Steven Brower
 
Buchalter Nemer

Representative Litigation Matters and Results

 

    I have been involved in all aspects of civil litigation from inception through conclusion, including jury trials, bench trials, arbitrations (both as a litigator and as an arbitrator), complex settlements (both as a litigator and as a mediator), and appeals, in more than 10 states. 


    There are certain areas in which I have particular experience and ability.  More details, including copies of actual opinions, can be found in the case descriptions further down on this page.  I would summarize my areas of particular expertise as:


          INSURANCE COVERAGE – For the last 15 years I have represented policyholders (companies and individuals in disputes with their insurers).  I have also continued to provide advice, from time to time, to insurance companies.  Previously (for about 15 years) I was one of the few attorneys handling coverage opinions and coverage litigation for a major insurance company on Computer Technology policies.  That allowed me the opportunity to review several hundred technology cases across the country, the opportunity to write over 100 coverage opinions (one of which was 120 pages long), and the opportunity to litigate several of those cases to a favorable conclusion (including a Motion for Summary Judgment which disposed of a $5 million claim).  As a result of this broad representation I can provide clients with a great result based on a genuine understanding of the issues and strategic choices. 

 

          COMPUTER TECHNOLOGY -  I was a mainframe computer programmer for over ten years, including the development of several systems.  This allowed me to obtain unique insight into technology matters and the logic of computers, an area in which I continue to have an interest beyond litigation.  I have represented many computer companies including Borland International, Oracle, Microsoft, Octel, Informix, Amdahl, QMS, Microsoft, MicroPro (Wordstar), Parcom and others.  This background has also provided me with a special understanding and ability in the area of electronic discovery such that I rarely require the services of an outside vendor to assist me.  It has been my experience that electronic discovery is an area in which companies are spending far too much, and gaining far too little, because their counsel don’t really understand the technical issues and the options.   


          INTELLECTUAL PROPERTY -  Technology matters regularly relate to intellectual property, specifically including, but not limited to, trade secrets, copyright, and trademark (trade dress).  I was involved in the software “look and feel” cases (Lotus v. Paperback, followed by Lotus v. Borland) for nine years.  I have also represented manufacturers of consumer goods who must protect their trademark/trade dress, including victories on the issue of trade dress before the 9th Circuit.


                                                   MY CASES AND RESULTS


    Set forth below are some of the most interesting and/or significant matters in which I have personally been involved, subject to limitations imposed by confidentiality.  While I regularly work with other attorneys in our firm, the “team” is often just myself and one other attorney. 


November, 2015 - Insurance Coverage - Our client has significant insurance coverage for asbestos claims.  One of their insurance companies sued them, claiming that an unusual premium agreement, which was issued more than 30 years ago, but after the policy period had already expired, required the client to make significant continuing payments for every asbestos claim.  We undertook vigorous discovery and were able to develop a number of significant defenses which resulted in a favorable settlement providing for continuing coverage without continuing payments.  


July, 2015 - Insurance Coverage - Our client was an importer of fruit from South America.  One shipment had been ruined because dock workers, during a strike, had blocked access to the climate-controlled shipping containers.  Our client had insurance coverage specifically for strikes, but the insurance company had denied coverage saying that it only applied where the strikers actually damaged the goods, rather than where the damage occurred because the strikers were blocking access.   We obtained a settlement [not confidential] for 80% of the amount of the claim.  


April, 2015 - Insurance Coverage - Our client was a specialized inspector for a major building project.  A higher level of inspection claimed that there had been deficiencies in our client's work, which delayed the entire project.  Our client's insurer denied coverage saying that our client was providing professional services, which were excluded.  We then sued the insurer.  When they filed a Motion to Dismiss, we not only defeated their motion, but obtained favorable language from the Federal judge in the ruling.  The settlement of the matter was sufficient to discharge our client's alleged liability to the building owner.  


November, 2014 - Jurisdiction and Venue - Our client had a significant dispute with a credit card processor which was licensed in Malta.  Some of the documents said that exclusive jurisdiction for any dispute had to be resolved in Malta.  But we argued that the controlling document said "non-exclusive" jurisdiction in Malta.  We traveled to Malta to take depositions on the jurisdictional issue and were able to obtain very favorable testimony about the underlying disputes.  The state court, where our client was located, ruled in our favor on the jurisdictional issue.  


September, 2014 - Lease Dispute Trial - Our client, a major retailer, had leased a retail store site for almost 30 years.  When the lease ended, the landlord claimed substantial damage to the premises based, in part, on modifications which had been made at the inception of the lease term.  The matter was favorably resolved in the middle of trial.   


June, 2014 - Breach of Contract, Arbitration and Attorney Fees - I was retained, shortly before the arbitration, to represent a dentist who was accused of misrepresentation in the sale of her dental practice.  We elected not to retain our own expert, instead relying on the testimony of the plaintiff's "due diligence" expert to support our theory of the case, which is that the plaintiff had failed to ask the right questions, not that our client had failed to disclose information.  After a four day arbitration we obtained a decision in favor of our client and, as a result of a subsequent motion for attorney fees (as allowed by the buy-sell agreement) we settled for payment of 100% of our client's attorney fees.


May, 2014 - Trade Secret - Our client had been sued by an individual claiming trade secret infringement for manufacture of a product which had allegedly been disclosed to our client under an NDA.  We argued that there was no trade secret.  In support of that contention we located a video, on YouTube, which showed that the exact same product was being manufactured by a company in Germany prior to the alleged disclosure to our client.  At the settlement conference the plaintiff agreed to dismiss the claim without receiving any payment.  


October, 2013 - Insurance - Sale of Claims - Our client had a multi-million dollar claim which was insured.  Unfortunately, the primary insurance company had gone into receivership almost 10 years earlier and the bar date for submitting claims had passed. We filed an application for late claim and it was allowed by the receivership court.  We then assisted the client in submitting the claim to the receiver, where, after extended negotiations, it was finally approved.  However, it was unknown when, or even if, substantial payment would be received.  We were able to assist the client in "selling" the claims to an investor for a significant percentage of the total value.  


August, 2013 - Insurance Coverage - Withdrawal of Defense - Our client owned a number of apartment complexes.  A tenant at one project claimed to have been injured while walking on the lawn.  The client timely tendered notice of the claim to the insurer, which did nothing, apparently waiting for a lawsuit.  The client then received notice that a lawsuit had been filed and served, and then received notice that a default was being entered, but failed to send a copy of those notices to the insurer.    


April, 2013 - Insurance Coverage/Rescission - Our client was a trustee who assumed responsibility for an insurance brokerage due to allegations that the brokerage was being operated fraudulently (i.e. - embezzlement of funds).  A claim was subsequently made against the brokerage for failure to obtain insurance coverage for a client, prior to the time the trustee assumed control, potentially as a result of the prior owners taking the funds instead of using them to purchase the requested policy. We tendered the claim to the professional liability insurer for the insurance brokerage, which asserted the right to rescind the policy based on the alleged fraudulent conduct of the prior owners. We asserted that the policy language prohibited rescission.  The insurer brought a Motion for Summary Judgment and provided declarations in support from witnesses who had not yet been deposed.  Pursuant to a local rule (which I haven't seen anyone else ever use) we requested that the Court either order the witnesses to appear for live cross-examination or appear for deposition on 3 days notice.  The Court ordered the depositions and the case was settled, favorably for our client, the next day.  


November, 2012 – Insurance Coverage – Professional Liability – Our client is a mortgage broker.  They used an escrow company for some transactions.  One of the principals of the escrow company (unrelated to our client) absconded with a substantial amount of trust funds.  A bank, now under FDIC liquidation, sued our client alleging that our client was responsible for the loss of the trust funds.  The matter was mediated and we were able to persuade the liability insurer, for our client, to pay the entire settlement.   


October, 2012 – Settlement Strategy – I was brought into a matter as trial counsel two months before trial.  Our client, a liquidation specialist, had been working with a jewelry chain which was having financial problems.  At the end of the engagement our client was accused of taking a number of expensive watches (complicated by the fact that there was a video recording confirming the allegations).  Instead of focusing on our client’s liability I turned the focus to an examination of the plaintiff.  We confirmed that the plaintiff had never actually paid for the watches in question.  Further, the plaintiff had defaulted on a judgment to another vendor and was about to be placed in receivership (a fact they apparently had not shared with their trial counsel).  The case was resolved for less than 10% of the estimated cost of going to trial the following month. 


July, 2012 – Computer License Scope – Our client received an “audit” letter from a major software company asserting that the client’s usage of a certain product was a violation of the license terms.  The issue was notunauthorized copying of the software (an issue I have handled for other clients).  Rather, the letter contended that the solution was new licenses, which would allow access from anywhere in the world, with a cost in excess of $1 million.  After a few negotiation sessions and a careful review of the original licensing documents the matter was resolved by an apology letter from the software company. 


May, 2012 – Insurance Coverage for Class Action Attorney Fees – Our client settled a class action, relating to distribution of certain monies, which did not include the payment of any monetary value to the class.  However, consistent with normal handling of class actions, there was an award of attorney fees to class counsel.  The D&O insurer denied any obligation to pay such amounts.  We filed a Motion for Summary Judgment (I have filed less than 10 motions for summary judgment in my entire career because they are very expensive and I find that they are rarely granted, at least in the types of cases which I handle).  At the hearing, after taking extensive oral argument, the judge indicated that she would be issuing summary judgment in our favor and sua sponte took the trial off calendar.  We are waiting for the court’s formal order which will be posted here when available. 


April, 2012 – Insurance Coverage – Employment Practices – Late Tender – Our client reported seven employment practices claims after the expiration of various “claims made” policy periods.  Some had been settled before they were tendered and some were continuing. We provided a litigation budget to the client at the outset of the matter.  We managed to obtain a favorable settlement at mediation and, even though there were several unforeseen complications in the course of the case, we concluded the matter within our original budget.


December, 2011 – Product Liability - Food (Plaintiff) – Our client is the private label source for a food product for several major retailers.  All of the product for one particular retail chain was contract manufactured at a specific facility.  The food product was spoiling prior to the normal shelf life (evidenced by the product packaging “bursting”).  It took almost nine months to find, equip (certain packaging equipment had to be custom ordered) and certify a replacement manufacturing source.  The original manufacturing facility tried to deny liability claiming that the contamination might have come from the vitamin additive.  We obtained an FDA inspection report which showed that the product, after being pasteurized, had been stored at a temperature more than 20 degrees above the maximum appropriate storage temperature, allowing growth of bacteria.


September, 2011 – Internet (John Doe) – Our client, a doctor, learned that a “doctor rating” website contained an anonymous review of him which was clearly defamatory.  More importantly, he believed that the anonymous poster was not actually the child of an elderly patient (as claimed in the review), but was actually a competing physician.  Knowing that we would probably need to serve subpoenas on entities in other jurisdictions, we wanted to file the suit in Federal Court, but we did not expect to have diversity jurisdiction.  So, in order to obtain subject matter jurisdiction, we alleged “Trade Libel” under the Lanham Act.  We first obtained an ex parte order authorizing early discovery (prior to the Rule 26 conference) and obtained the IP Address of the anonymous poster.  The IP address belonged to a major cable company.  We then obtained a second ex parte order specifically authorizing a subpoena for the subscriber information.  Upon receiving notice from his internet service provider, John Doe retained counsel and filed a Motion to Quash and a Motion for Protective Order.  The Magistrate Judge held a hearing, which lasted for more than an hour, and then requested supplemental in camera briefing to determine whether plaintiff could make aprima facia showing of defamation and to determine whether John Doe was, in fact, a “competitor” (because subject matter jurisdiction was dependent on trade libel, not just ordinary defamation).  The Magistrate Judge then issued a 10 page order denying the motions, which allowed our client to learn the identity of the physician who had posted the untrue “anonymous” review.  In a subsequent deposition the physician admitted that the posting was totally untrue. 


August, 2011 – Internet Piracy – Our client is the world-wide provider of an online game.  The revenue model allows free gameplay, with players optionally purchasing certain character enhancing items, better server access, etc.  This involves the free distribution of client-side software, while the server-side software remains on the client’s servers and, as such, is an unpublished work for copyright purposes.  Several years ago a copy of the server side software was stolen and was being utilized by an individual from China, in conjunction with a confederate in Poland, to offer a “competing” version of the game.  We obtained a U.S. copyright (on the unpublished work) and a U.S. trademark (on the name of the game) and we then filed suit in U.S. Federal Court.  We then effected formal service in Poland, in accordance with the Hague Convention.  The pirate website was closed on the day service was effective, which was already a major victory for our client.  We then proceeded to obtain an award of statutory damages (for willful infringement), an award of attorney fees and costs, and an order transferring the infringing domain name to our client.  [These results were non-trivial because we had to overcome the statute of limitations (applicable to published works, but not to unpublished works) and we had to overcome a number of recent decisions which circumscribe the right to obtain “turnover” of a domain name.] 


June, 2011 – Insurance Coverage for Embezzlement – The factual circumstances here were somewhat unusual.  Our client’s former employee didn’t just take money.  Instead, he hired vendors for certain services and accepted large “kickbacks.”  The insurance policy was broad enough to cover whatever the client lost as a result of employee dishonesty.  The insurer argued that since the dishonest vendors were still providing a necessary service, a significant amount should be deducted from the claim for “value received.”  Therefore, at the time we were retained, the insurer was offering to pay only 70% of the policy limit.  We reviewed the files which had been compiled, we wrote a few letters, and we persuaded the insurer to hold a face-to-face meeting in California, even though the claims representative was based on the East Coast.  We met, we explained our position, and the insurer then offered to pay 100% of the policy limit, without filing suit.  Our fees were approximately 5% of the increase we obtained. 


May, 2011 – Insurance Coverage, Bankruptcy, Product Liability – Our client was the less responsible co-defendant in a significant product liability action.  Unfortunately, the other co-defendant, who had a contractual obligation to indemnify our client to a significant degree, filed a reorganization bankruptcy (Chapter 11) before the underlying case was resolved.  We filed objections in the bankruptcy matter and we filed an action against the insurance companies for the co-defendant.  We subsequently persuaded the Bankruptcy Judge to order a mediation of the underlying matter with all necessary parties, including the insurers for the co-defendant.  The case, which I believe was one of the most complex matters I have ever handled, was ultimately resolved by our client paying $1 million of the $6 million settlement in the underlying action, while simultaneously receiving reimbursement from the bankruptcy estate of almost $1.5 million in legal fees covering the defense of the underlying action, the prosecution of the insurance coverage action and the prosecution of the proceedings before the bankruptcy court. 


April, 2011 – Product Liability/Recall – Our client sold over 3 million units of a particular household item to a large retailer.  The sales covered a period of five years, ending almost three years ago.  Based on a number of consumer injury complaints (which we contend were dissimilar) the retailer suggested to the Consumer Product Safety Commission (CPSC) that it would consider a voluntary recall (which would ultimately be at our client’s expense).  We investigated, we met with the sales representatives and we met with the individuals from China who were responsible for placing the orders, supervising the testing, etc.  We then requested a face-to-face meeting with the retailer’s recall staff.  We demonstrated how the product was manufactured and we demonstrated how it was similar to other products in the same category.  More importantly, we pointed out that the product currently being sold (and for the last three years since our client was replaced by another vendor) was the same as our client’s product.  Within two months the retailer and the CPSC formally withdrew their investigation. 


February, 2011 – Construction/Insurance – Our client is the owner of a newly-constructed hotel.  The construction costs were significantly higher than budgeted because the architect made significant errors in the design calculations relating to firewalls, which errors had to retroactively resolved during construction.  We were able to persuade the relevant parties to attend a mediation prior to undertaking any formal discovery, and the matter was resolved to our client’s satisfaction. 


June, 2010 – Insurance Coverage for Embezzlement – Our client discovered that two employees had been diverting payments to accomplices.  We tendered the claim to insurance, packaged the information which had been developed by the forensic accountants and obtained full payment of the claim without litigation. 


February, 2010 – Intellectual Property – Our client (a public company in South Korea) created and operates a world-wide online software game.  Their market is under attack from “pirates” who have unauthorized copies of the server software and who offer their own implementation of our client’s game.  We developed a litigation strategy which culminated in a suit in the U.S. District Court, in California, against an individual and his websites in Poland.  The suit was served by formal service under the Hague convention.  Our client was pleased because, on the day the suit was served (translated to Polish), the infringing websites elected to cease operation.  We are now working with the client to obtain relief in that first suit and to file against other pirates in other countries. 


September, 2009 – Trade Secrets – An employee of our client, who was involved in building their sales network, started an independent business which threatened to interfere with our client’s business.  California is a “right to work” state, so non-competition agreements are generally unenforceable.  And California courts have rejected the “inevitable disclosure” doctrine.  However, based on evidence of actual use of trade secret information (customer lists) we sought an obtained a Temporary Restraining Order requiring the former employee not only to cease contact with customers, but also requiring the immediate turnover of a computer, a hard drive and a phone which allegedly contained trade secret information. 

 

August, 2009 – Insurance Coverage – Our client was entitled, pursuant to statute, to obtain reports from counsel for a party with whom our client had some conflicts.  But the information being received was not sufficient.  We obtained a Preliminary Injunction, directly against the legal counsel, requiring them to provide regular reports and information to our client.  The case then settled with a stipulation that the opposing parties counsel would continue to provide the information. 


June, 2009 – Litigation, Appellate – We received a very unique decision from the California Court of Appeal (the first such decision in the United States according to the Court of Appeal).  Our client had sued Bentley Motors for a Lemon Law violation.  Bentley had produced an official factory document indicating that every four door Bentley, for a few model years, had an “obnoxious odour” problem.  And the document had been published before our client purchased his Bentley. But Bentley refused to comply with four separate orders requiring the production of other documents about the odor problem.  The trial court refused our request for a terminating sanction and merely gave the jury some instructions indicating that Bentley had failed to comply with discovery obligations.  The jury found liability on the Lemon Law, but failed to find that the violation had been willful and failed to find that there had been fraud.  The Court of Appeal found that the failure to order terminating sanctions was an abuse of discretion.  The opinion directed the trial court to enter a default on the fraud cause of action (damages plus punitive damages), enter an order that the Lemon Law violation was willful (up to double the actual damages) and award substantially more attorney fees.


March, 2009 – Insurance Coverage – Our client had issued an insurance policy to a contractor.  The application, in response to a question about “Will you work on slopes?” said “No.”  But the policy was actually purchased only for one job – a series of retaining walls at the bottom of a virtually vertical cliff.  Our client had never agreed to insure anyone working on a slope of over 20 degrees.  Two weeks after the insured quit the job (because of safety concerns) an employee of the replacement contractor fell down the construction stairs and became a quadriplegic.  Our client agreed to provide coverage, subject to an action seeking to rescind the coverage, based on the false information in the application.  We also sued the broker based on the authority of a California decision allowing such claims.  The case was settled at mediation.  Our client not only paid nothing to settle the underlying case, but they also received sufficient reimbursement to cover all of the defense costs and a substantial portion of the costs for coverage counsel. 


February, 2009 – Insurance Coverage – Our client had been denied coverage by its insurer, on a unique media policy, even though the policy had been obtained for the exact type of risk involved.  We advised the client to file suit rather than to engage in an extended letter writing effort.  Shortly after we filed a detailed suit, the insurer agreed to provide full coverage and other relief. 


February, 2008 – Insurance Coverage –  Our client claimed that the policy limit was $5 million per year, but the insurance company said that the limit was only $5 million total for the two year term.  We sued not only the entity which was “named” as the insurance company in the check-boxes on the policy, but we also sued the parent company.  I have developed some pleading ideas which are particularly effective in this area (they were also utilized, successfully, against a different insurance company in the item referenced below as May, 2006).  The parent company filed a demurrer, which was heard in February, seeking to be dismissed from the case.  The demurrer was overruled in its entirety.  This made discovery regarding the relationship between the parent company and its subsidiary potentially relevant to the litigation.  The case was settled shortly thereafter on terms which were confidential, but favorable to our client.


January, 2008 – Litigation, Appellate – In 2006 our client obtained a favorable verdict on an unusual Lemon Law case.  Bentley’s own documents showed that every Bentley automobile, for three years, had an “obnoxious odor problem.” While the verdict was favorable, our client has filed three separate appeals seeking an increase in the damages and in the attorney’s fees which were awarded to him, due to Bentley’s failure to produce documents as required by multiple court orders.  (See June, 2009 for the next step in the case.)  The Court found that Bentley had failed to produce the documents and found that the plaintiff was prejudiced.  Bentley did not file any cross-appeal.  However, almost 10 months after the judgment was entered, Bentley filed a motion to set aside a portion of the judgment as void.  We persuaded the trial court that the legal authorities were not being cited in a manner consistent with the law, and the motion was denied.


November, 2007 – Product Liability – Our client provides specialized medical equipment to doctors for use in certain types of surgery.  The rental of the equipment includes the services of a technician who is present during the medical procedure.  A patient, who allegedly suffered a very serious complication, sued the doctor and the hospital and our client (both the company and the technician).  Because of the nature of the injury, there were substantial questions about how, or even when, the injury occurred.  The matter was expected to be an expensive and protracted litigation.  Within the first few months of the case we set the deposition of one of the plaintiff’s treating physicians.  The doctors was not designated as an expert, although he would have qualified.  As we expected, he testified that the injury was one of the most severe he had ever seen, and he testified that causation was unknown.  However, as we also expected, he testified that whatever the source of the injury, it was not the device supplied by our client.  The plaintiff dismissed our client.


February, 2007 – Intellectual Property – Our client held the domain name www.trek.com for 14 years, in support of work they did on special effects for Star Trek.  Recently the website had become a “referred” site for travel related ads, including bicycle trips.  The Trek Bicycle company, holder of a registered trademark on “trek," initiated a UDRP proceeding in an effort to have the domain name reassigned to them.  We defeated the claim by arguing that the relevant regulations required Trek to demonstrate that the original registration, 14 years earlier, had been made in bad faith, and they were unable to make that showing.


November, 2006 - Insurance Coverage – Our client had settled a matter and sought contribution towards the settlement from its insurers.  The offer from the insurer was $750,000.  Within one week of being asked to assist I arranged a meeting with the insurer at their headquarters in New York and obtained an offer of $1 million more, which was accepted by the client.


October, 2006 – E-Discovery – Bentley Motors had continuously ignored court orders requiring the production of documents, including e-mail (see January, 2008).  In the middle of trial (during a one-week recess) the court granted our request to allow me to travel to Bentley’s headquarters (in Michigan) to personally investigate their e-mail server for two days in an effort to locate relevant material.  We also took a deposition during that time which revealed further non-compliance with the court’s discovery orders.  The Judge took the unusual step of telling the jury, in the middle of trial (not just in jury instructions at the end) that Bentley had failed to comply with his orders regarding discovery. 


May, 2006 – Insurance Coverage, Appellate - We obtained a settlement of $10,050,000 for a client in a very complex D&O insurance coverage matter (see entries below dated December 2005, May 2005, December 2004). The settlement agreement was publicly filed with the SEC.   The subtleties of this matter are something which I would be happy to discuss with anyone who is interested.  They included, but were not limited to: a) dealing with multiple layers of coverage each of which had different interests and different counsel (i.e. – different personalities); b) dealing with a client whose management, outside counsel, accountants and insurance brokers were almost 100% new post-incident; c) sharing information with, and considering input from, counsel for the various present and/or former directors, officers and interested employees (more than 10 different firms).

  

March, 2006 – Insurance Coverage – Our client, a reseller of computer hardware and software, suffered a series of burglaries (three in two months).  The insurer failed to pay, claiming that the insured had failed to provide correct information about moving from one facility to another (resulting in an alleged $10,000 limit of coverage).  We sued the insurer and the broker.  The insurer had referred the claim to its Special Investigation Unit, but that unit had issued a “no fraud” report based on the police having apprehended a burglary ring which was responsible for these thefts and others.  Unfortunately, the client’s records were in such disarray that they were unable to prove the amount of loss.  Through good strategic decisions we were still able to obtain a favorable settlement. 


December, 2005 – Insurance Coverage, Appellate - The Court of Appeal (see August 2005 and May 2006), having considered full briefing and oral argument, issued an opinion which virtually mirrored the relief which we had requested on behalf of our client and which clarified the law in several areas.  The ultimate holding was that our client would not be obligated to respond to discovery until after the underlying claims (civil securities class action litigation, civil securities derivative litigation, federal criminal investigations and an SEC investigation).  This meant that it would be virtually impossible for the insurers to advance their defenses, specifically including those based on rescission, until after the conclusion of the underlying claims.  This would potentially expose them to bad faith liability and made settlement of this otherwise very complex and contentious case a real possibility.   


September, 2005 – Homeowner Association – After four months of relatively intense litigation, in which we represented a group of homeowners, we obtained a settlement pursuant to which our clients gained control of their Homeowners Association.  I have, from time to time, represented both individuals and homeowners associations in all types of matters including architectural control, embezzlement, construction defect, insurance coverage and view disputes.  One of my opinion letters, for an earlier client, regarding view disputes, was favorably cited in an appellate decision. 


August, 2005 – Insurance Coverage, Appellate - We represented a company with several pending claims under its D&O insurance (see December 2005 and May 2006).  These included an investigation by the Department of Justice and an investigation by the Securities Exchange Commission.  In the course of the pending coverage litigation the insurers sought to obtain discovery, from our client, regarding the underlying claims.  We requested that the court issue a stay on discovery into the underlying claims on the basis that an insurer, who has contacted to protect the insured, should not be causing potential problems for the insured (see, generally, Haskell v. Superior Court).  The trial court disagreed and ordered discovery to continue.  We filed a Writ of Mandate with the Court of Appeal and a request for immediate stay (statistically we had a 2% chance, but we felt that we had good cause).  The Court of Appeal issued an Order to Show Cause and further ordered a stay on the trial court's prior discovery rulings, pending full briefing and a hearing before the Court of Appeal.  This avoided what would have been very difficult and expensive discovery.   

   

June, 2005 – Litigation, Summary Judgment – Our client is the County of Los Angeles, which passed an ordinance banning sales of firearms on County property.  The plaintiff is a lessor of County property operating a shotgun shooting facility.  The plaintiff sued, in Federal Court, for breach of contract, alleging that the ordinance, which deprived them of a right otherwise allowed by the lease (the sale of firearms), was a taking.  The matter proceeded through discovery and was ready for trial.  We filed a motion to dismiss or, in the alternative, a motion for summary judgment.  We obtained an order dismissing the case.  The Court subsequently awarded both costs and a portion of the attorney's fees incurred by the County.  Although the County normally requires that appeals be handled by a different firm, based on our excellent result and the specialized nature of this matter, we have been authorized to represent the County on appeal.  We are also representing the County in the subsequently filed state court action.  


May, 2005 – Trademark, Appellate – Our client had sued a competitor for infringement of trade dress in 1999.  We had already obtained an unpublished decision from the 9th Circuit Court of Appeals reversing a summary judgment granted against our client by the District Court Judge (see January, 2002).  When the matter finally came up for trial, after the first appeal, the defendant argued that our client had waived the right to a jury trial.  The judge ruled that the plaintiff was not entitled to a jury trial.  Thereafter, he held a bench trial and ruled in favor of the defendant, for reasons which we believed were similar to the grounds on which he had been previously reversed by the 9th Circuit.  However, we made a strategic decision not to appeal from the decision at trial because the standard of review on a trial decision is extremely difficult to satisfy.  Instead we chose to appeal only from the denial of a jury trial, for which the standard of review is de novo.  Moreover, if a party has been improperly deprived of a jury trial, it is virtually mandatory to require a new trial.  We succeeded in obtaining a published opinion, from the U.S. 9th Circuit Court of Appeal, holding that our client was, in fact, entitled to a jury trial. 


January, 2005 – Arbitration, Technology - Served as one of three arbitrators on a panel in North Carolina.  The case related to computer system design and development and involved claims of over $20 million.  There were over 25 days of in-person motions, hearings and/or deliberation.  The panel, even though two of us were “party appointed,” rendered a unanimous decision.  [Because of the confidentiality of arbitration proceedings no further information can be provided.]


December, 2004 – Construction Defect, Fraud – Our client had retained a contractor to build a single-family residence.  The contractor not only failed to properly complete the construction, but he also emotionally abused the clients and utilized fraudulent accounting procedures in order to demand additional funds.  The contractor placed a lien for over $100,000 on the client’s property.  We pursued the matter through litigation and ultimately obtained a settlement of $450,000 in favor of our client.  I have represented clients, both as plaintiff and defendant, in several other construction defect matters. 


December, 2004 – Insurance Coverage, Federal Procedure – On behalf of our client we sued the primary Directors & Officers carrier seeking coverage for certain claims (see August 2005 above).  The insurer removed the case to Federal Court based on alleged fraudulent joinder (CNA apparently seeks to have only its subsidiary operating units named as defendants).  After extensive briefing the Federal court issued an order remanding the case to state court, where we believed the law and procedure were more favorable to our client.


June, 2004 – Insurance Coverage – Our client was accused of civil kidnap (taking a friend and her children on vacation, out of state, in alleged violation of a court order).  We tendered the matter to the client’s homeowner insurer on the basis that this was a “false imprisonment” case.  The claim was denied.  Under California law an insurer can only deny a claim, based on an exclusion, if the insurer has sufficient evidence to prove the validity of the denial at the time of issuing the denial.  That is, the insurer cannot deny based on a belief that subsequent discovery will provide the factual support.  Therefore, it isn’t necessary for the insured to win a motion for summary judgment.  It is sufficient for the insurer just to lose a motion for summary judgment.  We were fortunate that the insurer made such a motion and we were able to identify a case (from the state of Washington) in which similar allegations had resulted in a finding of coverage.  The court agreed with our position and denied the insurers motion.  The case ultimately settled for the full amount claimed plus the full amount of attorney’s fees expended in the coverage litigation.   

   

January, 2004 – Trial, Real Property - Five day court trial in Bankruptcy Court.  Included full electronic presentation of documents with live editing done by counsel using litigation support tools (no outside technology vendor).  At one point during the trial the judge asked that we display the exhibits in lieu of the professional service retained by the opposing party.  We obtained an unqualified decision and judgment in favor of our client on the validity of an option to purchase real property worth over $22 million, plus an award of attorney's fees.  Our client was a charitable foundation which had entered into the transaction for the purpose of ultimate ownership of the real property.  The developer attempted (unsuccessfully) to renege on the transaction.  We handled the litigation from inception through trial and our total bill was less than $600,000.    


November, 2003 – Injunction, Intellectual Property - We obtained a TRO preventing the distribution of a competitor's product, through a major retailer.  The matter was originally brought as a trade dress infringement action, but was quickly modified when it was determined that the competing product violated various environmental and consumer safety regulations (it was an air freshener which, if properly labeled, would have stated “Poisonous – Do Not Inhale”).  This made it unnecessary to litigate the trade dress issues.  The competitor performed a nationwide recall, as required by the TRO, making a Preliminary Injunction unnecessary.


October, 2002 – Injunction, Trade Secret – Our clients were software engineers who created the key software technology for a company and then left to form their own company in related, but non-competitive areas.  The former employer filed suit based on alleged infringement of trade secrets, breach of fiduciary duty and other claims.  We contended that substantial portions of the software in dispute had been created by our clients before their employment with the plaintiff and other portions of the software were obtained from publicly available internet sites (“open source”).  We defeated a request for Preliminary Injunction.  The Court issued an opinion indicating that the former employer had failed to demonstrate the existence of any trade secrets and indicating that the plaintiff had failed to provide any evidence of misappropriation.  Unlike many cases, the plaintiff did not discontinue the litigation after losing the Preliminary Injunction.  We continued to represent the clients through many unusual battles including our opposition to plaintiff’s request to seal portions of the file (which alleged that the plaintiff, a software security company, was using pirated software).  Those allegations were eventually made public in Fortune magazine (June 23, 2003 – “Two Faces of Foundstone”).   


January, 2002 – Appellate, Intellectual Property - Our client sued a competitor for trade dress infringement in the retail air freshener industry.  The District Court Judge disagreed with our position and granted a summary judgment motion against us. We obtained a 3-0 reversal, from the U.S. Ninth Circuit Court of Appeal.


December, 2000 – Insurance Coverage, Intellectual Property -  Our client sued its insurer for failure to pay a claim related to defense of an intellectual property matter.  The case had already involved many unusual circumstances including the termination of the first defense counsel, in the middle of her client’s deposition, when the insurer’s representative realized that defense counsel had repeatedly lied to the court about availability for deposition.  The case settled, for the full amount demanded, within 48 hours after the court issued an order for the president of Liberty Mutual to appear for deposition in our office the following Friday, which was the Christmas holiday weekend.  This was a particularly satisfying result because the leading published decision, discussing the limitations on the right to take a “penultimate” deposition, isLiberty Mutual v. Superior Court.  The Order issued after we demonstrated to the Court that the prior PMK had provided information which was either: a) false; or b) an admission of significant tax fraud.  We suggested that it was unlikely that they were committing tax fraud, so the information which was provided to us, at the direction of the legal department, was probably false.  The PMK also testified that even though he had primary responsibility for coverage opinions on certain complex coverage matters arising in California, he had stopped reading new California court decisions when the insurer cancelled the subscription to the printed copies of the cases and made them available only through online research facilities.  


1999 – Appellate, Arbitration - Our client moved the court for arbitration pursuant to an arbitration agreement which specifically provided that there would be no discovery.  The court ordered our client to respond to discovery which had been propounded by the plaintiff, even though we pointed out that we were barred from propounding discovery because it could be construed as a waiver of our right to arbitrate.  We then filed a request with the 5th District Court of Appeals in Texas.  The Court of Appeal first issued an emergency stay of discovery and subsequently issued a writ reversing the denial of arbitration.


August, 1996 –  Technology, Injunction – Our client was an LLC in Texas which operated one of the first “body scan” clinics.  Their business partner, from California, had provided the computer software.  In the course of a dispute over control of the LLC, the California partner had inserted a “timebomb” into the software, threatening to disable to software unless the Texas partners agreed to new business terms.  We obtained an injunction against the California partner under 18 USC 1030, the Federal Computer Fraud and Abuse Act.  That Act is generally considered to be a criminal law, but it has specific civil enforcement provisions.  We were credited with the first injunction ever granted under that Act in a civil litigation matter. 


January, 1996 – Insurance Coverage, Intellectual Property, Technology – My client was Borland International (on numerous matters).  I was specifically acting as coverage counsel in the Lotus v. Borland matter which went to the U.S. Supreme Court on “software look-and-feel copyright” issues.  We spent three years negotiating the reimbursement of defense costs with Borland’s primary insurer.  We ultimately negotiated a retroactive and ongoing percentage reimbursement which resulted in Borland receiving $21 million, without litigation.  (Although my primary role was to act as coverage counsel for Borland, I was also involved in the underlying matter – I was the only attorney whose name was on the very first pleading ever filed (anticipatory Complaint for Declaratory Relief by Borland) and on the very last pleading ever filed in the matter (Borland’s Appeal of the Denial of Attorney’s Fees as a prevailing defendant)). 

  

April, 1988 -  Appellate, Tort - Our client (YMCA) provided scuba diving instruction but it required that participants sign a release as a condition of participation.  An instructor took out two students for an extra diving session and one of the students drowned, for reasons which were never determined.  We filed a Motion for Summary Judgment based on the release, which motion was denied by the trial court.  We filed a writ with the Court of Appeal.  Writs for denial of summary judgment, on behalf of defendants, are rarely granted.  In a published decision, which continues to be cited by California appellate courts, the Court of Appeal issued a writ requiring the trial court to grant the Motion for Summary Judgment.  Madison v. Superior Court (1988) 203 Cal.App.3d 459.


January, 1985 -  Appellate, Tort - Our client settled a claim prior to filing a cross-complaint against the other defendants.  When we sought to intervene, in order to obtain indemnification from the other defendants, our motion was denied by the trial court.  In a published decision the Court of Appeal reversed and remanded the matter.  Bolamperti v. Larco (1985) 164 Cal.App.3d 249.