Profile

Education: A.B., Cornell University 1972
(Magna Cum Laude in Economics)
J.D., Harvard Law School 1975

Bar Admissions: State and Federal Courts in Arizona,
California, Colorado and Washington

AREAS OF PRACTICE

Mr. Burke brings 42 years of experience as a business trial lawyer in major national law firms, representing both plaintiffs and defendants in a diverse range of business disputes in federal and state courts in 26 states, China and Canada. He helps parties resolve their conflicts in a fair, cost-effective way through creative approaches and relentless follow-up. He uses a mix of facilitative and evaluative approaches depending on the situation and the parties’ desires. He likes to get to know the parties and hear their perspectives. He listens to them carefully and always treats the parties with empathy, respect and civility as he learns their views, motivations, wants and needs. He prepares intensively in advance of each mediation session. As a full-time neutral, he has had significant experience mediating and arbitrating disputes involving individuals and small, midsize and large businesses, including family businesses. He is available to conduct hearings throughout California and Arizona.

Mr. Burke has extensive experience in the following areas of the law:

  • Contract disputes
  • Real estate disputes
  • Landlord/tenant/lease disputes
  • Family business disputes
  • Business divorce cases
  • Complex commercial disputes
  • Corporate governance disputes
  • Merger and acquisition disputes
  • Class actions and derivative suits
  • Securities fraud investment disputes
  • Accounting and legal malpractice disputes
  • Antitrust, unfair competition and trade practices disputes
  • Technology, trade secrets and intellectual property disputes
  • Employment disputes
  • Healthcare disputes
  • Partnership disputes and dissolutions
  • Debtor-Creditor disputes
  • Qui tam and False Claims Act disputes
  • Banking and Finance Disputes
  • Accounting and Taxation Disputes
  • Environmental disputes
  • Construction defect disputes
  • Insurance coverage disputes
  • Personal and catastrophic injury disputes
  • Automobile, motorcycle, and truck-trailer disputes
  • E-discovery and cybersecurity

PROFESSIONAL EXPERIENCE

  • ADR Services, Inc., San Francisco and Silicon Valley (2017-Present)
    Mediator, Arbitrator, Temporary Judge, Special Master, and Discovery Referee
  • Partner, Foley & Lardner LLP, San Francisco and Silicon Valley (2014-2017)
    Business Litigation; Antitrust; Securities Enforcement & Litigation; Government Enforcement & White Collar; Intellectual Property Litigation Groups
  • Partner, Seyfarth Shaw LLP, Los Angeles (2012-2014)
    Chair of the Los Angeles Litigation Department; firmwide practice area leader of the Antitrust and Trade Regulation team; firmwide co-leader of the False Claims and Internal Investigations team
  • Partner, Steptoe & Johnson LLP, Phoenix and Los Angeles (1994-2012)
    Firmwide practice group leader; Securities Litigation and Enforcement practice; Phoenix Commercial Litigation practice group; Managing Partner of the Phoenix office
  • Partner, Streich Lang, Phoenix (1985-1993)
    Executive Committee; Compensation Committee; Strategic Planning Committee; Ethics Committee; Co-leader, Writing Skills Program; In-House NITA Trial Program and Deposition Skills Program
  • Assistant United States Attorney, United States Department of Justice, Seattle (1980-1985)
    Member, Economic Crime Enforcement Unit and Liaison to SEC
  • Associate, Morrison & Foerster, San Francisco (1977-1980)
  • Associate, Sherman & Howard, Denver (1975-1977)

 

MEDIATION AND ARBITRATION TRAINING

  • Advanced Mediation and Advocacy Skills Institute, ABA Section of Dispute Resolution (2017)
  • Annual Conference, Associaton for Dispute Resolution of Northern CA (2017)
  • American Bar Association Section of Dispute Resolution, Spring Meeeting (2017)
  • Arbitration Fundamentals and Best Practices for New AAA Arbitrators, AAA (2017)
  • Arbitration Award: Safe Guarding, Deciding and Writing Awards, AAA (2017)
  • Mediating the Litigated Case, Straus Institute at Pepperdine University (2016)
  • Arbitration Case Law-Annual Update, ABA Section of Dispute Resolution (2016)
  • Arbitrator Certificate Training, Bar Association of San Francisco (2016)
  • Mediation of an Employment Case with Represented and Unrepresented Litigants, State Bar of California (2016)

HONORS AND RECOGNITION

  • The Best Lawyers in America, Commercial Litigation (2007-Present)
  • Arizona and California Super Lawyers, Securities Litigation, Alternative Dispute Resolution (2007-Present)
  • Chambers USA, America’s Leading Lawyers, General Commercial Litigation (2007-2012)
  • Martindale Hubbell, AV Preeminent Rating

PROFESSIONAL AFFILIATIONS

  • American Bar Association (1975-Present)
  • Association for Conflict Resolution, Northern California Chapter
  • Association of Business Trial Lawyers (2008-Present)
  • State Bar of California
  • Bar Association of San Francisco
  • Santa Clara County Bar Association
  • San Mateo County Bar Association

 

Representative Cases

Accounting & Legal Malpractice

  • Handled a matter involving a $100 million accounting malpractice action against a national accounting firm filed by the bankruptcy trustee of a NASDAQ-listed national distributor of personal care products, alleging improper auditing and application of revenue recognition criteria and errors in the installation of a major ERP system impacting financial statements, customer relationship management, and supply chain management.
  • Handled a matter between a class of investors and a national accounting firm arising from the bankruptcy of a major homebuilder, alleging errors in accounting for net realizable value write-offs and deferred tax asset estimates among other issues. Plaintiffs sought $95 million in damages.
  • Handled a matter involving a national accounting firm and two of its partners in a $15 million lawsuit arising out of the failure of a Scottsdale life insurance company and an associated insurance service agency. The plaintiff alleged accountant malpractice, negligent misrepresentation and interference with contractual relations, claiming that there were audit failures and accounting errors. There were significant corporate governance issues regarding whether the plaintiff shareholder and officer could bring the claims or whether they were corporate claims requiring a derivative suit and pre-suit demand.
  • Handled a matter involving a national accounting firm and one of its partners in a $15 million action for accountant malpractice, breach of fiduciary duty, fraud and racketeering, involving tax planning and financial statement work for two British Virgin Islands corporations that invested in U.S. real estate. There were issues regarding the membership of the Board of Directors, whether a pre-litigation demand was made on the Board, and the status of the claims given a revocation of the corporations’ operating status.
  • Handled a class action and other related actions involving an AmLaw 100 firm brought by investors who purchased real estate investment products, alleging legal malpractice, securities fraud, aiding and abetting breach of fiduciary duty and negligent misrepresentation. Investors losses exceeded $900 million.
  • Handled related matters arising from the settlements of a derivative claim for no consideration on the eve of a savings bank holding company bankruptcy arising from junk bond losses and failed consumer loan portfolios, causing over $100 million in damages, leading to litigation against former officers and directors, attorneys and derivative plaintiffs. There were two separate legal malpractice claims made against the company’s legal adviser and its litigation counsel in the derivative action. The matters were resolved through settlements totaling $55 million
  • Handled related matters involving two broker-dealers, officers and directors, investors and a law firm arising from asset-backed promissory notes related to pools of ATMs that were to have been placed in bankruptcy proof special purpose entities, generating streams of income from swipe fees to pay the debt, which were eventually looted causing $30 million in losses. One of the claims was a legal malpractice claim against a law firm for failure to finalize the security agreements covering the ATMs.
  • Handled a legal malpractice matter involving a law firm that was handling and overseeing construction progress advance and escrow accounts funded by a lender for multiple builders and construction companies, where one of the partners was embezzling funds from the accounts.
  • Mediated a legal malpractice matter also alleging breach of contract, breach of fiduciary duty and elder abuse and defendant cross claimed for unpaid legal fees. The underlying lawsuit arose out of a commercial finance and joint venture transaction which lead to successful underlying claims of breach of fiduciary duty and elder abuse against the legal malpractice plaintiff.
  • Mediated a malicious prosecution action brought by former spouse against former spouse based on underlying lawsuit alleging that plaintiff infected her with a sexually transmitted disease, which had resulted in an adverse jury verdict after 22 minutes of deliberation.

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Accounting & Taxation

  • Handled a matter involving a complex investment fraud and fraudulent tax shelter Ponzi scheme, involving securities and and tax fraud claims involving commodities and limited partnerships investments.
  • Handled an income tax evasion case involving unreported kickback income received by a purchasing agent for a shipping company.
  • Handled a matter involving a $100 million accounting malpractice action against a national accounting firm filed by the bankruptcy trustee of a NASDAQ-listed national distributor of personal care products, alleging improper auditing and application of revenue recognition criteria and errors in the installation of a major ERP system impacting financial statements, customer relationship management, and supply chain management.
  • Handled a matter between a class of investors and a national accounting firm arising from the bankruptcy of a major homebuilder, alleging errors in accounting for net realizable value write-offs and deferred tax asset estimates among other issues. Plaintiffs sought $95 million in damages.
  • Handled a matter involving a national accounting firm and two of its partners in a $15 million lawsuit arising out of the failure of a Scottsdale life insurance company and an associated insurance service agency. The plaintiff alleged accountant malpractice, negligent misrepresentation and interference with contractual relations, claiming that there were audit failures and accounting errors. There were significant corporate governance issues regarding whether the plaintiff shareholder and officer could bring the claims or whether they were corporate claims requiring a derivative suit and pre-suit demand.
  • Handled a matter involving a national accounting firm and one of its partners in a $15 million action for accountant malpractice, breach of fiduciary duty, fraud and racketeering, involving tax planning and financial statement work for two British Virgin Islands corporations that invested in U.S. real estate. There were issues regarding the membership of the Board of Directors, whether a pre-litigation demand was made on the Board, and the status of the claims given a revocation of the corporations’ operating status.

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Antitrust, Unfair Competition, Trade Practices

  • Handled a matter between U.S. and Chinese medical device manufacturers, relating to competing $100 million patent infringement, international sales contract and antitrust claims.
  • Handled an antitrust matter relating to bid-rigging conspiracy among electrical contractors on power plants.
  • Handled an antitrust price fixing class action alleging agreements between online travel companies and hotels regarding the retail prices for online hotel room reservations.
  • Handled a matter involving patent infringement claims and antitrust counterclaims between two developers of software solutions that enhance the performance and capabilities of IBM Cognos business intelligence software.
  • Handled an antitrust matter relating to alleged violations of the Clayton Act, Section 7, arising from a tender offer by a Canadian firm to the stockholders of a U.S. firm involving the cement and gypsum wallboard markets.
  • Handled a matter involving multiple antitrust class actions alleging national price fixing of a commodity food product.
  • Handled a matter relating to antitrust allegations regarding a joint venture between a Japanese firm and a United States firm in the computer products industry.
  • Handled a matter where insurance companies were alleged to have participated in a price-fixing conspiracy and group boycott directed at auto body repair shops.
  • Handled an antitrust class action matter where metal fabricating firms were alleged to have engaged in price fixing in California and Nevada.
  • Handled a matter involving allegations of price fixing in the corn products industry.
  • Handled an antitrust matter where a trans-ocean shipping carrier was alleged to have conspired with a union to boycott a non-union intra-coastal carrier.
  • Handled an antitrust class action matter alleging price fixing by paper manufacturer.
  • Handled an antitrust matter involving a merger of two poultry producers.
  • Handled a antitrust matter where a lift truck repair firm brought an action against distributors, alleging a group boycott and division of markets.
  • Handled many matters involving antitrust advice regarding product distribution arrangements, and various real estate transactions involving developers and financial institutions.

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Arbitration

  • Arbitrated six personal injury, contract and construction arbitrations in a mandatory referral program in the Superior Courts.
  • Handled a matter where the buyer asserted $30 million claims for fraud, conversion and securities fraud in an arbitration where the buyer had acquired a data entry company through a stock purchase agreement for cash, a holdback payment and an earnout payment. The sellers remained in control of the company during the holdback and earnout periods. Seller made false financial entries, overbilled state and local government customers, and improperly diverted expenses.
  • Handled a matter involving an $8 million claim regarding a merger and acquisition transaction involving the sale of a computer software applications services business with a deferred purchase price agreement. The buyer sought rescission of the sale agreement in an arbitration based upon violation of the material adverse change and material adverse effects clauses in the asset purchase agreement and alleged misrepresentations involving projections and damages for alleged breach of non-solicitation agreements contained in the asset purchase agreement and related employment agreements. The seller sought enforcement of the asset purchase agreement and the payment of deferred consideration.
  • Handled a $5 million matter relating to a purchase of an information services company using a stock purchase agreement with a cash-down payment and deferred purchase price earnout provision conditioned on achieving certain EBIT targets. During an arbitration, the company established that the seller had created false invoices, engaged in fictitious transactions, made false entries in the company books and records, and made misrepresentations and omissions of material fact, thereby receiving fraudulently inflated overpayments.
  • Handled a matter involving a business process outsourcing company in a $5 million arbitration claim against a computer reseller arising from a disputed clawback amount in a stock purchase agreement. The dispute related to the meaning and interpretation of a clause relating to two-year revenue and gross profit projections, as well as whether various projections were objectively and subjectively reasonable.

Banking & Finance

  • Handled a matter involving an SEC receiver and eight foreign banks and the cash custodian for a private equity fund which raised over $1 billion through a series of debt offerings through offshore special purpose entities, then looted the funds through multiple means. The matter was resolved with a high eight figure settlement.
  • Handled a matter involving 11 broker-dealers in a national class action seeking to compel the payment of interest on free credit balances and to enjoin account transfer practices that have been approved by the SEC, alleging that class damages exceeded $1 billion.
  • Handled a matter arising from the operation of a commercial loan underwriting, servicing and funding company involved in a Ponzi scheme fraud in the magnitude of hundreds of millions of dollars, related to piercing a sham trust and recover million in damages from several co-conspirators involved in real estate projects, including claims of breach of fiduciary duty, fraud, negligent misrepresentation, conversion and conspiracy.
  • Handled a matter involving a customer of a securities broker that was involved in a $50 million charitable gift annuity fraud scheme. A promoter transferred donated stocks and bonds into a brokerage account to liquidate them and rapidly transfer the funds out to other financial institutions. The promoter told the victims that the broker was managing their money, when it was not.
  • Handled related matters involving two broker-dealers, officers and directors, investors and a law firm arising from asset-backed promissory notes related to pools of ATMs that were to have been placed in bankruptcy proof special purpose entities, generating streams of income from swipe fees to pay the debt, which were eventually looted causing $30 million in losses.
  • Handled a matter where a mezzanine lender brought a real estate finance enforcement action against a real estate land developer and its managing members for breach of contract on loans and guaranties, as well as tort claims, and the developers counterclaimed alleging lender liability and oral agreements extending and modifying the loans.
  • Handled related matters in which a money transmitter was alleged to have engaged in aiding and abetting money laundering relating to cross border money transfers between persons in the U.S. and persons in several states in northern Mexico.
  • Handled a matter involving a large investor alleging securities fraud and negligent misrepresentation by a Los Angeles Koreatown bank and its officers and directors relating to alleged misleading financial statements and financial disclosures.
  • Handled a matter where national brokerage firm serving as a clearing broker brought an action against the founders of a failed local brokerage and one of its customers, alleging that the local firm had breached its contractual responsibilities and that its officers and directors had been negligent in failing to conduct financial due diligence on a margin account customer.
  • Handled a matter where investors alleged fraud and racketeering against a savings and loan association relating to alleged loan origination fraud involving securitized mobile home loans.
  • Handled a matter involving a securities broker which had promoted an Irish pharmaceutical company to its customers which suffered a major drop in stock price when several clinical trials produced unfavorable results.
  • Handled a matter between a brokerage house and a customer and her financial adviser involving trading by the financial adviser in stock index options with the customer alleging churning and unsuitable investments and seeking $5 million in damages.
  • Handled a matter related to a securities fraud and bank fraud scheme perpetrated by the chief executive of a federally-insured credit union.

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Breach of Contract

  • Mediated breach of contract arising from plaintiffs’ loan to defendant of approximately $300,000 to fund two investment opportunities which were unsuccessful and caused the loan to go into default with principal and interest due.
  • Mediated contract action by vendor against property manager and office building owner. The owner disputed whether it had consented to the services as allegedly required by the property management agreement. The defendants also disputed whether the vendor could sue the principal and the agent at the same time.
  • Mediated implied contract and ejectment claim by one domestic partner against another seeking 50% ownership of residential property based on financial contribution to the purchase, when title to the property was in the names of the other partner and his parent.
  • Mediated breach of contract and fraud claim arising when plaintiff’s Dodge Viper race car developed clutch problems and was damaged after defendant replaced the engine. Plaintiff sought damages for loss of use over 425 days.
  • Mediated contract dispute where plaintiff sued defendants for malicious prosecution arising from previously dismissed prior contract and negligence action; defendant cross complained for negligent delay in producing architect and engineering plans for reconstruction of building damaged by fire, and elder abuse.
  • Mediated consignment dispute involving an artist who had consigned several pieces of art to a gallery for sale. Two pieces were damaged and claimant sought the fair market value of the pieces, while the gallery offered the agreed upon commission to the artist.
  • Handled a breach of contract and fraud matter between a U.S. subsidiary of a Chinese solar panel manufacturer and an infrastructure lender relating to the development, construction and sale of two solar power plants for $18 million, with the dispute focused on the validity and meaning of a post purchase price adjustment formula tied to Libor.
  • Handled a breach of contract matter between a cardiologist and a manufacturer of a CT scanner that was not producing images of sufficient quality to be used for diagnostic purposes, with competing claims of product defect and improper usage and training of the operators, with $3 million in damages.
  • Handled a breach of contract matter between an inventor of new direct emulsion plate technology and a startup technology company concerning breach and rescission of an Intellectual Property Purchase and Sale Agreement.
  • Handled a matter involving an oil refiner charged with breach of contract, fraud, racketeering, negligent misrepresentation and improper procurement of information relating to a bid to design and construct a facility to recover hydrogen sulfide from a refinery.
  • Handled a matter involving the sale of mineral processing equipment, involving competing claims of breach of contract and fraud, negligent misrepresentation and breach of warranty.
  • Mediated an investment dispute arising from an oral joint venture to develop a retail meat market, which failed to lack of sufficient funding, leading to claims of breach of contract, unjust enrichment, conversion and fraud.
  • Mediated a business divorce case arising from a failed restaurant venture leading to competing claims of breach of contract, breach of fiduciary duty, fraud, conversion, embezzlement and theft.
  • Mediated a dispute between two partners regarding a breach of contract and accounting for costs and distribution of profits arising from residential purchase, renovation and sale.
  • Mediated an investment dispute where plaintiff alleged that defendants were the agents of a promoter, convicted later, who breached contracts and defrauded plaintiffs into making loans to him, allegedly secured by automobile titles, when in fact they were not and the funds were thereafter stolen.

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Class Actions & Derivative Suits

  • Handled a matter involving 11 broker-dealers in a national class action seeking to compel the payment of interest on free credit balances and to enjoin account transfer practices that have been approved by the SEC, alleging that class damages exceeded $1 billion.
  • Handled a class action and other related actions involving an AmLaw 100 firm brought by investors who purchased real estate investment products, alleging legal malpractice, securities fraud, aiding and abetting breach of fiduciary duty and negligent misrepresentation. Total investors losses exceeded $900 million.
  • Handled a matter between a class of investors and a national accounting firm arising from the bankruptcy of a major homebuilder, alleging errors in accounting for net realizable value write-offs and deferred tax asset estimates among other issues. Plaintiffs sought $95 million in damages.
  • Handled an antitrust price fixing class action alleging agreements between online travel companies and hotels regarding the retail prices for online hotel room reservations.
  • Handled a derivative claim matter involving an ocean marine service company arising from a settlement with the U.S. government of a Foreign Corrupt Practices Act Claim.
  • Handled a bondholder class action securities matter involving an electric utility and the indenture trustee of certain first mortgage bonds arising out of the redemption of certain bonds at par value which the bondholders claimed should have been redeemed at a premium.
  • Handled a matter involving multiple antitrust class actions alleging national price fixing of a commodity food product.
  • Handled an antitrust class action matter where metal fabricating firms were alleged to have engaged in price fixing in California and Nevada.
  • Handled an antitrust class action matter alleging price fixing by a paper manufacturer.

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Complex Commercial Litigation

  • Handled a matter arising from the operation of a commercial loan underwriting, servicing and funding company involved in a Ponzi scheme fraud in the magnitude of hundreds of millions of dollars, related to piercing a sham trust and recover million in damages from several co-conspirators involved in real estate projects, including claims of breach of fiduciary duty, fraud, negligent misrepresentation, conversion and conspiracy.
  • Handled several related claims in a $70 million matter involving a surplus lines insurance carrier which issued financial guarantee bonds related to the financing of real estate limited partnerships, leading to fraud and racketeering claims, debt enforcement actions, securities claims, and litigation with bond lenders, reinsurers, and professionals.
  • Handled a complex adversary proceeding, arising in a bankruptcy of an international construction company, between secured and unsecured creditors and surety companies, involving issues relating to the priority of a DIP loan, equitable subordination, accountings, restitution, breach of trust, constructive trust and equitable lien claims.
  • Handled a matter where a secured creditor was attempting to recover $60 million of mortgage-backed securities owned by a bankruptcy debtor, a real estate investment trust.
  • Handled an action brought by a Commissioner of Insurance against a title insurance company in a $30 million action alleging a beach of escrow, fraud and racketeering arising out of a failed recapitalization of a property and casualty insurer.
  • Handled a matter where a mezzanine lender brought a real estate finance enforcement action against a real estate land developer and its managing members for breach of contract on loans and guaranties, as well as tort claims, and the developers counterclaimed alleging lender liability and oral agreements extending and modifying the loans.
  • Handled a matter involving an alleged violation of a U.S. export license involving the sale of military technology to a foreign government.
  • Handled a matter involving the sale of engineering services from a U.S. manufacturer to an Iranian customer in connection with oil field valves, in violation of the Iran boycott.
  • Handled a matter where a national brokerage firm serving as a clearing broker brought an action against the founders of a failed local brokerage and one of its customers, alleging that the local firm had breached its contractual responsibilities and that its officers and directors had been negligent in failing to conduct financial due diligence on a margin account customer.
  • Handled related matters in which a money transmitter was alleged to have engaged in aiding and abetting money laundering relating to cross border money transfers between persons in the U.S. and persons in several states in northern Mexico.
  • Handled related matters in which health care reimbursement firms alleged that several medical practices engaged in systematic overcharging.
  • Handled a multimillion dollar cost recovery action, based on a breach of contract, product liability and CERCLA claims, to recover the costs of cleanup of hazardous wastes and costs of defense of state and federal proceedings.
  • Handled a matter involving conspiracy, fraud, securities fraud and misapplication of funds by officers of an interstate motor carrier.
  • Handled multiple related cases involving kickbacks by silicone foam subcontractors to employees of an electrical contractor; kickback and embezzlement scheme perpetrated by officers of a fire protection system contractor; and gratuities provided to a power company deputy business manager by an electrical contractor and one of its officers.
  • Handled a matter relating to food stamp trafficking by retail grocery stores.
  • Handled a matter involving an arson and extortion scheme.
  • Mediated an investment dispute where plaintiff alleges that defendants were the agents of a promoter, convicted later, who breached contracts and defrauded plaintiffs into making loans to him, allegedly secured by automobile titles, when in fact they were not and the funds were thereafter stolen.
  • Mediated corporate claims brought by representatives on behalf of a bankrupt corporation against defendants for breach of fiduciary duty, corporate waste, conversion, fraudulent transfers and Civil RICO arising from approximately $3 million of transfers from the corporation.

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Construction Defect

  • Mediated construction defect claim arising from alleged breach of contract and negligence in the installation of a home electronic automation and control system in a large estate.
  • Mediated breach of contract claim on retail business renovation, forcing work to be re-done and causing losses due to missed opening while rent was accruing.

Corporate Governance Disputes

  • Handled related matters arising from the settlements of a derivative claim for no consideration on the eve of a savings bank holding company bankruptcy arising from junk bond losses and failed consumer loan portfolios, causing over $100 million in damages, leading to litigation against former officers and directors, attorneys and derivative plaintiffs. There were two separate legal malpractice claims made against the company’s legal advisor and its litigation counsel in the derivative action. The matters were resolved through settlements totaling $55 million.
  • Handled a derivative claim matter involving an ocean marine service company arising from a settlement with the U.S. government of a Foreign Corrupt Practices Act Claim.
  • Handled a matter involving a mismanagement claim by a minority shareholder against the corporate directors which had been filed without a prior shareholder demand on the board.
  • Handled a matter involving a national accounting firm and one of its partners in a $15 million action for accountant malpractice, breach of fiduciary duty, fraud and racketeering, involving tax planning and financial statement work for two British Virgin Islands corporations that invested in U.S. real estate. There were issues regarding the membership of the Board of Directors, whether a pre-litigation demand was made on the Board, and the status of the claims given a revocation of the corporations’ operating status.
  • Handled a matter involving a national accounting firm and two of its partners in a $15 million lawsuit arising out of the failure of a Scottsdale life insurance company and an associated insurance service agency. The plaintiff alleged accountant malpractice, negligent misrepresentation and interference with contractual relations, claiming that there were audit failures and accounting errors. There were significant corporate governance issues regarding whether the plaintiff shareholder and officer could bring the claims or whether they were corporate claims requiring a derivative suit and pre-suit demand.
  • Handled several matters which included advice to directors, controlling shareholders, venture capital firms and investment bankers concerning their fiduciary duties in a sale of the business or a merger and acquisition transaction.
  • Mediated a Board of Directors dispute over conduct of single director of an association, leading to notice of expulsion of membership and threatened litigation for corporate code statutory violations and breach of fiduciary duty.

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Debtor-Creditor Disputes

  • Mediated breach of contract arising from plaintiffs’ loan to defendant of approximately $300,000 to fund two investment opportunities which were unsuccessful and caused the loan to go into default with principal and interest due.
  • Mediated breach of contract and guaranty claims by a trade vendor against guarantor arising from publishing services.
  • Mediated a breach of contract vendor claim involving drone optical device components, prejudgment interest and attorneys’ fees.
  • Mediated negligent misrepresentation claim by contractor/owner against a subcontractor for specialized stucco work at a fixed price. Subcontractor abandoned the project forcing the plaintiff to retain a third party to install inferior stucco at a higher price.
  • Handled a matter where a mezzanine lender brought a real estate finance enforcement action against a real estate land developer and its managing members for breach of contract on loans and guaranties, as well as tort claims, and the developers counterclaimed alleging lender liability and oral agreements extending and modifying the loans.
  • Handled a complex adversary proceeding, arising in a bankruptcy of an international construction company, between secured and unsecured creditors and surety companies, involving issues relating to the priority of a DIP loan, equitable subordination, accountings, restitution, breach of trust, constructive trust and equitable lien claims.
  • Handled a matter where a secured creditor was attempting to recover $60 million of mortgage-backed securities owned by a bankruptcy debtor, a real estate investment trust.
  • Mediated an investment dispute where plaintiff alleges that Defendants were the agents of a promoter, convicted later, who breached contracts and defrauded plaintiffs into making loans to him, allegedly secured by automobile titles, when in fact they were not and the funds were thereafter stolen.
  • Mediated a creditor's action against a subchapter S corporation to hold it liable for judgment against sole stockholder.

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Employment

  • Mediated employment action involving disputed sales commissions allegedly owed to an EU citizen arising from international sales of computer services in China and Europe. Plaintiff alleged that defendant had fraudulently changed commission schedules and wrongfully terminated him to avoid paying the commissions.
  • Mediated wage hour claims against a retail business for failure to pay for overtime, meal breaks and rest breaks, failure to provide pay stubs.
  • Mediated conversion claim by business owner against his office manager for embezzlement of funds and cross complaint for sexual harassment based on unwanted sexual advances.
  • Handled multiple matters involving claims of employee violations of non-compete and non-solicitation agreements and alleged theft of trade secrets.
  • Handled a matter involving a roofing contractor alleged to have made systematic underpayments to the state workers’ compensation insurance fund.
  • Handled a matter involving a federal qui tam false claims and state law retaliation claims action by a whistleblower alleging $22 million in damages and penalties against a defense subcontractor, involving alleged irregularities in time entries and accounting relating to a large U.S. Department of Homeland Security project.
  • Mediated a former employee claim for underpayment of wages based on improper rounding down of hours over three years by floral nursery and interruption of meal times twice per week during the same period, plus penalties.
  • Mediated a former employee claim alleging that her former restaurant employer unlawfully terminated her due to her pregnancy, failed to pay overtime, provide meal and rest breaks, provide proper wage statements, and was liable for waiting time penalties, liquidated damages and attorneys' fees.
  • Mediated former office manager employee claims against professional firm for disability discrimination, failure to provide meal and rest periods, failure to pay overtime premiums, waiting time penalties, and failure to provide accurate earnings statements.
  • Mediated former restaurant employees claims in a trial de novo on appeal from Labor Commissioner award concerning unpaid overtime, minimum wage, meal breaks, rest breaks, pay stub violations, waiting time payments, liquidated damages, and prejudgment interest.

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Environmental

  • Handled a multimillion dollar cost recovery action, based on a breach of contract, product liability and CERCLA claims, to recover the costs of cleanup of hazardous wastes and costs of defense of state and federal proceedings.
  • Handled a matter relating to an airbag manufacturer relating to the alleged storage, transportation and disposal of 1,500 tanker trucks of hazardous wastes.
  • Handled a matter relating to an airbag concerning an industrial accident that led to the death of one worker and severe injuries to another.
  • Handled a matter involving a metals recycling company and its environmental managers related to Clean Air Act violations.
  • Handled a matter involving a regional cement manufacturer relating to storage and disposal of hazardous wastes.

Family Business Disputes, Business Divorce Cases

  • Mediated business divorce case alleging breach of fiduciary duty, accounting and partition among siblings involving a family business established by their deceased father, in a trust soon to expire which would establish them as tenants in common.
  • Mediated business divorce between two sisters who co-owned a multi-family rental real estate as reflected in deeds. They dispute the percentage ownership of the property, the disposition of proceeds from a refinancing of the property, the receipt of rent and payment of expenses over an 18 year period. The claims were for fraud, breach of contract, unjust enrichment, and resulting and constructive trust.
  • Mediated business divorce dispute concerning a family owned retail business, alleging dissolution, accounting, fraud, breach of fiduciary duty and conversion.
  • Mediated family business dispute arising from an alleged working capital loan and note which defendant claimed was a sham only requiring interest payments but no repayment of principal.
  • Mediated family business dispute involving partition claim by two sisters against their sister on a family business rental property and cross complaint for quiet title, negligence and breach of fiduciary duty.
  • Mediated a business divorce case alleging fraud and breach of contract arising from incomplete investment in a retail business, with the investor taking over the operations but failing to complete the purchase and close escrow. The business was taken back and resold. Both parties brought claims seeking return of funds.
  • Mediated a business divorce dispute concerning a family owned retail business, alleging dissolution, accounting, fraud, breach of fiduciary duty and conversion.
  • Mediated a business divorce based on breach of contract and unfair business practices relating to aborted investment in a retail business, and a breached termination agreement.
  • Mediated a business divorce case arising from a failed restaurant venture leading to competing claims of breach of contract, breach of fiduciary duty, fraud, conversion, embezzlement and theft.

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Healthcare

  • Handled related matters in which healthcare reimbursement firms alleged that several medical practices engaged in systematic overcharging.
  • Handled a matter in which four states alleged that a generic drug manufacturer committed state false claims act violations through an average wholesale pricing scheme.
  • Handled a matter among three doctors where one alleged that the others committed fraud and breach of fiduciary concerning his sale to them of his one third interest in a surgery center by concealing it regulatory status and right to reimbursements from Medicare and Blue Cross.
  • Handled a breach of contract matter between a cardiologist and a manufacturer of a CT scanner that was not producing images of sufficient quality to be used for diagnostic purposes, with competing claims of product defect and improper usage and training of the operators, with $3 million in damages.

Insurance Coverage

  • Handled multiple matters involving conduct of officers, directors, employees, law firms and accounting firms where insurance coverage was in issue and the insurer was initially proceeding under a reservation of rights.

Intellectual Property, Trade Secrets, Technology

  • Handled a matter between U.S. and Chinese medical device manufacturers, relating to competing $100 million patent infringement, international sales contract and antitrust claims.
  • Handled a matter involving patent infringement claims and antitrust counterclaims between two developers of software solutions that enhance the performance and capabilities of IBM Cognos business intelligence software.
  • Handled a matter between an inventor of new direct emulsion plate technology and a startup technology company concerning breach and rescission of an Intellectual Property Purchase and Sale Agreement.
  • Handled a matter involving trade secret theft, unfair competition, interference with contract and other business torts arising from the movement of a manager from one company to another in the car stereo accessory products industry.
  • Handled a matter involving misappropriation of trade secrets and business torts relating to employee raiding in the computer network security industry.
  • Handled a trade secret matter between electronic discovery vendors involving breach of contract, misappropriation of trade secrets and breach of fiduciary duty.
  • Handled franchising dispute involving retail food restaurants alleging violations of the Lanham Act, trademark and service mark infringement and breaches of franchising agreements.

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Landlord, Tenant, Leases

  • Mediated contract action by vendor against property manager and office building owner. The owner disputed whether it had consented to the services as allegedly required by the property management agreement. The defendants also disputed whether the vendor could sue the principal and the agent at the same time.
  • Mediated commercial lease dispute involving a retail business, with allegations of wrongful eviction and breach of lease and a lease option.
  • Mediated commercial lease dispute involving sewage damage to a retail business and landlord alleged damages due to unpaid rent and unlawful detainer action.
  • Handled a lease dispute between a savings and loan and another savings and loan concerning the occupancy of an office building.
  • Mediated thirty two different residential landlord tenant eviction matters, alleging breach of lease, unpaid rent, or nuisance with defenses including habitability issues, landlord harassment and rent control violations. Several were resolved with tenant buyouts.
  • Mediated landlord-tenant commercial lease dispute involving terminated long term lease, oral agreement re month to month continuing lease in smaller downsized quarters at a lower rate, which lead to tenant departure and competing claims for lost profits by tenant and lost rent by landlord.
  • Mediated landlord-tenant commercial lease dispute regarding a warehouse to be used for cannibus growing and dispensary, where a short term oral lease and contemplated investment by landlord were terminated, leading to landlord claims for loss of rent and damages to premises and tenant claims for fraud and breach of contract, claiming millions in lost profits and out of pocket losses.
  • Mediated landlord-tenant damages dispute involving claimed damages to the premises by the tenant and failure to return security deposit by the landlord.

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Mergers & Acquisitions Disputes

  • Handled a matter involving a $350 million securities fraud lawsuit arising out of a $1 billion stock purchase agreement between two Fortune 100 companies of an aerospace business. The suit alleged that there were misrepresentations in financial statements. The matter was resolved with a high eight figure settlement.
  • Handled a matter involving an asset purchase agreement of an aerospace business, relating to indemnification and earnout claims totaling $45 million.
  • Handled a matter where the buyer asserted $30 million claims for fraud, conversion and securities fraud in an arbitration where the buyer had acquired a data entry company through a stock purchase agreement for cash, a holdback payment and an earnout payment. The sellers remained in control of the company during the holdback and earnout periods. Seller made false financial entries, overbilled state and local government customers, and improperly diverted expenses.
  • Handled a breach of contract and fraud matter between a U.S. subsidiary of a Chinese solar panel manufacturer and an infrastructure lender relating to the development, construction and sale of two solar power plants for $18 million, with the dispute focused on the validity and meaning of a post purchase price adjustment formula tied to Libor.
  • Handled a matter involving an $8 million claim regarding a merger and acquisition transaction involving the sale of a computer software applications services business with a deferred purchase price agreement. The buyer sought rescission of the sale agreement in an arbitration based upon violation of the material adverse change and material adverse effects clauses in the asset purchase agreement and alleged misrepresentations involving projections and damages for alleged breach of non-solicitation agreements contained in the asset purchase agreement and related employment agreements. The seller sought enforcement of the asset purchase agreement and the payment of deferred consideration.
  • Handled a $5 million matter relating to a purchase of an information services company using a stock purchase agreement with a cash-down payment and deferred purchase price earnout provision conditioned on achieving certain EBIT targets. During arbitration, the company established that the seller had created false invoices, engaged in fictitious transactions, made false entries in the company books and records, and made misrepresentations and omissions of material fact, thereby receiving fraudulently inflated overpayments.
  • Handled a matter involving a business process outsourcing company in a $5 million arbitration claim against a computer reseller arising from a disputed clawback amount in a stock purchase agreement. The dispute related to the meaning and interpretation of a clause relating to two-year revenue and gross profit projections, as well as whether various projections were objectively and subjectively reasonable.
  • Handled a matter involving an aborted asset purchase agreement and associated patent purchase agreement and employment agreement by a foreign manufacturer of a printed circuit board manufacturer based on alleged violation of conditions of sale with competing claims of specific performance, damages and declaratory judgment.

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Partnership Dissolution

  • Mediated dissolution of two-person law firm, leading to a Partnership Dissolution and Settlement Agreement and a Limited Scope Co-Counsel Agreement re: future handling of worker compensation claims.
  • Mediated business divorce dispute concerning a family owned retail business, alleging dissolution, accounting, fraud, breach of fiduciary duty and conversion.
  • Handled many matters involving single and multiple partner departures and spinoffs, business partnership dissolutions, and creditors’ remedies against partnerships that dissolved, entered winding up or went into bankruptcy.
  • Handled related matters brought by over 100 investors in oil and gas limited partnerships sponsored by the same general partner, alleging $20 million in damages, based on securities racketeering and common law claims based on alleged misstatements in prospectuses.

Personal Injury

  • Mediated negligence claim arising from slip and fall arising from malfunctioning produce sprinkler in supermarket.
  • Mediated negligence claim arising from personal injury/premises accident when plaintiff slipped and fell and suffered a compound fracture of her tibia on black ice on a concrete walkway on residential property owned by defendant and rented to plaintiff’s daughter.
  • Mediated negligence claim based on a slip and fall where plaintiff sued landlord and tenant after a fall on a single step down to a fountain in the center atrium of an office building in Morgan Hill.
  • Handled a matter relating to an airbag manufacturer concerning an industrial accident that lead to the death of one worker and severe injuries to another.
  • Mediated negligence and punitive damages claim arising when a fully loaded 18 wheel tractor trailer rig traveling at over 50 miles per hour drove into a line of cars at a stop light on SR-152 near Gilroy, CA, killing one driver and severely injuring the drivers and passengers in two other cars. The truck driver suffered from uncontrolled diabetes.
  • Mediated comparative negligence action arising from motorcycle accident involving a used motorcycle refurbished by defendant, leading to excessive vibration and a crash, leading to extensive physical injuries.
  • Mediated negligence claims arising from a collision between an automobile and a motorcycle in San Jose. Liability admitted by defendant.
  • Mediated negligence claim arising from a collision between a motorcycle and an automobile on a hilly, curving road west of I-280, with significant injuries to the motorcyclist.
  • Mediated negligence claim arising from rear end accident in San Jose. Plaintiff suffered from chronic back, wrist and hip pain, having sought extensive medical treatment.
  • Mediated indemnity claim filed by one motorist against another involving damages paid to the passenger in one of the vehicles. The accident involved comparative negligence involving a left turning vehicle where both drivers claimed they had a green light.
  • Mediated rear end collision on SR-152. Minor damage to vehicle with soft tissue damage to plaintiff.
  • Mediated rear end collision in San Jose. Minor auto body damage and soft tissue damage to plaintiff.
  • Mediated negligence action where defendant made left turn into oncoming traffic and hit defendant’s vehicle head on, totaling both vehicles. Plaintiff developed severe headaches, lasting 5 years at time of conference, diagnosed at Kaiser with occipital neuralgia, treated with nortriptyline at triple the adult dose.
  • Mediated automobile parking lot collision case causing neck and back injuries to the plaintiff.
  • Mediated negligence claim arising from a vehicular accident between a bicycle and a van as defendant was turning into a parking lot in San Jose.
  • Mediated a slip and fall case in a produce section of a supermarket, leading to muscle strain and disk protrusion.
  • Mediated a wrongful death action brought by estate of deceased and serving parents against a tavern and its owners arising from death of their son who was punched by bouncer and hit his head on sidewalk and died within several hours.
  • Mediated an automobile-motorcycle collision case in which the auto swerved rapidly into a car pool lane in front of the motorcycle which could not avoid a collision, with the motorcyclist suffering herniated disk injuries in the collision.

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Qui Tam & False Claims Act

  • Handled a matter involving a federal qui tam false claims and state law retaliation claims action by a whistleblower alleging $22 million in damages and penalties against a defense subcontractor, involving alleged irregularities in time entries and accounting relating to a large U.S. Department of Homeland Security project.
  • Handled a matter in which four states alleged that a generic drug manufacturer committed state false claims act violations through an average wholesale pricing scheme.
  • Handled a matter in which state and local governments alleged that a national retail chain committed false claims act violations through pricing irregularities.
  • Mediated a False Claims Act matter where the relator alleged a double invoicing scheme involving U.S. Customs forms whereby imported products were allegedly labeled as one product at a lower value for customs purposes, then allegedly re-labeled as a different product at a higher value for shipment to customers. The relator also alleged that the defendant falsely stated that a foreign exporter and the U.S. importer were unrelated when in fact they were parent and subsidiary.

Real Estate

  • Mediated business divorce case alleging breach of fiduciary duty, accounting and partition among siblings involving a family business established by their deceased father, in a trust soon to expire which would establish them as tenants in common.
  • Mediated business divorce between two sisters who co-owned a multi-family rental real estate as reflected in deeds. They dispute the percentage ownership of the property, the disposition of proceeds from a refinancing of the property, the receipt of rent and payment of expenses over an 18 year period. The claims were for fraud, breach of contract, unjust enrichment, and resulting and constructive trust.
  • Mediated investment claim where plaintiff was defrauded by a licensed real estate salesman on trust deed investments which were never validly recorded and the investor suffered $1,600,000 in losses. He claimed that the State Department of Real Estate negligently failed to investigate and audit the salesman in a timely manner despite having received a formal complaint, which gave the salesman time to perpetrate an additional fraud and also time to flee the country.
  • Mediated implied contract and ejectment claim by one domestic partner against another seeking 50% ownership of residential property based on financial contribution to the purchase, when title to the property was in the names of the other partner and his parent.
  • Mediated action for trespass, theft of personal property and infliction of emotional distress arising from collection attempts by defendant on a prior contract judgment. There were at least two other related actions among the same parties, the attorneys who are parties and third parties.
  • Mediated quiet title complaint and cross complaint alleging mutual mistake of deed, prescriptive easement and agreed boundaries arising from a subdivision where the fences and placement of the houses by the homebuilder in the 1950s did not match up with the property descriptions in the deed and subdivision documents, leading to potential substantial movement of the fences and impacting setback requirements for the homes.
  • Mediated quiet title, adverse possession, prescriptive easement and trespass dispute arising from the placement of a masonry fence, constructed 30 years earlier by plaintiff's father, and whether it was on plaintiff’s property or intruded by several inches onto defendants' property. After losing a small claims case on the issue, defendants used self help to dismantle the fence, causing emotional distress to plaintiff.
  • Mediated HOA dispute with homeowner re: failure to keep home painted and changing roof color and materials without permission of the HOA.
  • Mediated claims for fraud, conversion and unjust enrichment based on $350,000 in loans received by defendant secured by plaintiff’s home without his consent, used for unsuccessful renovations to another property owned by defendant.
  • Mediated family business dispute involving partition claim by two sisters against their sister on a family business rental property and cross complaint for quiet title, negligence and breach of fiduciary duty.
  • Mediated a matter where surviving spouse asserts claims for cancellation of a joint tenancy deed and financial elder abuse where her three stepchildren persuaded their elderly father to sever a joint tenancy and deed one half of a co-owned home to them allegedly to cover medical expenses.
  • Handled a class action and other related actions involving an AmLaw 100 firm brought by investors who purchased real estate investment products, alleging legal malpractice, securities fraud, aiding and abetting breach of fiduciary duty and negligent misrepresentation. Total investor losses exceeded $900 million.
  • Handled a matter arising from the operation of a commercial loan underwriting, servicing and funding company involved in a Ponzi scheme fraud in the magnitude of hundreds of millions of dollars, related to piercing a sham trust and recover million in damages from several co-conspirators involved in real estate projects, including claims of breach of fiduciary duty, fraud, negligent misrepresentation, conversion and conspiracy.
  • Handled several related claims in a $70 million matter involving a surplus lines insurance carrier which issued financial guarantee bonds related to the financing of real estate limited partnerships, leading to fraud and racketeering claims, debt enforcement actions, securities claims, and litigation with bond lenders, reinsurers, and professionals.
  • Handled a matter between a class of investors and a national accounting firm arising from the bankruptcy of a major homebuilder, alleging errors in accounting for net realizable value write-offs and deferred tax asset estimates among other issues. Plaintiffs sought $95 million in damages.
  • Handled a matter where a mezzanine lender brought a real estate finance enforcement action against a real estate land developer and its managing members for breach of contract on loans and guaranties, as well as tort claims, and the developers counterclaimed alleging lender liability and oral agreements extending and modifying the loans.
  • Handled related matters brought by over 100 investors in oil and gas limited partnerships sponsored by the same general partner, alleging $20 million in damages, based on securities racketeering and common law claims based on alleged misstatements in prospectuses.
  • Mediated dispute between two partners re breach of contract and accounting for costs and distribution of profits arising from residential purchase, renovation and sale.
  • Mediated real estate partition action where co-tenant brother brought partition action against co-tenant sister and co-tenant sister brought cross claims for breach of contract, fraud and declaratory relief.
  • Mediated claims by former husband for cancellation of deed and damages for fraud and undue influence and a quiet title action arising from the transfer of his joint tenancy interest to his wife, who then sold it to third parties.

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Securities Fraud Investment Disputes

  • Handled a matter involving a $350 million securities fraud lawsuit arising out of a $1 billion stock purchase agreement between two Fortune 100 companies of an aerospace business. The suit alleged that there were misrepresentations in financial statements. The matter was resolved with a high eight figure settlement.
  • Handled a matter involving an SEC receiver and eight foreign banks and the cash custodian for a private equity fund which raised over $1 billion through a series of debt offerings through offshore special purpose entities, then looted the funds through multiple means. The matter was resolved with a high eight figure settlement.
  • Handled a class action and other related actions involving an AmLaw 100 firm brought by investors who purchased real estate investment products, alleging legal malpractice, securities fraud, aiding and abetting breach of fiduciary duty and negligent misrepresentation. Total investor losses exceeded $900 million.
  • Handled a matter between a class of investors and a national accounting firm arising from the bankruptcy of a major homebuilder, alleging errors in accounting for net realizable value write-offs and deferred tax asset estimates among other issues. Plaintiffs sought $95 million in damages.
  • Handled several related claims in a $70 million matter involving a surplus lines insurance carrier which issued financial guarantee bonds related to the financing of real estate limited partnerships, leading to fraud and racketeering claims, debt enforcement actions, securities claims, and litigation with bond lenders, reinsurers, and professionals.
  • Handled a matter involving a customer of a securities broker that was involved in a $50 million charitable gift annuity fraud scheme. A promoter transferred donated stocks and bonds into a brokerage account to liquidate them and rapidly transfer the funds out to other financial institutions. The promoter told the victims that the broker was managing their money, when it was not.
  • Handled related matters involving two broker-dealers, officers and directors, investors and a law firm arising from asset-backed promissory notes related to pools of ATMs that were to have been placed in bankruptcy proof special purpose entities, generating streams of income from swipe fees to pay the debt, which were eventually looted causing $30 million in losses.
  • Handled related matters brought by over 100 investors in oil and gas limited partnerships sponsored by the same general partner, alleging $20 million in damages, based on securities racketeering and common law claims based on alleged misstatements in prospectuses.
  • Handled a bondholder class action securities matter involving an electric utility and the indenture trustee of certain first mortgage bonds arising out of the redemption of certain bonds at par value which the bondholders claimed should have been redeemed at a premium.
  • Handled a matter involving a large investor alleging securities fraud and negligent misrepresentation by a Los Angeles Koreatown bank and its officers and directors relating to alleged misleading financial statements and financial disclosures.
  • Handled a matter among three doctors where one alleged that the others committed fraud and breach of fiduciary concerning his sale to them of his one third interest in a surgery center by concealing it regulatory status and right to reimbursements from Medicare and Blue Cross.
  • Handled a matter involving a securities broker which had promoted an Irish pharmaceutical company to its customers which suffered a major drop in stock price when several clinical trials produced unfavorable results.
  • Handled a matter between a brokerage house and a customer and her financial adviser involving trading by the financial adviser in stock index options with the customer alleging churning and unsuitable investments and seeking $5 million in damages.
  • Handled a matter involving a complex investment fraud and fraudulent tax shelter Ponzi scheme, involving securities and and tax fraud claims involving commodities and limited partnerships investments.
  • Handled a matter involving conspiracy, fraud, securities fraud and misapplication of funds by officers of an interstate motor carrier.
  • Handled a matter related to a securities fraud and bank fraud scheme perpetrated by the chief executive of a federally-insured credit union.
  • Handled a matter concerning an investment fraud scheme involving waste products fuel processes.
  • Handled a matter concerning a securities fraud scheme involving investments in a cattle-breeding operation.
  • Handled a matter where investors alleged fraud and racketeering against a savings and loan association relating to alleged loan origination fraud involving securitized mobile home loans.

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