Firm Begins the New Year With Speaking Engagements On Developing Legal Topics

Recent and upcoming speeches by Kerr & Wagstaffe LLP attorneys:

“Hot Topics in Federal Jurisdiction” – Federal Bar Association, Phoenix and Tuscon Chapters

“Media Law for Those In Print” – San Francisco State University and University of California, Santa Cruz Editorial Staff

“Tax, Trusts, and Estates Summit” – DLA Piper

Upcoming Ninth Circuit Oral Argument.

Jim Wagstaffe will argue plaintiff’s appeal in the matter of Doe v. University of the Pacific in
front of the Ninth Circuit on January 17, 2012.  The case was brought by a female athlete who was sexually assaulted and then forced to leave UOP because of the university’s improper response to the assault.  The appellate brief filed by Kerr & Wagstaffe LLP is available here.

Adrian Sawyer Leads Trade Secret Litigation Panel

Kerr & Wagstaffe LLP partner Adrian J. Sawyer will be part of a panel discussion “Litigating a Trade Secrets Case,” presented by Bridgeport CLE on December 9, 2011.  The program will offer advice on how to protect company trade secrets, guard against employee raids, recruit from competitors without getting sued, and deal with the issues that arise when employees leave to compete with their former employers.  The program will provide perspective from both the plaintiff and defense sides.  More information can be found at the following link to the Bridgeport CLE site:  http://bridgeportce.com/index.php/upcoming-programs/litigating-a-trade-secret-case

Firm's Founder Retained to Offer Expert Opinion

On December 19, 2012, James Wagstaffe will testify as an expert on the reasonableness of attorneys’ fees sought by creditors in an adversary proceeding pending in United States Bankruptcy Court, in the matter of Cotchett, Pitre & McCarthy and Spiller McProud v. CWS Enterprises, Inc., Adv. Proc. No.: 10-02226-C (Bankr. E.D. Cal.) Mr. Wagstaffe has been retained by the Chapter 11 trustee of CWS Enterprises. Inc. to provide an expert opinion as to the reasonable value of services performed by prior counsel in a corporate dissolution proceeding.

Mr. Wagstaffe has developed an expertise on the subject of attorneys’ fees and reasonable billing practices over the last 20 years. He has served as an expert on numerous occasions in state and federal court, at the trial level and on appeal, for the purpose of evaluating the propriety of legal bills, the governing hourly rates in particular cases and in particular geographical locations, and the reasonableness of attorneys’ fees in general.

Appellate Argument on YouTube Attorney Communications

In a widely-followed oral argument on November 30, 2011 in the California Court of Appeal, Jim Wagstaffe represented the Law firm of Ropers, Majeski, Kohn And Bentley in its effort to confirm protection under California’s anti-SLAPP statute for lawyer communications to potential clients. Jim is defending on appeal the law firm’s right to communicate with potential clients via YouTube in the face of a  defamation lawsuit filed by the firm’s litigation opponent, Brain Research Labs.  In a spirited argument, Jim addressed the many wide-ranging free speech issues with major implications for attorney-client communications.  A decision is expected in the next several weeks.

Electronic Discovery Issues Explored

Jim Wagstaffe made a major presentation in Seattle, Washington to a large group of attorneys, general counsel and legal educators on electronic discovery hot topics as part of the annual Tompson-Reuters Author’s Educational Series.  In a speech entitled: “Electronically Stored Information: Poison Control in a Modern Age,” Jim addressed the always-challenging and complicated issues of litigation  holds, privilege preservation and discovery safe harbors.  Jim is a frequent speaker across the country in Tompson-Reuters programs as the co-author of the widely-used 3-volume publication Federal Practice Guide: Federal Procedure Before Trial.(TRG 2011).

Presentation to New Federal Judges' Program

On November 18, 2011 in Washington, D.C.  Jim Wagstaffe made his annual presentation to the incoming class of newly appointed Federal Judges on Subject Matter Jurisdiction and Other Federal Procedures.  Jim’s class was one day of a week-long orientation educational program hosted by the Federal Judicial Center for all new federal district court judges followed by a welcoming dinner hosted by the U.S. Supreme Court. Jim, who has been making this presentation for federal judges at this program and across the country for over 20 years, was presented with the prestigious John R. Brown Award for excellence in federal judicial education.

Kerr & Wagstaffe LLP is pleased to announce that Nancy L. Tompkins has joined the firm.

Ms. Tompkins was a partner at Townsend and Townsend and Crew LLP and had been a staff attorney for the Ninth Circuit Court of Appeals.  She received her law degree from Northeastern University School of Law in 1990.

Firm Files Opening Brief on behalf of State Bar in Sander v. State Bar bar exam admissions data dispute

The firm, representing the State Bar of California and the Board of Governors of the State Bar of California, filed an Opening Brief on the Merits in the case of Sander v. State Bar of California currently pending before the California Supreme Court.  The State Bar and Board of Governors are asking the Supreme Court to confirm the trial court judgment in this case that the State Bar’s admissions database is confidential, and not open to inspection by any member of the public who wants information on the race, academic history, and bar exam scores of applicants.  A copy of the Opening Brief is attached here.

Kerr & Wagstaffe wins anti-SLAPP motion in federal court

In a lawsuit brought against 13 different individuals and entities, including the City and County of San Francisco and the San Francisco Police Department, the firm secured a quick dismissal for its two individual clients after winning a Special Motion to Strike pursuant to California’s anti-SLAPP statute.   The anti-SLAPP statute is designed to protect citizens in the exercise of their rights of petition and free speech, by precluding meritless lawsuits which are brought to chill the exercise of those fundamental rights.  The firm successfully argued that the  lawsuit arose out of constitutionally protected activity, the defendants’ prior testimony, and as such, the case against must be dismissed.

Lawsuit Filed Against Wells Fargo and Fannie Mae to Protect Families' Rights to Save Homes Subject to Reverse Mortgages

With AARP and Mehri & Skalet PLLC of Washington D.C., the firm filed a class action lawsuit against Wells Fargo and Fannie Mae, two of the largest reverse mortgage holders.   The case seeks to enforce provisions of reverse mortgage contracts, and federal law, designed to prevent displacement elderly homeowners and their families.  Read the Complaint.  Chandler v. WFB Complaint

Kerr & Wagstaffe LLP Congratulates Magistrate Judge Jacqueline Scott Corley

The firm congratulates our former partner Jacqueline Scott Corley on her appointment as Magistrate Judge, United States District Court, Northern District of California.

We highly valued your insight and wise counsel, and wish you the best as you embark on what we know will be a long and distinguished judicial career.

Court of Appeal Affirms Trial Victory for Firm’s Client in High-Tech Dispute

The Sixth District Court of Appeal affirmed the trial court’s judgment in a high-profile dispute between a chip company and its famous entrepreneur founder.  Digital Video Systems, Inc. (“DVS”) an early leader in video compression technology, sued its founder, Dr. Edmund Sun, for fraud and usurpation of corporate opportunity after Dr. Sun left the company to pursue other interests.  DVS sought more than $30 million in damages.  Kerr & Wagstaffe prevailed in Dr. Sun’s favor after a three-week jury trial, and DVS appealed.  The Court of Appeal affirmed the judgment in all respects and awarded costs to the firm’s client.

Court of Appeal Upholds Right To Seek Declaratory and Injunctive Relief Against Insurer For Improper Method of Depreciation

In a published opinion, the California Court of Appeal ruled that the firm’s client properly invoked the court’s jurisdiction to determine whether the manner in which insurer CSAA applies depreciation to its policyholders’ claims violates the Insurance Code. The trial court previously rejected CSAA’s argument that CSAAs insureds are is required to seek an appraisal of their claims before asking the court to rule on the legality of CSAA’s adjustment policy. The Court of Appeal affirmed the court’s denial of CSAA’s motion to compel appraisal. The Court noted that the declaratory and injunctive relief would head off duplicative actions against CSAA. The complaint against CSAA asserts unfair competition, breach of contract, and bad faith claims on behalf of a class of policyholders who have been subjected to CSAA’s depreciation policy.  Read the Court’s opinion.

Kerr & Wagstaffe LLP Announces Two New Associates

The firm is pleased to announce its newest associates Kevin B. Clune and Cheryl L. Mackey.

Mr. Clune received his law degree from Stanford Law School in 2006.  He served as a law clerk to the Honorable John C. Coughenour of the United States District Court for the Western District of Washington.  Ms. Mackey graduated magna cum laude from the University of California, Hastings College of the Law in 2010. 

The First Appellate District Reverses Trial Court Judgment Against Firm’s Client Redwood City

Today the firm secured a complete victory in the First District of the California Court of Appeal in an appeal from a trial court judgment purportedly invalidating the approval and construction of a retail-cinema redevelopment project in Redwood City’s downtown.  In a published opinion, the Court adopted Appellant Redwood City’s arguments, ruling that the action did not present justiciable controversy and that the trial court therefore abused its discretion in adjudicating it.  The Court reversed the judgment in its entirety, instructing the trial court to dismiss the action and ruling that the Plaintiff was not entitled to attorneys’ fees in the trial court.  Read the Court’s opinion.

Federal Court Dismisses Chevron's Lawsuit Against Firm's Human Rights Lawyer Client

Today a federal court in San Francisco dismissed in its entirety a lawsuit Chevron Corporation filed against the Firm’s client, a lawyer who had previously lost a lawsuit against the energy giant. The earlier lawsuit was filed on behalf of indigenous residents of the Ecuador Amazon rainforest over their claims they became ill with cancer from oil pollution of their water supply. The claims were later dismissed, and Chevron subsequently filed the current lawsuit against their lawyer, Cristobal Bonifaz, claiming he knew there was no basis for the environmental case. A May 12, 2010 ruling by the Federal District Court dismissed all but one part of Chevron’s case under a unique California law, known as the anti-SLAPP statute, that protects First Amendment rights to, among other things, bring lawsuits. The ruling today dismisses Chevron’s one remaining claim. The Court ruled that even after having the opportunity to questions Mr. Bonifaz and others, Chevron was unable to produce any evidence that suggested Mr. Bonifaz knew the plaintiff did not have cancer. Under the California law, Chevron will be required to pay Mr. Bonifaz’s legal expenses incurred in defeating Chevron’s case.

Chevron had sought $4 million in damages from Mr. Bonifaz, a solo practitioner who lives in Massachusetts and is a native of Ecuador. Chevron’s now-dimissed lawsuit is just one chapter in a legal battle dating back over 20 years in which Chevron and its predecessor Texaco have fought to avoid paying the costs associated with cleaning up after its oil drilling operations in the Ecuadorean rainforest.

Firm Wins Anti-SLAPP Motion Against Chevron Corporation.

In a ruling issued last night, the United States District Court for the Northern District of California dismissed virtually all of Chevron Corporation’s legal claims against an attorney who represented plaintiffs in an environmental lawsuit against the company, handing Chevron a defeat in what the attorney argued is Chevron’s ongoing campaign to avoid remediating the environmental disaster and human suffering caused by oil drilling and dumping operations in the Amazon rainforest in Ecuador.

Chevron filed a malicious prosecution suit against Cristobal Bonifaz, a Massachusetts attorney and native of Ecuador who was one of the first persons to bring the disaster to the attention of scientists and human rights and environmental activists in the United States. Mr. Bonifaz brought suit against Chevron (and its predecessor Texaco) on behalf of the indigenous people of the rainforest whose water supply and lands have been contaminated by improper oil production practices.

On May 12, 2010, United States District Court Judge Claudia Wilken ruled that Chevron’s lawsuit against Mr. Bonifaz is a SLAPP suit (Strategic Lawsuit Against Public Participation). Pursuant to California’s anti-SLAPP statute, the court dismissed almost all of Chevron’s claims, ruling that Chevron could not substantiate those claims against Mr. Bonifaz. As a result of this ruling, Chevron will be required to pay Mr. Bonifaz’s attorneys’ fees incurred in defending against Chevron’s meritless legal claims. The court deferred ruling on one small, remaining claim pending limited and discrete discovery. See PDF

Court Grants Final Approval of Settlement with LA Fitness

Williams v. L.A. Fitness, Los Angeles Superior Court BC385623 The Los Angeles County Superior Court gave final approval to settlement resolving a lawsuit filed by Kerr & Wagstaffe LLP on behalf of consumers.  The settlement involves former members, who are entitled to choose monetary payments or 45 day club access passes, and current members, whose contracts will be improved to eliminate the challenged practices. Details of the settlement can be found at www.gymsettlement.com. Former members must return claim forms postmarked by June 2, 2010 in order to receive payments. If you are a class member and would like to communicate individually with class counsel, please email williamscase@kerrwagstaffe.com.

Judge Lifts Sanctions Against Firm's Client In Qualcomm Case

Qualcomm Inc. v. Broadcom Corp.  Kerr & Wagstaffe lawyers scored a major victory this week, persuading a federal court judge to reverse her prior sanctions of the trial lawyers representing Qualcomm Inc. in its patent dispute with Broadcom Corp.  Judge Barbara Major’s order declined to impose any sanctions on firm client Lee Patch, who was a late addition to the Qualcomm trial team.  The Court specifically found that Patch took “numerous, reasonable  steps to verify the truth” of witness testimony and that the evidence showed no bad faith in connection with the production of documents.  Patch was represented by Kerr & Wagstaffe lawyers Jim Wagstaffe, Rod Kerr and Adrian Sawyer.

Court Confirms That State Bar Admissions Data Is Not A Public Record

Sander v. State Bar of California, San Francisco Superior Court case no. CPF 08-508880. Kerr & Wagstaffe represents the State Bar of California which was sued to force disclosure of confidential records from its admissions database which a researcher and his supporters have claimed is a public record. Numerous individuals had objected to the release of their data, including bar scores and ethnicity, and the State Bar chose not to release that data. The Firm prevailed at the writ of mandamus trial, with the Superior Court confirming that the records sought are not subject topublic access.

Opening Appellate Brief filed in defense of San Rafael Mobilehome Rent Control Ordinance

MHC Financing Limited Partnership et al. v. City of San Rafael, 9th Circuit 09-16447. The Firm filed its Opening Brief on behalf of the City of San Rafael and co-appellant Contempo Marin Homeowners Association challenging Judge Vaughn Walker’s decision in 2008 that the City of San Rafael’s mobilehome rent control laws were an unconstitutional taking. The Brief demonstrates that this type of law is common and well established in California, that it does not constitute a taking, and that MHC should not have been permitted to bring the suit in the first place as it bought the Park after the law was in place and had been upheld by the state courts and has never sought to utilize the “fair return” procedures under the law to seek higher rents. A copy of the Opening Brief can be found here

Kerr & Wagstaffe files anti-SLAPP motion to strike meritless malicious prosecution claims Chevron filed against a human rights lawyer in federal court.

Chevron Corporation v. Bonifaz, 09-5371 CW, Northern District of California. Kerr & Wagstaffe filed an anti-SLAPP motion to strike a malicious prosecution action filed by Chevron against Kerr & Wagstaffe client and human rights lawyer Cristobal Bonifaz, arguing that the lawsuit is “a quintessential Strategic Lawsuit Against Public Participation (‘SLAPP’): a multi-national corporation sues a 75-year old semi-retired attorney, who operates his solo practice from a barn in rural Massachusetts, simply because the attorney—who is a native of Ecuador—had the audacity to dedicate the last 15 years of his legal career to legally assisting the poor, indigenous people of the Ecuadorian Amazon.” The motion to strike demonstrates that each of Chevron’s nine malicious prosecution claims (arising from the claims of the nine underlying plaintiffs) fails as a matter of law because Chevron cannot prove that the claims were terminated in their favor or that they were brought without probable cause.

Court Preliminarily Approves Club Access Class Action Settlement With 24 Hour Fitness

McCardle v. 24 Hour Fitness, Inc., Alameda Superior Court RG08414888 The Alameda County Superior Court has preliminarily approved a class action settlement in a case filed by the firm against 24 Hour Fitness. The settlement involves members who purchased multi-club contracts before November 1999. Details of the settlement, including a copy of the Notice approved by the Court, can be found at www.mccardleclassaction.com. All claim forms, objections, or opt-outs are due postmarked February 25, 2010. A final approval hearing is scheduled for March 11, 2010. If you are a class member and would like to communicate individually with class counsel, please email mccardlecase@kerrwagstaffe.com

Jacqueline Scott Corley Joins the Firm as Partner

Kerr & Wagstaffe LLP is pleased to announce that Jackie Scott Corley has joined the firm as a partner. Ms. Corley was formerly an associate with Goodwin Proctor LLP in Boston and Coblentz, Patch, Duffy & Bass LLP in San Francisco. From 1998 through 2009, she served as law clerk to the Honorable Charles R. Breyer of the United States District Court for the Northern District of California. Ms. Corley received her law degree magna cum laude from Harvard Law School in 1991, and was Articles Co-Chair for the Harvard Law Review.

California Trout, Inc. v. Bureau of Reclamation and United Conservation Water District

California Trout, Inc. v. Bureau of Reclamation and United Conservation Water District United States District Court, Central District of California No. CV 09-312 –GHK (FMOx)

The firm successfully concluded an action under the federal Endangered Species Act to restore steelhead to the Santa Clara River system in Southern California. In January, 2009, the firm, along with co-counsel, Shute Mihaly & Weinberger, brought an action on behalf of California Trout, Inc. in the United States District Court for the Central District of California against United Water Conservation District and the Bureau of Reclamation to maintain adequate flows for migrating Southern California steelhead and to mitigate the adverse effects of the Vern Freeman Dam on the steelhead population. Upon reaching agreement on some issues after the motion for preliminary injunction was filed, CalTrout and United engaged in extensive and productive negotiations that resulted in a settlement approved by the court in August, 2009. Under the settlement, United will maintain certain flow levels in the Santa Clara River during the steelhead migration season. In addition, a blue ribbon panel has been convened to address the adverse effects of the dam on steelhead migration and to recommend remedial measures. The panel is expected to issue its report in August, 2010. The District Court has retained jurisdiction to enforce the terms of the settlement.

Firm Prevails in $15 Million Jury Trial

The firm successfully defended our client against a $15 million claim in a jury trial in Santa Clara Superior Court. The firm represented Dr. Edmund Sun, Ph.D, against claims brought by Digital Video Systems, Inc. (“DVS”). (DVS, Inc. v. C2 Microsystems, Inc. & Dr. Edmund Sun, Case No. CV0161760).

DVS is a publicly held company specializing in the development and application of digital video technologies enabling the convergence of data, digital video and high-end graphics. Dr. Sun, a pioneer in the development of the DVD player and three-dimensional graphics, founded DVS in 1992.  He left DVS in 2005, formed a new video technology company, and was subsequently sued by DVS in 2006. DVS claimed that Dr. Sun breached fiduciary duties owed to DVS and misappropriated corporate opportunities from the company.  After a three week jury trial, the Court rejected all of DVS’s claims and damages.

Dr. Sun was represented by Kerr & Wagstaffe attorneys James M. Wagstaffe, Ivo Labar and Maria Radwick.

Kerr & Wagstaffe LLP Announces New Associate

San Francisco law firm Kerr & Wagstaffe LLP is pleased to announce our newest associate, Kelly A. Corcoran. Kelly received her law degree cum laude from University of California, Hastings College of the Law in 2008.

Court Awards Firm’s Clients $626,160 in Attorneys’ Fees

San Francisco Superior Court Judge Katherine Feinstein granted the firm’s motion for attorneys’ fees brought on behalf of their clients in a longstanding probate dispute between the heirs to the estate of Arnold Gridley.  Judge Feinstein’s fee award in the amount of $626,160 comes after the firm’s decisive victory following a multi-week court trial held last Summer.  In reaching its decision, the court noted that “the stakes in this case were huge” and that “given the nature, scope and tenor of this trial, Petitioners’ decision to retain experienced litigation counsel was both necessary and reasonable.” She found that the amount of fees sought was appropriate, noting that the litigation was “effectively and efficiently managed.”

Court of Appeal Affirms Nonsuit in Securities Dispute

The Sixth Appellate District of the California Court of Appeal has affirmed a trial court judgment rendered in favor of the firm’s client Dr. Edmund Sun.  (Kuo v. Sun, Cal. Court of Appeal Case No. H031575.)  The underlying lawsuit was filed by Mali Kuo on behalf of Oregon Power Lending Institution and others who participated in a private placement with Digital Video Systems, a company founded by Dr. Sun.  Agreeing with the trial court decision to grant the firm’s motion for non-suit, the court of appeal held that Kuo’s causes of action were barred by the statute of limitations, and there otherwise was insufficient support for her claims.  The firm represented Dr. Sun at trial and on appeal.

Kerr & Wagstaffe LLP Announces Two New Partners

San Francisco law firm Kerr & Wagstaffe LLP has elevated two new partners, Michael K. Ng and Adrian J. Sawyer. Both Mr. Ng and Mr. Sawyer were formerly associates with the firm.

Michael K. Ng represents clients in trial and appellate litigation, whose practice focuses on employee and consumer rights class actions, but also includes civil rights, antitrust, environmental, corporate governance and securities matters. He received an A.B. magna cum laude in Government from Harvard College in 1995, and his J.D. cum laude from Harvard Law School in 2001. Last year, while on leave from the firm, he served as the National Volunteer Coordinator for the Obama campaign’s voter protection program.

Adrian J. Sawyer is a trial and appellate attorney with significant experience in shareholder disputes, unfair competition and business tort cases, First Amendment and defamation matters, and employment and wage-and-hour litigation. A native San Franciscan, Mr. Sawyer received his A.B. from Princeton University in 1996 and his J.D. magna cum laude from U.C. Hastings College of Law in 1999. He served as law clerk for the Hon. William H. Orrick Jr. of the United States District Court for the Northern District of California.

Firm Prevails on Renewed Motion for Disqualification Filed in Patent Dispute

The firm successfully defeated a renewed motion filed by Marvell Semiconductor to disqualify the law firm of Townsend & Townsend & Crew as counsel for Commonwealth Scientific Industrial and Research Organisation (CSIRO).  Townsend represents CSIRO in complex patent litigation pending in the Eastern District of Texas relating to its patent for 802.11 WLAN technology.  Previously, the firm defeated Marvell’s motions for disqualification filed on related disputes and successfully defended the district court’s rulings on appeal before the Federal Circuit.  (See below.)

Conservation Easement Lawsuit Comes to Successful Conclusion

The firm, along with Shute, Mihaly & Weinberger LLP, negotiated a resolution on behalf of the Sonoma Land Trust, with the owners of the 528 acre Low Ranch located near San Pablo Bay. In 2006, the Land Trust, which holds an agricultural easement that permanently restricts the use of land to agriculture, filed suit against the property owner for mud dredging operations that the Land Trust believed were inconsistent with the conservation easement. The settlement resolves the three year-old lawsuit and preserves the agricultural conservation easement, and ensures that agricultural resources will be protected.

You can read a copy of the decision by clicking here.

Federal Circuit Affirms Denial of Motion for Disqualification in WLAN Patent Dispute

The Federal Circuit affirmed the district court’s denial of a motion to disqualify the firm of Townsend and Townsend and Crew, who is lead counsel for Commonwealth Scientific and Industrial Resource Organisation (CSIRO). CSIRO holds the patent for Wireless LAN technology, and currently is involved in a series of patent infringement actions pending in the Eastern District of Texas. Marvell, a chipmaker and a party in the patent litigation, moved to disqualify Townsend based on an alleged conflict of interest. The firm represented CSIRO in the district court, which denied the motion, and on appeal before the Federal Circuit.

You can read a copy of the decision by clicking here.

New Class Action Lawsuit Filed Against 24 Hour Fitness

The firm filed a class action lawsuit in Alameda County Superior Court against 24 Hour Fitness USA on behalf of three individuals who were sold “all club” memberships that do not in actuality allow them to use all clubs in the 24 Hour Fitness chain. The complaint alleges that in an effort to increase memberships, 24 Hour Fitness has engaged in a practice of re-branding existing clubs and building new facilities under the name “Sport,” “Super Sport” and “Ultra Sport,” among others – only to inform existing “all club” members that they needed to upgrade their memberships in order to use the “new” clubs. Plaintiffs contend that such practices constitute a breach of contract and violate various consumer protection laws.

The Firm Prevails at Trial in a Long-Running Probate Dispute

Following a multi-week bench trial, San Francisco Superior Court Judge Katherine Feinstein issued a 22-page final Statement of Decision and entered judgment in favor of the firm’s clients, heirs to the estate of Arnold Gridley. (San Francisco Superior Court, Case No. 286102). The trial court rejected all of the respondents’ defenses and claims and overruled of their objections to the tentative statement decision.