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CMCP Diversity Matters Winter 2016 Newsletter

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Winter 2016


CMCP Diversity Matters eNewsletter – Winter 2016 Issue

CMCP Diversity Matters

2016 eNewsletter Committee Members

Cassandra Mougin (Co-Chair) Shareholder Pettit Kohn Ingrassia & Lutz, PC

Michael Chung

(Co-Chair) Counsel Davis Wright Tremaine LLP

Of Counsel Willenken Wilson Loh & Delgado LLP

Kim Hassan

Gagandeep Kaur

Noah Perez-Silverman

Kelly Perigoe

David Shimkin

Associate Reed Smith LLP

Associate Caldwell Leslie & Proctor, PC

Jonathan Turner

Partner Mitchell Silberberg & Knupp LLP

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Karen A. Henry

Senior Regulatory Counsel Southern California Gas Company

Associate Caldwell Leslie & Proctor, PC

Member Cozen O’Connor

Raffi Zerounian

Counsel Hanson Bridgett LLP


Winter 2016 Newsletter

Table of Contents

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Letter from the Executive Director: A One Year Look Back

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CMCP 27th Annual Business Conference: Recap, Highlights and Videos

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California & the Federal Government Expand Laws to Eliminate Wage Disparity

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Paid Sick Leave: Coming to a Town Near You

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Ninth Circuit Finds That Dole’s “All Natural” Description On Certain Fruit Products Could Mislead Reasonable Consumers

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Business Development Series: Are Carrots and Sticks Really the Answer to Diversity and Inclusion Success?

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Diversity Calendar Mark Your Calendars for Upcoming Diversity Events

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CMCP Diversity Matters eNewsletter – Winter 2016 Issue

CMCP Diversity Matters

LETTER FROM THE EXECUTIVE DIRECTOR Dear CMCP Community, Sixteen months ago I took the helm of CMCP, proud and excited to have the opportunity to lead an organization with such history. It has been richly rewarding, growth-packed and eventful period for me and for CMCP. I want to thank you all for your support and share some highlights of the past year and my thoughts about the coming year. When I was first approached about taking the Executive Director position at CMCP, I examined where CMCP stood, more than twenty-five years after its founding: was it still relevant and was it still effective? To get the answer and take the pulse of the CMCP community I asked numerous friends, former colleagues, board members, CMCP founders, diversity leaders and others, representing virtually every part of the CMCP constituency, what they thought about CMCP. My two take-aways were (1) there is tremendous respect for CMCP’s tradition and the work it does, and (2) there is an equally strong readiness for CMCP to do more to move the needle in diversifying the legal field. The task before me has been and will continue to be making sure CMCP’s activities are sustainable and expanding its impact. My time at CMCP started with listening. The “Pass the Baton” tour I conducted with my predecessor, Marci Rubin as Executive Director Emeritus made stops in five California cities in September and October 2015. The events gave me the opportunity to meet more members and to listen to their thoughts and recounting of their experiences with CMCP. I continue to be amazed by the number of stories I hear about how connections made through CMCP have led to positions or business opportunities for minority attorneys, sometimes directly, sometimes indirectly, occasionally immediately, and often following repeated encounters at CMCP events and conferences.

Robert White CMCP Executive Director

It has been exciting to try out some new ideas this year. Our January Board meeting and retreat was highly energetic and interactive, as we examined our historical efforts to fulfil our mission and debated ways to be more effective leveraging CMCP Board and staff. In February 2016, Black History Month events open to all members held in both San Francisco and Los Angeles allowed us to address the scarcity of minorities in technology and entertainment law respectively and provide concrete advice for attorneys looking to move into those fields as in-house attorneys or to gain business.

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Winter 2016 Newsletter

Building CMCP’s capacity to serve its members is a priority. In April 2016, we hired our first Director of Member Relations and Development, a new position designed to increase our ability to engage meaningfully with members and grow our membership base. You may have already noticed a bigger social media presence for CMCP. We are also investing in making changes to and updating our website to make it easier for you to access information from desktops and mobile devices. You will be seeing more developments in the coming months. The reception following our June Board meeting and retreat broke the pattern of our Meet the Board events and instead featured Board members leading discussion groups on building strong business relationships. Other new programs covered advice for minorities in lateralling between firms, and “intrapreneurialism” in career planning. The 2016 Annual Business Conference was one of our largest events ever with more than 500 attorneys in attendance. GC panels at the opening and close of the conference provided great insights on the complicated business issues of diversifying the legal field. It was a great moment to unveil the CMCP Ambassadors Council, an outstanding group of young lawyers who were already hard at work even before the conference organizing gatherings, and providing substantial help with conference programs including the very successful Dine-Around, the Bosses and the No Bosses Lunches and the Business Development Coaching Café. The 2016 Conference Planning Committee and an amazing line-up of speakers did an outstanding job. Sessions ranging from government investigations to networking to implicit bias and micro-aggressions were informative and thought-provoking and in many cases standing-room only. The inaugural Legal Department Diversity Summit of in-house counsel was a unique opportunity for candid and productive discussion on ways for in-house counsel to work together on diversity initiatives that will lead to specific actions in the coming months. We were very proud to feature continued strong participation by CMCP member corporations in the 2016 rendition of Corporate Connections, and to introduce some new Corporate Connections participants including Airbnb, Amazon, Bio-Rad Laboratories, eBay, Electronic Arts, Exponential, Fair Financial, Hearsay Social, LendingHome, SolarCity, SolarFrontier, SugarCRM and Tawa Supermarket, plus repeat appearances by PayPal and Uber Technologies. Continued on next page…

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CMCP Diversity Matters Looking ahead to our 28th Annual Business Conference on October 26-27, 2017 in Los Angeles and the events leading up to it, I aim to continue to build on our efforts to provide quality programming for our members. Your support through your organizations as sponsors and hosts for the Conference and non-conference events is crucial. I have been gratified by the number of attorneys that sought me out at and following the conference looking for ways to be more involved with CMCP going forward. In the “Get Involved” section of the CMCP website we list opportunities and processes to be actively engaged. Things to look forward to in 2017: •

CMCP and CMCP Ambassadors Council events in Los Angeles, San Francisco, Orange County, San Diego and Silicon Valley bringing together and supporting the development of our most promising young leaders

More programming for in-house minority attorneys addressing challenges and opportunities, from effectively working with outside counsel to managing their own careers

More listening and information collection about what members want and what CMCP has been and can be doing more effectively

Programs on emerging areas of law, including fin tech and opportunities for lawyers in new practice areas

Discussion on the most important issues in diversity and the legal profession including implicit bias/micro-aggressions and the relationship of in-house counsel and outside counsel in ensuring minority lawyers get fair opportunity for business development and quality legal work

One of the challenges of coming in as a new leader of an organization with such reach and history is learning the relationships that make it strong. This is also a great opportunity for CMCP, me and the community. I have made house calls on numerous companies and law firms in the last several months and look forward to doing more visiting next year. Please, if you’ve enjoyed a strong relationship with CMCP in the past, make sure I know you and your organization. And if you’ve been looking for an opportunity to play a bigger role at CMCP, there’s even more reason to reach out so we can figure out ways to support each other. 2016 has been a turbulent year for this country, and the current environment is one of economic uncertainty, fear for the country’s most vulnerable populations, and a deep divide politically. We are all impacted, and we all

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Winter 2016 Newsletter

have a choice of whether to go on with business as usual or to reexamine our values and personal commitment to making the world a better place. I believe that for CMCP and our community it is important to stay focused on those matters that we do have control over and responsibility for. The opportunity for us is to take this moment as a call to action to work harder at fulfilling our mission. Mae O’Malley at Paragon Legal shared this story from the conference with me: We had a dinner Thurs night that has to be one of my all-time best moments from all of the CMCP conferences! There were a bunch of us who had not signed-up for Dine About Town, so I offered to drag us over to the Olympic Club where I am a member. Turned out to be me, Tam [Pham], George Schell, Ted Ting, Sergio Garcia, and Raul Salinas. When I mentioned the Olympic Club, George insisted we go because he had not been to the Olympic Club since the late 1980’s when as Deputy City Attorney in San Francisco he and his colleagues were involved in a legal case to help bring diversity to that very exclusive club. We ended-up telling some amazing stories that really helped us all to realize how important it is to share stories and learn about others, because, per the implicit bias seminar, you can make so many assumptions about people that often prove to be wrong once you learn where they've come from. It was an amazing evening, and the setting too fitting for words given our diverse crowd. This is what CMCP is about, and why we need to keep doing what we do. I want to thank CMCP’s members and sponsors this year, our Board of Directors, led by Co-Chairs Michael Bennett, SVP & GC of Litigation at Walmart, and Laura Maechtlen, Partner, National Vice-Chair of the Labor and Employment Department and Co-Chair of the Firm’s Diversity and Inclusion Action Team at Seyfarth Shaw. I remain honored by the opportunity to serve the CMCP community and excited by what we can accomplish. Looking forward to a great 2017. Robert

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CMCP Diversity Matters eNewsletter – Winter 2016 Issue

CMCP Diversity Matters

CALIFORNIA MINORITY COUNSEL PROGRAM’S

27 ANNUAL BUSINESS CONFERENCE th

By: Gagandeep Kaur, Associate, Reed Smith LLP; and Cassandra Mougin, Shareholder, Pettit Kohn Ingrassia & Lutz, PC

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n October 20-21, 2016, hundreds of inhouse counsel, outside counsel, and others committed to diversity, inclusion and moving the needle on the advancement and retention of minority attorneys within the legal profession gathered for two days to celebrate diversity, network and continue legal education. During the Opening Plenary Session, the audience welcomed and recognized new attorneys and law firms who were attending the California Minority Counsel Program’s (“CMCP”) Annual Conference for the first time.

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In his opening remarks, Robert White, Executive Director of CMCP, set the tone for the rest of the conference. He provided a recap of the successes CMCP had in 2016 but then quickly turned his attention to all that he would like CMCP and its supporters to accomplish in 2017 and going forward. In light of the gap between where things stand today and where they ought to be, Robert emphasized a sense of urgency in CMCP completing its mission – help attorneys connect with each other to address the current challenges.


Winter 2016 Newsletter

Similarly, other speakers and panelists acknowledged the challenges minority attorneys continue to face in the legal profession but then focused on ways to address such challenges through building networks and providing opportunities to connect attorneys with one another. They challenged in-house counsel, firms and individual attorneys to do their part in moving the needle on diversity and inclusion.

Many speakers and participants said attending this conference feels like “they are coming home.” Once again, CMCP likes to take this opportunity to thank generous sponsors, the 2016 conference committee members, CMCP staff and others who made this conference a success and provided this unique opportunity to network, build relationships and engage with other professionals on critical issues facing the legal profession and the nation at large.

DAY 1 OF THE CONFERENCE GC Panel

The conference began with the “GC Panel” which provided key insights into the in-house legal departments, working with in-house counsel,

role of technology in providing legal services, and corporations take on diversity and inclusion. The panelists emphasized how technology has changed in-house legal departments including hiring e-billing specialists to manage the billing, eliminating redundancy in their processes, using shared technology, and providing clear guidelines on billing and expectations to law firms. Julio Avalos, chief legal officer & general counsel at GitHub, Inc. focused on how technology can be used to automate certain legal services and processes that clients do not like paying for such as contract management, templates, and regulation review. According to Salle Yoo, general counsel at Uber Technologies Inc., the highest value to her is how quickly an attorney can provide an answer and technology can help amplify that. When asked about effects of budget cuts on considering diversity and inclusion in hiring outside counsel, Salle Yoo stated that in her experience it has not been the case that diverse firms and lawyers are more expensive than non-diverse firms. Instead, Uber has a preferred counsel program that takes into account geographic diversity, subject matter diversity, and price diversity. Similarly, Mark S. Zemelman, senior vice president, general counsel & secretary at Kaiser Foundation Health Plan, Inc., emphasized that for Kaiser the focus is on price, quality and diversity, which Kaiser asks for and expects to get from its outside counsel. Overall, the panelists urged law firms to move away from the billable model and look at alternative fee models and fixed prices. They urged corporations and in-house counsel to commit to diversity and inclusion because of the value it adds to legal work Continued on next page…

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CMCP Diversity Matters eNewsletter – Winter 2016 Issue

and the profession, which may not be encapsulated in just making the business case for diversity. Lastly, they encouraged attorneys to work with diverse teams and develop an analytical ability to communicate with people from diverse backgrounds. This panel was moderated by Miguel R. Rivera, of counsel at Kutak Rock LLP. The panelists included: Julio Avalos, chief legal officer & general counsel at GitHub, Inc.; Mike Moye, general counsel at Alameda Health System; Salle Yoo, general counsel at Uber Technologies Inc.; and Mark S. Zemelman, senior vice president, general counsel & secretary at Kaiser Foundation Health Plan, Inc. This session was sponsored by Littler Mendelson P.C.

The No Bosses Allowed Lunch Law firm associates, other non-partners, and inhouse non-manager attorneys who attended "The No Bosses Allowed Lunch" were inspired by personal stories of Paul Henderson, deputy chief of staff & director of public safety at the San Francisco Mayor’s Office and Quyen Ta, partner at Keker & Van Nest. Paul and Quyen shared their personal experiences of modest upbringing, decision to go to law school and experiences in the legal profession.

CMCP Diversity Matters

In addition to getting a well-paying job, for Paul, the decision to enter into the public sector was driven by the fact that he felt “things happened to my community rather than for my community.” Similarly, when Quyen entered private practice, she had no women of color partners as role models and she challenged herself to be authentic and unafraid because “there is nowhere to go but up.” They encouraged attendees to take risks, develop skill sets early on, work with internal clients such as senior associates and partners, and step outside of their comfort zones. Most importantly, Quyen and Paul talked about the importance of preparing for success – know what you want and your next move. These tips were echoed and incorporated by attendees during the group exercise that followed and related to tips for junior associates, managing your career, how to turn bad into good and qualities of a great lawyer. This session was facilitated by: Joseph A. Aguilar, senior associate at Archer Norris PLC; Shaunicie Fielder, employment counsel at Pandora Media, Inc.; Kyong M. Kim, associate at Holland & Knight LLP; and Joseph G. Naddour, associate at Klatte, Budensiek & Young-Agriesti, LLP.

The "Bosses" Lunch Partners, shareholders and in-house managing or senior attorneys attended "The 'Bosses' Lunch”. The attendees broke up into four groups for discussion and brainstorming on fundamental tools to succeed as a “boss” to: (1) motivate and retain talent; (2) think like a boss; (3) lead and manage across the generational divide; and (4) innovate diversity and inclusion. Each group discussed their topic and shared key best practices with all the attendees that can be implemented today:

Motivating and Retaining Talent Coach by walking around. Hire future partners, not just someone that can do the job for now. Provide

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Winter 2016 Newsletter

shadowing or boot camp training to associates. Be open to making adjustments such as flexible schedules to attract talent. Create an open environment where employees are not fearful to speak openly. Bring in the best fit and tell them they are the best fit so they feel that they will succeed.

Thinking Like a Boss Train associates on business development early so they are aware of starting a network, not that there is an expectation that new associates start bringing in work. Sponsor junior attorneys - as new partners are in the position to sponsor associates and help them cross the bridge into partnership and be the bridge between the senior partners and the associates. Ask for credit / ask for origination or a share of origination. Select your personal board of directors, friends and colleagues that will support and champion you.

Leading and Managing Across Generational Divide Have empathy. Give praise. Provide mentorship. Know that young attorneys want a sense of

ownership in their work. Provide work from home flexibility earlier in an attorney’s career, not just as a reward for many years of work.

Innovating Diversity and Inclusion Share personal stories of diversity and inclusion. Be a talent champion – be the partner that is embedded in the performance review process to uncode information for associates and provide one-on-one discussion about what the associate is hearing or perceiving at his/her performance reviews. Continued on next page‌

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CMCP Diversity Matters eNewsletter – Winter 2016 Issue

These sessions were facilitated by: Na’il Benjamin, Managing Partner at Benjamin Law Group; Joseph Lutz, Senior Counsel at Seyfarth Shaw LLP; Ash Nagdev, Associate at Sidley Austin LLP; Laura Maechtlen, Partner at Seyfarth Shaw. This session was sponsored by Jones Day.

The General Counsel Reception The first day of the conference ended with the General Counsel Reception, which kicked-off with the announcement of winners of the Lunch with a GC program, where attendees of The No Bosses Allowed Lunch session earlier in the day enter a drawing to be seated next to a General Counsel in attendance at the conference the following day at the Recognition Luncheon.

CMCP Diversity Matters

Two Sets of Three Concurrent Sessions Following the lunch sessions, attendees had the option to participate in two of six break-out sessions. Flex by Fenwick, DrinkerBiddle, and Nossaman LLP each sponsored one of the concurrent sessions. “This was one of the best panels I’ve heard on these subjects. Excellent.” – Jan Levine, Partner, Pepper Hamilton LLP commenting about the What to Do When the Government Comes Knocking session.

DAY 2 OF THE CONFERENCE CMCP Corporate Connections

Given CMCP’s focus on connecting minority attorneys and providing them with opportunities to network, the second day of the conference began with Corporate Connections, 15-minute interviews of diverse outside counsel by representatives from approximately 39 corporations and public agencies. Through this program, interviewees had the opportunity to make initial contact with in-house counsel they can followup with after the conference. In-house counsel interviewers were able to meet and identify talented minority attorneys for future legal work. Given the mutually beneficial aspect of this program, it was very popular among the attendees.

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Winter 2016 Newsletter

Corporate Connections was sponsored by Norton Rose Fulbright.

Business Development Coaching Café Concurrent with Corporate Connections, attendees had the option to take advantage of the new Coaching Café for practical, real-time advice and pointers on a range of topics such as marketing pitches, business development ideas, social media presence, and development as a junior associate. The seven coaches included in-house counsel, experienced rainmakers and expert consultants. This session was sponsored by Winston & Strawn LLP.

27th Annual Recognition Luncheon Corporate Connections was followed by the 27th Annual Recognition Luncheon, which recognized the following individuals and entities that have demonstrated the strongest commitment to diversity:

Kaiser Permanente received the John Essex & Guy Rounsaville, Jr. In-House Counsel Diversity Award. Aurelio J. Pérez and Christiane A. Roussell were presented with the inaugural CMCP Marci Rubin Emerging Leader Diversity Award. Continued on next page…

William W. Funderburk, Jr. and Garner K. Weng were inducted into CMCP’s Diversity Leader Hall of Fame. George K.H. Schell was presented with the CMCP Diversity Legacy Award. Adli Law Group P.C. received the CMCP Minority-Owned Law Firm Client Service Award. Littler Mendelson P.C. received the Drucilla Stender Ramey Majority-Owned Law Firm Award.

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CMCP Diversity Matters eNewsletter – Winter 2016 Issue

CMCP Diversity Matters

and the key role his mentors played in shaping his career and setting him up to become a general counsel. He advised young attorneys to view their career in stages as he had done – focus on building your skill set during the first two or three years, handle small deals and take on more responsibility during years three through six and then focus on what you really want to do with your career. He revealed that in addition to being an attorney, he is a hip-hop artist, which he embraced and made known to his colleagues and partners. Lastly, he discussed the importance of increasing the pipeline at law firms to promote diversity and inclusion. The Recognition Luncheon was sponsored by DLA Piper US LLP.

From the Desk of the General Counsel

In addition to celebrating these recipients, CMCP and the attendees also remembered Deborah J. Broyles, a diversity champion who recently passed away, for her unwavering commitment to diversity, CMCP and the community service, and encouraged attendees to continue her work. Afterwards, the Keynote Speaker, David J. Kelly, general counsel for the Golden State Warriors was interviewed by George K.H. Schell, chairman of the board, council of better business bureaus, and former chief marketing counsel, The Coca-Cola Company. David discussed the challenges he faced growing up

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The last panel discussion of the conference was entitled “From the Desk of the General Counsel” and it elicited input from the panelists on diversity at law firms and the future of the legal profession. According to the panelists, while law firms are holding discussions about diversity, attrition among diverse attorneys and advancement of diverse attorneys, more can be done to show that diversity is a priority. For example, law firms should consider having diverse attorneys as CRLs, partnering with in-house counsel to provide secondments opportunities, providing young attorneys with opportunities to meet clients, holding candid conversations with inhouse counsel regarding the challenges they face in retaining diverse attorneys, and collaborating with in-


Winter 2016 Newsletter

house counsel to ensure that they have the support, experience and resources to advance to partnership. The panelists also discussed new hiring models in-house legal departments are using to provide additional opportunities for diverse attorneys – associate programs for second/third year attorneys, summer clerkships, use of boutique law firms or minority-owned law firms for smaller matters, and reliance on big law firms for international matters. Lastly, panelists provided advice on how to retain their business: (1) answer the phone, (2) meet the deadlines and (3) apologize for a mistake and come up with a way to recover from it. Tiffany Renee Thomas, partner at Reed Smith LLP, moderated this panel. The panelists included: Rob Chesnut, general counsel at Airbnb, Inc.; Timothy S. Ernst, executive vice president, general counsel & secretary at Bio-Rad Laboratories, Inc.; Sergio Garcia, senior vice president, general counsel and corporate secretary at ZELTIQ Aesthetics, Inc.; Charles F. Robinson, general counsel and vice president – legal affairs at the University of California Office of the General Counsel, and Amy Weaver, executive vice president & general counsel at Salesforce.

‘From the Desk of the General Counsel’ was sponsored by Allen Matkins Leck Gamble Mallory & Natsis, LLP.

Closing Reception The Conference concluded with the Closing Reception, which like all other events over the course of the two days provided the attendees with yet another opportunity to meet other attorneys and participants to build and grow their connections, networks and relationships.

“We had a truly wonderful, productive time. We met an attorney who we have now put on project. That was truly a miracle as she has a very specialized skill set we happened to be looking for at that very moment” –Mae O’Malley, Founder, Paragon Legal

Gagandeep B. Kaur is an Associate at Reed Smith LLP in San Francisco. She works on a variety of transactional and litigation matters involving real estate, energy and natural resources, healthcare, and financial services. She can be reached at 415-659-4828 or gkaur@reedsmith.com. For more info about Gagan, click here.

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CMCP Diversity Matters

CALIFORNIA & THE FEDERAL GOVERNMENT EXPAND LAWS TO

ELIMINATE WAGE DISPARITY By: Jonathan M. Turner, Partner, Mitchell Silberberg & Knupp LLP

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alifornia state legislature amended the Fair Pay Act to prohibit race and ethnicitybased wage differentials and to preclude employers from relying on salary history to justify the wage gaps. In addition, the U.S. Equal Employment Opportunity Commission (“EEOC”) finalized Regulations to require employers to collect and include wage data in EEO-1 Reports.

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In our E-Newsletters for Winter 2015 wage disparity for work in jobs and Summer 2016, we discussed which require “equal skill, effort, the California Fair Pay Act (“CFPA”), and responsibility, and which are which became effective January 1 of this year. The CFPA is aimed at eliminating gender-based


Winter 2016 Newsletter

performed under similar working conditions.” Since the passage of the CFPA, there have been several measures around the country that indicate a trend towards expanding protections against wage disparities that appear to be based on gender or race. One such measure is California Assembly Bill 1676 (“AB 1676”), which Governor Brown signed into law on September 30, 2016. The new law will amend the CFPA to preclude employers from relying on an applicant’s salary history as the sole justification for a wage disparity. Like a similar bill that Governor Brown vetoed in 2015 (AB 1017), earlier drafts of AB 1676 would have prohibited employers from even seeking wage history. Ultimately, however, the bill was substantially narrowed to provide that “prior salary shall not, by itself justify any disparity in compensation.” Governor Brown also signed into law Senate Bill 1063 (“SB 1063”), the Wage Equality Act of 2016, which expands the CFPA’s prohibitions beyond gender-based wage differentials to encompass wage differentials based on race and ethnicity. SB 1063 mirrors the gender-related provisions of the CFPA, and prohibits employers from paying “employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” Similarly,

employers bear the burden to justify wage differentials as based upon a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or “a bona fide factor other than race or ethnicity, such as education, training, or experience.” Like the gender-related provisions, a “bona fide factor” must not be based on or derived from a race or ethnicity-based differential and must be job-related and consistent with a “business necessity,” defined as an “overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve.” Similarly, one or more of the factors relied upon must account for the entire wage differential. The new law also incorporates the amendments made by AB 1676, such that employers are precluded from relying on an applicant’s salary history as the sole justification for a race or ethnicity-related wage disparity. Finally, the SB 1063 includes a race and ethnicityrelated anti-retaliation provision nearly identical to the CFPA’s gender-related anti-retaliation provisions, including protections for employees to disclose, inquire, or discuss their wages. These new laws, which apply to all businesses that operate in California, will become effective on January 1, 2017.

the Office of Management and Budget (the business division of the Executive Office for the President) approved the EEOC’s revisions to the EEO-1 report. Beginning in 2018, employers operating in the U.S. with more than 100 employees will be required to report total W-2 compensation information and hours worked for all of its employees on an annual basis. These expanded reporting requirements were implemented over strong objections from the business community, which raised significant questions regarding the utility and the use of the new data to be included in the EEO1 reports. The EEOC’s proffered justification for these requirements is that the adoption of the new EEO-1 form will enable the EEOC (and, for federal contractors and subcontractors, the Office of Federal Contract Compliance) to target compensation issues and address pay disparities. With the change in administration it remains to be seen whether these new reporting requirements will remain in place. Jonathan M. Turner is a partner through his professional corporation at Mitchell Silberberg & Knupp LLP in Los Angeles. Jonathan represents management in all aspects of labor and employment law. For more information about Jonathan, click here..

The federal government is not to be outdone on efforts directed to the elimination of wage disparity practices. On September 29, 2016,

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CMCP Diversity Matters eNewsletter – Winter 2016 Issue

CMCP Diversity Matters

PAID SICK L COMING TO By: Jonathan M. Turner, Partner, Mitchell Silberberg & Knupp LLP

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ou are likely familiar with the Healthy Workplace Healthy Family Act of 2014 (“AB 1522”), which entitles California employees to use at least 24 hours of paid sick leave per year and caps accruals at 48 hours. However, you may not appreciate that, since then, at least seven California cities have enacted their own paid sick leave ordinances, offering employees in those cities even more paid sick leave than the State statute. Those cities include: San Francisco, Oakland, Emeryville, Los Angeles, San Diego, Santa Monica, and Berkeley. Indeed, you should not assume that because you’re complying with the California statute that you’re out of the woods. Below are important differences between AB 1522 and the various municipal ordinances. As a guiding principal, if there is a conflict, AB 1522 will prevail, unless the municipal ordinance is more favorable to employees (e.g., higher accrual cap, etc.). The takeaway from the local laws summarized below is that employers who do business in different parts of the state are subject to a checkerboard of compliance mandates regarding paid sick leave and must be able to track these benefits on different levels in different cities. This is not an easy task unless the employer elects to take the most stringent of these laws; i.e., the ones more favorable to the employee, and apply them across the board to its entire California workforce.

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Winter 2016 Newsletter

LEAVE: A TOWN NEAR YOU Even this approach has its challenges in that it is not always clear which laws would be considered more favorable. The extent to which of these laws will add to what already is a fertile ground for wage and hour litigation in this state remains to be seen. California Healthy Workplace Healthy Family Act of 2014: By way of background, AB 1522 became effective on July 1, 2015. It applies to employers of all sizes and employees who work at least 30 days in California for a particular employer. Covered employees accrue paid sick leave in a lump sum/ front-load or at the rate of one hour for every 30 hours worked. Accrual starts on the first day of work and is capped at 48 hours or 6 days (whichever is more generous to the employee) at any given time. Accrued, unused paid sick leave will carry over into the next year, subject to the accrual cap. Employees covered by a collective bargaining agreement that explicitly provides for paid sick leave, among other things, are excluded from the statute. Under the statute, employees are entitled to use up to 24 hours or 3 days (whichever is more generous to the employee) of accrued paid sick leave per year. Employees are first entitled to use paid sick leave on their 90th calendar day of employment. Permitted uses are either for: (1) medical needs of the employee or the employee’s family member (i.e., child, parent,

spouse or registered domestic partner, grandparent, grandchild, or sibling); or (2) purposes related to domestic violence, sexual assault, or stalking suffered by the employee. Employers may not require usage in larger than 2 hour increments or require a doctor’s note or other documentation for covered leave. Employees are required to provide reasonable notice for any foreseeable need to use paid sick leave. If the need is unforeseeable, the employee must provide notice as soon as practicable. After an employee takes paid sick leave, employers must: (1) pay non-exempt employees at either their regular rate or by looking back 90 days and dividing total wages (excluding overtime premium) by the number of hours worked or; (2) pay exempt employees by the same method as any other form of paid leave time provided by the employer. Employers are not required to cash out accrued, unused paid sick leave upon separation. However, if an employee is rehired within one year from the separation date, any previously accrued and unused paid sick leave must be reinstated and can be used immediately upon rehire. Employers must maintain records regarding usage and accrual of employee’s paid sick leave for at least 3 years. Employer posting and notice requirements are listed in the statute. Continued on next page…

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CMCP Diversity Matters Finally, there is a rebuttable presumption of retaliation if an employee suffers any adverse employment action within 30 days of the employee filing a complaint with the Labor Commissioner, cooperating with an investigation or prosecution of a violation, or opposing a policy, practice or act prohibited by the statute. Below are important differences between AB 1522 and the various municipal ordinances. San Francisco: This Ordinance was among the first in the State. It applies to anyone who is employed in the geographic boundaries of San Francisco, excluding employees covered by a collective bargaining agreement that clearly and explicitly waived some or all of the Ordinances’ benefits or those who work in the City for not more than 55 hours in a calendar year.

Los Angeles: This Ordinance applies to any employee who: (1) performs at least 2 hours of work within the geographic boundaries of Los Angeles in a particular week; (2) is entitled to minimum wage under California law; and (3) works in the City for the same employer for at least 30 days within a year from the start of employment. Notably, there are no coverage exclusions for this Ordinance. (Note: Los Angeles has enacted a separate ordinance regarding paid sick leave for hotel workers.) Although the permitted uses are the same as AB 1522, the Ordinance expands covered family members to include individuals related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Notably, the Ordinance caps accrual at 72 hours, but does not include a cap on usage. Effective January 1, 2017, its permitted uses will include bone marrow or organ donation by the employee or a family member, in addition to those provided by the State statute. It also expands covered family members to include a “designated person.”

Additionally, Los Angeles employees are entitled to use up to 48 hours of paid sick leave in a particular year. Accruals are capped at 72 hours. Any unused paid sick leave, including front-loaded, will carry over year-to-year, subject to the accrual cap. Los Angeles employers may also require a doctor’s note or other documentation for absences after the employee has exhausted their paid sick leave entitlement under AB 1522.

In another departure from AB 1522, San Francisco employers may not require usage in larger than 1 hour increments. However, employers may require a doctor’s note or other documentation for a paid sick leave absence exceeding 3 consecutive work days, a doctor’s appointment, or where there is a pattern or clear instance of abuse.

Similar to the San Francisco law, Los Angeles employers must maintain records regarding usage and accrual of employee paid sick leave for at least 4 years. There is also a rebuttable presumption that any employee who suffers adverse action within 90 days of exercising his/her rights under the Ordinance was retaliated against for exercising that right.

Additionally, the Ordinance defines reasonable notice for a foreseeable need for paid sick leave as at least 2 hours before the start of a shift, except for accidents, emergencies, or sudden illnesses. Also, employers must maintain records regarding usage and accrual of employee paid sick leave for at least 4 years.

San Diego: This Ordinance applies to any employee who: (1) works at least 2 hours in the geographic boundaries of San Diego in a particular week and (2) is entitled to minimum wage under California law or participates in a California Welfare-to-Work Program. Exclusions to the Ordinance apply for short term and youth employment programs and employees who are paid a sub-minimum wage under a specific license.

Regarding retaliation, there is a rebuttable presumption that any employee who suffers adverse action within 90 days of exercising his/her rights under the Ordinance was retaliated against for exercising that right.

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This Ordinance allows employees to use up to 40 hours of paid sick leave in a year, capping accrual


Winter 2016 Newsletter

at 80 hours. Unlike the State statute, which allows employees to use paid sick leave on the 90th day of employment, San Diego employers may limit the use of paid sick leave until the 91st day of employment. In addition to the uses provided under AB 1522, San Diego employees may use paid sick leave when the employee’s place of business or his or her child’s care provider or school is closed due to a public health emergency. Although the Ordinance provides that non-exempt employee using paid sick leave are paid at their regular rate, it does not provide for the 90-day looking back rate provided by the State statute. Additionally, San Diego employers may require a doctor’s note or other documentation for absences exceeding 3 consecutive work days. The Ordinance also limits “reasonable notice” for foreseeable needs for paid sick leave to 7 days. Similar to San Francisco and Los Angeles, there is a rebuttable presumption that any employee who suffers adverse action within 90 days of exercising his/her rights under the Ordinance was retaliated against for exercising that right.

employers to provide at least 2 hour notice before the start of a shift for foreseeable needs for paid sick leave. Additionally, employers may require documentation for a paid sick leave absence exceeding 3 consecutive work days or to verify a subsequent absence where abuse is suspected. Unlike most other cities, the Ordinance provides that employees using paid sick leave must be paid in one of the following manners: (1) non-exempt hourly employees shall be paid at their regular hourly rate; (2) non-exempt salaried employees shall be paid at a rate calculated by dividing the annual salary by 52 weeks, and dividing that amount by the number of hours the employee is regularly schedule to work up to 40 hours; and (3) exempt employees are paid at a rate calculated in the same manner as nonexempt salaried employees, except that if the exempt employee’s regular work week is less than 40 hours, the calculation must divide the weekly salary by the number of hours worked during a regular work week. Additionally, there is a rebuttable presumption of retaliation for any adverse employment action suffered within 120 days of an employee exercising his/her rights under the Ordinance.

Oakland: This Ordinance applies to anyone who: (1) works at least 2 hours in the geographic boundaries of the City in a particular week and (2) is entitled to California’s minimum wage. Exclusions apply to employees covered by a CBA containing a clear and explicit waiver of some or all of the Ordinance’s benefits.

Continued on next page…

Unlike AB 1522, Oakland employees are entitled to accrue up to 72 hours of paid sick leave, with no cap on annual use. The Ordinance restricts use beyond that permitted by AB 1522 (i.e., 24 hours or 3 days) to only the medical need of the employee or the employee’s family member. Additionally, the Ordinance does not provide for front-loading, only accrual. Similar to San Francisco, the Ordinance provides that Oakland employers may not require usage in larger than 1 hour increments and may require

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CMCP Diversity Matters eNewsletter – Winter 2016 Issue

Santa Monica: Effective on January 1, 2017, this Ordinance applies to anyone who: (1) works at least 2 hours in the geographic boundaries of the City in a particular week and (2) is entitled to California’s minimum wage. Exclusions apply to employees covered by a CBA containing a clear and explicit waiver of some or all of the Ordinance’s benefits and to employees of government agencies. Unlike AB 1522, the Ordinance provides up to 72 hours of accrued paid sick leave with no cap on annual use. Any accrued, unused paid sick leave carries over year-to-year, unless it was front-loaded. Additionally, there is a rebuttable presumption that any employee who suffers adverse action within 90 days of exercising his/her rights under the Ordinance was retaliated against for exercising that right. Emeryville: This Ordinance applies to anyone who: (1) works at least 2 hours in the geographic boundaries of the City in a particular week and (2) is entitled to California’s minimum wage. Exclusions apply to employees covered by a CBA containing a clear and an explicit waiver of the Ordinance’s benefits. In a departure from AB 1522, the Ordinance caps paid sick leave accrual at 72 hours, but it does not cap annual use. Also, the Ordinance does not provide for use related to domestic violence, sexual assault or stalking, but does permit employees to use paid sick leave to provide care for a guide dog, signal dog or service dog of the employee or a family member. Similar to Oakland, there is a rebuttable presumption of retaliation in Emeryville for any adverse employment action suffered within 120 days of an employee exercising his/her rights under the Ordinance. Berkeley: The paid sick leave feature of this Ordinance goes into effect on October 1, 2017. The Ordinance applies to anyone who: (1) works at least 2 hours in the geographic boundaries of the City in a particular week and (2) is entitled to California’s minimum wage or is a Welfare-to-Work program participant. Exclusions apply to employees covered

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CMCP Diversity Matters

by a CBA containing a clear and explicit waiver of the Ordinance’s benefits. Unlike AB 1522, the Ordinance caps accrued paid sick leave at 72 hours. It limits use of paid sick leave for employees of employers with fewer than 25 employees to 48 hours, but does not limit use for employees of larger companies. Notably, paid sick leave cannot be used for reasons related to domestic violence, sexual assault or stalking. Similar to San Francisco and Oakland, the Ordinance expands the definition of covered family members to include a designated person. Also, the Ordinance provides that employees who use paid sick leave are paid at their hourly wage or a calculation looking back 90 days and dividing total wages (excluding overtime premium) by the number of hours worked if the employee earned wages at multiple rates during that period. In another departure from AB 1522, Berkeley employers are expressly allowed to require a doctor’s note or other documentation and may verify that the paid sick leave was used for a permitted purpose, but cannot require an employee to incur documentation or verification expenses exceeding $15. Additionally, the Ordinance does not include a record-keeping requirement. However, an employee’s account of their paid sick leave entitlement is presumed accurate in the absence of employer-maintained records. Finally, there is a rebuttable presumption that any employee who suffers adverse action within 90 days of exercising their rights under the Ordinance was retaliated against for exercising that right. Jonathan M. Turner is a partner through his professional corporation at Mitchell Silberberg & Knupp LLP in Los Angeles. Jonathan represents management in all aspects of labor and employment law. For more information about Jonathan, click here.


Winter 2016 Newsletter

Ninth Circuit Finds That Dole’s “All Natural” Description On Certain Fruit Products Could Mislead Reasonable Consumers By: David A. Shimkin, Member, Cozen O'Connor

A

recent decision from the Ninth Circuit has highlighted the uncertainty that exists in the food product market about the use and definition of “All Natural” in labeling and advertising. In Brazil v. Dole Packaged Foods, LLC, 2016 U.S. App. LEXIS 17733 (9th Cir. Sept. 30, 2016), the Ninth Circuit held that District Judge Lucy H. Koh erred in granting Dole’s summary judgment motion on claims arising from the purported deceptive labeling of Dole’s fruit products. Chad Brazil challenged the “All Natural” descriptions on certain Dole fruit products. Brazil brought claims against Dole under California’s Unfair Competition

Law, False Advertising Law, and Consumer Legal Remedies Act, alleging that the Dole labels are deceptive because they describe Dole’s packaged fruit as “All Natural” even though the products contain synthetic citric and ascorbic acid. Mr. Brazil maintained he would prove at trial that the labeling was misleading by citing the label itself, his own testimony that he was deceived, Dole’s own consumer surveys, and the Federal Food and Drug Administration’s informal, non-binding policy statements on use of the word “natural” in food labels. Continued on next page…

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CMCP Diversity Matters As a matter of background, in 1993, the FDA informally defined “Natural” to mean that, “nothing artificial or synthetic…has been included in, or has been added to, a food that would not normally be expected to be in the food.” Brazil cited to this informal policy as well as recent FDA warning letters to food sellers. Those sellers had described their products as “100% Natural” or “All Natural” and the FDA called those descriptions deceptive because the products in question included synthetic citric acid. In reversing the grant of Dole’s summary judgment motion, the Ninth Circuit explained that, to prevail on his claims, Brazil must show that Dole’s labels would probably have misled “a significant portion of the general consuming public or of targeted consumers acting reasonably in their circumstances.” Lavie vs. Proctor & Gamble Co., 129 Cal. Rptr. 2d 486, 495 (Cal. Ct. App. 2003). The court found that Brazil had amassed enough evidence, including the conflicting testimony of expert witnesses and Dole employees, to allow the trier of fact to conclude that the synthetic citric and ascorbic acids in Dole’s products were not “Natural.”1 While the Ninth Circuit’s decision is not particularly surprising, it highlights the uncertainty that will remain until the FDA issues its long-awaited directive on how the term “Natural” should be defined and used in food labels. Since 2014, the FDA has asked the public to join a public commenting discussion on how that term should be defined and used in food labels. That public commenting period closed in May of 2016, and the FDA still is reviewing the 7600 comments it received from consumers, experts, and food companies. Notably, even judges have encouraged the FDA to issue its final directive, and many observers agree that

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the FDA’s decision on the meaning and best use of the term “All Natural” will provide clarity for all concerned. Yet, the question of whether “All Natural” ever will be universally accepted by participants in the food market as an accurate product description may never be resolved. For example, some take the position that genetically modified food products cannot be accurately described as “All Natural.” However, the sweet potato was genetically modified 8,000 years ago (through the insertion by bacteria of genes into the ancestor of the modern sweet potato). Similarly, Ruby Red grapefruits were derived less than 100 years ago from seeds that had been treated with irradiation. In short, the line between humanly modified foods and “All Natural” foods is not so clear, and this ambiguity likely will survive any FDA directive. Still, the Dole decision highlights the need for the FDA to issue its long-awaited policy statement on the use and definition of “All Natural.”

1 In its opinion, the Ninth Circuit also: (1) affirmed the dismissal of Brazil’s claims for the sale of “illegal products,” explaining that because Brazil did not see the allegedly offending statements before he purchased the fruit, those statements could not have influenced his purchase; and (2) affirmed the district court’s grant of Dole’s motion to decertify the class because Brazil failed to show how damages could be calculated with proof common to the class. David Shimkin practices in the Commercial Litigation Group at Cozen O'Connor in Los Angeles. His litigation practice includes complex commercial matters, with a focus on representing clients in the hospitality, health care, construction, and real estate fields. For more information about David, click here.


Winter 2016 Newsletter

Business Development Series:

Are Carrots and Sticks Really the Answer to Diversity and Inclusion Success? By: Martha Sullivan, Principal, Thornton Marketing

I

n my previous blawg, I wrote about the financial rewards of having a diverse workforce. There are many sources that connect diversity with increases in revenue, profitability, workforce retention and access to clients. Those all seem like decent carrots, or incentives, to encourage a more inclusive workplace. The Bloomberg Law Big Law Business Diversity & Inclusion Annual Report was released recently, and confirms that rewards are important. The final paragraph of the report includes this sentence: “The survey results show that monetary incentives would be a key driver for firm attorneys in promoting diversity and inclusion.” That seems to support the idea that diversity and inclusion (D&I) will lead to exactly the monetary awards that firms desire. However, the introduction to the Bloomberg Law report contains disheartening information. After stating that diversity can help both law firms and corporate legal departments retain employees and gain a competitive advantage over less-diverse entities, the authors say “the results of our survey suggest that they (the respondents) may doubt whether their own firms or departments are up to the task.” This seems to be confirmed by the fact that almost 40% of the corporate counsel who participated in the survey left their law firm positions “because of diversity and/or inclusion-related reasons.” Continued on next page…

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CMCP Diversity Matters eNewsletter – Winter 2016 Issue

CMCP Diversity Matters

As you might expect, the Bloomberg Law report indicates a gap between what corporate clients say they want, and what actually happens. In a chart of the ways clients express the importance of D&I, their highest ranking measure was “Requires diversity-related information in RFPs/Pitches.” Of the 99 respondents, 44% said they use this measure “very often/often.” 65% use this measure “at least occasionally.” The difference between this most frequent measure and the least frequent one is noteworthy. Evidently, asking for the information in an RFP doesn’t automatically mean that there are consequences for outside counsel that have low diversity numbers. At the bottom of the chart, only 6% of 97 respondents said they “very often/often” actually terminate or reduce work if their diversity expectations are not met. Another 23% said they terminate work “at least occasionally.” Corporate clients have an effective “stick” to use, by hiring diverse firms or terminating those who don’t meet their standards. These survey numbers indicate that there are few consequences when the standards aren’t met. The study lists 15 challenges to advancing D&I at law firms. While all 15 factors deserve more discussion, I’ll focus on the one that had the highest rating. A full 69% of the law firm respondents said implicit / unconscious bias was the biggest challenge. However, in the section of the report about best practices, only 13% of the respondents indicated that an effective strategy for furthering D&I was “being aware of alternative ways to be inclusive / remove unconscious bias.” That’s a significant gap. Lawyers are required to take CLE classes on this topic, but that doesn’t necessarily lead to changes in culture. Even if your firm or company is committed to D&I, the real test of your organization’s values is to observe who gets rewarded, promoted, or let go. Human beings are capable of change, although most of us don’t respond well to carrots or sticks. We need to have a context for changing our behavior, and we need to know that everyone is committed to change. The work of D&I is difficult, but the potential rewards are more than worth the effort. What actions can you, or your firm, take now? Here are a few questions to consider, as you evaluate your next steps on the D&I path. •

Are our actions consistent with the values that appear on our website?

Given that implicit bias is such a critical part of this issue, are we committed to interrupting bias when it occurs? Do we encourage everyone to speak up?

Are we setting the context for diversity in a clear way? Is there agreement about our goals?

What metrics are important for us to track? Do the numbers we report correspond to the experience people have?

Can we inspire ourselves and our colleagues to stay committed to our goals, even when it’s difficult?

Martha Sullivan is a business development coach for attorneys and other professional service providers. She is certified as a professional coach and has more than 25 years of experience in marketing and business development. For more info about Martha, click here.

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Winter 2016 Newsletter

DIVERSITY CALENDAR December 14, 2016

December 14, 2016

December 16, 2016

January 18, 2017

BALIF Holiday Party

OCWLA: Holiday Party

2016 Holiday Party and Toy Drive

Women in Tech Law Panel

Women Lawyers Association of Orange County The Pacific Club - Newport Beach

Black Women Lawyers Association of Los Angeles and John M. Langston Bar Association

The South Asian Bar Association of Northern California

January 26, 2017

January 28, 2017

February 9, 2017

February 24, 2017

2017 Judge's Night & Annual Meeting

Save the Date: 85th Anniversary Affair

Solo Small Firm Annual Conference

SABA-NC's 24th Annual Gala

Orange County Bar Association

Beverly Hills Bar Association

The Bar Association of San Francisco BASF Conference Center - SF

The South Asian Bar Association of Northern California

6:00pm - 9:00pm

Bay Area Lawyers for Individual Freedom Devil's Acre - SF

5:30pm - 9:00pm

Hyatt Regency Huntington Beach

6:00pm - 9:00pm

7:00pm - 11:00pm

TBD - Private Residence in Beverly Hills

7:00pm - 11:00pm

Playa Vista Centerpointe Club

11:30am - 4:30pm

6:00pm - 8:00pm

TBD

6:00pm - 11:00pm

San Francisco Design Center - SF

March 3, 2017

March 3, 2017

March 4, 2017

March 23, 2017

BALIF 37 Annual Gala

JABA's 41 Annual Installation and Awards Gala

The OCHBA's 39 Annual Scholarship Fundraiser & Installation Dinner

Save the Date: AABA of Greater Bay Area - 41st Annual Dinner

7:00pm - 11:00pm th

Bay Area Lawyers for Individual Freedom

Friday

st

th

5:30pm - 8:30pm

Omni Hotel - LA

The Orange County Hispanic Bar Association

Asian American Bar Association of the Greater Bay Area

Irvine Marriott Hotel - Irvine

Hyatt Regency - SF

April 7, 2017

April 20, 2017

April 27 - 30, 2017

CWL: 2017 Annual Conference

San Francisco Out & Proud Corporate Counsel Award Reception

40th Anniversary CABL Conference 2017

The Bently Reserve - SF

8:30am - 7:30pm

California Women Lawyers Marriott Marquis San Diego Marina - SD

Japanese American Bar Association

5:00pm - 9:00pm

6:00pm - 8:00pm

The National LGBT Bar Association TBD - SF

Thursday - Sunday

California Association of Black Lawyers Marina del Rey Marriott Marina del Rey

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CMCP Diversity Matters

CMCP Diversity Matters Winter 2016 Newsletter

MINORITY

Winter 2016

© Copyright 2016 California Minority Counsel Program 465 California Street, Suite 635 San Francisco, CA 94104 Tel: 415-782-8990 Email: newsletter@cmcp.org Web: http://www.cmcp.org 16

CMCP Diversity Matters - Winter 2016  

California Minority Counsel Program Diversity Matters eNewsletter Winter 2016 Issue

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