Recent News


FSG announcement – Christopher D. Lee joins firm as Associate

Friedman Stroffe & Gerard, P.C. is pleased to announce that Christopher D. Lee has joined the firm as an Associate.

Christopher D. Lee focuses on business and commercial litigation.

Chris has extensive litigation success in state and federal courts, mediations and arbitrations throughout California for a wide variety of matters including business and commercial disputes, partnership disputes, employment, real estate, consumer finance, professional liability, breach of fiduciary duty, and insurance. He graduated from one of the nation’s top law schools, USC, and prior to joining FSG, Chris represented some of the nation’s largest corporations in complex litigation at an Am Law 200 law firm.

Chris has experience in all aspects of complex litigation. He has a success rate on dispositive motions of over 90%, and those cases that were not resolved by a dispositive motion were thereafter successfully resolved to the benefit and satisfaction of his clients. His significant successes include obtaining summary judgment for his client against a $15 million lawsuit involving contract interpretation and construction default, obtaining a judgment in favor of his client for over $11 million involving a financing and loan dispute, and obtaining numerous other dismissals and judgments against million-dollar claims. Chris also has a stellar record of informally resolving disputes early on before significant litigation fees were incurred, settling million-dollar lawsuits for five-figure and even four-figure amounts, saving his clients substantial time and money.

Chris believes that every client’s situation is unique and requires a dedicated and thoughtful advocate to achieve the most beneficial and cost-effective solution. He also believes that the legal industry is first and foremost a client-service industry and he continually strives to be attentive and responsive to each client’s specific needs.

During law school, Chris served as a judicial extern in the United States Bankruptcy Court of the Central District of California and was a Senior Content Editor of the USC’s Southern California Interdisciplinary Law Journal. Prior to beginning his career in the law, Chris worked as a project manager for a neuro-anatomy laboratory at UCLA and is an author on a scientific journal article published on his work.

Chris received his J.D. from the University of Southern California (USC) and B.S. from the University of California, Los Angeles (UCLA).

For a complete bio, click here.  Contact Chris at clee@fsglawyers.com or 949.265.1110.

ANNOUNCEMENT

Article “Agreements with Sales Representatives”

Most manufacturers sell their products using the services of independent sales representatives. Manufacturers need to be aware of the fact that some 35 states in the United States and Puerto Rico have passed legislation designed to ensure that independent sales representatives are paid commissions in a timely fashion in the same way that regular employees would be paid salaries by an employer. These laws potentially expose the manufacture to severe risks and penalties in a dispute with an independent sales representative.

The laws vary from state to state. In Puerto Rico if the sales representative is the exclusive representative on the island, on termination he is entitled to a termination payment for the goodwill created taking into account the length of service, business growth, marketing efforts, etc. Typically, the statutes provide for payment of double or triple damages plus the attorney’s fees and court costs by the manufacturer in the event of a dispute with a sales representative over timely payment. For this reason manufacturers should try to limit exposure by having a written contract with the sales representative that is clear and specific so as to reduce the possibility of a payment dispute. The commercial issues to make clear include at least the following – (i) how commission is calculated; (ii) when it is deemed to be earned (on order, delivery or payment); (iii) when commissions are payable; and (iv) most importantly, what and when commissions are payable and paid once the relationship is terminated.

Some states allow the parties to agree in the contract as to those items, but not all. As an example, New Jersey specifies that commission is payable on orders received by the manufacturer by the time of termination, even if the order is only accepted later, delivered or paid for after termination. Minnesota prohibits termination of a sales representative without “good cause” and the sales representative must be given at least 90 days to cure. There are also several states including California, Maryland and Pennsylvania which make any provision in a contract purporting to waive sales representative’s rights under the applicable statute void and contrary to public policy and subject any such disputes to the jurisdiction of the sales representative’s state.

Ideally a manufacturer should carefully evaluate the laws applicable when hiring a sales representative and give special consideration to the issues referred to above. Even if it is not practical to fully evaluate on a state by state basis, it would still be preferable for a manufacturer to have a standard agreement dealing with the financial issues rather than have the terms of the relationship be uncertain.

The contents of this article are intended for general information purposes only and should not be construed as a professional opinion on any specific facts or circumstances. Professional advice should be consulted with regard to specific application of the information on a case by case basis.

Bryan Friedman is a shareholder at Friedman Stroffe & Gerard, P.C. in Irvine, California. He is a shareholder of Friedman Stroffe & Gerard, P.C. and chairs the firm’s Corporate and Business Practice Group.  Contact him at bfriedman@fsglawyers.com or 949.265.1106.

Article “Classifying Workers: Contractors or Employees?”

When hiring workers, employers sometimes choose to classify the worker as an independent contractor rather than an employee, either in the belief that it is less expensive or burdensome for the employer or at the potential worker prefers to be treated as independent contractors rather than as an employee for personal reasons or to potentially delay or avoid payment of taxes.

For employees, the employer must withhold and remit income and employment taxes from wages or salary paid to the employee to the taxing authority, including an additional employer contribution.  Each year the employer is required to issue IRS Form W-2 to each employee specifying the amount earned and the taxes withheld during the prior year.

There is no requirement for withholding or remitting taxes for independent contractors and the employer is only required to issue IRS Form 1099 to the independent contractor if the amount paid during the year was $600 or more. Moreover the independent contractor is generally not entitled to any benefits available to employees.

However, the tax withholding and reporting obligations for employees or independent contractors are substantially different and wrongful misclassification of an employee or a contractor can have severe tax and other consequences for the employer. The employer could be liable for payment of the taxes that should have been withheld in addition to the employer’s share of the employment taxes, interest on those taxes and possibly penalties.  In addition the employers could be subject to a class action lawsuit arising from the misclassification on behalf of all workers misclassified over several years. The resulting liability could be substantial and devastating.

The relevant factors necessary to determine whether a worker should be classified as an employee or  an independent contractor include whether the worker was engaged in a separately established occupation or business; whether the worker could be discharged at any time without cause; the skill required to perform the services and accomplish the desired result; whether the worker or the service recipient supplied the tools, equipment, and place of work; whether the work was an isolated event or continuous in nature; whether the work was part of the hiring entity’s regular business; and the relationship the employee or independent contractor believed that they were creating.  Almost every case is unique and turns on its specific facts, but the principal relevant fact has been whether the hiring entity had the ability to control the “manner and means” or the details as to how the worker completed the work.

The risk of a wrong classification has been simplified (and restricted) by the recent matter of Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County decided in the California Supreme Court. Dynamex was not decided in the context of an income or employment tax dispute, but rather in the context of a California Industrial Welfare Commission wage order which is arguably not applicable in determining a worker’s status for tax purposes.  However it is likely that the California Employment Development Department, which oversees worker classification issues for California income and employment tax purposes, will refer to Dynamex when making a determination as to the employment status of a worker.

Dynamex articulates an “ABC” test to determine whether a worker is an employee or an independent contractor.  The “ABC” test provides that a worker is properly classified as an independent contractor if the hiring entity can establish that: (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both as provided in the underlying contract and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Under these requirements almost all workers would likely be classified as an employee because of the requirements of the “B” test unless the worker is truly outside the scope of the hiring entity’s business.  A contractor providing plumbing services to an apparel manufacturer would fit that provision. However a contract clothing designer may not.  Likewise, a contract attorney providing legal services for a law firm would almost certainly be classified as an employee.

Employers would be well advised to closely examine the legal ramifications when determining the classification of workers and seek legal advice if there is any doubt. The consequences of an incorrect classification could be extremely problematic.

Bryan Friedman is a shareholder at Friedman Stroffe & Gerard, P.C. in Irvine, California. He is a shareholder of Friedman Stroffe & Gerard, P.C. and chairs the firm’s Corporate and Business Practice Group.  Contact him at bfriedman@fsglawyers.com or 949.265.1106.

The contents of this article are intended for general information purposes only and should not be construed as a professional opinion on any specific facts or circumstances. Professional advice should be consulted with regard to specific application of the information on a case by case basis.

Friedman Stroffe & Gerard, P.C. again selected as one of “Top Orange County Law Firms”

For the 3rd year in a row, FSG has been selected by the Orange County Business Journal for its annual list of the top law firms in Orange County. Over 1,000 law firms, comprising over 16,000 attorneys, operate in Orange County, so ranking in the Top 100 is significant.

 

 

 

FSG’s Jim Stroffe featured in Orange County Business Journal’s “Law Firms Special Report”

Jim Stroffe was selected to provide his perspective in a Q&A section of the Orange County Business Journal’s “Law Firms Special Report” on March 19, 2018.   Jim discussed legal trends relating to the real estate industry, employment, business litigation, and other topics in his Q&A article.

The Business Journal’s Peter Brennan asked some of Orange County’s top attorneys for their views.

READ ARTICLE

Robert Gerard and Bryan Friedman attend Surf Industry Waterman’s Ball event

FSG partners Robert Gerard and Bryan Friedman attended the 2017 “Waterman’s Ball” on August 5th at The Ranch in Laguna Beach, hosted by the Surf Industry Manufacturers Association (SIMA) .

The event raised money to support 19 ocean environmental organizations and is spearheaded by the SIMA Environmental Fund.  This year’s honorees included Waterman of the Year Bethany Hamilton, Environmentalist of the Year Cyrill Gutsch, and Lifetime Achievement Award Winner Herbie Fletcher.  SIMA also recognized Fernando Aguerre, President of the International Surfing Association, with a special award for his tireless – and successful – quest to get surfing into the Olympics.

See more details at: https://www.shop-eat-surf.com/content/photos-from-the-28th-annual-watermans-ball

Friedman Stroffe & Gerard once again selected as one of OC’s top law firms

FSG has once again been selected by the Orange County Business Journal for its annual list of the top law firms in Orange County.

FSG first submitted the survey data in 2016 and the firm was immediately selected, ranking #76 in FSG’s first year on the list. FSG moved up to #74 on the 2017 list.  The list is compiled by Orange County Business Journal staff through surveys distributed to and completed by local law firms. Over 1,000 law firms, comprising over 16,000 attorneys, operate in Orange County, so ranking in the Top 100 is prestigious.

NEWS RELEASE

FSG adds high-profile litigator, Richard W. Millar, Jr., as Of Counsel

IRVINE, CA, January 16, 2017 — Richard W. Millar, Jr. has joined Friedman Stroffe & Gerard, P.C. (“FSG”) as Of Counsel.  Millar will work in FSG’s Litigation and Real Estate & Construction groups. FSG is a leading transactional and litigation law firm based in Irvine.

Millar has been a practicing attorney in California for approximately 50 years.  He is well-known in the Orange County legal community as a top litigator and as a regular columnist for “Orange County Lawyer Magazine” (official publication of the Orange County Bar Association) with over 160 articles published. Millar’s practice is primarily business, real estate, and construction litigation.  Over the years, he has been hired by almost every title insurance company operating in Southern California to litigate real estate title issues.  He has tried over 100 cases to verdict and handled over 50 Appeals. Millar has represented owners, general contractors, and subcontractors in a wide variety of construction disputes.

Millar has received Martindale-Hubbell’s A-V rating for 35 years. The A-V rating is the highest rating possible for both legal ability and ethics. He has a 10 AVVO rating and is listed in Who’s Who in the World, Who’s Who in America, and Who’s Who in American Law.

In 2015, Dick received the Franklin G. West Award from the Orange County Bar Association, which is the Bar’s highest award presented to an outstanding attorney or judge who has advanced justice and the law.

Millar served for several years on the Orange County Superior Court’s Arbitration and Mandatory Settlement Conference panels. He has also acted as a private mediator. He has served as an expert witness in the Orange County Superior Court in attorney malpractice actions as well as attorney fee disputes.  Millar started his legal career in Los Angeles, first as a law clerk and then as Deputy District Attorney in the Los Angeles District Attorney’s Office. He then moved into private practice and for the last 35 years was a partner at a prominent Orange County firm.  Millar received his J.D. from the University of San Francisco.  His memberships have included the American Bar Association, American Bar Foundation, Orange County Bar Association, Peter Elliot Inn of Court, and the Association of Business Trial Lawyers.  In 2002, Millar served as President of the Orange County Bar Association, which is one of the largest Bar Associations in America.

“We are very pleased to have Richard join our firm,” says James D. Stroffe, managing shareholder. “His stellar reputation and vast experience in litigation will be a tremendous asset in serving FSG’s clients. Also, having Richard join us makes FSG the only law firm in Orange County that has two former Orange County Bar Presidents in the same firm (Robert Gerard was the Bar President in 2003).”

NEWS RELEASE

Susan Arduengo moderates panel on “Closing the Wage Gap” for Newport Chamber

On November 8, 2016, FSG’s Susan Arduengo moderated a panel on Closing the Wage Gap before the Newport Beach Chamber of Commerce.  The panel included Mediator Katherine Edwards, Senior Counsel for Taco Bell Natasha Pfeiffer, and CEO of Tigress Negotiating Zelekha Amirzada.  Susan initiated a lively discussion on a number of topics including understanding fair pay law, how employers can support women and avoid lawsuits, and how women can better advocate for themselves in the workplace.  The event was a great success and brought light to a significant issue for both businesses and working women.

Questions? Contact Susan Arduengo at sarduengo@fsglawyers.com.

 

Susan Arduengo honored as Newport Beach Chamber of Commerce’s Ambassador of the Year

FSG associate Susan Arduengo has been honored as one of the Newport Beach Chamber of Commerce’s Ambassadors of the Year.  The three honorees for 2016 are Joe Lewis, Susan Arduengo and Brandon Roesler.  A presentation for the awards will be given at the annual Newport Beach “Mayor’s Reception” on December 13th.  More information is available at the Chamber’s website at https://www.newportbeach.com/.  Congratulations, Susan!

Questions? Contact Susan Arduengo at sarduengo@fsglawyers.com.