05
Feb

The U.S. District Court for the Western District of Washington has revised its Local Civil Rules effective January 1, 2020.  The changes to the rules themselves are modest; perhaps more important to the Western District bar are the changes to the District’s Model Agreement Regarding Discovery of Electronically Stored Information and Proposed Order (the “Model Order”).  In many federal cases involving discovery of electronically stored information (“ESI”), the Model Order is the starting point for the parties’ negotiation of the ...

23
Jan

Ordinarily, in a dispute over the breach or performance of a contract where the aggrieved party is seeking a monetary award as compensation, the measure of those damages is the party’s “actual damages.”  Actual damages are just that—the measure of the aggrieved party’s actual loss, measured as the difference between the current circumstances and the circumstances that would have obtained had the contract not been breached.  The idea is to give the aggrieved party the “benefit of the bargain.” In litigation, ...

02
Dec

Part Two (read Part One here) (This is the second of two articles based on David Bruce’s presentation to the 2018 Annual Meeting of the League of California Cities.  Mr. Bruce is the co-founding partner of Savitt Bruce & Willey LLP and served as a Senior Assistant City Attorney for the City of Seattle.) As discussed in the prior post in this series, although Government entities generally have important legal defenses in cases involving natural disasters and disaster relief, the more ...

20
Nov

A handshake and a promise may be an amicable and honorable way to make an agreement, but is it legally binding? In Washington, the answer is:  sometimes.  Whether an oral contract is enforceable in Washington depends upon the circumstances surrounding the terms of the agreement—most notably, whether the agreement falls under the provisions of the so-called “Statute of Frauds,” requiring that certain types of contracts must always be in writing and signed by the parties to the agreement (or at least, ...

21
Oct

The attorney-client privilege protects communications sent between a lawyer and client.  But not all attorney-client communications are protected.  There are at least two common misunderstandings about when the privilege applies. First, the purpose of the communication must be to seek or obtain legal advice.  Thus, for example, an email is not privileged merely because counsel is copied on an email.  This is especially true when communicating with in-house counsel.  An email discussing a business decision may copy counsel to keep him ...

05
Sep

You just received a summons and complaint filed against your company by an employee, vendor or supplier, client, or customer.   What you do in immediate response may have a profound effect on what follows.  To position your company for the best possible outcome, here are five things to keep in mind in every case. 1.  Do Not Communicate or Reach Out in Your Own Your first instinct may be to try to communicate with the plaintiff—the person who brought the suit.  You ...

25
Jul

This is the third post in a series examining Washington law on noncompete agreements. In the first, we provided an overview of the major changes to Washington law regarding noncompete agreements under new legislation that Governor Inslee signed into law on May 8, 2019. In the second, we discussed how Washington courts evaluate the reasonableness of a noncompete agreement to determine its enforceability. In this post, we take a closer look at the key elements of the new statutory scheme ...

25
Jun

In this era of tightening federal budgets and periodic government shutdowns, there can be no guarantee that any particular federal courthouse will be open for business—or even in existence—at the time an agreement spawns litigation. Under a recent Ninth Circuit decision, such a closure could be more than inconvenient: it could cut off a party’s bargained-for access to federal court. In a matter of first impression, the U.S. Court of Appeals for the Ninth Circuit recently held that a venue-selection clause ...

20
May

When a company hires senior employees, it may invest a great deal of time and money training them.  Employees also may receive access to confidential client lists, relationships with customers and vendors, or proprietary business information.  So what happens when employees move on, taking that training and knowledge with them?  Ex-employees sometimes are uniquely positioned to open up a competing business; as a practical matter, a company is often training its future competition.  The potential damage could be even greater ...

09
May

Will banning certain non-compete agreements protect employees and foster competition?  Washington state legislators and Governor Inslee think so. Non-compete agreements raise policy issues regarding the balancing of legitimate business interests with a worker’s right to freely seek employment—a right that some argue is increasingly important in the growing gig economy.  Like many states, Washington courts have stricken that balance by enforcing non-compete agreements that are “reasonable.”[1] Courts determine whether an agreement is “reasonable” by considering: (1) whether the restraint is ...