• The CASA Compact’s Response to the Bay Area Housing Crisis

    In 2017, the Metropolitan Transportation Committee (MTC) and the Association of Bay Area Governments (ABAG) mobilized a task force of affordable housing advocates, private developers, local government officials, and other Bay Area leaders and experts to form CASA, or the Committee to House the Bay Area. CASA set out to identify a comprehensive policy response to the region’s housing crisis.

    In January of this year, the MTC and ABAG endorsed the CASA Compact, a 15-year plan that prioritizes what it calls the 3 Ps: the production, preservation, and protection of housing in the Bay Area. The Compact calls for the production of 35,000 housing units per year, which would include 14,000 units for lower-income households and 7,000 units for moderate-income households. To encourage production of new units, the Compact supports increasing density for residential projects near transit zones, expediting and streamlining the housing approvals process, and increasing the availability of publicly-owned land for affordable housing development.

    The preservation goal is 30,000 affordable units over the next 5 years, including 4,000 units that are identified as at-risk, largely through inclusionary housing fees and long-term affordability covenants.

    Housing protection would include protecting 300,000 lower-income households from displacement by mechanisms such as an annual cap on rent increases for the next 15 years, rental assistance and legal aid to low-income tenants, and a uniform “Just Cause Eviction Policy.”

    To implement the 3 Ps, the Compact would establish a regional housing entity responsible for financing projects, leasing land for development, and providing technical assistance to local residents and businesses. Funding for the initiatives would come from business, property, and sales taxes, including reforms to the State’s Proposition 13, tax increment funding, and multijurisdictional revenue-sharing agreements.

    The State Legislature is considering several bills that have been introduced this year to address the Compact’s priorities. Among them is SB5, or the Local-State Sustainable Investment Incentive Program, which would reallocate $200 million from 2020 to 2025, and $250 million from 2025 to 2029, from each county’s Educational Revenue Augmentation Fund (ERAF) to eligible affordable housing projects. The proposed bill would designate at least half of its funding to streamline development of affordable housing projects that contain at least 50% affordable units through Workforce Housing Opportunity Zones and Housing Sustainability Districts. Other legislation includes SB50, which incentivizes affordable housing development near high-transit zones by providing concessions under the State’s Density Bonus Law and reducing the discretion of local agencies to deny affordable projects.

    Battle lines are predictably drawn, with many of the Bay Area’s smaller, suburban communities expressing opposition to the loss of local land use control and perceived disproportionate funding for larger cities. The chairs of the State Legislature’s two housing committees, Assembly Member David Chiu and Senator Scott Wiener, have both indicated a desire to move legislation forward to advance the principles of the Compact.

  • Fred Alvarez and Miles Imwalle Appointed to Law360 2019 Editorial Advisory Boards

    Coblentz partners Fred Alvarez and Miles Imwalle have been appointed to editorial positions with Law360.

    Fred Alvarez, a partner in the firm’s Employment practice, has been appointed to the 2019 Employment Editorial Advisory Board of Law360, and Miles Imwalle, a partner in the Real Estate practice, has been appointed to the 2019 Real Estate Editorial Advisory Board of Law360.

    Categories: News
  • San Francisco’s Next Big Move in Maintaining Housing Affordability: Nonprofits’ First Right to Purchase Multi-Family Rental Properties

    Pending legislation introduced by San Francisco Supervisor Fewer would amend the City’s laws to give certain qualified non-profit organizations certified by the City (“Qualified Nonprofits”) the first right to purchase multi-family rental properties and certain vacant lots in San Francisco. 

    Highlights are as follows:

    • The legislation applies to any residential building with at least three rental units or a vacant lot zoned for at least three units.
    • Sellers subject to the new law would be required to notify all Qualified Nonprofits of the intent to sell before putting a qualifying property on the market.  Qualified Nonprofits would have five days to respond, triggering an obligation for the seller to provide information about building tenants.  Qualified Nonprofits would then have an additional 25 days to make an offer to purchase the building.  The seller could reject an offer made, and if no Qualified Nonprofit makes an offer, or if the seller rejects any Qualified Nonprofit offers, the seller could offer the building to the general public.
    • If a seller is prepared to accept an offer from a buyer other than a Qualified Nonprofit, then it would be required to give all of the Qualified Nonprofits the right of first refusal on the same terms and conditions and Qualified Nonprofits would have five days to accept or reject that offer (or 30 days if the seller is responding to an unsolicited offer).
    • Qualified Nonprofits would have the right to institute a civil action against any non-compliant sellers, with the potential for damages as specified in the legislation.
    • The legislation includes protection for existing tenants.  It also requires that a property purchased by a Qualified Nonprofit remain rent restricted, meaning that the value of all rents paid in the building could not exceed 80 percent of Area Median Income (AMI) and the gross household income of new tenants could not exceed 120 percent of AMI.
    • Certain sales would be excluded, including but not limited to transfers made under a mortgage, deed of trust, or deed in lieu of foreclosure and transfers between certain family members.  Seller incentives are also contemplated, which could include a partial City transfer tax exemption, if ultimately adopted by the Board of Supervisors, and federal tax benefits, if available.
  • GPS Monitoring Of Employees In California: Do You Know Where Your Employees Are? Are You Allowed To Know?

    With the advent of cost-effective GPS devices and smartphone tracking apps, employers may effectively monitor their workforce like never before. An employee’s distance traveled, sales routes, and productivity (among other things) can now be verified in real time, which is a seductive thought to most employers, to say the least. But there are things to consider before using tracking technologies to monitor employees, such as constitutional rights of privacy, state criminal statutes, union and labor issues, and good old-fashioned tort claims. In this article, we’ll review some legal considerations and provide some tips for navigating the evolving legal landscape of GPS tracking.

    In California, the right to privacy is an express constitutional right. Article I, Section I of the California Constitution provides that “[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” The California Constitution differs from the U.S. Constitution in this regard, even though a right to privacy has been extrapolated from various provisions of the U.S. Constitution. The fact that the California Constitution makes the right to privacy explicit requires employers to give serious consideration to privacy issues in the workplace before taking actions that might expose them to liability.

    The issue of GPS tracking of employees is less established, and employers have little formal guidance on what practices are permissible and what are not. A good starting point for analyzing potential GPS tracking practices is California Penal Code Section 637.7. That provision states: (a) No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person. (b) This section shall not apply when the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle. (c) This section shall not apply to the lawful use of an electronic tracking device by a law enforcement agency. (d) As used in this section, “electronic tracking device” means any device attached to a vehicle or other movable thing that reveals its location or movement by the transmission of electronic signals. (e) A violation of this section is a misdemeanor.

    Section 637.7 thus makes it illegal to monitor the movements of any person, including a vehicle owned by that person, without their consent. Company-owned vehicles could presumably be monitored without the employee’s consent, as long as the owner of the vehicle (the company) consents. However, notifying employees of such tracking (and even obtaining their consent to such tracking) is the safest practice given the still-developing legal landscape with regard to this issue, and particularly in light of new privacy laws going into effect, such as the California Consumer Privacy Act, discussed further below. Additionally, with regard to monitoring employees via smartphone apps or device tracking, providing clear notice and obtaining consent is generally considered best practices. (Although, it is subject to debate whether smartphone apps qualify as a “device” attached to the “telephone” for purposes of being subject to section 637.7.)

    In addition to the penal code, employers may be subject to civil tort claims for invasion of privacy based on their actions. A civil claim for intrusion into private affairs requires: (1) an intentional intrusion “into a place, conversation or matter as to which the plaintiff has a reasonable expectation of privacy”; (2) “in a manner highly offensive to a reasonable person.” In order for GPS tracking of employees to meet this standard, employees would need to have a reasonable expectation of privacy regarding their location that is intruded upon in a “highly offensive” manner. Arguably, employees should not have an expectation of privacy when using company-owned vehicles during business hours or for work purposes. However, whether GPS monitoring of such vehicles constitutes a violation of privacy would require considering various factors, including whether the employee uses that company-owned vehicle regularly, parks it at his or her house during non-work hours, or uses it for personal reasons during off-work hours, among other things.

    It is likely that monitoring the location of an employee during non-work hours or during the performance of non-work tasks – to say nothing of monitoring an employee’s own private vehicle – could be viewed as “highly offensive” to a reasonable person and a violation of an employee’s expectation of their privacy. Ultimately, determining whether any given practice constitutes an actionable violation of privacy requires a court to weigh various factors, including the nature and context of the alleged intrusion, as well as the reasonableness of the motives, purposes, and objectives for the disputed practice.

    Beyond statutory and tort liability, employers need to consider whether their employees belong to a union, or are subject to a collective bargaining agreement, some of which have specific provisions regarding privacy rights that might conflict with intended employer actions. Employers should review any provisions of such agreements that may apply to their workforce and ensure that GPS monitoring of employees is not specifically prohibited by the agreement and that the employer’s contemplated practices are consistent with the privacy rights set forth in the agreement.

    Finally, with the newly passed California Consumer Privacy Act (“CCPA”) going into effect on January 1, 2020, employers must consider the disclosure obligations and potential liability that come with GPS tracking of employees going forward. The CCPA gives California residents significant new data privacy access, disclosure, and deletion rights and does not distinguish between residents in their roles as consumers or employees (you can read more about the CCPA and how it will affect your business here). Thus, employees have the same rights as any consumer to request that a company (in this case, their employer) disclose how their personal information is being collected and used, and well as to obtain access to and/or deletion of that information. Because GPS tracking information collected about employees falls under the broad definition of “personal information” used in the CCPA, employers will be obligated to affirmatively disclose such collection practices at or before the point of collection, provide employees with a copy of that data upon request, and delete that data unless it is necessary to be maintained for a business purpose.

    In sum, before venturing into the wild west of GPS tracking, the safest course for employers implementing GPS tracking is to:

    1. Confirm there are no union issues raised by the tracking.
    2. Provide written notice and obtain clear prior written consent from employees that the employer is tracking vehicle movements (regardless of whether the vehicle is company-owned or privately owned).
    3. Limit tracking to strictly work hours and only for specific business purposes. The GPS should be shut off during personal hours or personal vehicle use.
    4. Develop and adopt a written policy regarding employee monitoring/tracking that sets forth the justifications and limits for GPS monitoring, how the information will be used and stored, and consequences for disabling the GPS.
    5. Limit access to the tracking information to personnel who have a clear business need to know that information.
    6. Store any tracking information securely, but in a manner that can be quickly accessed and provided in response to employee requests for personal information under the CCPA.

    The information in this article does not constitute legal advice with regard to the use of any GPS tracking or other employee monitoring practices. Please contact Data Privacy partners Scott Hall at shall@coblentzlaw.com or 415.772.5798 or Brandi Brown at bbrown@coblentzlaw.com or 415.772.5797 with specific issues or questions.

    Click here to download or print a PDF of this alert.

  • Supreme Court Issues Two Copyright Rulings

    The U.S. Supreme Court issued two rulings last week on copyright law. In both cases, they acted to resolve conflicts between the Circuits, following closely to statutory language.

    Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC.

    In the first ruling, Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC., the Court clarified the Section 411(a) registration standard for filing infringement actions. “Registration” in advance of an infringement provides the opportunity to seek damages for past infringement as well as the infringer’s profits. In Fourth Estate, the Court resolved a dispute among circuits, where the Tenth and Eleventh Circuits held that complete registration of a work was required, and the Ninth Circuit (along with the Fifth Circuit) held that receipt by the Copyright Office of a complete application satisfied the registration requirement (See Cosmetic Ideas, Inc. v. IAC/Interactivecorp, 606 F.3d 612, 616-17, 621 (9th Cir.)).

    In Fourth Estate, the Court held that the only satisfactory reading of the Section 411(a) language “…no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made…” requires registration of the copyright.

    The Copyright Office has a procedure for “expedited registration,” which can be requested on the grounds that litigation is imminent. The expedited procedure generally speeds the registration process up from several months to a few weeks. But it’s not cheap: There is a special handling fee of $800.

    Rimini Street, Inc. v. Oracle USA, Inc.

    In Rimini Street, Inc. v. Oracle USA, Inc., the Court held that the Copyright Act’s provision for a discretionary award of “full costs” means all costs enumerated in the law and does not allow courts to award costs beyond the categories provided in the general “costs” statute (28 U.S.C. Sections 1821 and 1920). This means that prevailing parties in copyright actions cannot recover non-taxable legal fees, such as expert witness costs. Writing for the Court, Justice Kavanaugh said: “Full costs’ are all the ‘costs’ otherwise available under law. The word ‘full’ operates in the phrase ‘full costs’ just as it operates in other common phrases: A ‘full moon’ means the moon, not Mars. A ‘full breakfast’ means breakfast, not lunch.”

    The Takeaway

    Owners of copyrighted content should think ahead and not wait to encounter infringement before applying to register works. When you create valuable content, you should have a regular registration program. Applying to register copyrights is fast and easy, and we’re always here to help.

    For further information, contact Intellectual Property attorney Karen Frank (kfrank@coblentzlaw.com).

    Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC
    , 586 U.S. ___ (2019)
    Rimini Street, Inc. v. Oracle USA, Inc., 586 U.S. ___ (2019)

  • Update on SF Planning Department’s Streamlined Review Procedures for Development Projects

    In February, the San Francisco Planning Department issued the first quarterly performance report for implementation of its Process Improvements Plan, a program intended to overhaul the project review process.  The Plan first took effect in June 2018 in response to an Executive Directive from the Mayor’s Office to reduce approval timelines and remove administrative barriers to housing production.  According to the Department’s quarterly progress report, the Department met its deadline for two-thirds of Preliminary Project Applications (PPAs) and 79% of Project Applications, with approximately 48% of projects receiving a Plan Check Letter within 90 days.

    The Plan includes two main components.  First, for large projects, the Plan shortens the target review time for PPAs from 90 days to 60 days, and requires the Department to provide feedback to developers on the level of review required to obtain approval.  Second, the Plan includes a new Project Application, which consolidates the environmental and project information into a single document.  The new Project Application requires that project sponsors provide information earlier in the process regarding issues such as historic preservation, hazardous materials, and air quality.  The Planning Department expects this to facilitate early scoping of environmental review and entitlements.

    The Department is required to make a determination of completeness within 30 days following submittal of a Project Application.  Once the Project Application is deemed complete,  the Planning Department has  90 days to issue a Plan Check Letter to the developer documenting any open issues.  Pursuant to the Executive Directive, the Department must complete a streamlined environmental review of proposed housing projects within specified timeframes after a stable project description has been established.  If review under the California Environmental Quality Act (CEQA) is not required, the Department must render an entitlement decision within 6 months.  For housing projects, streamlined review for CEQA projects must meet new target timeframes of 9, 12, 18, and 22 months for, respectively, categorical exemptions, negative declarations, Environmental Impact Reports (EIRs), and complex EIRs.  The Directive also calls for the issuance of all permits and other post-entitlement approvals required for commencement of construction on large-scale housing development projects within a year after submission of a complete application. The Department expects to launch a new online portal in the spring, which will allow developers to submit the Project Applications, payment, and other materials electronically.

  • The California Consumer Privacy Act Is Coming. Is Your Business Ready?

    The California Consumer Privacy Act of 2018 (“CCPA”) was signed into law by Governor Jerry Brown on June 28, 2018, and goes into effect on January 1, 2020. The CCPA gives significant new data privacy rights to California residents with respect to their personal information that is collected and maintained by companies doing business in California. Even if you are compliant with current privacy laws, you must consider how the CCPA may affect your business. And, if you have not already started steps for compliance with the CCPA, now is the time.

    Businesses cannot afford to wait until next year to think about or prepare for the wide-ranging impacts of this new law. Specifically, affected businesses need to: (1) decide now whether they will or will not sell personal information to third parties (and analyze any modifications to business services that may be required if they will not (or cannot) sell such information); (2) update websites and privacy policies with required information disclosures; (3) ensure that sufficient systems, processes, and resources are in place to respond to consumer requests for access to or deletion of their personal information and required disclosures; and (4) analyze and adjust any contracts with service providers that may be necessary to ensure compliance with the law.

    Does The CCPA Affect Your Business?

    Unless you conduct business operations wholly outside of California (including having no online presence in California), the CCPA probably applies to your business. The CCPA applies to all businesses – regardless of location – that conduct business (including online sales) in California and collect personal information from California residents if at least one of the following thresholds are satisfied:

    • Gross annual revenues in excess of twenty-five million dollars ($25,000,000)
    • Collection of personal information from 50,000 or more California residents, households, or devices annually
    • Fifty percent (50%) or more of annual revenues are derived from selling consumers’ personal information

    For some businesses, this is an easy determination. But even if you do not believe your company meets these thresholds at first glance, you may want to give this further consideration. For example, because “personal information” under the CCPA is defined broadly enough to encompass essentially every piece of information related to a California resident or household, information such as IP addresses that are collected merely from website visits constitutes collection of personal information under the CCPA. Therefore, even putting aside what personal information your business collects from customers, employees and other California residents in the course of its transactions and operations, if your business has a website accessible to California residents, you are likely to exceed the 50,000-resident annual threshold, and your company must likely comply with the CCPA.

    What Are Your Obligations Under The CCPA?

    The CCPA provides the following privacy rights to California consumers:

    • Right to know what personal information is collected about them
    • Right to know whether their personal information is sold or disclosed to third parties
    • Right to opt-out of the sale of their personal information
    • Right to access portable copies of their personal information
    • Right to request deletion of their personal information
    • Right to equal service and pricing even if they exercise their privacy rights under law

    This will require, among other things, that businesses:

    1. Disclose to consumers – at or before the point of collection – the categories of personal information collected and the business purposes for such collection. Businesses must also disclose on their websites and in their privacy policies the categories of personal information they sell or disclose for a business purpose, or must provide a statement that they do not sell or disclose such information.
    2. Have sufficient data mapping and inventories of the personal information they collect about California residents (and their households and/or devices) and internal processes and resources in place to be able to respond (within 45 days) to requests for access to or deletion of personal information submitted by consumers.Access requests require that a business provide consumers with: (1) the categories of personal information collected; (2) the sources from which that information is collected; (3) the categories of personal information sold or disclosed and the categories of third parties to whom it was sold or disclosed; and (4) the specific pieces of personal information the business has collected about the requesting consumer. Businesses must also disclose and make available various methods to consumers for making such information requests (including by toll free phone number, website, etc.) and train their employees to handle such requests properly.
    3. Determine whether the business is (either intentionally or unintentionally) “selling” personal information as defined by the CCPA and either make adjustments to stop selling that information or make required disclosures on their website pages and privacy policies stating that they are selling personal information and notifying and enabling consumers to “opt out” of such sales.In this respect, compliance with the CCPA may require a “Do Not Sell My Personal Information” link on the website homepage. Because the CCPA defines “selling” information as any disclosure for valuable consideration, businesses should also consider whether adjustments need to be made to their vendor/service provider relationships and contracts to ensure that personal information is not unintentionally being “sold” as defined by the law. Additionally, businesses must ensure that they are not collecting any personal information from individuals under the age of 16 without affirmative “opt in” consent of the consumer (if between ages 13-16) or a parent/guardian (if under age 13).
    4. Consider adjustments to business models or services offered (i.e., paid vs. free services) based on the inability to sell certain consumers’ information and the inability to discriminate against consumers who exercise their privacy rights.
    5. Consider changes to internal policies regarding employee rights and understand the impact that new privacy rights of employees under the CCPA will have on the business. The CCPA does not distinguish between California residents in their roles as consumers, employees, patients, etc. Thus, employees have all the rights granted to any other “consumer” under the law, including rights to request access to and deletion of their personal information, rights to opt-out of the sale of their personal information, and a private right of action if their personal information is breached, among others. While employers may have a valid business reason to justify denying deletion requests during the period of employment, employees may request access to their confidential personnel files or other HR records about them and, without further clarification or amendment to the law, such information would presumably need to be provided. At a minimum, employees will need to be notified at or before the point of collection of any of their personal information and any internal policies should be updated to include disclosures of employee rights under the new law.

    What Are The Penalties For Non-Compliance?

    Businesses that fail to comply with the CCPA are subject to civil penalties in actions brought by the California Attorney General in amounts of $2,500 for each unintentional violation, or $7,500 for each intentional violation.

    The CCPA also gives a private right of action to any California resident whose personal information is subject to a data breach and allows such residents to recover between $100-$750 per resident and incident, or actual damages, whichever is greater. The availability of statutory damages resulting from a data breach should provide significant incentives for companies to increase and improve their data security practices and breach response plans and procedures. Additionally, current state legislation is under consideration that would expand this private right of action to the violation of any provision of the new law.


    The above summary of the CCPA is a very high-level discussion of the duties and obligations businesses have under the new law and does not constitute legal advice with regard to compliance with the CCPA. There are many additional details and rights, as well as defenses and exemptions, to take into account in assessing what steps your business may need to take to comply with the CCPA. Please contact Litigation and Data Privacy partner Scott Hall at shall@coblentzlaw.com or 415.772.5798 to discuss additional questions or details and to determine how we can help your business be prepared for the CCPA.

    Click here to download or print a PDF of this alert.

  • Coblentz’s International Legal Alliance TAGLaw named “Elite” by Chambers & Partners

    Coblentz’s international legal alliance, TAGLaw®, has again been recognized by Chambers & Partners as “Elite” for 2019—the highest ranking awarded to legal networks and alliances. This is the sixth time TAGLaw has received the distinguished “Elite” designation since Chambers & Partners began ranking legal networks and alliances in 2013.

    In selecting networks and alliances for their “Elite” status, Chambers & Partners pays particular attention to the quality of the member firms, their global reach, and the value that the alliance provides to its member firms. Member firms have exceptional reputations for quality of service and client satisfaction, and strive to cooperate to provide resources and expertise as if they were right down the hall from one another.

    As the Northern California law firm representative to TAGLaw, Coblentz is able to access a network of exemplary regional, national and international legal resources to help us better serve our clients. TAGLaw, with a global footprint in over 90 countries, has leading firms in over 160 jurisdictions providing legal services to companies ranging from the Fortune 5000 and leading SMEs to high net worth individuals. With expertise in dozens of practice areas and countless industry sectors, TAGLaw offers a substantial capability to its members’ clients. This capability is expanded by TAGLaw’s unique relationship with its sister alliance of accounting firms, TIAG, providing members and clients with the multidisciplinary expertise needed in today’s business world.

    Coblentz partner, Paul Tauber, is a member of the Advisory Board of TAGLaw, assisting in reviewing prospective new members, offering feedback for the planning of international conferences and providing valuable guidance on future plans and initiatives.

    Categories: News