government
investigation. The disclosure
must include all facts known to
the company, including identities
of the individuals involved in the
potential FCPA violation. This last
point, which may be a direct outgrowth of the Yates memo, makes
it amply clear to companies seeking self-disclosure credit that they
will not be able to withhold from
the government investigators the
identities of the specific officers or
employees engaged in the misconduct.
Full cooperation. Second, the
company must also proactively
cooperate with the government investigation, including affirmatively
disclosing all relevant facts about
the misconduct and individuals
involved, preserving, collecting,
and producing relevant evidence,
making company officers and employees available for interviews
(including so-called de-confliction, which requires a company to
refrain from interviewing certain
individuals until the government
has had a chance to do so), and providing timely updates on the companys internal investigation. The
guidance notes, however, that what
Fokker provides
companies under
investigation
some certainty in
an area already
filled with
uncertainty.
tion. The district court looked to the
acts with the approval of the court
language as authority for him to reject the DPA. Among other things,
the district believed that the prosecution had been too lenient, the
proposed monetary settlement too
low, and criticized the lack of prosecution of individuals. The district
court reached these conclusions despite the fact that defendant Fokker
Services voluntarily disclosed potential violations of federal criminal
laws, cooperated with federal investigators, improved its compliance
program, and identified $21 million
attributable to illegal transactions.
The D.C. Circuit granted the petition for mandamus and reversed the
district court. Circuit Judge Sri Srinivasan wrote for the court, noting
that no court had ever withheld excludable time under the Speedy Trial
Act because it disagreed with the
terms of a DPA. Discussing the act
and analogous authority, Fokker held
that the district court may not invade
prosecutors traditional authority
over charging decisions.
Fokker provides companies under
investigation some certainty in an
area already filled with uncertainty.
If a company finds itself in the unfortunate position of being the subject
of a government investigation, the
costs are unpredictable and potentially severe, and include legal fees,
business interruption and reputational harm. This is true even if the
company did nothing wrong. If the
investigation reveals corporate misconduct, the adverse consequences
and uncertainties increase and may
include possible criminal prosecution, civil lawsuits, defense costs,
harsh monetary penalties, additional reputational harm and lingering
government oversight. Companies
under investigation sometimes face
difficulties in obtaining or retaining
financing, and potential business
transactions may be jeopardized. In
deciding whether to litigate, cooperate or resolve a particular case, companies engage in a risk assessment,
weighing factors such as strength
of the governments case, extent of
the wrongdoing, consequences of a
conviction, possible benefits of resolving a case, and whether it trusts
the government to exercise appropriate discretion in resolving a case.
Likewise, the government applies a
number of factors in deciding how to
handle a case including its views on
the strength of the evidence, seriousness of the offense, the companys
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Gerald L. Salzman
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Legal Editor
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