Scherer Smith & Kenny LLP serves mid-sized and fast-growing entrepreneurial companies.  From complex litigation to business, real estate, intellectual property and employment law, our team brings strategic thinking, pragmatism and intense dedication to our clients’ success.

Partner Notes

The three partners at our firm have been taking turns writing “Partner Notes” in each of our firm’s quarterly newsletters for close to a decade.  Our marketing consultant at the time helped us create the concept, look and feel for this “Perspectives” newsletter as well as our firm brand “The Strength of Partnership.”

The Partner Notes concept was designed to balance the legal news and updates content of the newsletter and overall marketing of our firm’s legal services with some expressions of personal interests and sentiments authored by the partners to help humanize our firm.  That is why we chose the name “Perspectives” to describe our newsletter.

That is just a bit of history to provide some context for what I am now writing as we approach the Fall of 2021.  Now, more than ever, our firm is grateful for the strength of our partnership, not only between each and every one of our team members within our firm, but with all of you, our clients, colleagues, family and friends.  These relationships are what allow us all to remain resilient and battle through challenging times.

There are many complex and profound challenges facing us all.  Rather than focus on those, I would like to address a more lighthearted issue which many of us may be facing as we continue to spend a lot of time eating meals at home: recipe choices.

I have never been much of a recipe guy.  My role has been to handle the weekend meals in our family, mostly by outdoor grilling. I am also the early riser so breakfast is primarily my responsibility. Our family’s tried and true meals which we make by ad hoc rotation mostly include various combinations of steak, chicken, fish and seafood. After nearly 20 years of cooking mostly the same rotation of meals for our kids—our eldest recently turned 19—we all reached our limit.  Everything started to taste the same.  We tried looking up new recipes but that seemed to just make things more difficult.  First, we had to decide on a recipe while taking into account each of our particular food and taste likes and dislikes, of which there are many.  Then, we had to decide when one of us had time to go grocery shopping to get the unique and fresh ingredients that we did not already have at home.  Many times, we ended up throwing away rotten ingredients for these “new” meals we did not have the time to cook.  Other times, we returned from the store only to find out that we (mostly me) had forgotten to buy key ingredients.

After a series of these failed attempts to expand our meal portfolio, we (my wife, that is) decided to enroll in an online meal kit delivery service.  I would be happy to provide you the name of the particular service we chose, if you’d like to email me directly.  But there are several similar services in the market. We have been using the service for the past several weeks and would rate our satisfaction at a 9 out of 10 (there have been only a meal or two that we were not too keen on). What we like the most is the variety of ingredients and new (to us, at least) combination of spices, flavorings and foods which are in the recipes. We also like how every ingredient comes in neatly packed baggies in the precise amounts and sizes called for in the recipes. And, the recipes and cooking instructions are clear and precise. The end result is that the service allows even the most novice cook (i.e. me) to make meals worthy of a gourmet restaurant.  

The only real downsides that we have found so far are the cost (it is not inexpensive, as the average cost for two meal-kits a week is $90 to $100) and portions.  For example, we have three in our family (including our relatively, light-eating 16-year-old) but the 4-person meal kits are just about the right size.  So, you should probably order meal kits for 6 if you have a 4-person family unless you plan to supplement each meal with another side dish.  If you do that, we would recommend a side salad or soup since those are not a part of many of the meal kits we have chosen.

Feel free to email me directly for more information or perhaps check in with me a few months from now to see if my satisfaction ratings have changed.  Hopefully, I have given you all something to think about other than the myriad of more serious challenges facing us on a daily basis.  Thanks for reading this.

- Written by Denis Kenny

The Latest Chapter in California Independent Contractor Classification Laws

The issue of independent contractor classification is, perhaps unfortunately, something that many Californians have become too well versed in during recent years.  To briefly recap, the issue gained renewed focus with the California Supreme Court’s, April 2018 decision in Dynamex Operations West, Inc. v Superior Court.  There the Court ruled employers bore the burden of demonstrating any worker treated as an independent contractor was properly classified as such under the “ABC test” which looks to three main factors in determining whether independent contractor classification is proper.  The ABC test is largely viewed as tougher for the employer to satisfy than the test previously adopted by the Court in the 1989 case of S.G. Borello & Sons, Inc. v. Department of Industrial Relations (referred to of course as the “Borello test”).  However, as soon as Dynamex was issued questions immediately arose regarding the extent of its applicability.

Beware Deceptive and Scam Solicitations!

If you have recently incorporated a business or filed for a trademark with the United States Patent and Trademark Office (“USPTO”), this may sound familiar…

You receive a notice in the mail purportedly from an official state agency containing an official-looking seal, telling you that you need to file an annual report by a certain deadline, or you will be subject to fines and penalties.  The notice has specific information about your entity, including information about officers and directors and your corporate ID number, and references state statutes requiring certain periodic filings. It then solicits payment from you for said filings and includes a return payment envelope.

You receive a mailing from the “Patent and Trademark Office” saying that you have a renewal filing due in the next year and that you need to remit the fee for the renewal.  The notice contains many details regarding your trademark, including the serial number, date the application was filed and specific renewal dates. They state that you must remit payment to them for the filing, or your mark will be cancelled.

In each case, you are confused because you have already paid the state or USPTO fees, and have maintained consistent contact with your attorney, who may not have mentioned any deadlines or filings that are due.  You wonder whether you should just pay it to avoid jeopardizing your entity or trademark. DON’T!

California Employer Alert: Ninth Circuit upholds California's 2020 Law Barring Employers from Requiring Employees to Agree to Binding Arbitration as a Condition of Employment 

California is generally known as one of the more employee-friendly jurisdictions, and some commentators have opined that mandatory arbitration is at odds with California’s worker-protection public policy. In fact, two race discrimination lawsuits filed by former employees against Tesla, Inc., with largely similar facts of colleagues/supervisors using racial slurs against the plaintiffs and other Black workers demonstrate the potential disparity in jury verdicts v. arbitration awards.