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Subject Matter Experience

Each dispute is unique in some way, and I believe each must be handled differently with a flexible style that takes into account the specific dynamics of the individual case. Many disputes involve claims and issues that overlap different subject matter categories. I am presenting here a description of the kinds of disputes that I have mediated or arbitrated in the past to provide a sense of the issues with which I have dealt in those cases. Please contact me with any questions.

• Business and Contract Disputes
• High Tech and Intellectual Property
• Employment
• Real Estate
• Landlord/Tenant
• Insurance
• Construction
• Professional Malpractice
• Partnership, Corporate Board and Family Disputes
• Probate & Trusts
• Consumer Cases and Civil Rights
• Defamation and Similar Claims
• Collection/Work Outs/Lender Liability  
• Securities 
• Bodily Injury 
• Miscellaneous Disputes
• Cultural Issues
• Arbitration
• Other Services

The variety of business disputes that I have assisted in resolving cannot be fully described here. They have raised issues about contract formation, interpretation, performance, remedies for breach, business tort claims such as fraud and conversion, the Commercial Code, and a multitude of statutory claims such as the Unfair Practices Act, franchise regulation and federal telecommunications law. Contracts can involve the sale of goods and services, professional and consulting assistance, and transportation and other ancillary businesses. I have worked with disputes that have arisen in such diverse areas as large international shipments of metal, power generation, construction, architecture, plumbing, scrap computer components, environmental clean up, shipping and transportation, music, mortgage lending, financing, accounting and auditing, public relations and marketing, real estate management, motels, security, clothing, healthcare, eyeglasses, distribution of medical equipment, rental of environmental clean-up equipment, automobile dealerships, auto servicing and parts, gasoline stations, convenience and grocery stores, scrap metal, chemical additives, agriculture, low-income housing, travel agencies, vending machines, bail bonds, hot dog stands, sea food, and pool halls.

I am familiar with the complexities that can arise in commercial cases because of business, contractual, technological, and/or personal issues among the participants. In the latter category are cases involving disputes among co-venturers, founding partners, or other similarly situated former associates now at loggerheads, and of family members whose business disputes take on the flavor of all the other aspects of their relationship and history. There also can be complicated issues of corporate law where claims relate to stock ownership or to joint ventures carried out through a corporation, and where there are disputes over contributions and/or management authority. Some business relationships have interlaced so many different roles, such as buyer/seller, lender/borrower, lessor/tenant, etc., that it is crucial to understand and clarify the significance of these different aspects to the relationship without oversimplifying.

I have handled a number of mediations involving disputes arising from the sale of businesses, including restaurants, laboratories, e-businesses, wholesale meats, dry cleaning, salons, check cashing, and others. Common issues include fraud and lack of disclosure claims by purchasers, payment/collection issues, employment contracts with prior management, and non-compete clauses. Many of these are multi-faceted transactions that engender an array of cross claims when a dispute arises. Similarly, I am comfortable with the issues that arise in efforts to enforce settlements, to specifically enforce contracts, and to collect on debts.

I have worked with parties on a wide variety of settlement approaches, not only dealing with negotiations over money, payment plans, security and related issues, but also new business arrangements, improved and more stable relationships, and complex financial structures.  top

Many disputes that I have helped settle reflect the diverse business environment of the San Francisco Bay Area, and have arisen from high-tech commercial transactions involving technical issues (such as design or production defect claims), commercial issues (such as the practicability of substitute performance and marketing or distribution agreements), and interpretation issues (such as those generated by complex contracts or by the lack of a clear contract and/or conflicting forms). Sometimes these disputes occur in international transactions, often with Asia, creating cultural as well as additional business difficulties.

Disputes arise over the cause of various product problems, whether chips or other components meet performance specifications, the suitability and performance of hardware or software, the effectiveness of personnel supplied from overseas, and the practicability of certain newly developed technology. Similarly, I have dealt with intellectual property issues concerning copyright, patent rights, value of and rights to use code and software packages, possible appropriation of trade secret/confidential business or technical information, and trademark and trade dress.    top

I have mediated disputes involving the common-law and statutory claims arising in employer-employee disputes, including breach of contract/covenant of good faith and fair dealing (and the countervailing claims of at-will status), defamation, state statutory claims under the FEHA including race, national origin, age, disability (including reasonable accommodation issues), gender and pregnancy discrimination, sexual harassment, whistle blowing, and Unruh Act and federal statutory claims involving the same issues. As a result, I am familiar with both the legal issues and the emotional concerns that underlie many of these disputes. These concerns usually apply to claimants but also can apply to supervisors accused of wrongdoing and others involved in a failed employment relationship. I have handled many disputes involving participants of foreign birth or with different cultural backgrounds and am comfortable that I can work with people in a respectful and constructive manner to overcome any challenges that arise in reaching a resolution of the dispute.

A number of disputes arise from wage and hour requirements, prevailing wage laws, commission calculations, or compensation due under contracts. I am familiar with the broader considerations and proof problems involved in these claims.

Employment disputes can require dealing with alleged transfers of trade secret information such as customer lists or software code and efforts to prevent and recover damages for such transfers, complex executive employment issues (such as stock option plans, incentive bonus disputes, corporate control, etc.), and the interplay with other legal structures (such as worker compensation laws, union contracts and grievance procedures, and even separate lawsuits filed in Europe under European employment law). Similarly, I am familiar with disputes about employee vs. independent contractor status, agency relationships, libel claims, embezzlement allegations, and similar issues that commonly arise in this setting.

Industry settings for these disputes include technology, software, entertainment, banking, lending, utilities, security, personnel and temp agencies, architecture, engineering, construction, housing, brokerage, international trading, hotels, retail, food (wholesale, retail, restaurants), winery, health care (nursing homes, hospitals, doctors, dentists, chiropractors, pharmacies, radiology clinics, etc.), yoga studio, research/chemical, health products, publishing, television, federal and local government, law enforcement, banks and credit unions, investment advisors/brokers, mutual funds, insurance companies and brokers, post office, automobile dealer, auto repair, manufacturing, transportation/trucking, printing, engineering, law firms, legal aid, and nonprofits.

I have also mediated disputes between co-workers and between supervisors and employees in order to help the parties work together in the future, and where union contracts are implicated. Some of these arise in the U.S. Post Office’s EEO REDRESS Program.    top

I have experience with a wide variety of issues arising in real property disputes. Disputes involved sales of large lots for development, substantial commercial/industrial properties, real estate subdivisions, multi-unit residential structures, single family homes and distressed properties. I have handled cases between buyers and sellers involving real estate contract requirements, joint ventures, disclosures on sale, fraud, lease back, tax-free exchanges, contingencies and conditions, liquidated damages, etc. Often, especially in family dealings, the parties disagree about the nature of the underlying transaction, whether it is a loan, joint ownership, partnership, or some other idiosyncratic arrangement.

I have handled cases between co-owners, such as tenants-in-common partitions, waste, forged deeds, and disputes that arise out of non-traditional relationships. And I have handled claims between neighbors, such as nuisance, easements, maintenance obligations, adverse possession, environmental contamination, tree falls, water run off and earth movement, retaining walls, fences, property lines, sight lines, scope of improvements, and other adjoining landowner claims.

Many disputes have involved malpractice and/or commission claims with agents and brokers, or between agents and brokers, arising out of these transactions. Issues have included scope of duties of agents to provide advice, investigation and disclosure, dual agency, and title insurance coverage. I am also familiar with the issues and legal principles that arise in the context of homeowners associations, condominium developments and subdivisions, as well as governmental regulation such as zoning ordinances, building permits and code enforcement. Many cases involve secured debt, which generates other, distinct practical and legal issues.

Real estate disputes arise in a variety of procedural settings that I have handled, including specific performance, quiet title, foreclosure, and injunctive, as well as the more common damage claims for breach of contract and for fraud. I have assisted the resolution of a number of eminent domain cases.

In addition to settlements based on money, I have helped parties negotiate new business relationships, including complex purchases agreements and loan structures.    top

Most of the cases I have handled arise in a wide variety of commercial lease disputes, touching on respective duties, tenant removal, tenant improvements, property use, repair costs, etc. At times, the interplay of multiples leases, subleases, options, etc., has been significant. Properties involved have included offices, manufacturing, retail, food and grocery, warehouse, storage, service industries, and others, and have allowed for a variety of solutions depending on the underlying business problem.

I have also handled residential lease disputes, including habitability and eviction claims as well as disputes arising under rent control ordinances, the San Francisco ordinance concerning owner move-ins, and anti-discrimination statutes governing these relationships.    top

I am experienced with a wide range of insurance coverage and bad faith issues arising under a full range of policy types. I have dealt with third party coverages (including comprehensive general liability, professional liability, director’s and officer’s liability, and personal injury and advertising injury coverages - defamation, copyright/trademark, and false imprisonment), first party coverages (including life and property owners - fire, earthquake, and theft, and title insurance), and a variety of specialty coverages (for example, workers compensation, ERISA-covered policies, disability, antiques, specialty automobiles, environmental, banker bonds, nursing home, and ships). These disputes have raised a range of coverage and policy interpretation questions, including whether “property damage” occurred under general liability policies; environmental claims in various contexts; duty to defend; scope and coverage for fire damage, earthquake coverage, and other property loss claims; scope and interpretation of various exclusions; denial of benefits under ERISA-covered policies, such as disability policies under employer-sponsored plans; notice and statute of limitations; agency relationships and liability of principals for agents’ conduct, representations, etc.; misrepresentation and rescission; fraud and truth-in-lending; underinsured motorist; subrogation; allocation among insurers; and the full range of bad faith claims.

I am comfortable handling disputes between insurers and insureds, between claimants to the proceeds of policies in interpleader, between customers and brokers or agents for claims of breach of various duties in both seeking coverage and handling claims, between insurers and third parties in subrogation actions, and among insurers over respective duties and liabilities and how they should be apportioned in many contexts, from liability to title insurance, including disputes concerning different coverage years, different layers of coverage (primary and excess insurers), and similar claims.

Often insurance issues become a factor in other cases as well, and my experience with relevant issues has proven useful where an insurer’s potential coverage defenses otherwise might complicate settlement of a claim against the insured.    top

I have mediated construction disputes between owners, contractors, subcontractors, materials or equipment suppliers, architects, soils engineers, civil engineers, inspectors, building department officials, lenders, and third parties. These have involved new construction, repair work and remodels in a variety of settings, including single family homes, office buildings, government contracts, hospitals, fire stations, restaurants, shopping centers, warehouses, airplane hangars, gas stations, environmental clean up, and cogeneration plants.

Issues involved performance to specifications, scope of agreements, risk allocation (including delay damages and not-to-exceed clauses), change orders, retentions and other forms of hold backs, enforceability of mechanic’s liens, insurance coverage, performance and payment bonds, multiple party causation disputes, environmental hazards and clean up, public works requirements, permit issues, and damages calculations.    top

Many of the professional malpractice claims I have helped settle are made against attorneys, in a variety of contexts, including litigation, real estate, business formation, probate and personal injury. But I have also assisted with claims by and against architects, engineers, real estate brokers, and accountants. Many involve fee disputes as well as substantive professional negligence claims.

I am a neutral arbitrator in the independently administered Kaiser Member Arbitration Program in which I deal with medical malpractice claims, and I have also mediated cases in that program.    top

These disputes often involve heightened emotions for the participants, rancorous histories, and other challenges to working toward a resolution. I am comfortable in these charged settings. I have helped resolve disputes among family members who jointly own real property and businesses, who have lost money in investments controlled by one of them, who assert claims of breach of trust and misuse of funds, who have accounting disputes covering years or even decades, and who accuse one another of undue influence over a parent.

I have also assisted partners come to agreements over ongoing management, dissolution, division of assets, buy outs, accounting, partition, allocation of future income, claims of misuse of funds, etc. in such settings as law firms, real estate, ranching, distribution, retail, restaurant, antiques, kayaking, and sales and service businesses. These include claims between general and limited partners, and disputes about the nature of the underlying business structure (corporation, partnership, etc.). I have similarly worked with corporate boards to resolve management disputes.    top

Disputes I have mediated in this area have raised issues of undue influence, elder abuse, will validity, agreements to will, nontestamentary agreements, trusts arising in probate, intestate succession rights, proof of paternity/maternity, real estate inheritance, conditional life estates, community property, waste by the administrator, administrator and attorney fees, and various valuation issues. At times, it is helpful to focus the parties on where their interests overlap and develop agreements on the handling of the estate or trust. The claims can be made by people excluded from the will, by dissatisfied family members, by those antagonistic to the administrator, between children and a non-parent in a late-arising relationship with their parent, etc. Similar claims arise in the context of trusts apart from an immediate probate action.

I recognize and work with the strong intra-family emotional elements that often form a substantial part of these cases, and look for creative options to resolve them where appropriate.    top

Consumer cases I mediated arise under statutes protecting consumers as varied as purchasers or lessors of automobiles or boats and students at trade schools. Other disputes have raised diverse claims, such as for damage to personal credit or violations contained in bulk-mailed sweepstakes.

Civil rights cases have involved both state and federal claims concerning race and gender discrimination in contracting, service and housing, as well as in employment cases as mentioned above, and other constitutional claims against state and local government agencies involving police conduct, procedural and substantive due process, etc.    top

I am experienced with defamation cases involving both public figures and nonpublic figures, libel per se, slander in various contexts (including broadcast on radio), business and employment disputes, and accusations leading to disciplinary or police action. In addition, I have handled other claims of personal affronts, including false arrest, malicious prosecution, and invasion of privacy.    top

Many cases involve issues concerning ability to pay, bankruptcy, payment plans, security for settlement payments, and similar issues. Legal issues often include usury, secured assets, alter ego, penalty clauses, and/or guarantees. In many and varied contexts, I have assisted the parties to review possible resolutions and consequences and to work out an agreement that meets the concerns on both sides.

I have handled disputes where lenders and borrowers dispute mutual obligations, where changed circumstances create difficulty in payment, where claims are made concerning lender liability for promises, threats or joint activities, and where foreclosure and/or bankruptcy are pending. I have also worked with disputes arising from other kinds of claims against banks, including the release of confidential financial information, cashing forged checks or otherwise mishandling embezzled funds, improper transactions on behalf of one partner or family member to the detriment of another, forgery of signatures on loan documents, undue influence, promissory estoppel, and mistaken identity.    top

I have both mediated and arbitrated disputes between customers and brokers for the NASD, and have also worked with disputes involving securities fraud under state and federal statutes, transaction characterization, option and warrant contracts, and a variety of defenses. These have involved small and large investors, with or without due diligence investigations by the investor, and various kinds of nondisclosures or claims of misleading information. The brokerage claims have spanned the range of suitability, failure to follow directions, churning, handling of proxy materials, processing of options, stop loss orders, variable annuities, claims arising from the technology bubble and crash, etc.    top

I have helped settle a number of personal injury claims arising in diverse environments, from premises liability and ordinary slip and falls in stores, factories, cruise liners and restaurants to maritime claims under the Jones Act or as a result of ship-to-ship collisions. Less common claims include a bar room fight, a coffee house employee burnt by an espresso machine, and a dialysis patient who collapsed and was injured immediately after treatment. Some have involved car and motorcycle accidents giving rise to product liability and a variety of insurance issues as well as causation, injury and damage questions. Others are within the scope of various statutory schemes, such as the F.E.L.A. A number of cases have involved claims of exposure to hazardous mold while living in apartment buildings or other rental property, or in condominiums; these often include insurance issues as well. I am generally familiar with many of the workers compensation issues that arise in the context of bodily injury disputes.

I have also assisted resolving claims of medical malpractice, false arrest, police brutality, assault, physical injury with discriminatory animus, child and sexual abuse, and mistreatment of the remains of family members.    top

It is difficult to categorize some claims. I have handled various tort claims for property damage and monetary loss, such as fraud, allegations of theft or other criminal conduct, a claim against a city arising from sewer back up, a claim against a utility for breaking a water main, trespass, elder abuse, and property damage from physical contact. I have also assisted with disputes concerning nonprofit corporations, attorney fee claims, franchisee/franchiser disputes, other regulated industries such as transportation and shipping and used car auctions, art claims under CAPA, claims against alleged sellers of cigarettes to minors, government efforts to shut down businesses for illegal conduct, Business & Professions Code §17200, appeals from arbitration awards, and SLAPP suits.

While not a substantial part of my practice, cases I helped settled have required consideration of diverse issues such as bankruptcy, class actions, family law, conservatorship, restraining orders, eminent domain, and other areas of substantive law not mentioned above. I have been able to understand quickly the significance of these issues and assist the parties to find agreement.    top

I have mediated disputes involving people from all over the world. The Bay Area has many national, ethnic and religious communities. Disputes arise both among members of the same group and between members of different groups. I focus on the individuals involved while trying to be aware of and, if necessary, to learn about the cultural differences between all the participants in the mediation.    top

I have conducted private arbitrations, judicial arbitrations, and arbitrations through such organized programs as the National Association of Securities Dealers (securities and employment claims), the independently-administered Kaiser Member Arbitration Program, and state court and county bar associations. Although I have conducted far more mediations than arbitrations, I am comfortable in the same range of legal settings as described above, whether for damages, property division, or setting rents under a commercial lease. Where appropriate and with input from the parties, I seek creative, fair and mutually beneficial resolutions.

One of my deepest concerns in the conduct of an arbitration is to provide parties both a full and fair opportunity to present their case and (when requested) an understanding of the reasons for my decisions.    top

I have also served as a judge pro tem/settlement judge, neutral evaluator and discovery referee, and have provided training and presentations on mediation.    top