Facts: Plaintiff worked aboard a fishing vessel owned by defendant. Soon after leaving the vessel in June 2006, plaintiff sought medical treatment for pain in his neck, wrists, and hands. To treat his neck pain, plaintiff was prescribed over-the-counter medication, and later physical therapy and light massage. Plaintiff’s hand pain was diagnosed as carpal tunnel syndrome. He had carpal tunnel release surgery in 2008 and 2009.

Defendant started paying maintenance and cure to the plaintiff soon after he left the vessel. In August 2009, defendant hired a physician to examine plaintiff’s neck. He found that it was normal and that any injury that occurred on the vessel would have been resolved within several months. Shortly after that examination defendant stopped paying maintenance and cure. In October 2009, plaintiff’s treating physician opined that plaintiff could benefit from additional treatment for both his hand and neck injuries.

Lawsuit: Plaintiff filed suit in King County Superior Court for damages under the Jones Act and for maintenance and cure under general maritime law. Plaintiff filed a pre-trial motion to reinstate maintenance and cure requesting that the court order defendant to resume making payments because plaintiff had not reached maximum cure. The trial court applied a summary judgment standard to the motion and thus viewed the facts in the light most favorable to defendant, the nonmoving party. The trial court found that there were genuine issues of material fact as to whether plaintiff’s injuries had reached maximum cure and thus that plaintiff was not entitled to judgment as a matter of law. Accordingly, the court did not order defendant to resume paying maintenance and cure.

Plaintiff appealed. The court of appeals affirmed the trial court’s application of the summary judgment standard to plaintiff’s motion to reinstate maintenance and cure. It noted that instead of bringing that motion, plaintiff could have sought a preliminary injunction under Civil Rule 65(a) or moved for an expedited trial under Civil Rule 42(b).

Supreme Court Decision: The Washington Supreme Court reversed. It noted that after a seaman proves his initial entitlement to maintenance and cure, the burden shifts to the shipowner to prove maximum cure has been reached. The court recognized that a seaman’s initial entitlement to maintenance and cure can be resolved on summary judgment but explained that this standard was proper because a seaman’s initial entitlement to maintenance and cure is a legal question. The court held that the extent of a seaman’s injuries and whether a seaman has reached maximum cure are factual, rather than legal questions, and thus cannot properly be resolved on summary judgment. Accordingly, the court held that a summary judgment standard should not be applied to a seaman’s motion for reinstatement of maintenance and cure and, instead, if a shipowner stops paying maintenance and cure to a seaman based on its determination that the seaman reached maximum cure, the trial court should order the shipowner to reinstate such payments unless the shipowner provides unequivocal evidence that the seaman has reached maximum cure.

Takeaway: This case represents yet another decision from Washington State courts affirming that the time-honored doctrine of maintenance and cure will be liberally interpreted and broadly applied in favor of seamen, and to the detriment of shipowners, in this state. For all practical purposes, regardless of contrary evidence, if the seaman’s treating doctor says that he would benefit from further treatment, it will be impossible to terminate maintenance and cure without a trial on the issue. Even at trial, the applicable standards overwhelmingly favor the seaman. Care should be taken to ensure that in any settlement reached with the seaman, the agreement clearly releases the seaman’s claim for maintenance and cure – past, present and future.

– Keesal, Young & Logan Maritime Law Group

This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.

Rich Archibold:  Legal legend Skip Keesal a power with humility

By Rich Archibold, Long Beach Press Telegram- Published April 1, 2013

Legendary Long Beach attorney Skip Keesal’s first experience with the YMCA did not go well.

In fact, it almost killed him.

Before an audience of more than 700 at the 45th annual YMCA Good Friday breakfast at the Long Beach Convention Center, Keesal said he had mixed emotions about first experience at the Y.

“I was eight or nine and living in Oak Park, Illinois, when my mother thought it would be good for me to learn how to swim,” he said. “We went to the pool at the Y, but there was no shallow end, or at least no place where I could stand on the bottom without water going over my head. I didn’t know if the Y was trying to teach me how to swim or trying to kill me. Needless to say, I am not big in water sports.” The audience laughed as Keesal said all was forgiven, and he has since grown to appreciate the outstanding work the Y does in the community, including teaching kids how to swim.

In fact, Keesal’s gospel on this Easter weekend was to praise everyone in the room for helping those less fortunate than themselves.

“What I see in this room is the heart center of Long Beach and the region,” he said. “Our village is here today, and we need to keep moving forward.” In his introduction of Keesal, Don Knabe, Los Angeles County Supervisor and emcee, said Keesal was the most powerful person in Long Beach, “powerful meaning caring. Skip is a great philanthropist who has touched everyone in this room.” When most people run around trying to claim credit for things they’ve done, they might want to take a page from Keesal.

“I’m a glass half-full kind of guy, not a half-empty guy,” Keesal said in explaining his outlook on life. “I’ve learned the hard way on how to get through life.” Keesal started out with practically nothing in his pockets after graduating from Cal State University Long Beach with a business degree in 1962 and from the USC Law School in 1965.

After five years of practice with two law firms, he founded the law firm of Keesal, Young & Logan in 1970. The firm has grown to be one of the most prestigious in California and the nation. Keesal himself has the distinction of being designated as a Best Lawyer in America in six categories. Keesal’s philanthropic generosity and involvement in civic projects in Long Beach is legendary, most of it behind the scenes.

In an earlier interview with me, Keesal traced his strong work ethic and community outreach to his nickname, Skip. Hardly anyone calls him by his given name, Samuel.

When Keesal was a young boy living in the Chicago area, his father was away a lot because of a sales job.

“My mother told me I was the skipper of the house,” he said. “The name stuck.” So it has and Keesal, indeed, is the skipper of many things: his law firm, his charitable contributions and his community leadership.

Despite all the awards and accolades, Keesal remains a modest and humble person.

He told the breakfast audience Friday that they were the ones making Long Beach a better place to live.

“You folks are wonderful,” he said. “Thank you for being the center of energy in the community.” He challenged the audience to put themselves in the shoes of other people to better understand them and help them.

One simple way to help others is to tell an employee that he or she is doing a good job and how much you appreciate that, he said.

“Can you imagine what that does to someone so they can go home that day and tell their family, ‘Someone at the office said I’m doing a good job.’ They can hold their head up high.” Keesal’s final challenge was to tell attendees: “Everyone here should be able to say that, in some small way, I helped make things better for others. You can help in many ways, from business activities to charitable work to random acts of kindness.

Good things happen when you help others.” When the breakfast ended and, as attendees were filing out, someone quoted the Bible: “Skip is a living testament to the verse that says those who humble themselves shall be exalted and those that exalt themselves shall be humbled.” Many nodded in agreement.

According to the USCIS, employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.  Employers should use the new Form I-9 only for new hires and when reverification applies.  Please note that unnecessarily requiring an employee to verify employment eligibility may violate anti-discrimination laws. 

According to the USCIS, the most significant revisions to the Form I-9 include:

• Adding data fields;
• Reformatting to reduce errors;
• Revising the layout and expanding the form from one to two pages (not including instructions); and
• Clearer, expanded user-friendly instructions for both employees and employers.

Employers will now have six pages of instructions before getting to the two pages that need to be filled.  The new instructions are meant to provide a step-by-step guide for employers and include definitions for the four types of citizenship or immigration status.  The new instructions also provide guidance on unexpired versus expired documents and on accepting receipts.

- Keesal, Young & Logan Employment Group

This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.

www.kyl.com

Unanimous Supreme Court Limits SEC Ability To Seek Civil Penalties

On February 27, 2013, a unanimous Supreme Court held that the Securities and Exchange Commission’s (“SEC”) five-year statute of limitations to seek civil penalties for securities fraud begins running when the fraud occurred, not when it was discovered.

Factual Background

In 2008, the SEC brought a civil enforcement action against Marc Gabelli, former portfolio manager of mutual fund Gabelli Global Growth Fund (the “Fund”), and against Bruce Alpert, chief operating officer for the Fund’s investment adviser (collectively “Gabelli”). The SEC’s complaint alleged that, from 1999 until 2002, Gabelli allowed a Fund investor to engage in “market timing” in the Fund, which allowed the investor to achieve realize significantly greater returns that the average long-term investor in the Fund. The SEC alleged that, while Gabelli banned others from engaging in market timing and made statements that such practices would not be tolerated, it did not disclose its single investor’s market timing practice.

Analysis And Holding

The Investment Advisers Act of 1940 (the “Act”) authorizes the SEC to bring enforcement actions against violators of the Act and those who aid and abet those violations. The SEC may seek civil penalties as part of such enforcement actions, subject to a five-year statute of limitations under 28 U.S.C. § 2462: “Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued…”

The SEC alleged that Gabelli aided and abetted violations of the Act and sought civil penalties. The District Court granted Gabelli’s motion to dismiss. Since the SEC alleged that Gabelli’s market timing lasted until August 2002, the District Court found that the SEC’s April 2008 claim for civil penalties was barred by the five-year statute of limitation under Section 2462. The Second Circuit Court of Appeals reversed. It accepted the SEC’s argument that, because the underlying violations sounded in fraud, the “discovery rule” tolled the Section 2462 statute of limitations. The Second Circuit explained that, under the discovery rule, the statute of limitations “does not accrue until that claim is discovered, or could have been discovered with reasonable diligence, by the plaintiff.”

In a unanimous opinion authored by Chief Justice John Roberts, the Supreme Court reversed the Second Circuit. The Court declined to apply the discovery rule to government penalty actions, finding that “the SEC as enforcer is a far cry from the defrauded victim the discovery rule evolved to protect.” The Court explained that, unlike individual victims lacking reason to suspect fraud, the SEC’s “central mission” is to investigate potential federal securities law violations, and it is equipped with multiple “legal tools” to do so. The Court also raised concerns about exposing defendants to Government enforcement action for uncertain periods of time more than five years after the alleged misdeeds. The Court concluded, “Given the lack of textual, historical, or equitable reasons to graft a discovery rule onto the statue of limitations of §2642, we decline to do so.”

Please click here for a copy of the Supreme Court decision.

Note: The Court did not address the SEC’s claims for injunctive relief and disgorgement, which the District Court found timely and not subject to §2642. The Court also did not address the fraudulent concealment doctrine or other equitable tolling principles.

- Keesal, Young & Logan Securities Group

This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.

www.kyl.com

New FMLA Poster

The U.S. Department of Labor’s Wage and Hour Division has published a Final Rule implementing statutory amendments to the Family and Medical Leave Act of 1993 (FMLA). In connection with these amendments, private-sector employers with 50 or more employees are required to display an updated poster describing employees’ rights under the FMLA by March 8, 2013. The updated poster includes the changes to the FMLA, which significantly expands and clarifies military caregiver leave. The new regulations also update the recordkeeping requirement to specify the employer’s obligation to comply with the confidentiality requirement of the Genetic Information Non-Discrimination Act (GINA).

A copy of the updated poster may be found here.

The California Chamber of Commerce offers laminated posters here.

In addition, the Department of Labor has published a comparison of the 2008 regulations and the new regulations, which is available here.

Employers with 50 or more employees should make sure the new FMLA poster is posted in a conspicuous place where employees and applicants are able to easily see and read it by March 8, 2013. Employers should review existing FMLA policies to ensure the policies are up to date.

New San Jose, California City Ordinance

On March 11, 2013, a new city ordinance goes into effect requiring employers with employees in San Jose to post this San Jose Minimum Wage poster. The ordinance also requires employers pay a minimum wage of $10.00 per hour for work performed within the City of San Jose.

The new ordinance applies to employers who are subject to the San Jose Business License Tax or employers maintaining a facility in San Jose.

Similar to the FMLA poster, this poster should be displayed in a conspicuous area where employees and applicants are able to easily see and read the poster.

- Keesal, Young & Logan Employment Group

This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.

www.kyl.com

Listed in Lawdragon’s seventh annual compendium “The Influencers” edition, featuring 500 of the leading lawyers in America in 2012, Skip was described as, “a veteran trial lawyer…with 75 jury trials under his belt in commercial litigation, products liability, employment and maritime law.”

In 2011, he was one of top attorneys in California and one of 39 in the country to be named to Best Lawyers in 10 separate categories of law. When asked about being selected by Lawdragon, Skip’s comment was, “I’m flattered to be included in such distinguished company.”

His friends at KYL are proud to use this occasion to thank him for all he does and the way he does it.

For more information and a full list of award recipients, click here.

For a PDF download of Skip’s appearance in the publication, click here.

By Shirley Wild, Long Beach Press Telegram  | Published 12/29/2012

“It was a labor of love!” About 16 families were treated to a full four-course, sit-down dinner, with crystal, linens and silver for a holiday dinner- away-from-home, under difficult circumstances. The families were served prime rib by lawyers from Keesal, Young & Logan, one of which was dressed like an elf, identified only as Elf Erin, who was sharing duties with Elf Leslie.

It wasn’t just dinner – there were books, games, video games, Target gift cards, candy, and many gifts for the temporary residents of the Long Beach Ronald McDonald House on Dec. 23.

The law firm’s Marc Greenberg said: “While we think of it as a small gesture, the families were very appreciative that strangers would take the time to make such a evening for them. One of the fathers staying in the house told me how nice it was to take a break and actually enjoy a meal, even if only for an hour. His son has gone through seven surgeries this month.

“Our small gestures meant a lot to the people at the House. For these families, eating is no longer a pleasure, it is simply something done out of necessity during a changing of the guard at the hospital when one parent relieves the other from the side of their child’s bed.”

Greenberg continued: “Another family’s child has been in Miller Children’s Hospital for seven months because she was only 1 pound, 2 ounces when she was born. Another family’s child was recovering from open-heart surgery at 3 months old. One of the mothers asked Santa to record a video message to her daughter so that she could take it across the street and show it to her daughter in the hospital who was undergoing treatment for cancer.”

Among the throng receiving accolades were Michele Fron for organizing the event and for her last-minute hot-gluing pants on the Dancing Santa to avoid another “wardrobe catastrophe.” Huge “Thank Yous” went to William, Mauricio, Santiago, Richard and the entire Keesal, Young & Logan team. “They provided a meal fit for a king and they did it after a month-long marathon of preparing parties and festive meals.”

Seen at the scene: Sandy Parker and her sister, Erin Weesner, Sean Cooney, Meredith Obler, Kelli Gardner and family, Bonnie Bachenheimer, Sonia Sutton, Amy Melner, Jodi Cohen, Liz Lindh and family, Ginette Brown, Liz Kendrick (and Huxley the therapy dog), Joe and Ann Walsh, and Leslie Smith.

Santa Claus and Mrs. Claus in full holiday regalia greeted the 100 or so attendees at the Committee of 300′s annual holiday gathering to raise funds for local charities. Held at L’Opera on Dec. 12, the evening included dining and a silent auction, under the direction of President Rich Carry, and President-elect Dian Morris. A highlight of the evening were the speakers from the two charities selected for this year, Pathways to Independence and Children Today. Dave Bishop and Dora Jacildo spoke eloquently about their respective organizations (Dave for Pathways and Dora for Children Today). Approximately $2,000 was raised for the groups at the fun evening.

Seen at the scene: Jim Michaelian, Theresa Bixby, Fire Chief Mike DuRee, Jim and Masy Bunnell, Lisa Mais, Collette Anderson, Lisa Viets, Danielle Orman, Louella Hundt, Wynn Collins, Phyllis Covey, John and Susan Ridgely, Mo and Pat Mohler (received an award for his grandstand duties), Susan Nicholson, Dave Sandhu. Patiently posing for photos were Al and daughter Wendy Huntley in costume.

On Dec. 11, the holiday spirit was unmistakable as 60 ladies arrived in colorful festive attire for the Dramatic Allied Arts Guild’s luncheon at the Long Beach Yacht Club, which was beautifully decorated with Christmas trees and garlands.

To enhance the holiday spirit a sip of egg nog was offered.

President Leslee Martin remarked on the Guild’s tradition of bringing an unwrapped toy to donate to the Long Beach Firefighters Association’s Spark of Love toy drive. Some members combined their contributions and several bicycles were purchased by past president Kay Berg on their behalf.

Whimsical Christmas tree centerpieces were displayed on mirrored rounds on each table by Dee McKinney, decorations chairwoman. Tables were adorned with crisp white linens and red napkins.

Program Chair Noreen Wood introduced world renowned cellist Hitoshi Suzuki with Linda Rose accompanying him on a magnificent harp. Nancy Fuhrman commented: “It was an amazing display of technique and professionalism by these outstanding musicians. It was greatly appreciated and enjoyed by everyone, along with their rendition of many popular Christmas carols.”

Seen at the Scene: Pat Cain, Carolyn Powers, Sharon Civalleri, Donna Estrin, Marilyn Hauser, Roxanne Lawrence, Lesley Scheller, Jane Screen, Victoria Gammer, Valerie Stokes, Nancy Fuhrman, Liz Minor, Jane Vejsicky, Kathy Morton.

Download a PDF of this article here.

1. Commission Agreements.  Pursuant to AB 1396 and Labor Code section 2751, employers who pay commission wages are required by January 1, 2013 to put commission agreements into a writing signed by the employee which sets forth the method by which the commissions will be computed and paid.  The employer must also provide a copy of the commission agreement to the employee.  Pursuant to a recent amendment, the following are excluded from the definition of “commissions”: (1) short-term productivity bonuses (such as those paid to retail clerks), (2) bonus and profit-sharing plans, unless there is an offer by the employer to pay a fixed percentage of sales or profits as compensation for work to be performed, and (3) temporary, variable incentive payments that increase, but do not decrease, payment under the written contract.
    
2. Social Media.  AB 1844 prohibits employers from requiring or even requesting employees or job applicants to provide user names and passwords for social medial accounts, and from requesting an employee or applicant to divulge personal social media.  There are limited exceptions, including an exception relating to employer investigations.
    
3. Inspection of Personnel Records.  AB 2674 amends Labor Code section 1198.5, relating to inspection and retention of personnel records.  The new law makes several changes.  Most significantly, current and former employees, and their representatives, will have a right to inspect and receive a copy of their personnel files (current law provides that employees and former employees are only entitled to a copy of documents which they signed).  Upon written request from the employee, the employer must provide a copy of the records at a charge not to exceed the actual cost of reproduction, and a former employee may request a copy of his or her records by mail if s/he reimburses the employer for actual postal expenses.  Employers must make the contents of the employee’s personnel records available, whether by inspection or copying, to a current or former employee (or representative) at reasonable intervals and at reasonable times, but no later than 30 calendar days from the date the employer receives a written request.  Employers are required to comply with only one request per year by a former employee, and must maintain a copy of each employee’s personnel records for a period of not less than three years after termination.  If  an employee or former employee files a lawsuit that relates to a personnel matter, that employee’s right to inspect or copy personnel records ceases during the pendency of the lawsuit. 
    
4. Breastfeeding.  AB 2386 amends the definition of “sex” under California’s discrimination law to include breastfeeding and related medical conditions.  There is a mandatory update to the Discrimination and Harassment Notice reflecting this change.
    
5. Religious Expression.  AB 1964 clarifies that California’s discrimination protections and reasonable accomodation requirements cover religious dress practices and religious grooming practices.  It also specifies that segregating an employee from other employees or the public is not a reasonable accomodation of religious beliefs or observances.
    
6. Fixed Salaries and Overtime.  AB 2103 amends Labor Code Section 515 to state that payment of a fixed salary to a non-exempt employee will be deemed to be payment only for the employee’s regular non-overtime hours, notwithstanding any private agreement to the contrary.

- Keesal, Young & Logan Employment Group

This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.

www.kyl.com

National Rankings, Tier 1

Admiralty & Maritime Law

Metropolitan Rankings, Tier 1

Alaska

Natural Resources Law

Orange County

Admiralty & Maritime Law

Litigation – Environmental

Litigation – Labor & Employment

Litigation – Securities

San Francisco

Admiralty & Maritime Law

Metropolitan Rankings, Tier 2

Alaska

Admiralty & Maritime Law

Orange County

Medical Malpractice Law – Defendants

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In addition to receiving national rankings as among the best  law firms, KYL attorneys have also been in the Best Lawyers listing this year, a record of which can be found here.

The national first-tier rankings will be featured in U.S. News & World Report’s Money issue, on newsstands November 20, 2012. The national and metropolitan first-tier rankings are featured in the “Best Law Firms” standalone publication, which is being distributed to more than 30,000 general counsel and in digital format to more than 60,000 private practice lawyers worldwide. The rankings in their entirety are posted here.

The U.S.News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking, a law firm must have at least one lawyer who is included in Best Lawyers as part of the annual peer review assessment. For more information on Best Lawyers®, please visit their website.