Mark D. Walters

COVID-19 - King County Local Health Officer Order

3/16/2020

Whereas on February 29, 2020, Governor Inslee proclaimed a state of emergency within the State of Washington due to COVID-19;

Whereas on March 1, 2020, King County Executive Constantine proclaimed a state of emergency within King County due to COVID-19;

Whereas on March 11, 2020, Governor Inslee ordered that all events of over 250 people be halted in King, Snohomish and Pierce Counties due to COVID-19;

Whereas also on March 11, 2020, the Local Health Officer ordered that all events of over 250 people be halted in King County and that all events with 250 or fewer people be cancelled unless the organizer could implement social distancing and sanitation measures due to COVID-19;

Whereas on March 13, 2020, President Donald Trump declared a national emergency due to COVID-19;

Whereas on March 15, 2020, the Centers for Disease Control and Prevention issued interim guidance recommending the cancellation or postponement of in-person events consisting of 50 or more people due to COVID-19;

Whereas state law, RCW 70.05.070(2)-(3), requires and empowers the local health officer to take such action as is necessary to maintain health and to control and prevent the spread of any contagious or infectious diseases within the jurisdiction;

Whereas state regulation, WAC 246-100-036, requires the local health officer, when necessary, to institute disease control and containment control measures, including social distancing measures he or she deems necessary based on his or her professional judgment;

Whereas, there is evidence of increasing transmission of COVID-19 within King County, scientific evidence and national public health guidance support strategies to slow the transmission of COVID-19 and protect vulnerable members of the public from avoidable risk of serious illness or death resulting from exposure to COVID-19;

Whereas, the age, condition, and health of a significant portion of the population of King County places it at risk for serious health complications, including death, from COVID-19.

Although most individuals who contract COVID-19 do not become seriously ill, persons with mild symptoms and asymptomatic persons with COVID-19 may place other vulnerable members of the public at significant risk; whereas a large surge in the number of persons with serious infections can compromise the ability of the regional health care system to deliver necessary health care to the public;

Whereas, the implementation of limitations on events and social gatherings, and use of social distancing decreases the risk of COVID-19 transmission to our most vulnerable populations, and is especially important for people who are over 60 years old and those with underlying health conditions due to the higher risk of severe illness and death from COVID-19;

Whereas, this Order will further reduce the likelihood that many individuals will be exposed to COVID-19 at community events and gatherings and at certain retail establishments, and will thereby slow the spread of COVID-19 in our community;

Whereas, this Order will help preserve critical and limited health care capacity in the County by reducing the spread of COVID-19;

Whereas, this Order is issued in accordance with, and incorporates by reference, the March 11, 2020 Governor’s Executive Proclamation on COVID-19 Community Mitigation Strategies;

Whereas this Order is issued in light of the existence of 420 cases of COVID-19 (including 37 deaths) in King County, as of March 15, 2020, and a significant and increasing number of assumed cases of community transmission and at a time when implementation of large scale community mitigation measures are recommended by the Centers for Disease Control and Prevention;

Whereas, social distancing measures can reduce COVID-19 transmission by
decreasing the frequency and duration of social and other contact among persons of all ages.

Whereas, this Order is issued to prevent circumstances often present in bars, dance clubs, movie theatres, and other social and recreational venues that may exacerbate the spread of COVID-19, such as: (a) a physical environment in which people are in close proximity and have multiple opportunities for close contact with one another that facilitates the spread of COVID-19 and; (b) the difficulty in tracing exposure and implementing traditional public health containment measures;

Whereas, although many residents and businesses followed the voluntary retail guidance issued by Public Health – Seattle & King County on March 11, 2020, confirmed COVID-19 cases have nearly doubled, reflecting both greater testing capacity and also ongoing community transmission of COVID-29;

Whereas, this Order comes after the release of substantial guidance from Public Health— Seattle & King County, the Centers for Disease Control and Prevention, and other public health officials throughout the United States and around the world. The Local Health Officer will continue to assess this quickly evolving situation and may modify or extend this Order, or issue additional Orders, related to COVID-19;

Whereas, the Local Health Officer hereby finds it is necessary to institute additional social distancing measures within King County;

Therefore, as Local Health Officer, I hereby ORDER, that beginning today, March 16, 2020:

All events with 50 people or more are hereby prohibited until further notice;
All events with fewer than 50 people are discouraged and prohibited unless event organizers observe the COVID-19 prevention measures outlined below.
All bars, dance clubs, fitness and health clubs, movie theatres, night clubs, and other social and recreational establishments shall be closed until March 31, 2020 or later if determined necessary;
Until March 31, 2020 or later if determined necessary, all restaurants and food service establishments shall cease providing dining room services but may remain open for drive- thru, take-out and delivery services and must adhere to the COVID -19 Public Health – Seattle and King County Guidance for retail businesses and service operators.
All other retail, including banks, grocery stores, hardware stores, and pharmacies, should and may remain open provided they observe the COVID-19 prevention measures and adhere to the Seattle and King County Guidance for retail businesses and service operators.

Under this local health officer Order, an "event" is defined as a public gathering on non-tribal lands for business, social, or recreational activities including, but not limited to, community, civic, public, leisure, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities. Healthcare settings and veterinary clinics are not considered events and should remain open while observing COVID-19 prevention measures. This order does not apply to and/or exempts food services provided in health care facilities, shelters, schools, and educational settings.

COVID -19 Prevention Requirements

Organizers of events of fewer than 50 people and all establishments that are not closed must ensure that the following COVID-19 prevention measures are taken:

Older adults and individuals with underlying medical conditions that are at increased risk of serious COVID-19 are encouraged not to attend (including employees);
Social distancing recommendations must be met (i.e., limit contact of people within 6 feet from each other for 10 minutes or longer);
Employees must be screened for coronavirus symptoms each day and excluded if symptomatic;
Proper hand hygiene and sanitation must be readily available to all attendees and employees; and,
Environmental cleaning guidelines from the U.S. Centers for Disease Control and Prevention (CDC) are followed (e.g., clean and disinfect high touch surfaces daily or more frequently).

COVID-19 Retail Guidance
Signed and ordered this 16th day of March 2020, in Seattle, Washington, by

Dr. Jeff Duchin Local Health Officer
Public Health – Seattle & King County

Recovering Attorney Fees in Washington - Recognized Equitable Grounds

2/25/2020

What follows is a lengthy quote from a Court of Appeals Opinion that does a nice job of explaining the issue:

Washington cases mention four recognized equitable grounds for awards of attorney fees: bad faith conduct of the losing party, preservation of a common fund, protection of constitutional principles, and private attorney general actions. Dempere v. Nelson, 76 Wn. App. 403, 407, 886 P.2d 219 (1994), abrogated on other grounds by Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997). There are three types of bad faith conduct that warrant attorneys fees: (1) prelitigation misconduct, (2) procedural bad faith, and (3) substantive bad faith. Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wn. App. 918, 927, 982 P.2d 131 (1999).

Prelitigation misconduct refers to obdurate or obstinate conduct that necessitates legal action to enforce a clearly valid claim or right. Rogerson, 96 Wn. App. at 927. Procedural bad faith is unrelated to the merits of the case and refers to vexatious conduct during the course of litigation, such as delaying or disrupting proceedings. Rogerson, 96 Wn. App. at 928. Substantive bad faith occurs when a party intentionally brings a frivolous claim, counterclaim, or defense with improper motive. Rogerson, 96 Wn. App. at 929. In other words, simply bringing a frivolous claim is not enough; there must be evidence of an intentionally frivolous claim brought for the purpose of harassment. Rogerson, 96 Wn. App. at 929.

Quoted Source: Dave Johnson Ins., Inc. v. Wright, 167 Wn. App. 758 (2012).

AIRBNB.com's Mailing Address for Legal Papers

10/26/2019

Online businesses like AIRBNB.com often make it impossible to find a mailing address for legal papers on their websites. In the hopes that this blog post is findable via online searches, here is the address for AIRBNB.com that I uncovered on one of my projects:

Hello,
Thank you for reaching out to inform us of your client’s case.
Our legal team will act in response to a valid legal process. Pertinent documents can be sent to the following address:
CSC Lawyers Incorporating Service
2710 Gateway Oaks Drive, Suite 150N
Sacramento, CA 95833
Thank you,
Freddie
www.airbnb.com/help

Arbitration vs. Court Lawsuit - Pros and Cons

8/28/2019

Arbitration Pros

Private and confidential - can avoid public airing of dirty laundry.
Sometimes faster and less costly over all than court lawsuits.
Can dictate faster timeline in the arbitration agreement.
Finality - no right to appeal - You lose you're done, but your done.

Arbitration Cons

Legal disputes are always costly, difficult and stressful.
Rules of Evidence may not strictly apply.
No right to appeal - You lose you're done and stuck with a bad result.
Costly arbitrator fees and expenses.

Court Lawsuit Pros

Judges are "free paid by taxpayers".
Rules of Evidence apply and can lead to more correct results.
Right to appeal - You lose your'e not necessarily done.
Risk of open lawsuit can act as a deterrent to avoid the lawsuit.

Court Lawsuit Cons

Legal disputes are always costly, difficult and stressful.
Public airing of dirty laundry.
Right to appeal - You lose your'e not necessarily done and can appeal seeking correction .

Contact Mark D. Walters

Washington Employment Law Alert - Modify Your Form Offer Letter Now

8/15/2019

There are Big Changes Coming to Washington State Law on Non-Competition Agreements, and one of the changes is the requirement for employers to notify prospective new hires of the company's non-competition restrictive covenant before you hire them.

Here is draft language you can use; modify the red font to match the name of your company and the title of your Employment Agreement:

As a condition of Company Name making this offer of employment to you, on or before your date of hire, you are required to read and sign our Employee Non-Competition, Non-Solicitation, Confidentiality and Inventions Agreement (“Agreement’). A copy of the Agreement is provided with this offer letter. Please read this carefully. Please also note that, while the Agreement will be immediately enforceable in all respects should you accept our offer of employment by signing the Agreement and returning your signed copy to us, the non-competition covenant will only be enforced if, now or in the future, your annualized earnings, as reported in box one of your W-2, exceed $100,000.00, as adjusted annually based on CPI-U inflation after January 1, 2020.

Contact Mark D. Walters

Big Changes Coming to Washington State Law on Non-Competition Agreements

5/16/2019

When Governor Jay Inslee signs HB 1450, which is 100% expected, Washington State law governing non-competition agreements will shift significantly pro-employee and pro-independent contractor. Once signed by Governor Inslee, this law will become effective on January 1, 2020.

The very first section of HB 1450 sets the tone: "The legislature finds that workforce mobility is important to economic growth and development [and] that agreements limiting competition or hiring may be contracts of adhesion that may be unreasonable."

HB 1450 defines a non-competition covenant to include "every written or oral covenant, agreement, or contract by which an employee or independent contractor is prohibited or restrained from engaging in a lawful profession, trade, or business of any kind." (Note the inclusion of both written and oral agreements in this very broad definition; see exclusions at the Note below).

Under this upcoming law:

there exists a reputable presumption that non-competition agreements running longer than 18-months from the separation date, are unreasonable and unenforceable unless the employer can demonstrate by clear and convincing evidence that a longer duration is necessary to protect its business or goodwill;
non-competition agreements cannot be enforced against an employee who earns less than $100K annually or an independent contractor that is paid less than $250K annually) based on Box 1 of the employee's W-2 or the contractor's IRS Form 1099. (These figures to be adjusted for inflation, further complicating matters).

Under this new statute, employee non-competition agreements are void and unenforcible unless:

the employer discloses to the new-hire in writing the terms of the non-competition agreement at the time the offer of employment is presented to the new hire (in other words, provide a full copy at the time of the offer letter);
if the employer requires the new-hire to enter into an employee non-competition agreement that will become effective if the employee's compensation crosses the $100K annual threshold, the employer must disclose in writing that it may be enforceable in the future (in other words, add this to the standard form employee non-competition agreement);
if the employee non-competition agreement is entered into the after the new-hire's start date, it must be supported by new and independent consideration;
if an employer pursues an enforcement action against an laid-off employee subject to an non-competition agreement (i.e. earns more than $100k), and the employer pursues an enforcement action, the employer must continue to pay the laid-off employee compensation equal to his or her base salary, less income earned from the laid-off employee's new employer.

For Washington based employees and independent contractors, non-competition covenants are void if they require adjudication outside of Washington or deprive the person of the protections under the
new law.

This new law includes the following remedy provisions, which are very pro-employee and pro-independent contractor:

if a court or arbitrator determines that a non-competition covenant violates this chapter, the violator must pay the aggrieved person the greater of his or her actual damages or a statutory penalty of five thousand dollars, plus reasonable attorneys' fees, expenses, and costs incurred in the proceeding;
if a court or arbitrator reforms, rewrites, modifies, or only partially enforces any non-competition covenant, the party seeking enforcement must pay the aggrieved person the greater of his or her actual damages or a statutory penalty of five thousand dollars, plus reasonable attorneys' fees, expenses, and costs incurred in the proceeding.

Thus, even in cases where the court or arbitrator modifies, or blue pencil's the agreement, the employer is still on the hook for paying statutory remedies.

Once signed, this law will become effective on January 1, 2020; however, it can be retroactively applied to non-competition agreements that were entered into before January 1, 2020, under two circumstances:

first, this new law cannot be used in in legal action that is commenced before January 1, 2020.
second, a cause of action may not be brought regarding a competition agreement signed prior to January 1, 2020, if the non-competition covenant is not being enforced (appears to mean this new law cannot be used by an employee plaintiff seeking a declaratory judgment when the employer is not seeking enforcement).

Note: The following are excluded from the definition of a non-competition covenant:

non-solicitation clauses that restrict employees from soliciting remaining employees and current customers (thus, all is not lost as the new law will continue to allow employers to protect their established customer relationships);
restrictive covenants prohibiting the use or disclosure of trade secrets or inventions;
restrictive covenants between persons buying or selling the goodwill or assets of a business.

Contact Mark D. Walters

What Proof is Required in a Tortious Interference with a Business Expectancy Case

5/3/2019

A plaintiff must prove the following five elements in a tortious interference with a business expectancy case: (1) the existence of a valid business expectancy; (2) that the defendant had knowledge of that business expectancy; (3) an intentional interference inducing or causing termination of the expectancy; (4) that the defendant interfered for an improper purpose or used improper means; and (5) resultant damage.

Element One: Existence of a Business Expectancy: This first element requires proof of something less than an enforceable contract, though a contract is often involved (i.e. non-competition or non-disclosure agreement). For instance, a prospective contractual or business relationship that would be of economic value such as an prospective customer, vendor or supplier. Here, you only have to show that the future business opportunity is a reasonable expectation and not merely wishful thinking.

Element Two: Knowledge of the Expectancy: The second element requires only for the defendant to have known of facts giving rise to the presence of the business expectancy, and the facts need to show the defendant had awareness of “some kind of business arrangement.”

Element Three: Intentional Interference Inducing or Causing a Breach or Termination of the Expectancy: For the third element, you need to show that the defendant desired to bring it about or that the defendant knew that the interference was certain or substantially certain to occur as a result of the defendant’s action.

Element Four: Interfered with Improper Means: On this forth element, you need to show that the defendant acted with improper motive, improper means, or both.” Improper means,” means the defendant had a duty not to interfere. To establish such a duty, the plaintiff may point to a restrictive covenant in a contract, a statute, regulation, recognized common law, or established standard of trade or profession.

Element Five: Resultant Damage: In all cases, the plaintiff must prove damages with reasonable certainty. This means you must produce evidence sufficient to support the claim that allows a reasonable basis for estimating the without mere speculation or conjecture.

For my lawyer and law student followers, here are a few cases on point:

Pac. Nw. Shooting Park Ass'n, 158 Wn.2d 342, 350, 144 P.3d 276 (2006).
Scymanski v. Dufault, 80 Wn.2d 77, 83, 491 P.2d 1050 (1971).
Newton Ins. Agency & Brokerage, Inc. v. Caledonian Ins. Grp., Inc., 114 Wn. App. 151, 52 P.3d 30 (2002).
Life Designs Ranch. Inc. v. Sommer, 191 Wn. App. 320, 364 P.3d 129 (2015)
Calbom v. Knudtzon, 65 Wn.2d 157, 165, 396 P.2d 148 (1964).
Pleas v. City of Seattle, 112 Wn.2d 794, 804-05, 774 P.2d 1158 (1989).

Contact Mark D. Walters

Commercial Lease Law: Equitable Grace Period to Avoid Inequitable Forfeiture

4/24/2019

Commercial leases are typically very one sided; pro landlord with the landlord dictating the terms and conditions of the lease. Commercial leases often allow the tenant to renew the lease for an additional agreed upon term or terms, provided the tenant follows the notice of intent to renew process and deadlines in the commercial lease.

What happens if the tenant fails to follow the notice of intent to renew process and deadlines in the commercial lease? In most cases, the tenant will be out of luck and lose the lease because the general rule is that an option to renew commercial lease clause is strictly construed and must be exercised in a timely manner. Thus, this could result in eviction, or the landlord requiring the tenant to enter into a new commercial lease. However, there might be another option under the right circumstances if, in my experience, the landlord is attempting to evict the tenant: the tenant may be entitled to an equitable grace period, which (if successful) will save the tenant from its failure to follow the notice of intent to renew process and deadlines and reinstate the commercial lease.

There is a handful of cases on this in Washington State, and Washington State appears to be in the minority on the commercial lease equitable grace period/inequitable forfeiture doctrine. For my lawyer and law student readers, I list the lead cases below.

When presented with a commercial lease equitable grace period/inequitable forfeiture doctrine case, our Courts look to the following factors: (1) whether the failure to give timely notice was purely inadvertent or was the result of intentional, culpable, or grossly negligent conduct; (2) whether an inequitable forfeiture would result if equity does not intervene; (3) whether the tenant's failure to give timely notice resulted in the landlord changing its position in any way, and whether the landlord was prejudiced thereby; (4) whether the lease was for a long term, not a short term; and (5) whether there was undue delay in the tenant giving notice.

Commercial lease equitable grace period/inequitable forfeiture cases are factually dense and highly factually dependent. And, like all lawsuits, there will be a tremendous amount of uncertainty to manage. If you are a landlord considering eviction because your commercial tenant failed to exercise its option to renew the lease on time, or a tenant facing and eviction because you missed the deadlines, I would be happy to talk to you.

Washington State Commercial Lease Equitable Grace Period/Inequitable Forfeiture Cases:
Wharf Rest., Inc. v. Protective Order of Seattle, 24 Wn. App. 601, 605 P.2d 334 (1979)
Heckman Motors v. Gunn, 73 Wn.App. 84, 867 P.2d 683 (1994)
Recreational Equip., Inc. v. World Wrapps NW., Inc., 165 Wn. App. 553 (2011)

Contact Mark D. Walters

Strict Liability for Operators of Places of Public Accommodation Under the Washington Law Against Discrimination

1/31/2019

In a landmark decision (01/31/2019), the Washington State Supreme Court held that employers are strictly liable under the Washington Law Against Discrimination for their employee's discriminatory conduct towards a customer in a place of public accommodation.

The Washington Law Against Discrimination (WLAD) makes it unlawful for "any person or the person's agent or employee to commit an act [of] discrimination . . . in any place of public . . . accommodation." RCW 49.60.215.

A place of public accommodation includes places where charges are made for admission like a sports stadium and theatre, places where medical services are made available like a hospital, and places where the public gathers for amusement, recreation, or public purposes.

The WLAD provides for the right to "full enjoyment" of any place of public accommodation, including the right to purchase any service or commodity sold by any place of public accommodation "without acts directly or indirectly causing persons of [a protected class] to be treated as not welcome, accepted, desired, or solicited." See RCW 49.60.040(14). Similarly, WLAD prohibits "any person or the person's agent or employee [from committing] an act which directly or indirectly results in any distinction, restriction, or discrimination" based on a person's membership in a protected class. RCW 49.60.215 (emphasis added).

In order to establish discrimination under the WLAD in a public accommodation scenario, a plaintiff must prove that (1) the plaintiff is a member of a protected class, (2) the defendant's establishment is a place of public accommodation, (3) the defendant discriminated against the plaintiff when it did not treat the plaintiff in a manner comparable to the treatment it provides to persons outside that class, and (4) the plaintiff s protected status was a substantial factor that caused the discrimination. See Fell v. Spokane Transit Auth., 128 Wn.2d 618, 637, 911 P.2d 1319 (1996); see also Demelash v. Ross Stores, Inc., 105 Wn. App. 508, 525, 20 P.3d 447 (2001).

Our State's High Court wrote:

The "WLAD protects the customer's "full enjoyment" of the services and privileges offered in public accommodations. RCW 49.60.030(1)(b). WLAD's broad definition of "full enjoyment" extends beyond denial of service to include liability for mistreatment that makes a person feel "not welcome, accepted, desired, or solicited." RCW 49.60.040(14). Denial or deprivation of services on the basis of one's protected class is an affront to personal dignity. See Obergefell v. Hodges, _ U.S. _, 135 S. Ct. 2584, 2604, 2607-08, 192 L. Ed. 2d 609 (2015) (denial of marriage equality works a "grave and continuing harm"). The "fundamental object" of laws banning discrimination in public accommodations is "to vindicate 'the deprivation of personal dignity that surely accompanies denials of equal access to public establishments."' Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 250, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964) (quoting S. REP. No. 88-872, at 16-17 (1964)).

WLAD makes it unlawful for "any person or the person's agent or employee to commit an act" of, among other things, discrimination in a place of public accommodation. RCW 49.60.215. This provision imposes direct liability on employers for the discriminatory conduct of their agents and employees."

Thus, the Court held that the employer will be strictly liable if its employee caused the harm prohibited by the WLAD, even if the employer entity did not participate in the discrimination and was not negligent in training or supervising its employees.

Contact Mark D. Walters

Remembering Martin Luther King, Jr. - Letter from a Birmingham Jail

1/21/2019

Click to set custom HTML

<<Previous

Forward>>

Categories