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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. While confidentiality obligations prevent me from discussing the details of any mediation, I am happy to discuss my experience in general terms. Please contact me with 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 and Bank 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, agriculture (including disputes between producers and their suppliers, and between growers and purchasers), architecture, plumbing, scrap computer components, environmental clean up and rental of clean-up equipment, shipping and transportation, music, mortgage lending, financing, real estate, real estate management, accounting and auditing, public relations and marketing, motels, security, clothing, healthcare (including concerning doctors, nurses, and medical supplies), eyeglasses, distribution of medical equipment, oil refining plants, automobile dealerships, auto servicing and parts, gasoline stations, convenience and grocery stores, scrap metal, chemical additives, low-income housing, travel agencies, movie theaters, vending machines, bail bonds, hot dog stands, sea food, massage and day spas, 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, furniture, liquor and convenience stores, 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 clear language and/or conflicting forms). Sometimes these disputes occur in international transactions, often with Asia, creating cultural as well as additional business difficulties. Many arise in new companies where the corporate structure is subject to change and the injection of new capital can create disputes - among shareholders, with independent contractors with contracts contingent on going public, and with customers and suppliers who are affected by corporate restructuring.

Disputes arise over the cause of various product problems: whether chips or other components meet specifications, the suitability and performance of hardware or software, the effectiveness and coordination of communications equipment, the productivity 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 claims arising in a variety of contexts, from publications to video games to nutrition products.

General subject areas with which I have dealt include many familiar areas, such as chip, chip-set and board production, web-site design and utilities, more complete products such as business enterprise software, accounting systems, and specific-use hardware designs, as well as more exotic settings, such as fighter jets, academic and political disputes, Southeast Asian business practices, competition over hiring engineers, and salvage and disposal of hardware.     top

I have helped resolve many employer-employee disputes and feel comfortable working with the legal and human issues involved. I am familiar with the array of possible 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 (often involving reasonable accommodation issues), gender and pregnancy discrimination, sexual harassment, assault, whistle blowing, and Unruh Act, as well as federal statutory claims involving the same issues. Other commonly arising issues in this setting are characterization as employee versus independent contractor, agency relationships, and embezzlement and self-dealing allegations.

In recent years, there have been a growing number of claims arising from wage and hour requirements, status as exempt or non-exempt employee, prevailing wage laws, commission calculations, or compensation due under contracts. I am familiar with the particular considerations for the employer and proof problems that these claims generate.

In addition to wage loss and emotional distress damages, I have dealt 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 (including stock option and incentive bonus plans with valuation issues, 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).

I am also familiar with the emotional concerns that underlie many employer-employee 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 am comfortable with participants of foreign birth or with different cultural backgrounds and can work with people in a respectful and constructive manner to overcome any challenges that arise in reaching a resolution.

I have handled claims in a wide rage of industry settings, including manufacturing, hardware, software, chemical research, international trading, entertainment, sports marketing, utilities, security, personnel and temp agencies, law firms, legal aid, architecture, engineering, construction, housing, hotels, retail, food (wholesale, retail, restaurants), winery, health care (nursing homes, hospitals, doctors, dentists, chiropractors, pharmacies, radiology clinics, etc.), health products, publishing, printing, television, federal and local government, other quasi-governmental agencies, law enforcement, state colleges, post office, banks and credit unions, real estate, loan brokers, investment advisors/brokers, mutual funds, insurance companies and brokers, automobile dealer, auto repair, auto dismantling, transportation/trucking, limousine, yoga studio, dance studio, golf course, day care, and nonprofits.

In addition to monetary settlements, I have worked with parties on reinstatement arrangements. 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 arise out of large lots for development, substantial commercial/industrial properties, subdivisions, multi-unit residential structures, single family homes, condominiums and distressed properties. I have handled cases between buyers and sellers involving real estate contract requirements, joint ventures, disclosures on sale, sales of real estate with businesses where the terms are interrelated, fraud, lease back, tax-free exchanges, contingencies and conditions, liquidated damages, etc. Many cases involve secured debt, which generates other, distinct practical and legal issues.

I have worked on cases between co-owners, such as tenants-in-common partitions, waste, forged deeds, and disputes that arise out of non-traditional relationships. Often, especially in family or quasi-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. And I have handled claims between commercial and residential 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. Some of these involve significant disputes over the effect of the chain of title or of various deed restrictions. 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 disputes involve malpractice and/or commission claims with agents and brokers, or between agents and brokers, arising out of these transactions. Issues include scope of duties of agents to provide advice, investigation and disclosure, dual agency, and title insurance coverage. Disputes are now arising between lenders and borrowers in the residential setting, and for many years I have assisted in disputes between lenders and borrowers in commercial settings involving complex relationships.

Real estate disputes that I have handled arise in a variety of procedural settings, 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 commercial lease disputes, touching on the parties’ respective duties, tenant removal, tenant improvements, property use, repair costs, and a variety of other issues. At times, the interplay of multiple leases, subleases, options, intervening sales, etc., has been significant. For example, in a case of a lease with an option to purchase, there may be disputes arising in each of the aspects. 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 insurance coverage and bad faith issues arising in a wide 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, title insurance, and property owners - fire, earthquake, and theft), ERISA-covered policies (usually but not always disability claims), and a variety of specialty coverages (for example, workers compensation - including disputes about audit billings, antiques, specialty automobiles, environmental, banker bonds, nursing home, and ships). These disputes raise 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 or earthquake damage, and other property loss claims; scope and interpretation of various exclusions; notice and statute of limitations; additional insured claims; 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 suits 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, and between insurers and third parties in subrogation actions. I have also helped resolve disputes among insurers over respective duties and liabilities and how they should be apportioned, for example allocation between different coverage years and different layers of coverage (primary and excess insurers), in many contexts, from liability to title insurance.

In recent years, I have assisted with more disputes concerning disability insurance and other ERISA-covered policies under employer-sponsored plans, as well as similar disputes not covered by ERISA. I have grown familiar with the medical as well as legal issues common in this area, including claims arising from reports of subjective pain to emerging medical diagnoses such as fibromyalgia. There are cross-over issues between disability insurance claims and employment claims under the ADA as well as worker’s compensation practices.

Often insurance issues become a factor in other cases as well, and my experience 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 involve new construction, additions, repair work and remodels in a variety of settings, including single family homes, office buildings, government contracts, hospitals, fire stations, libraries, schools, restaurants, shopping centers, warehouses, airplane hangars, gas stations, oil refining plants, environmental clean up, prefab industrial units, modular laboratory additions, and cogeneration plants. Similar issues arise in related activities, such as the fabrication of custom furniture for a particular home.

Issues include performance to specifications, scope of agreements, risk allocation (including delay claims by or against the contractor 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.

Many cases involve significant issues of collectability and/or related insurance and bonding issues that require careful analysis.    top

Many of the professional malpractice claims I have helped settle are made against attorneys, in a variety of contexts, including litigation and trial strategy, real estate, business formation, probate and personal injury. More recently, cases involving various real estate professionals, particularly realtors and loan brokers, have become more numerous and the range of issues has grown, including straw-man transactions, reverse mortgages, loans in the face of foreclosure, family transactions, and the range of federal and state disclosure laws. I have also assisted with claims by and against business brokers, real estate managers, architects, engineers, 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 worked with attorneys and other professionals in the break-up of professional practices.

Many disputes arise because the governing documents do not unambiguously address the issue that has arisen, or there are unclear and overlapping relationships between different entities with related businesses that complicate the claims. I have 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 and property development, ranching, magazine publishing, high-tech industries (software and hardware development), recruitment, window cleaning and scaffolding, distribution, retail, hotel, restaurant, antiques, kayaking, judgment collection, records preservation, auctions, and sales and service businesses. These include claims between shareholders, general and limited partners, and disputes about the nature of the underlying business structure (corporation, partnership, sole proprietorship/employee, etc.). I have similarly worked with corporate boards to resolve management disputes.    top

Disputes I have mediated in this area raise 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 issues arise in the context of trusts apart from an immediate probate action. Some of these disputes involve family law claims with which I have assisted, although I do not handle any custody issues.

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. I do not take on the task of being a family or personal relationship counselor, but rather explore with the parties what they wish to accomplish to respond to the full range of significant issues. At the same time, I remind the participants what is at stake and the scope of what can be accomplished with a legal resolution, in part to avoid reliving all the family history which may be significant to the emotional underpinnings of the dispute, and also to focus on the future.    top

Consumer cases I mediated arise under statutes protecting consumers as varied as purchasers or lessors of automobiles, boats and condominiums, and students at trade schools. These claims can raise challenging valuation issues, 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, trade libel, slander in various contexts, business and employment disputes, and accusations leading to disciplinary or police action. I have dealt with cases involving internet postings, pamphlets and broadcast on radio, as well as oral statements. Some cases involve a mixed bag of defamation, unfair competition, copyright, and/or first amendment issues. In addition, I have handled other claims of personal affronts, including false arrest, malicious prosecution, and invasion of privacy.    top

Legal issues in collection cases often include usury, secured assets, UCC-1 priority, alter ego, penalty clauses, and/or guarantees. On occasion, there are multiple claimants each facing different defenses and/or counterclaims. Some of these involve federal and state consumer statutes, for example those applicable to credit cards, home and equity loans, etc. 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 interests of both sides. In addition, many cases arising in other subject matter areas also involve issues about ability to pay, bankruptcy, payment plans, security for settlement payments, and similar concerns.

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 helped resolve 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 claims of nondisclosure or providing 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 and the more recent downturn, etc. Some disputes raise issues of overlapping relationships between the parties involving both traditional broker-customer dealings and other business transactions.

While most of the work has involved private claims, I have also handled SEC enforcement actions.                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, golf courses and restaurants, or claims of exposure to hazardous mold while living in apartment buildings, other rental property, or in condominiums (which often raise insurance issues as well), to maritime claims under the Jones Act or as a result of ship-to-ship collisions. Less common disputes have involved a bar room fight, a coffee house employee burnt by an espresso machine, a fall down an elevator shaft, and a dialysis patient who collapsed and was injured immediately after treatment. Some have arisen from car and motorcycle accidents generating 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. I have often worked with multiple defendants seeking to allocate fault under either tort or contract theories. I am also generally familiar with many of the workers compensation issues that arise in the context of bodily injury disputes.

I have assisted resolving claims of medical malpractice, false arrest, police use of unnecessary force, 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 a sewer back up, a claim against a utility for breaking a water main, trespass, and elder abuse. I have assisted with disputes concerning nonprofit corporations, attorney fee claims, franchisee/franchiser disputes, other regulated industries such as used car auctions and transportation and shipping (including claims by customers, between contractors and shipping subcontractors, and similar disputes), art claims under CAPA, claims against alleged sellers of cigarettes to minors, government enforcement actions for underground storage tanks and efforts to shut down businesses for illegal conduct, Business & Professions Code §17200, appeals from arbitration awards, and SLAPP suits.

I have recently handled a number of eminent domain cases for residential, commercial and agricultural properties. I have also assisted in a number of disputes between Home Owner Associations or condominium boards and members, or among members concerning governance of the association. 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, 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. Businesses have relationships with suppliers and customers in central and East Asia, Europe and elsewhere. The Bay Area has many national, ethnic and religious communities. Even local 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, all with the goal of helping the parties reach an agreement that serves their interests.    top

I have conducted private arbitrations, judicial arbitrations, and arbitrations through such organized programs as the independently-administered Kaiser Member Arbitration Program, the Financial Industry Regulatory Authority (FINRA) (securities and employment claims), 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 while conducting an efficient 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 served as a judge pro tem/settlement judge, neutral evaluator, and discovery referee. I have also acted as a referee in the execution of a court order, interim agreement or settlement, usually in connection with the sale of real property, deciding or resolving issues about how to handle the sale. Alone and with others, I have provided training and presentations to both mediators and attorneys on various aspects of mediation and arbitration.    top