July 2017 Update
A failure to disclose facts that may be important to a consumer cannot, without more, constitute misleading advertising. McCoy v Nestle USA, Inc. (ND Cal 2016) 173 F Supp 3d 954. See §3.21C.
Courts will not issue injunctive relief under Business and Professions Code §17203 unless there is evidence in the record to show a probability that the defendant will commit future violations of §17200. The court in Robinson v U-Haul Co. (2016) 4 CA5th 304, 317, found an injunction was proper notwithstanding a discontinuance of conduct in light of defendant's "resistance to amending its policies, and its persistence in pursuing its anticompetitive litigation strategy over the years." See §3.34.
The Consumers Legal Remedies Act limits a manufacturer's duty to disclose product safety issues, except when disclosure is required "to counter an affirmative misrepresentation." McCoy v Nestle U.S., Inc. (ND Cal 2016) 173 F Supp 3d 954. See §3.42A.
Trade secrets. Under the Defend Trade Serets Act, it is important to allege a connection between trade secrets and interstate commerce. See Hydrogen Master Rights, Ltd. v Weston (D Del, Jan. 9, 2017, No. 16-474-RGA) 2017 US Dist Lexis 2694, *35 (dismissing, without prejudice, DTSA claims that "fail[ed] to allege any nexus between interstate or foreign commerce and the [trade secrets]"). §4.3A.
Under the Defend Trade Secrets Act, a court may issue a seizure order only if, among other requirements, an order under Fed R Civ P 65 or another form of equitable relief would be inadequate, and only after certain due process requirements are observed. 18 USC §1836(b)(2)(A)(ii). In the earliest reported attempt to obtain such a seizure, the Northern District of California relied on this provision to deny a request that a laptop and cell phone issued to defendant by plaintiff be seized, instead ordering that defendant deliver the devices to the court at the time of a scheduled preliminary injunction hearing, and not access or modify the devices in the interim. OOO Brunswick Rail Management v Sultanov (ND Cal Jan. 6, 2017, No. 5:17-cv-00017-EJD) 2017 US Dist Lexis 2343. §4.3A.
Some federal courts have suggested that in certain circumstances, the Defend Trade Secrets Act may apply to conduct that begins prior to the effective date of the DTSA and continues thereafter. See Adams Arms, LLC v Unified Weapons Sys. (MD Fla, Sept. 27, 2016, No. 16-1503-T-33AEP) 2016 US Dist Lexis 132201. A California federal district court, distinguishing Adams, dismissed a misappropriation claim based on continued use of information that was disclosed prior to the effective date of DTSA on the ground that "[s]imply alleging that the same information was disclosed ‘again' is not sufficient"). Avago Technols. U.S. Inc. v NanoPrecision Prods., Inc. (ND Cal, Jan. 31, 2017, No. 16-cv-03737-JCS) 2017 US Dist Lexis 13484. See §4.3A.
Information must have value to qualify as a trade secret. See Direct Technols., LLC v Electronic Arts, Inc. (9th Cir 2016) 836 F3d 1059, 1071 (affirming summary judgment for defendant when plaintiff presented no evidence its product design had value "outside of a single ephemeral project for a single customer"). See §4.25.
Parties should craft nondisclosure agreements with care. Limiting the duration of an agreement (to 1 year, for example) can be viewed as evidence that the disclosing party believes the information covered by that agreement would become public by the time the agreement expires, or has consented to its use or disclosure after expiration of the specified term. See e.g., Structured Capital Solutions, LLC v Commerzbank AG (SD NY 2016) 177 F Supp 3d 816. See §4.30.
The court dismissed a misappropriation claim where the defendant retained work product it developed for the plaintiff pursuant to contractual relationship and did not use or disclose work product to gain an "unfair trade advantage." First Am. Bankcard, Inc. v Smart Bus. Technol., Inc. (ED La 2016) 178 F Supp 3d 390. See §4.40.
Plucking language from the Restatement (Third) of Unfair Competition §39(f) (1995), the Eleventh Circuit adopted a test that requires a plaintiff to show that defendant used a "‘substantial portion' of the plaintiff's trade secret to create an improvement or modification that is ‘substantially derived' from the plaintiff's trade secret." Penalty Kick Mgmt. Ltd. v Coca Cola Co. (11th Cir 2003) 318 F3d 1284, 1293. See §4.40.
In HealthBanc Int'l, LLC v Synergy Worldwide, Inc. (D Utah, Sept. 22, 2016, No. 2:16-cv-00135-JNP-PMW) 2016 US Dist Lexis 130400, the plaintiff and the defendant signed an agreement giving the defendant the exclusive right to distribute products using plaintiff's formula. The plaintiff alleged that the defendant misappropriated its trade secrets by publishing portions of the formula. The court dismissed the claim, however, because the contract gave the defendant "the entire rights, title, and interest in and to the [formula]," meaning the defendant, not the plaintiff, owned the trade secrets. 2016 US Dist Lexis 130400 at *18. See §4.52A.
A plaintiff is not entitled to a royalty simply because it cannot show either actual loss or unjust enrichment—it still must show that a defendant has used its trade secrets. In Tank Connection, LLC v Haight (D Kan 2016) 161 F Supp 3d 957, a former employee copied the plaintiff's price and design programs to a flash drive before resigning and joining a competitor. The plaintiff, however, could not show that defendant or his new employer ever used the information. The plaintiff thus suffered no actual loss and defendants enjoyed no unjust enrichment. See §4.67.
The Defend Trade Secrets Act contains a provision that immunizes whistleblowers from civil liability for disclosing trade secrets to a government official or to an attorney if the disclosure is "solely for the purpose of reporting or investigating a suspected violation of law." 18 USC §1833(b)(1)(A)(ii). See §4.68.
The California Supreme Court, in Baltazar v Forever 21, Inc. (2016) 62 C4th 1237, 1248, held that a provision allowing parties to seek injunctive relief during the pendency of arbitration, even though employers are more likely than employees to seek such provisional relief, does not by itself render an arbitration agreement unconscionable. See §4.72.
Antitrust. Plaintiffs had standing as direct purchasers to sue the defendant for alleged monopolization and attempted monopolization because the defendant was a distributor of the product at issue, not a producer or manufacturer. Pepper v Apple Inc. (In re Apple iPhone Antitrust Litig.) (9th Cir 2017) 846 F3d 313. See §5.36.
Generally, officers and employees of a corporation do not have standing to bring an action in their own right for an antitrust violation causing injury to the corporation and its business. Feldman v American Dawn, Inc. (11th Cir, Mar. 3, 2017, No. 16-11663) 2017 US App Lexis 3863. See §5.42.
Most courts have found electric power to be a commodity under the Robinson-Patman Act. See In re Escalera Res. Co. (Bankr D Colo 2017) 563 BR 336, 361 n18. See §5.104.
As required in alleging claims under federal antitrust law, a Cartwright Act plaintiff must allege an antitrust injury caused by the defendant's anticompetitive conduct. Gelboim v Bank of America Corp. (2d Cir 2016) 823 F3d 759. See §5.125.
An exception to the 4-year limitations period exists for a continuing violation. Garrison v Oracle Corp. (ND Cal 2016) 159 F Supp 3d 1044, 1070 (restarting limitations period requires alleging overt act, not merely reaffirming previous act). See §5.135.
Trademark. The overall look and feel of Adidas's Stan Smith tennis shoe was protectable unregistered trade dress because it had acquired distinctiveness through secondary meaning and, when the elements of the shoe were analyzed as a whole, the combination was not functional. Adidas Am., Inc. v Skechers USA, Inc. (D Or 2016) 149 F Supp 3d 1222. See §6.14.
"Very little proof of actual confusion would be necessary to prove the likelihood of confusion." Roto-Rooter Corp. v O'Neal (5th Cir 1975) 513 F2d 44, 46. Nevertheless, di minimis evidence of actual confusion is not sufficient. See e.g., Kibler v Hall (6th Cir 2016) 843 F3d 1068 (ten instances of actual confusion insignificant where mark was used in 1.7 million downloads and 58 million YouTube views). See §6.82.
An award of mandatory attorney fees under 15 USC §1117(b) requires that the plaintiff seek actual damages under 15 USC §1117(a). See Excelled Sheepskin & Leather Coat Corp. v Oregon Brewing Co. (SD NY 2016) 120 USPQ 2d 1871. See §6.91.
The demand for a jury trial on an issue must be made in writing within 14 days after the service of the last pleading directed to the issue. In FN Herstal SA v Clyde Armory, Inc. (11th Cir 2016) 838 F3d 1071, the court denied a motion to reinstate a withdrawn jury trial demand made after the pretrial conference order and only days before trial. See §6.92.
Delay in seeking injunctive relief may indicate "a lack of immanency that weighs against finding irreparable injury." Wreal, LLC v Amazon.com, Inc. (11th Cir 2016) 840 F3d 1244 (delay of 5 months evidenced lack of irreparable injury). See §6.115.
The terms of an injunction must be detailed. An injunction issued to prevent unfair competition that restricts the use of a plaintiff's mark in one medium will not necessarily affect use of the mark in another medium, unless the injunction specifically states that restriction as well. In United Constr. Prods., Inc. v Tile Tech, Inc. (Fed Cir 2016) 843 F3d 1363, the court issued an injunction on an unfair competition claim that prohibited the use of protected material on a website but allowed the use of the same protected material in lawful comparative advertising. See §6.122.
First Amendment fair use protection is not available to a defendant who uses a protected trademark or trade dress for an allegedly infringing commercial product, even if the product is noncompetitive in nature. VIP Prods., LLC v Jack Daniel's Props., Inc. (D Az 2016) 2016 US Dist Lexis 133387 (likelihood-of-confusion test appropriate where allegedly expressive Bad Spaniels toy dog adapted Jack Daniel's trademark and trade dress). §6.144A.
A valid coexistence agreement—an agreement from the trademark owner to allow another party to peaceably use the mark—is assignable to another party without the permission of the original trademark owner. See Russell Rd. Food & Bev., LLC v Spencer (9th Cir 2016) 829 F3d 1152. §6.149.
Copyright. The Visual Artists Rights Act (VARA) does not protect "applied art," which the Ninth Circuit has defined as a "rudimentary utilitarian object" that "despite being visually transformed through elaborate artistry,  continued to serve a significant utilitarian function." Cheffins v Stewart (9th Cir 2016) 825 F3d 588, 595 (no protection for school bus which, although visually transformed into Spanish galleon, continued in its utilitarian role after its transformation). See §7.6.
The Second Circuit held that a video-sharing service whose employees viewed user-posted videos containing pre-1972 sound recordings was protected from liability for infringement by the safe harbor for service providers in 17 USC §512(c). Capitol Records, LLC v Vimeo, LLC (2d Cir 2016) 826 F3d 78, cert denied (2017) ___ US ___, 2017 US Lexis 2055. See §7.7.
Copyright protection does attach to the design of a useful article if, and only to the extent that the design "(1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately." Star Athletica, L.L.C. v Varsity Brands, Inc (2017) 580 US ___, ___, 137 S Ct 1002, 1007 (analyzing "separability" of design on cheerleader uniforms to determine whether design would have been copyrightable if fixed in different medium). See §7.22.
When sound recordings, whether or not copyrighted originally, are digitally remastered, the remastered work is copyrightable. ABS Entertainment, Inc. v CBS Corp. (CD Cal, May 30, 2016, CV 15-6257 PA (AGRx)) 2016 US Dist Lexis 71470 (defendant did not infringe state copyright law (applicable to pre-1972 recordings, unlike federal copyright law) by radio broadcasting or digital streaming). See §7.23.
When no express work-for-hire agreement is in evidence and the existence of work-for-hire arrangement is disputed, the Second Circuit requires that a plaintiff prove by a preponderance of the evidence that a contrary arrangement exists. Urbont v Sony Music Entertainment (2d Cir 2016) 831 F3d 80, 92 n9 (rejecting district court's finding that clear and convincing standard applied). See §7.57.
Expert testimony alone cannot satisfy the plaintiff's burden of proof under the intrinsic test. Antonick v Electronic Arts, Inc. (9th Cir 2016) 841 F3d 1062, 1067. See §7.71.
In the Ninth Circuit, the de minimis exception applies in all copyright actions, including those concerning sampling of sound recordings. VMG Salsoul, LLC v Ciccone (9th Cir 2016) 824 F3d 871. In finding that Congress clearly intended the de minimis exception to apply to sound recordings, the Ninth Circuit expressly created a "deep split" with the Sixth Circuit on application of the de minimis defense, noting that "almost every district court not bound by [Bridgeport Music v Dimension Films (6th Cir 2005) 410 F3d 792] has declined to apply Bridgeport's rule." 824 F3d at 886. See §7.71A.
Prevailing plaintiffs and prevailing defendants are to be treated alike, but attorney fees are to be awarded only as a matter of the court's discretion. Fogerty v Fantasy, Inc. (1994) 510 US 517, 114 S Ct 1023 (rejecting dual standard that previously existed in Ninth Circuit). The Supreme Court elaborated on Fogerty in Kirtsaeng v John Wiley & Sons (2016) 579 US ___, ___, 136 S Ct 1979, 1988, concluding that the objective reasonableness of the losing party's claims should be a substantial factor in attorney fee determinations, though not a controlling one. See §7.79.
A plaintiff in an infringement action must prove ownership of the copyright to establish standing. Urbont v Sony Music Entertainment (2d Cir 2016) 831 F3d 80. In Urbont, the Second Circuit held that in an infringement action, a third party may challenge the plaintiff's ownership by asserting the work-for-hire defense even absent an ownership dispute between the alleged employer and employee. 831 F3d at 88. In an infringement action in the Ninth Circuit, however, a third party may not use the work-for-hire defense when there is no ownership dispute between the potential copyright owners. Jules Jordan Video, Inc. v 144942 Canada Inc. (9th Cir 2010) 617 F3d 1146, 1157. See §7.122.
Patents. Software-related claims might survive an Alice inquiry by focusing on "real world effects." For example, with respect to computer-related inventions, claims likely recite ineligible subject matter when they "merely recite the performance of some business practice known from the pre-Internet world along with the requirement to perform it on the Internet." Intellectual Ventures I, LLC v Ricoh Ams. Corp. (D Del 2016) 170 F Supp 3d 673. See §8.5.
Claims may be held to recite eligible subject matter when they recite a particular technological solution to a particular technological problem. In Amdocs (Israel) Ltd. v Openet Telecom, Inc. (Fed Cir 2016) 841 F3d 1288, for example, the Federal Circuit found eligible subject matter in claims directed to accounting and billing software. The court's rationale was that the claims were each directed toward a specific technological solution ("enhancing data in a distributed fashion") to a specific technological problem (massive record flows which previously required massive databases). 841 F3d at 1300. See §8.5.
Drafting patent claims in accordance with Patent and Trademark Office guidance does not guarantee that the claims will survive a USC 35 §101 challenge for subject matter eligibility. As the Interim Guidance on Patent Subject Matter Eligibility states, the guidance "is not intended to create any right or benefit, substantive or procedural, enforceable by any party against the Office." In re Smith (Fed Cir 2016) 815 F3d 816, 819. See §8.6.
When filing a patent suit at the U.S. International Trade Commission, the domestic industry requirement provides that a patent owner must show that a U.S. industry exists for products protected by the patent. Precedent holds that a licensee's activities can satisfy the requirement, and in 2017 the ITC went further, holding that even a nonpracticing entity can satisfy the requirement if the licensee satisfies the domestic industry requirement. See In the Matter of Certain Silicon-on-Insulator Wafers (Silicon Genesis Corp. v Soitec, S.A.) (USITC, Mar. 10, 2017, Inv. No. 337-TA-1025) 2017 ITC Lexis 343. See §8.20.
One issue that often arises with respect to damages is how to properly apportion damages between the patented and unpatented features of an accused product. However, the Federal Circuit has suggested "that apportionment—at least as consumer demand stands as a way of showing apportionment—is unnecessary under Panduit." Presidio Components, Inc. v American Tech. Ceramics Corp. (SD Cal 2016) 2016 US Dist Lexis 110212. See §8.22.
Apple famously prevailed in district court against Samsung for a design patent covering the bezel of a smart phone and was awarded Samsung's entire profit on the infringing phones. In reversing that award, however, the Supreme Court held that the relevant "article of manufacture" for arriving at a 35 USC §289 damages award need not be the end product sold to the consumer but may be only a component of that product. Samsung Electronics Co., Ltd., v Apple Inc. (2016) 580 US ___, ___, 137 S Ct 429, 435. See §8.22.
The Supreme Court held that culpable behavior under 35 USC §284 must be egregious to justify enhanced damages. Requiring a finding of objective recklessness is too narrow, and merely basing enhanced damages on behavior that "stands out from the rest" is too broad. Halo Electronics, Inc. v Pulse Electronics, Inc. (2016) 579 US ___, 136 S Ct 1923. See §8.48A.
Willfulness is still a factor in proving enhanced damages. The decision in Halo Electronics, Inc. v Pulse Electronics, Inc. (2016) 579 US ___, 136 S Ct 1923 does not change "the established law that the factual components of the willfulness question should be resolved by the jury." WBIP, LLC v Kohler Co. (Fed Cir 2016) 829 F3d 1317, 1341. There is a right to a jury trial on the willfulness question, and the standard of proof for enhanced damages is preponderance of the evidence, not clear and convincing evidence. Halo, 136 S Ct at 1934. See §8.49.
Where a reference is missing a limitation of a claim, the reference cannot be deemed to anticipate the claim merely on the grounds that a skilled artisan would immediately envision that limitation. Nidec Motor Corp. v Zhongshan Broad Ocean Motor Co. (Fed Cir, Mar. 14, 2017, No. 2016-1900) 2017 US App Lexis 4416. See §8.61.
The PTO may not use "common sense" as a wholesale substitute for reasoned analysis and evidentiary support, especially when dealing with a limitation missing from the prior art references, or when the missing limitation is complicated or the technology is not particularly straightforward. Arendi S.A.R.L. v Apple Inc. (Fed Cir 2016) 832 F3d 1355. See §8.75.
A child application (whether continuation, continuation-in-part, or divisional) is considered to be co-pending with its parent, even if the child is filed on the same day that the parent issues. Immersion Corp. v HTC Corp. (Fed Cir 2016) 826 F3d 1357. See §8.88.
The Patent Trial and Appeal Board uses the "broadest reasonable interpretation" standard during inter partes review proceedings, and that practice has been upheld by the Supreme Court. Cuozzo Speed Technols., LLC v Lee (2016) 579 US ___, 136 S Ct 2131. See §8.95C.
It was improper for the PTAB to extend the definition of covered business methods to patents that claim activities "that are financial in nature, incidental to a financial activity, or complementary to a financial activity." Unwired Planet, LLC v Google Inc. (Fed Cir 2016) 841 F3d 1376, 1380. See §8.95E.
Infringement-of-method claims generally require that a single actor performs all of the recited actions. The rule is not completely rigid, however, and infringement has been found where (1) one actor controls the actions of another or (2) one actor obtains a benefit from the claimed "system as a whole." Centillion Data Sys., LLC v Qwest Communications Int'l, Inc. (Fed Cir 2011) 631 F3d 1279, 84 (joint operation of patented system components by defendant and customer constitutes single use for purposes of infringement claim). This result can obtain even where different actors are executing claimed steps on three different devices: a "communications device," a "second device," and an "authenticating device." Intellectual Ventures I, LLC v Motorola Mobility LLC (D Del 2016) 176 F Supp 3d 405, 421. See §8.113.
A design patent is infringed "if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same." Samsung Electronics Co. v Apple Inc. (2016) 580 US ___, ___, 137 S Ct 429, 432, citing Gorham Co. v White (1872) 81 US 511. See §8.116.
While sending letters into a forum is not by itself enough for personal jurisdiction to be "fair and reasonable," if a party "does more," then jurisdiction may become reasonable. Xilinx, Inc. v Papst Licensing GmbH & Co. KG (Fed Cir, Feb. 17, 2017, 2015-1919) 2017 US App Lexis 2625, *19 (additional factors of traveling to California to meet alleged infringer, litigating often "in fora far from its home office" as foreign entity, and previously availing itself of California federal courts at least seven times was sufficient to establish personal jurisdiction in California). See §8.138.
Supplying a single component of a multicomponent invention for manufacture abroad does not give rise to 35 USC §271(f)(1) liability. Life Technols. Corp. v Promega Corp. (2017) ___ US ___, 137 S Ct 734. See §8.147.
A jury's finding that the patents at issue are not invalid does not necessarily foreclose a court's finding of unclean hands on the part of the patent holder, at least where the jury's findings addressed validity with respect to written description and enablement issues, and the unclean hands defense alleged lying under oath, unethical business conduct, and litigation misconduct. Gilead Sciences, Inc. v Merck & Co. (ND Cal, June 6, 2016, No. 13-cv-04057-BLF) 2016 US Dist Lexis 73595. See §8.165.
Laches cannot be invoked as a defense against a claim for damages brought within the 6-year limitations period under 35 USC §286. SCA Hygiene Prods. Aktiebolag v First Quality Baby Prods., LLC (2017) 2017 US Lexis 2023. See §8.170.
In Lexmark Int'l, Inc. v Impression Prods. (Fed Cir 2016) 816 F3d 721, foreign sales of United States-patented printer cartridges, even when made by or with the approval of the U.S. patentee, did not exhaust the patentee's U.S. patent rights in the article sold. In December 2016, however, the Supreme Court granted certiorari in Lexmark to decide whether the common law doctrine barring restraints on alienation that is the basis of exhaustion doctrine "makes no geographical distinctions." Lexmark Int'l, Inc. v Impression Prods. (2016) ___ US ___, 137 S Ct 546. See §8.173B.
Unfair competition on the Internet. In Airbnb, Inc. v City & County of San Francisco (ND Cal, Nov. 8, 2016, No. 3:16 -cv-03615-JD) 2016 US Dist Lexis 155039, the plaintiff was denied a preliminary injunction to prevent enforcement of a city and county ordinance that prohibited it from listing unregistered rental units on its website. The court did not deny that plaintiff was an Internet service provider and not a publisher or monitor of listings provided by others, as required for 47 USC §230 immunity. The court did find, however, that the ordinance implicates neither §230 nor the First Amendment, because it bases liability on commercial conduct, not speech. See §9.56I.
In Hassell v Bird (review granted Sept. 21, 2016, S235968; superseded opinion at 247 CA4th 1336), the court ordered nonparty website Yelp to remove the named defendant's comments about the plaintiff attorney. Yelp's motion to vacate the judgement was denied. The issues raised include whether an online publisher has a right to notice and an opportunity to be heard before a trial court orders removal of online content, and whether immunity provided by 47 USC §230(c)(1), (e)(3) bars a trial court from enjoining the actions of a nonparty website publisher and enforcing the order by way of contempt or other sanctions. See §9.56J.
Immunity under the CDA was not available to the operator of a revenge porn website who was charged under Pen C §530.5 with invading the victims' privacy. People v Bollaert (2016) 248 CA4th 699. The enterprise was denied immunity available to interactive computer services under Pen C §530.5(f) because it was operated with intent to defraud. See §9.56J.
A trial court improperly excluded Internet provider records as evidence that a landlord used online aliases to post defamatory statements about commercial tenants. Kinda v Carpenter (2016) 247 CA4th 1268 (involving records subpoenaed from Comcast, AT&T, and Yelp tying defendant's IP address to posts on Yelp). See §9.63.
Business Torts. A third party to a contract between her employer and a payroll company adequately alleged a cause of action for professional negligence against the payroll company for providing her with inaccurate payroll statements. Goonewardene v ADP, LLC (2016) 5 CA5th 154. See §11.18.
A trespass claim may proceed when the plaintiff has established a possessory interest in property by temporarily leasing it and when the defendant vitiated consent to be on the property by conducting surreptitious filming there. Planned Parenthood Fed'n, Inc. v Center for Med. Progress (ND Cal, Sept. 30, 2016, No. 16-cv-00236-WHO) 2016 US Dist Lexis 136226, *52. See §11.41.
In In re M.H. (2016) 1 CA5th 699, the court held that despite the possibility of being seen or overheard in a bathroom stall, a student's expectation that his conduct would not be secretly recorded and uploaded to social media was reasonable. See §11.43.
A false light claim is substantively equivalent to a libel claim and requires the same evidence as a libel claim. Medical Marijuana, Inc. v ProjectCBD.com (2016) 6 CA5th 602 (anti-SLAPP motion denied when complaint failed to allege conduct by publishers giving rise to liability on libel and false light claims). See §11.49.
Vague language that criticizes without alleging specific wrongdoing is not actionable. John Doe 2 v Superior Court (2016) 1 CA5th 1300. And in this case, the ambiguity of the allegedly defamatory e-mails at issue prevented the plaintiff from making the prima facie showing of libel necessary to discover the identity of the anonymous writer. See §11.137.
Currently the law regarding enforceability of arbitration provisions in employment agreements is in a state of flux. A recent California Supreme Court decision rejected certain "unconscionability" challenges raised by employees to the enforceability of their employment arbitration contracts. See Baltazar v Forever 21, Inc. (2016) 62 C4th 1237. See §13.79A.
When an arbitration clause does not explicitly address the issue of classwide arbitration but is broadly phrased to require arbitration of all disputes, the issue of whether classwide arbitration is permissible is for the arbitrator, not the courts. Nguyen v Applied Med. Resources Corp. (2016) 4 CA5th 232, following Sandquist v Lebo (2016) 1 C5th 233. See §13.79A.