Steven Brower
Buchalter Nemer
18400 Von Karman, 8th Floor
Irvine, California 92612
Direct Dial: (714) 549-5150
E-mail: sbrower@buchalter.com
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 (including service 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 14 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, 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 truly understand the issues.
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 (non-technology) who must protect their
trademark/trade dress, including victories on the issue of trade dress before
the 9th Circuit.
Set forth below are some
of the most interesting and/or significant matters in which I have been
involved, subject to limitations imposed by confidentiality.[1] While I regularly work with other attorneys in
our firm, the “team” is normally myself and one other attorney.
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 the unhappy 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. 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
Motion for Protective Order. The
Magistrate Judge held a hearing for over one hour and then requested
supplemental in camera briefing to
determine whether plaintiff could make a prima
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 Motion to Quash and the Motion for Protective Order, allowing
our client to learn the identity of the physician who had posted the untrue “anonymous”
review under the guise of being a child of a patient.
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 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 needing to file 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 1/6 of the settlement in the underlying action, which 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, is Liberty
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