Posts by possingeradmin:
Interim Advice to Washington Business Owners in the face of the COVID-19 Pandemic
Posted on: 13 Mar 2020
In just a short period, Washington State has become an epicenter of the COVID-19 pandemic in the United States. Responding rapidly to this emerging health crisis, the Federal government, the State of Washington, and various local authorities have taken action to combat the spread of the disease. These actions have direct impacted the community as a whole, but businesses have been particularly affected by new closures, supply-chain deficiencies, and in-office protocols. The general advice below is directed to small- and medium-sized business owners, which make up a large part of Possinger Law Group’s clientele. Most importantly, the following is only interim advice, and it is general in nature. In many ways, all of us find ourselves in unfamiliar territory, and situation is likely to change day-to-day, if not hour by hour. If you have specific questions about navigating the rapidly-evolving pandemic, we invite you to contact Possinger Law Group directly. So, how should a business owner respond to what feels like a complete deluge of news and information? And even more importantly, what specifically should they be doing? The following should be seen as a general framework for planning, preparing, and responding to the issues created by the COVID-19 pandemic. Legal Compliance The first issue to address is legal compliance and risk mitigation, in regards to employment law. Employers should assume that all existing laws and regulations remain in place, and pay careful attention to additional requirements that are being added to respond to the emergency. Emergency Regulations and Public Health Orders Since February 29, 2020, all counties in the State of Washington have been under a State of Emergency, set out in Proclamation 05-20. On March 10, 2020, Proclamation 06-20 was issued (Regulating Nursing Homes and Assisted Living Facilities), and on March 11, 2020, Proclamation 07-20 was issued for King, Pierce, and Snohomish Counties for gatherings of 250 people or more (along with additional Public Health Orders) that added additional requirements for social, spiritual, and recreational gatherings involving fewer than 250 people. The Proclamation and Public Health Orders were effective immediately and continue to be in place until March 31, 2020 (unless extended). In addition, King, Pierce, and Snohomish Counties have ordered the prohibition of gatherings involving fewer than 250 people, unless measures are taken by event organizers to minimize risk. Practically, this is likely to apply to most businesses. Under the King County’s Public Health Order, an “event” is defined as a public gathering for business, social, or recreational activities including, but not limited to: community, civic, public, leisure, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities, unless event organizers take steps to minimize risk. Specifically, organizers of events of fewer than 250 people must ensure that: Older adults and individuals with underlying medical conditions who are at increased risk of COVID-19 are encouraged not to attend (including employees); Social distancing recommendations are met (i.e., limit contact of people within 6 feet from each other for 10 minutes or longer); Employees are screened for symptoms of COVID-19 each day, and asked to leave if symptomatic; Proper hand hygiene and sanitation are readily available to all attendees and employees; and Environmental cleaning guidelines from the U.S. Centers for Disease Control and Prevention (CDC) are followed (e.g., clean and disinfect high touch surfaces daily or more frequently). At this time, retail businesses and service operators such as grocery stores, drug stores, movie theaters, restaurants, and other similar establishments may continue to provide services as long as they take steps to minimize the spread of disease. Additional guidance will be issued and posted on www.kingcounty.gov/COVID. Although the Counties have emphasized that enforcement of these regulations will be focused on education and guidance, violation of these emergency regulations and orders are currently classified as a gross misdemeanor. Employment Law Implications As noted above, employers must screen employees for symptoms of COVID-19 each day, excluding them from in-person contact if they are symptomatic. Practically, this means that employees must be sent home if they show signs or symptoms of illness. This screening is required to be performed in a consistent manner, to avoid violations under the ADA and other anti-discrimination laws and regulations. Regardless of symptoms, employees with confirmed or suspected exposure to COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure. In this situation, FMLA and other legal contracts could apply. If an employee is confirmed to have contracted COVID-19, employers are required to inform fellow employees of their possible exposure to COVID-19. In doing this, it is imperative that the employer maintain confidentiality of the COVID-positive individual, as it is required by the Americans with Disabilities Act (ADA). Employees who suspect that they may have been exposed to COVID-19 should refer to the CDC guidance on how to conduct a risk assessment. Additional Resources and Guidance: CDC Guidance for Businesses CDC Guidance for Workplace, Shool, and Home. OSHA Guidance for COVID-19 Washington State Department of Health COVID-19 Workplace Guidance Protecting Employees, Customers, and Community There are a number of practical steps that business owners can take not only to comply with current regulations and guidelines, but also to minimize and mitigate risk to employees, customers, and the community at large. The CDC recommends that employers emphasize respiratory etiquette and hand hygiene by employing the following procedures: Place posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen. Provide tissues and no-touch disposal receptacles for use by employees. Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands often with soap and water for at least 20 seconds. Advise employees to avoid touching their eyes, nose, and mouth with unwashed hands. Provide adequate access to soap and water, as well as alcohol-based hand rubs in the workplace. Ensure that these supplies are well-maintained and continuously-stocked. Place hand rubs in multiple locations or in […]
Governor Inslee Issues COVID-19 Proclamation
Posted on: 11 Mar 2020
King, Pierce, and Snohomish Counties are under state-of-emergency restrictions until March 31, 2020. In response to the outbreak of the Novel Coronavirus (COVID-19), Washington State Governor Jay Inslee has issued a several Proclamations: 20-05 (02-29-2020) (Declaring a State of Emergency), and 20-06 (03-10-2020)(Limiting Activities in the operation of Nursing Homes and Assisted Living Facilities). Today, the Governor issued Proclamation 20-07, which restricts gatherings related to social, spiritual, and recreational activities in King, Snohomish, and Pierce Counties until midnight of March 31, 2020. Specifically, the Proclamation temporarily bans “gatherings of 250 or more for social, spiritual and recreational activities, including but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” The language of the Proclamation largely affects community and private gathering, as well as organized religious institutions (such as churches, synagogues, and mosques). As written, Proclamation 20-07 is also likely to affect any business where 250 or more people are gathered in one place. In addition to other precautions advised at this time, business owners should evaluate whether their operations involve gatherings of 250 or more people (including staff), taking action to reduce the number of people gathered. Violation of this proclamation is subject to criminal penalties under RCW 43.06.220(5) (i.e. gross misdemeanor). Our firm will be monitoring developments, which are likely to change over the days and weeks. At the same time that the State of Washington issued this proclamation, King County, Pierce County, and Snohomish County issued parallel local Health Officer Orders. For King County, additional prohibitions were added on gatherings of “fewer than 250” people unless event organizers take measures to minimize risks; “an ‘event’ is defined as any public gathering for business, social, or recreational activities.” The Health Officer Orders in Snohomish County and King County are nearly identical, except that the Snohomish County ban extends to “spiritual” activities, which would include religious organizations. Those steps include: Older adults and individuals with underlying medical conditions that are at increased risk of COVID-19 are encouraged not to attend (including employees). Social distancing recommendations must be met (i.e. limit contact of people within 6 feed from each other for 10 minutes or longer). Employees must be screened for coronavirus symptoms each day and excluded if symptomatic. Proper hand hygiene and sanitation must be readily available to all attendees and employees. Environmental cleaning guidelines from the U.S. Centers for Disease Control and Prevention (CDC) are followed (e.g. clean and disinfect high touch surfaces daily or more frequently). Retail businesses such as grocery stores, drug stores, movie theaters, restaurants, other retail establishments may continue to provide services as long as they take steps to minimize the threat of the disease. Additional information and guidance is pending. Our advice to clients is to take reasonable steps based on available guidance and to remain informed. (Updated as of 03-12-2020)
30-Second Consult: Before You Send That Email
Posted on: 15 Feb 2020
Email and texting make it easy to send quick responses. That reality is a double-edged sword. In emotionally-charged moments, it is dangerously easy to respond or to vent about things using email and text messages, but my advice as a lawyer – don’t do it. A person should always think about what they send via email or text as something that might be read aloud in court. Considering the amount of digital communication that we all use in today’s world, this thought can be chilling to many. This is why I advise my clients not to send any emails or texts when they are depressed, angry, or drunk (or a combination of these). Electronic communications are making their way into courts more and more often. The casual (and sometimes inappropriate) ways that these communications are used has the potential to create real legal problems for clients, or at the very least, severe embarrassment and damage to professional reputations and relationships. This is particularly true in the area of discovery. In Washington, general rules governing discovery are very broad. CR 26 (b)(1) will allow just about any information that is “reasonably calculated to lead to the discovery of admissible evidence.” This qualifier could reasonably include those off-colored remarks about a colleague, or crass comments about a vendor that you have a personal issue with. Additionally, even if that information never makes it into a courtroom, it still may have to be disclosed to other parties and their attorneys as part of the discovery process. Over the years, I have seen many very embarrassed parties and read numerous materials that, at best, could be described as unflattering. Bottom line: Be very careful what you put into emails and texts.
Possinger Law Group Obtains Preliminary Injunction for Client
Posted on: 13 Feb 2020
On February 12th, 2020, King County Superior Court Judge Suzanne Parisien entered a Preliminary Injunction in the case of One Way Group, LLC v. CQD, LLC, et al. [1]. The Preliminary Injunction effectively prevents Defendants, CQD, LLC and two other Individual Defendants from violating the terms of a Covenant Not to Compete that was part of a Purchase and Sale Agreement for the purchase of a business previously owned, in part, by the Individual Defendants. The dispute, filed in December 2019, is between two Washington Limited Liability Companies and former members of a separate Limited Liability Company, which had sold a restaurant to the Plaintiff. The Complaint, filed in King County Superior Court, sought injunctive relief, including a preliminary injunction and a request to compel arbitration. The Plaintiff obtained a Temporary Restraining Order (“TRO”) on December 6, 2019 that effectively halted the competing business’ operations, but the case remained at standstill until a hearing could be finally held on February 7th and 11th of 2020. By the terms of the Court’s order, the Preliminary Injunction will remain in effect until the outcome of arbitration. This case illustrates the significance of written contracts, especially ones that have restrictive covenants, and the potential consequences for violating the terms of those covenants. The Plaintiff seeks to move this matter forward to arbitration for final resolution of its disputes with the Defendants. [1] King County Superior Court Case# 19-2-31709-4 SEA
The Michael Avenatti Extortion Case
Posted on: 30 Apr 2019
When Does a Lawyer’s Demand Letter Become Extortion in Washington? The recent news involving the arrest and criminal charges against celebrity attorney Michael Avenatti, for what federal prosecutors say are for attempted extortion of retail giant Nike, bring to light a very serious and practical issue facing attorneys in settlement negotiations. Attorneys are expected to be zealous advocates of their clients’ cases, but there are serious pitfalls for those that take zealous advocacy too far – either for their clients or for themselves. In the case of Michael Avenatti, he and his client allegedly requested $22.5 million in exchange for not releasing evidence that Nike employees had funneled money to student college athlete recruits in violation of NCAA rules. The timing of the threats was designed to damage Nike’s reputation and market capitalization, had the company not agreed to Mr. Avenatti’s demands. Federal criminal counts brought against Michael Avenatti and a co-conspirator include Conspiracy to Transmit Interstate Communications with Intent to Extort, Conspiracy to Commit Extortion, and Extortion, in violation of Title 18 USC, Section 875(d), Title 18 USC 1951 (b)(3), and Title 18 USC 1951 (b)(3), respectively. In almost two decades of law practice, I have seen these issues come up, and I have also advised clients and other attorneys on issues related to aggressive and over-aggressive settlement demands. The Avenatti case presents a cautionary tale and raises several specific legal issues, of which attorneys should be mindful and approach with care. Although Avenatti has been accused of a number of other crimes in separate complaints brought by Federal prosecutors, one in the Central District of California and the other in the Southern District of New York, this this article will only focus on the latter case, and specifically the extortion claims made against the California attorney relating to his settlement demands made against Nike. The Relevant Law It is expected that lawyers are zealous advocates for their clients; but the law does set limits on this advocacy. Those limits are found in a combination of places: criminal statutes, case law, and the rules of professional conduct. However, the law is not uniform with regard to how these issues are handled, either at the federal level or from state-to-state. Federal courts generally don’t consider any litigation to be extortionate (See. Sosa v. DirectTV, Inc., 437 F.3d 923, 939-940 (9th Cir. 2005), and United States v. Pendergraft, 297 F.3d 1198, 1208 (11th Cir. 2002)), but this is not always the case in state courts. Historically, state courts have been more receptive to the idea of criminalizing improper demand letters. It should be noted that much of the communication between Mr. Avenatti and Nike was either over-the-telephone or during in-person meetings. California, in particular, has had numerous high-profile cases involving demand letters that “crossed the line”. The most important distinction identified by California state courts seems to be between demand letters threating to file a civil action (which is deemed to be proper), and those demand letters threatening to file a criminal complaint (which are often deemed to be improper) (See. Flatley v. Mauro, 39 C. 4th 299 (2006); Malin v. Singer, 217 Cal. App. 4th 1283 (2013)). Much of this litigation takes place in the context of Anti-SLAPP litigation, which is beyond the scope of this article, but the boundary between threatening to file criminal charges and setting in motion an investigation (in exchange for settlement funds) illustrates lines that a lawyer may be crossing. Washington does not have any specific case law on this point, but there is clearly relevant legal authority on this point, namely criminal statutes and rules of professional responsibility. Potential Criminal Liability In Washington RCW 9A.56.110, “Extortion” is defined as “knowingly to obtain or attempt to obtain by threat property or services of the owner…”; RCW 9A.56.120 (Extortion in the First Degree), occurs if a person commits extortion by means of a threat as defined in RCW 9A.04.110 (27)(a), (b), or (c). RCW 9A.56.130 (Extortion in the Second Degree), occurs if the individual “commits extortion by means of a wrongful threat as defined in RCW 9A.04.110 (28) (d) through (j).” The Washington Legislature revised the statute for Second Degree Extortion in 2002 in response to State v. Pauling, 108 Wn. App. 445 (2001), by adding a requirement that the threat required for conviction be “wrongful.” A summarization of various “threats” that give rise to potential criminal liability include: To accuse any person of a crime or cause criminal charges to be instituted against them. To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule. To reveal any information sought to be concealed by the person threatened. To testify or provide information or withhold testimony or information with respect to an individual’s legal claim or defense. To do any other act which is intended to cause substantial harm to the person threatened or another with respect to his or her health, safety, business, financial condition, or personal relationships. All of the above-listed threats could be unintentionally included in a civil demand letter; and when coupled with a settlement demand, an attorney could easily cross the line into extortion. A settlement demand can be found to be a “pecuniary benefit” (i.e. “any gain or advantage in the form of money, property, commercial interest, or anything else the primary significance of which is economic gain.”), but coupled with improper threats, it can become something much different. Professional Misconduct While advocating for clients, attorneys are still expected to avoid bringing or defending frivolous claims and defenses (See. RPC 3.1: Although an “advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, [they also have] a duty not to abuse legal procedure”). It is considered professional misconduct for an attorney to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” (RPC 8.4 (d)), and “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation” (RPC […]