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A B TRIAL LAWYERS ASSOCIATION of BUSINESS ASSOCIATION OF BUSINESS TRIAL LAWYERS a t b l ORANGE COUNTY Volume XXI No. 1 Report Spring 2019 Q&A with Hon. Thomas M. Goethals California’s New Privacy Law Has Teeth: Civil By Darrell P. White Penalties, a Private Right of Action for Consumers, Statutory Damages, and Voiding of Consumer Arbitration Agreements [The Hon. Thomas M. Goethals By Travis Brennan and Katie Beaudin was appointed to the California Court of Appeal, Fourth Appellate On June 28, 2018, Califor- District, Division Three, by Gover- nia’s legislature passed the Cali- nor Jerry Brown, and was con- fornia Consumer Privacy Act firmed on January 25, 2018. Prior (“CCPA”), Civil Code § to his appointment to the Court of 1798.100, et seq., after just one Appeal, Justice Goethals had week of debate, and Governor served as a judge of the Superior Brown signed the act into law Court in Orange County since the same day. Despite that rush, 2003. Before joining the bench, the law will not take effect until Justice Goethals worked for the January 1, 2020. Given the Orange County District Attorney’s office, and also in private CCPA’s broad scope, vague practice. During his twenty-five years in practice, Justice Goe- terms, and a generous delegation thals tried nearly 200 jury trials, including both civil and crimi- of rule-making authority to the nal matters. Justice Goethals’ responses have been lightly edit- California Attorney General’s Office that has yet to pro- ed for space and style.] duce any rules, that 18-month delay is not as long as it sounds. While not quite as ambitious as Europe’s Gen- Q: Given the newsworthy cases you presided over at eral Data Protection Regulation (“GDPR”) that took ef- the trial court, I think most folks know about your fect last spring, the CCPA im- -Continued on page 4- poses significant new data pro- tection obligations on a wide swath of businesses. And per- - IN THIS ISSUE - haps most significantly for trial Q&A with Hon. Thomas M. Goethals lawyers and their clients, the By Darrell P. White .......................................... Pg. 1 CCPA creates a new private California’s New Privacy Law Has Teeth right of action that may grow in By Travis Brennan and Katie Beaudin .......... Pg. 1 scope before the law takes ef- fect. President’s Message by Karla J. Kraft ........... Pg. 2 A C.C.P. Section 998 Offer Can Make the Sections 1798.100-1798.125 Difference Between Being the Net Winner of the CCPA (broadly defined to or the Net Loser in Your Business Case include all California residents) establish four basic By William J. Caplan ....................................... Pg. 3 “privacy” rights to help consumers assert greater control Conspiring Computers: Algorithmic Price- over personal information that businesses collect about them: Setting, Artificial Intelligence, and the Antitrust Laws • the right to know, through a general privacy policy By Akhil Sheth .................................................. Pg. 3 and with more specifics available upon request, Young Lawyers Division Update .................... Pg. 4 -Continued on page 5- The President’s Message By Karla J. Kraft I am thrilled to serve as our ABTL Orange County chap- 8502 E. Chapman Avenue, #443 ter’s President for 2019, and Orange, CA 92869 look forward to an educational, Phone: 714.516.8106 Fax: 714.602.2505 E-mail: [email protected] productive, and enjoyable year www.abtl.org for our chapter and its mem- bers! I am fortunate that our past president, Daniel Sasse, KARLA J. KRAFT, President skillfully led ABTL-OC during TODD G. FRIEDLAND, Vice President his tenure and leaves us with a MARIA Z. STEARNS, Treasurer stable and healthy organiza- MATTHEW M. SONNE, Secretary tion. Dan, thank you for your service! As we look forward, I BOARD OF GOVERNORS: am thankful for the opportunity to work with my col- Wayne W. Call ▪ Darren K. Cottriel leagues on the Executive Committee: Vice President Charity M. Gilbreth ▪ Andrew Gray Todd Friedland, Treasurer Maria Stearns, and Secretary Alan A. Greenberg ▪ Adam J. Karr Matt Sonne. I also am thankful for the continued won- Khai LeQuang ▪ Allison L. Libeu derful work by ABTL-OC’s Executive Director, Linda Todd Lundell ▪ Hon. Charles Margines Hon. Linda S. Marks ▪ Michele L. Maryott Sampson. Michael B. McClellan ▪ Hon. Thomas S. McConville Hon. Kirk H. Nakamura ▪ Hon. Kathleen E. O’Leary A hallmark of ABTL-OC is the active support and William C. O’Neill ▪ Kenneth G. Parker involvement of our state and federal judges and appel- Michael A. Penn ▪ Joshua J. Stowell late justices who provide insight as to how to be better Peter N. Villar ▪ Thomas L. Vincent advocates in their courtrooms and better practitioners Mark B. Wilson ▪ Hon. Peter J. Wilson overall. They give time to our Young Lawyers Division by hosting brown bag lunches and providing practical JUDICIAL ADVISORY COUNCIL: advice, keep us apprised of changes in the courts, and Hon. Richard M. Aronson ▪ Hon. David O. Carter Hon. William D. Claster ▪ Hon. James Di Cesare chat with us over cocktails and dinner at our events. I Hon. Richard D. Fybel ▪ Hon. John Gastelum thank the continuing judicial members of our Board of Hon. Andrew J. Guilford ▪ Hon. Douglas F. McCormick Governors and Judicial Advisory Council for their dedi- Hon. Nathan R. Scott ▪ Hon. James V. Selna cation to ABTL-OC. Hon. Josephine L. Staton Many of our Board of Governors members previ- PAST PRESIDENTS: ously served in that role, but we have three new attorney Donald L. Morrow ▪ Thomas R. Malcolm board members this year that I would like you all to Robert E. Palmer ▪ Hon. Andrew J. Guilford meet: Jeffrey W. Shields ▪ Michael G. Yoder Dean J. Zipser ▪ Hon. Sheila B. Fell Darren Cottriel is a partner at Jones Day where his Gary A. Waldron ▪ James G. Bohm Hon. Martha K. Gooding ▪ Richard J. Grabowski practice focuses on class action defense work. He leads Sean P. O’Connor ▪ Darren O. Aitken his firm’s California class action defense group and also Hon. Melissa R. McCormick ▪ Mark D. Erickson is the head of litigation in Jones Day’s Irvine office. Jeffrey H. Reeves ▪ Michele D. Johnson Scott B. Garner ▪ Mark A. Finkelstein ▪ Daniel A. Sasse Khai LeQuang is a partner at Orrick Herrington & EXECUTIVE DIRECTOR Sutcliffe. He is a complex commercial litigator with a Linda A. Sampson specialty in the area of life settlements. Khai also was one of my law school classmates, and I’m thrilled to get ABTL REPORT EDITORIAL COMMITTEE to work with him again on our board! Editor — Justin N. Owens Assistant Editor — Akhil Sheth Josh Stowell is a partner at Knobbe Martens Olsen Assistant Editor — Darrell P. White & Bear where his practice is focused on intellectual property litigation. He has a long history with ABTL- The statements and opinions in the ABTL-Orange County OC by association – his wife, Adina Witzling Stowell, Report are those of the contributors and not necessarily those of served on our board and Josh attended many of our the editors or the Association of Business Trial Lawyers of Orange County. All rights reserved. -Continued on page 8- 2 A C.C.P. Section 998 Offer Can Make the Conspiring Computers: Algorithmic Price-Setting, Difference Between Being the Net Winner or the Artificial Intelligence, and the Antitrust Laws Net Loser in Your Business Case By Akhil Sheth By William J. Caplan 1. Today’s Antitrust Landscape. The CCP 998 (Section 998 of the California Code of Civil Proce- Taste-makers and trend-setters take note: these days, dure) process was designed to put antitrust is in. No longer is it the exclusive domain of pressure on parties to settle. The economists and competition law attorneys. For seeming- Supreme Court has recently reaf- ly the first time in decades, antitrust has re-entered the firmed that its purpose is “‘to en- mainstream of American society. courage the settlement of lawsuits prior to trial.’ To effectuate this Examples abound. On the legal policy, section 998 provides ‘a front, the U.S. Supreme Court just strong financial disincentive to a issued an opinion that may signifi- party—whether it be a plaintiff or cantly expand the pool of those who a defendant—who fails to achieve can sue certain online retailers un- a better result than that party could have achieved by ac- der federal antitrust laws. On the cepting his or her opponent's settlement offer.’” Martinez political front, a major presidential v. Brownco Construction Co. (2013) 56 Cal. 4th 1014, candidate just held a campaign rally 1019 (internal citations omitted). A well-timed 998 offer in front of thousands in which she can make more than a million-dollar difference in the called for the break-up of several of monetary outcome of a business case where attorneys’ America’s largest technology com- fees are awarded to the prevailing party under a contract. panies. And on the pop culture It can also cause the other side to pay your experts’ costs front, perhaps the biggest sign that antitrust is hip: more than one A-list comedian has done Careful consideration of whether to make a CCP 998 a lengthy televised set on antitrust, corporate consolida- offer, how to make it, what to include in it, and care in tion, and Borkian economic analysis. making it in multi-party cases is essential to prudent cli- ent representation in business cases. (It can also help This re-entry of the antitrust laws into the public your mediator settle your case.) Here are the basics of spotlight has been accompanied by some calls to re- 998 practice. examine the fundamental purpose of those laws. On one hand, some believe that we should continue to examine 1.
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