The voting for Professional Research Services’ survey to determine the top attorneys in 2021 for Sacramento Magazine was open to all licensed attorneys in Sacramento, Calif. Attorneys were asked whom they would recommend among 56 legal specialties, other than themselves, in the Sacramento area. Each attorney was allowed to recommend up to three colleagues in each given legal specialty. Once the online nominations were complete, each nominee was carefully evaluated on the basis of the survey results, the legitimacy of their license, and their current standing with the State Bar of California. Attorneys who received the highest number of votes in each specialty are reflected in the following list. – Sacramento Magazine
Wilke Fleury congratulates attorneys David Frenznick, Adriana Cervantes, Matthew Powell and Dan Egan on their inclusion in the 2022 Edition of Best Lawyers in America!
First year recognized in Medical Malpractice Law – Defendants: 2021
These awards are recognitions given to attorneys who are earlier in their careers for outstanding professional excellence in private practice in the United States. The “Ones to Watch” recipients typically have been in practice for 5-9 years.
Despite the easing of COVID-19 restrictions in California, many of the changes imposed on the legal industry by the pandemic will likely remain in effect for the foreseeable future. One major change for litigators has been conducting depositions remotely. This change takes an already intricate task and makes it further complex by adding a new dimension of factors to consider. It is imperative that litigators understand these factors to avoid giving their opposition an undue advantage and to maximize the utility of depositions. While we may disagree as to whether remote depositions are a welcome change, the fact of the matter is that lawyers must adapt to them and provide adequate legal representation. This article explores some of the challenges and opportunities presented by remote depositions.
The Deponent
The deponent is the single most important element of any deposition and handing it properly becomes even more delicate in remote settings. I recently took a deposition where the plaintiff met their attorney for the first time at their deposition. The result was not spectacular. The plaintiff was ill-prepared, and the case eventually settled for far less than what it might have if it had been better prepared.
In some cases, deponents testify remotely without their attorneys’ physical presence. This may make them feel less protected and more vulnerable. To manage this risk, additional preparation is necessary. On the other hand, for attorneys taking depositions, this presents an opportunity to elicit testimony otherwise not possible, especially if a defending attorney is distracted in their home or office during long depositions.
Remote depositions require attorneys to be especially vigilant to safeguard against improper influence. The risk of information being conveyed to the deponent by their attorney or others is increased when the deponent is miles away from the attorneys with unlimited access to technology. Attorneys must be innovative and attentive to manage this risk. Steps that can be taken include having the deponent sit alone in a closed room, viewing a 360-degree angle of the deponent’s room before the deposition, and requesting that the deponent’s hands be in clear view of the camera during the deposition.
Preparation
The margin for error is even smaller when preparing for remote depositions. Exhibits must be well-prepared, pre-marked, and, in some instances, sent to the other parties in advance. As such, early preparation is not an option. Attorneys must be strategic in determining how and when they share the exhibits with the other parties. During the deposition, attorneys must be able to seamlessly electronically shuffle between exhibits and share them instantly without creating gaps in the record or interrupting the flow of questioning. For that reason, attorneys must be organized, and their questions must be presented with aforethought.
Further, adequate preparation is required to arrange the technological logistics of remote depositions. This includes securing a strong stable internet connection, operational microphones and speakers, and a quiet room with adequate acoustics. Finally, attorneys must be comfortable with using videoconference software, including filters, screen share, and mute functions to avoid unpleasant situations.
The “Set-Up”
For the attorney taking a remote deposition, it is crucial to arrange it in a manner that ensures command over the proceeding. It is wise to select a court reporter with whom they are comfortable and with whom they have worked in the past. Additionally, it is essential that the court reporter be comfortable working remotely, is familiar with the remote swearing-in process, and is capable of handling electronic documents. Even if all the other parties attend remotely, it is a good idea for the attorney taking the deposition to arrange for the court reporter to be physically present in the same room. This will allow the court reporter to focus on their job and the attorney to maintain command.
In cases where an interpreter is required, an additional layer of complexity is added. It is generally insufficient to have just one connection established with the deponent when an interpreter is utilized. This is because having only one connection means that the interpreter must first listen to the question or answer, write it down, and – only after the person finishes talking – will they be able to interpret. This is a slow, inefficient process. On the other hand, when a second, separate connection is established between the deponent and interpreter, the interpreter will be able to simultaneously translate and relay questions and answers as the parties speak.
There is little doubt that remote depositions are more time-efficient and convenient than in-person depositions. This, combined with the ongoing risk presented by new variants of COVID-19 suggests that remote depositions are likely to remain a key part of litigation practice well into the future. Rather than resist change, attorneys must adapt to this new world and focus on how they can use new technologies for the benefit of their clients, which is the ultimate goal.
With California reopening, many Californians will be heading back to the workplace soon and are wondering if employers may require their employees to get vaccinated. According to the Fair Employment and Housing Act (“FEHA”), an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer (a) does not discriminate against nor harass employees on the basis of a protected characteristic, (b) provides reasonable accommodations related to disability or sincerely-held religious beliefs, and (c) does not retaliate against anyone for engaging in protected activity.[1]
On June 15, 2021, California lifted its mask mandate across the state. The California Department of Public Health (“CDPH”) updated its guidance for the use of face coverings stating that masks are no longer required for fully vaccinated individuals.[2] However, masks are still required on public transit, indoors in k-12 schools, childcare, other youth settings, healthcare settings, long-term care facilities, correctional and detention facilities, and homeless shelters.[3]
The Standards Board (“Cal/OSHA Board”) adopted a revised COVID-19 Prevention Emergency Temporary Standards (“ETS”), providing guidance to employees and employers in the workplace. On June 17, 2021, Governor Gavin Newsom signed an executive order putting the ETS into effect immediately, bypassing the normal 10-day review period by the Office of Administrative Law.[4]
Some critical changes in the ETS include fully vaccinated employees not needing to wear face coverings except in certain situations during outbreaks or in settings where CDPH requires all persons to wear them.[5] Additionally, physical distancing requirements have been eliminated except where an employer determines there is a hazard and for certain employees during major outbreaks.[6] Employers must document the vaccination status of fully vaccinated employees if they do not wear face coverings indoors.[7] The ETS Frequently Asked Questions (“FAQs”) explains that employers can either accept verbal self-attestation, proof of vaccination card, or other written proof to document their employees’ vaccination status.[8] The FAQs also clarify that an employer may still require an employee to wear a face-covering at work even if they provide documentation verifying that they are fully vaccinated.[9]
Employees who are not fully vaccinated may request respirators for voluntary use from their employers at no cost and without fear of retaliation from their employers.[10] Additionally, employees who are not fully vaccinated and exhibit COVID-19 symptoms must be offered testing by their employer.[11] Further, employers must continue to follow some of the previous ETS requirements such as, establishing a written COVID-19 Prevention Program and providing training to employees on COVID-19.[12]
As the State begins to reopen and Californians head back to the workplace with all of these new guidelines and standards, the best thing to do is visit the CDPH and Cal/OSHA Board websites for up-to-date information or consult an attorney for employment advice.
By: Mustafa Karim, 2021 Summer Law Clerk at Wilke Fleury
Wilke Fleury is proud to announce that 15 of our astounding attorneys were featured in the Annual List of Top Attorneys in the 2021 Northern California Super Lawyers magazine.
Super Lawyers rates attorneys in each state using a patented selection process; they also publish a yearly magazine issue that regularly produces award-winning features on selected attorneys. 1 of 15, Michael Polis, was also recognized on Page 9. Polis’ second job as a farmer was highlighted with a column and some neat photos.
Freedom of speech and the right to petition are fundamental rights protected by the First Amendment of the United States Constitution. A SLAPP Action is a “Strategic Lawsuit Against Public Participation” and is used to silence and intimidate critics by forcing them to defend a meritless lawsuit, draining their financial resources.
The Legislature enacted the anti-SLAPP statute in 1992 in response to a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”[1] The anti-SLAPP statute authorizes a special motion to strike meritless claims early in litigation if claims “arise from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.”[2]
Acts “in furtherance of” these rights include,
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.[3]
In ruling on an anti-SLAPP motion, the trial court engages in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.[4] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.[5] Only when a defendant shows that a cause of action is based on protected conduct and the plaintiff fails to show a likelihood of success on that claim is it subject to dismissal.[6]
Anti-SLAPP motions can be significantly costly and time-consuming. If a defendant prevails on an anti-SLAPP motion, the lawsuit will likely be dismissed, and attorney fees may be awarded.[7] However, if the court finds that the anti-SLAPP motion is frivolous, then attorney fees and costs may be awarded to a plaintiff.[8]
By: Mustafa Karim, 2021 Summer Law Clerk at Wilke Fleury
COVID-19 has dramatically impacted most businesses. Although veterinary practices have demonstrated great resilience in surviving the pandemic, the impacts are considerable. Processes have changed from the moment a patient enters the clinic until the patient is returned to its owner. Employment issues have arisen without precedent or guidance creating uncertainty for both employers and employees. Additionally, managing the physical and mental impacts of the virus itself are considerable. Given the far reaching general impacts of COVID on veterinary practice, it is a challenge to focus in on and address the range of COVID-related legal issues. The conundrum is that legal issues and guidance around COVID are changing as rapidly as the challenges the pandemic presents.
The Families First Coronavirus Relief Act (“FFCRA”) came into effect on April 1, 2020. Businesses scrambled to adopt the FFCRA without ever having received clear guidance. Once we developed an understanding on how to approach FFCRA leaves, the FFCRA was replaced in December 2020 by hastily enacted legislation. The new federal administration is contemplating additional changes that may be put into effect before any guidance is offered on the December 2020 legislation; and before this article is published. State laws will undoubtably follow and individual counties have not been bashful in issuing their own guidance or orders.
As lawyers, our goal is to provide clear guidance. Yet, what appears to be good advice one day may not be the best approach the next week. Things are changing that quickly. So where do we start?
The best approach is for the veterinary profession to (1) be nimble, (2) rely on available resources, and (3) take defensible positions.
Be Nimble in Identifying and Responding to COVID Impacts
The veterinary industry has adapted to COVID better than most. This is not happenstance. Credit must be given to CVMA’s leadership and the practices themselves in identifying the aspects of the practice impacted by COVID andinitiating changes to address them. The simple change to curbside pick-ups afforded protection to owners and staff. Unfortunately, mandates for social distancing, and employee absences due to necessary quarantine or actual illness, have been problematic and, in some instances, have forced clinics to close. As the challenges posed by the pandemic continue to evolve and knowledge regarding COVID grows, the approach to responding to COVID-related impacts must also evolve. Veterinarians as individuals and as a profession must continue to identify changes and take action. It is the failure to evolve and adapt that can create legal issues and jeopardize safety.
COVID has simply turned some practices — particularly employment practices — upside down. The plurality and ever-changing nature of issues resembles “wac-a-mole” while the guidelines for addressing these issues are insufficient. Where do you turn to address issues in a legally cogent manner? The rights and obligations of employers and employees are unclear in these unchartered waters. Adding to the fervor are real health fears, political overlays and religious beliefs.
Whether you are an employer or an employee, you must be nimble. Anticipate that there will be changes and be flexible to adopt changes. The saying “we are all in this together” applies to the workplace.
Rely on Available Resources
Multiple governmental agencies have responded to the pandemic by enacting laws, regulations and guidance that in some instances not only overlap, but may be contradictory. Both the federal government and the state of California have enacted laws focused on COVID related issues generally and specifically addressing the workplace, such as the FFCRA. These laws are products of expedited legislative processes and were intended to address immediate issues, which, as we have learned, may quickly change. Further, California has quickly enacted state laws to augment federal laws.
To implement these laws, the federal and state administrative agencies, notably the federal Departments of Labor and CalOSHA have issued emergency regulations. As emergency regulations, they were not fully vetted through the normal administrative process. Generally, regulations are to be afforded the power of law, but are subject to challenge if they are inconsistent with the laws in place as originally intended.
Wading further into the mire, some governmental bodies have issued guidance, such as the Center for Disease Control’s (the “CDC”) guidance regarding the response to COVID exposure and illness in the workplace. There have also been a number of executiveorders issued, notably by the California governor. In some cases, however, it is unclear whether these orders are enforceable, were intended to be enforced or were issued as mere guidance. Confused? There’s more! California counties have also been active in enacting their own ordinances, which may be enforced by those counties as well as orders and guidance, the enforceability of which are unclear.
When confronted with a COVID related issue, such as employees testing positive or being forced to quarantine, where do we turn for help? There is no clear path; and there may be no clear answer. There are some sources, however, to consider, including:
CVMA’s Website (www.cvma.net) – CVMA has been proactive in posting and updating COVID related information for members on its website. This is information is often specific to the veterinary industry and is a good “first stop.”
CDC Website (www.cdc.gov) – The Centers for Disease Control and Prevention’s website contains a great deal of information regarding the handling of COVID in the workplace, social distancing, quarantining, and responding to outbreaks. The CDC issues “guidance.” The guidance is not legally enforceable, but establishes standards and arguably, “best practices.”
U.S. Department of Labor Website (www.dol.gov) – The U. S. Department of Labor issued emergency regulations regarding the FFCRA expanded sick leave and family leave. The regulations and several FAQs are populated on its website. Although the initial FFCRA sick leave and expanded family programs expired on December 31, 2020, an optional sick leave program continues through March 31, 2021. By the time this article is published, there may be new programs administered by the Department of Labor.
California Department of Public Health (CDPH) (www.cdph.ca.gov) – The “COVID-19 Employer Playbook” was published on September 25, 2020 by the California Department of Public Health (CDPH). The Playbook was designed for businesses reopening after a shut down. It contains information that may be helpful to ongoing businesses as well. (https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening–en.pdf.)
Department of Industrial Regulations (CalOSHA) (www.dir.ca.gov)– Emergency Regulations – CalOSHA’S primary focus is safety in the workplace. CalOSHA has expanded its role to include not only social distancing and similar COVID-related safety standards, but injuries in the workplace, which includes illness in the workplace. CalOSHA has adopted regulations to address reporting COVID, workplace responses to exposures, and closures. These “standards,” which are mandatory were adopted on December 1, 2020, and updated on January 26, 2021. There is criticism that these regulations may be more expansive than CalOSHA’s legal authority, but they are regulations (at least for now).
California Coronavirus Website (www.covid19.ca.gov) – An ever-changing montage of information for employers and employees.
California Educational Development Department (EDD) (www.edd.ca.gov)– Its website highlights unemployment benefits available to impacted employees.
County Health Department – Most, if not all, counties have websites containing local ordinances and guidance ranging from rent protections to information regarding sick leave. Many county health departments provide telephonic guidance, particularly with regard to responses to health issues related to COVID. Surprisingly, you may be able to actually speak with someone if you reach out.
There is a plethora of information online containing analysis and guidance. Except for the CVMA website, however, the above sources are published by governmental entities and carry their respective authority.
Maintain a Defensible Position
Unfortunately, all too often, some of these sources of guidance are of little assistance. The issues are ever changing. The issue may be novel or the guidance contradictory. In these scenarios, the best approach is take a defensible position that supports safety. A defensible position is one that is based upon — even if it does not exactly follow — generally accepted guidelines, which specifically includes laws, regulations, ordinances, orders, guidance and other governmental resources. Depending on the situation a practice may be facing, there may be different options presented. At that point, reasonable judgment emphasizing safety should be followed. In the end, the rationale for actions should be documented along with copies or references to the resources supporting the decision.
CONCLUSION
The challenges of this pandemic are unprecedented and it should be anticipated that things will continue to evolve. The businesses that avoid legal issues, and the employees that avail themselves of the protections afforded to them, will be those that take affirmative steps in responding nimbly to those challenges, consider the resources available, and if a path is not clear, be flexible in taking a position that is defensible based upon relevant laws, regulations and guidance and an emphasis on public safety.
SB 855 (Wiener) is a senate bill that revised provisions in the California Mental Health Parity Act. SB 855 requires commercial insurers to provide coverage for medically necessary treatment for all mental health and substance use disorders (MH/SUD) in the same manner as applied to other medical conditions. The law became effective on January 1, 2021 and applies to all commercial plans and policies in the group and individual market regulated by the Department of Managed Health Care and Department of Insurance, respectively.
SB 855 creates substantive changes affecting commercial plans and policies. Following are just a few changes, of which all commercial plans affected by SB 855 should take note:
Medical Necessity is defined as health care services or products addressing the specific needs of a patient (a) for the purpose of preventing, diagnosing or treating a condition or its symptoms, consistent with accepted standards of mental health and substance use disorder care, or (b) that is clinically appropriate, and not primarily for the economic benefit of the plan or policy, or for the convenience of the patient, treating physician or other health care providers. Please note that members are not precluded from exercising their rights to appeal, submit a grievance, or request an independent medical review, among others.
If the mental health or substance use disorder treatment services are not available in-network in accordance with the geographic and timely access standards, the plan or policy must arrange and provide its members out-of-network services and follow up services that satisfy the geographic and timely access standards. Please note that plans and policies are prohibited from charging members additional cost-sharing fees on any out-of-network services.
For purposes of SB 855, health care providers include the following: marriage and family therapist or trainees, autism service provider, associate clinical social worker, associate professional clinical counselor or trainee, registered psychologist, registered psychological assistant, psychology trainee, as well as healing arts professionals licensed under Division 2 of the Business & Professions Code.
Health care plans and policies must ensure that their contracts are not in conflict with the requirements imposed under SB 855. If you need assistance with updating your plan contracts, policies or provider agreements, health plan licensing or other compliance matters, please do not hesitate to contact us at (916) 441-2430.
Magaly Zagal (left) is an Associate at Wilke Fleury.
Arielle E. Brown is our new associate at Wilke Fleury!
Prior to joining Wilke Fleury, Arielle practiced Torts and Product Liability, focusing on commercial and consumer breach of warranty law. She also gained extensive courtroom and trial experience as a criminal defense attorney. While at the San Francisco Public Defender’s Office, Arielle personally advocated for clients and tried many jury trials to verdict.
During law school, Arielle tutored Contracts and Torts. She serves on several governing boards, including as Parliamentarian for the Western Regional Black Law Students Association and Executive Lt. Governor for the American Bar Association – Law School Division. She interned at Open Door Legal, where she participated in administrative hearings regarding foster care licensing cases. She also interned at several public defender offices, where she fought for humanity and justice in defense of the damned.
The recently passed $1.9 trillion COVID-19 relief bill provides Americans with $1,400 stimulus payments and $7.5 billion for the Department of Health and Human Services and Centers for Disease Control and Prevention. Funds are earmarked for vaccine education, and clinic and mobile unit operation. The bill also includes a significant change strengthening the Affordable Care Act (ACA).[1] This ACA provision expands ACA marketplace subsidies temporarily, lowering marketplace premiums by providing health insurance premiums for qualified individuals.[2]
Through this package, there will be a significant expansion of subsidies for health insurance to middle-class and low-income individuals for the next two years. Numerous families struggle to pay their monthly healthcare premiums. With this in mind, the new legislation will fully cover premiums for those making within 150% of the federal poverty level (FPL), which is approximately $19,320 annually. Individuals earning more than 400% of the FPL – approximately $51,000 per year – will be able to purchase healthcare plans on the marketplace, with premiums capped at 8.5% of their income. For example, the monthly premium will drop from $1,075 to $412.50 for an individual making approximately $58,000 a year.[3]
The legislation provides relief for those who purchase health insurance through the exchange, particularly those who have plans with high deductibles and low premiums. An individual with a high deductible may be incentivized not to seek health services due to high initial out-of-pocket costs. With this legislation, approximately 14 million enrollees from the marketplace may pay less by purchasing an entirely different plan from those savings.[4] This change is in response to criticisms of unaffordability, causing individuals to opt to not purchase any health insurance.[5] But with this change, the Congressional Budget Office estimates that approximately 1.7 million Americans would enroll within the marketplace, 1.3 million of which are previously uninsured.[6]
Additionally, under the relief package, those who receive unemployment benefits may be eligible to enroll in the exchange this year. Prior, these individuals were not eligible for subsidies on the exchange. This new bill will cover cost of premiums for those who receive health benefits through COBRA.[7]
In addition to the relief package, President Biden opened a special enrollment period due to the pandemic. Open enrollment typically comes only once a year, in which individuals can purchase a health plan through the marketplace. With this special enrollment period, Americans can now enroll until May 15.[8] Though these changes are temporary for now, lawmakers are expecting these subsidies to become permanent. Others note that improvements may continuously be made, following the original goals of the ACA under the Obama administration. The current legislation proposes narrow improvements but additional provisions regarding premium affordability and subsidies may be explored in the future.
Annie Lee was a Law Clerk at Wilke Fleury in the Spring of 2021.
[7] The Consolidated Omnibus Budget Reconciliation Act (COBRA) allows workers and their families who have lost health benefits due to loss of job continued coverage at a higher cost. https://dol.gov/general/topic/health‐plans/cobra
“We at Wilke Fleury were saddened to learn of the passing of our former Partner Richard “Dick” Hoffelt on February 11, 2021. Dick was a Partner at our firm for over 50 years and was a highly regarded lawyer in the field of Business and Healthcare Law. As an active member of the State and Local Bar, Dick served as President of the Sacramento County Bar Association and was one of the founders of the first Legal Aid program in the Sacramento area. In addition to his law-related activities, Dick was a leading participant in facilitating the move of Shriners Children’s Hospital from San Francisco to Sacramento. Dick will be genuinely missed by all who knew him.”
Islam Ahmad represents clients on a broad range of civil ligation matters, with a focus on construction, real estate, and commercial disputes. He has represented all sides of construction and real estate cases, including owners, buyers, developers, and general contractors. He possesses superb legal research and writing skills that ensure no stone is left unturned that may improve the chances of victory for his clients.
Islam Ahmad has a sophisticated working background and a wealth of experience that make him ideal for taking on clients’ challenging cases and resolving them in their best interest. His intuition makes him versatile and capable of dealing with a wide range of issues. Islam is also capable of incorporating business performance factors into his legal advice by drawing from his prior experience as a business consultant. This comprehensive approach allows him and his clients to develop sound risk management strategies and business plans.
Islam Ahmad received his Juris Doctorate Degree from the University of California, Davis School Law and his undergraduate degree in Economics from the University of California, Berkeley. During law school, Islam interned at the United States Court of Appeals for the Ninth Circuit and served at the Civil Rights Clinic. Upon graduating from law school, Islam went to Jerusalem on a mission to use his knowledge to promote peace in his birthplace. He spent three years working on projects aimed at establishing a foundation for rule of law, stimulating economic cooperation, and promoting SME development.
About Islam: Islam is a grateful single father to his three daughters, Hannah, Sheek and Mal. He is fluent in Arabic and possesses elementary skills in Hebrew. When not practicing law, he enjoys coaching and playing soccer, playing video games, and day-trading stocks.
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