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CASE STUDIES2017-10-10T00:20:33+00:00

Our Reputation continues to build based on our Responsiveness to clients and delivery of desired Results.

Read on for real-life examples that demonstrate our diverse abilities and foster client loyalty.

Employment & Labor

Case Study by David L. Cohen

Often times, cases come to us after they have begun and we cannot prevent them, but can find a strategy for dealing with them. On the other hand, it is very often the case that if I prepare client documents, the problems can be avoided all together and/or lessened because of the care taken in preparation of such documents. The actual cases that follow demonstrate our effectiveness in delivering results for our employment and labor clients.

Case No. 1: Blind Aggression Benefits No One (Except the Lawyers)

Back when we first opened our offices in 2001, we connected with a young attorney – let’s call him “Adam” – whose family owned a recycling business in Sacramento. Although Adam had never practiced in the area of employment and labor, he was trying to understand the ins and outs of this complex area of law to assist his family against a union organizing campaign. A well-known San Francisco firm had run up a bill something in excess of $180,000 while representing the family over the past year but failed to yield any positive results. In fact, the company had spent so much money that Adam’s father had asked him to come home to help with the matter because they could not afford the San Francisco firm any longer.

Upon meeting Adam, I offered to assist his family’s business with their union troubles. The prior firm had taken an overly-aggressive approach in fighting the union which had resulted in unfair labor practice charges, administrative trials, fines and penalties. Even with all the costs, the union had still been able to organize the company and was preparing to negotiate for a collective bargaining agreement. After analyzing both the union and the situation, I met with the family and explained my strategy. Three months later, the union walked away without a contract and never bothered the company again.

Understanding the motive of a particular opponent, and analyzing the situation properly, is often more useful to my clients than fighting to their “last nickel” as the other firm is known to do. There is nothing wrong with aggressive defense and sometimes it is necessary; but strategically utilizing information and understanding the end that is desired is far more useful and beneficial to the client than mere billing and man hours.

Case No. 2: An Ounce of Prevention is Worth a Pound of Cure

An ex-employee threatened my employer-client with a wrongful termination lawsuit alleging “breach of contract” and “breach of the covenant good faith and fair dealing.” I received the demand letter from the employee’s attorney and reviewed the situation with my client. Since I had prepared this company’s employee handbook, I knew there was a solid “at-will” clause in the handbook. I asked my client to determine if they had in fact distributed the handbook to this employee, and if the employee had signed the employee acknowledgment included in that document. He responded yes to both. The “at-will” clause in the handbook combined with the employee’s signed acknowledgment effectively wiped out both claims of breach. I informed the employee’s attorney that he had no further claims. The matter was dropped with only the exchange of a letter with copies of the relevant handbook page and the signature page signed by the employee.

Case No. 3: Avoiding Litigation is Even Better Than Winning Cases

Another employer-client faced a wrongful termination lawsuit from a former employee who argued that the binding arbitration agreement signed by both parties was incomplete, incorrect, and therefore unenforceable. I had drafted the arbitration agreement and taken great care to make sure it was amended annually for my client. The agreement, and therefore our defense – was solid. The employee’s attorney argued that the Spanish translation we used was not correct; therefore, the employee who spoke little English (and read even less) did not understand what he was signing. We presented to the judge the English and Spanish translation along with the certification of the Court Certified Translator who had interpreted the English into Spanish. The judge ruled that not only was the English version correct (and bullet-proof), but that the Spanish translation was likewise accurate, and the employee had no choice but to proceed through binding arbitration.

You work hard to grow your business. That’s why we believe you deserve a legal team with the experience and the passion to protect your business.

Commercial Real Estate

Case Study by David B. Durrett

For nearly twenty years, I have represented a family of turkey ranchers in the disposition of its real estate holdings. The family started with three separate ranches. The first was sold to a wetlands mitigation bank. The second ranch proved a bit more challenging as seller’s disclosure requirements triggered an investigation of turkey pits. The family raised nearly 200,000 turkeys a year with an annual death rate of approximately ten percent (10%). Because a subdivision of houses was planned for the property, it was necessary to determine the condition of the departed turkeys.

I had to step aside from representing the family for the sale of the third ranch. The purchaser turned out to be a neighboring family who I also had represented in real estate matters. Ironically, the neighbor had initially hired me based on the recommendation of the original family.

In representing these two families regarding their real estate holdings, we as a firm have addressed a wide range of issues: a bifurcation of one ranch by a freeway; trespass claims related to drilling; survey crews not respecting private property rights; the deaths of certain members of one family resulting in different income and tax needs of the survivors; and the sale of freeway frontage to a Silicon Valley developer. Both families remain as clients of the firm today. With respect to the original family, I am now working with the third generation.

Business Succession & Estate Planning

Case Study by S. Susan King

At its core, Succession and Estate Planning addresses (i) how and by whom you and your assets will be managed in your lifetime and (ii) how and to whom your assets will be distributed after your death. Peel away the “how’s” down to the “why,” and you’ll reach the simplest definition of Succession and Estate Planning: peace of mind. Without a crystal ball to help us see into the future, each of us need to establish a plan before the need for such a plan arises.

Consider this real-life situation. A husband passed away suddenly at age 52, leaving behind a stay-at-home wife and two college-aged children. The husband had been the sole breadwinner of the family for years as the owner and president at the hub of a thriving family business. Shock and grief rocked both the family and the business. As the family and the employees struggled to regain their footing, the lack of advance planning severely undercut their efforts to regain stability.

The husband and the wife had started on an estate plan several years prior, but never gotten around to completing it. Court involvement could not be avoided, which meant sizable costs and fees, numerous time delays, and lack of privacy through the administration process. Moreover, a full probate administration was required because the husband died owning several million in assets as his sole and separate property. And the biggest blow to the grieving widow: her college-aged children would be immediately entitled to two-thirds of her late husband’s separate property assets by law. On top of worrying about the loss of her husband, a steady income, and a significant portion of her financial security, the widow was truly afraid for her children’s future. How motivated would they be to work hard and complete their higher education goals when a large inheritance just dropped into their lap? This was certainly not the plan that the couple would have chosen for themselves.

The family business also suffered greatly as a result of the husband’s passing. He had structured and operated the business like a wheel with himself at the center and never gotten around to planning his exit strategy. No one else at the company had the know-how, the training, the relationships, and business savvy to fill the late husband’s shoes. The widow, who knew very little about how to run the business, suddenly found herself at the helm of a sinking ship. The business slowly bled customers, vendors, and lenders as they lost faith in the company’s ability to continue. And yet, the widow could not bring herself to sell the business and salvage what value she could before there was nothing left to sell. She clung to her late husband’s legacy partly out of sentiment and loyalty and partly out of fear of losing the only source of income she had known for many years.

The husband’s passing could not be predicted or prevented. However, the repercussions of his death were entirely avoidable with proper and timely planning. A well-crafted estate plan for the couple would have avoided probate, granted the widow access to all of the late husband’s separate property if needed, and set aside the separate property ultimately for the children but with appropriate holdbacks or conditions. An established succession plan for the business, even in its early stages, would have provided much-needed working capital, groomed family and/or key employees to step into the late husband’s many roles, and guided the widow in making those difficult decisions during the toughest period of her life. Here, Benjamin Franklin’s words ring true: “By failing to prepare, you are preparing to fail.”

Litigation

Case Study by Jeffrey L. Anderson

An early lesson learned in my career as a litigator is the value of taking the time, preferably as early as possible, to personally visit the subject of the litigation whether it’s real estate, construction, a manufacturing facility, or even the premises of a business.

In many cases that I litigate, we retain consultants to perform site reviews and to prepare written reports, often accompanied by photographs. Many attorneys make the grave mistake of never leaving their desks while relying primarily on such second-hand expert reports for their understanding of the case. While it’s true that a picture is worth a thousand words, in many litigation contexts there is simply no substitute for the attorney seeking the site personally, preferably as soon as possible during the litigation process.

Here are several instances where the benefits of my conducting an early site visit bore dividends:

Americans With Disabilities Lawsuit

Federal lawsuits filed by ADA plaintiff attorneys oftentimes contain boilerplate pleadings replete with standard allegations about how public restroom facilities fail to comply with technical rules and specifications designed to aid in providing access to disabled individuals. In one federal case involving a family Italian restaurant being operated in the Arden Arcade area in a pre-building code facility, the disabled plaintiff alleged generically that he steered his wheelchair into the men’s restroom but that once inside he was prevented from using the bathroom due to inadequate toilet stall space. On a hunch, I arranged with my client (the restaurant owner) to visit the site prior to filing response in court – or even retaining an ADA premises compliance consultant. Once there, it took me all of two minutes to understand, based on the layout of the narrow hallway leading to the restroom, that it would be impossible for the plaintiff to navigate a wheelchair down the narrow hallway and into the restroom only to be stymied in his alleged effort to use the bathroom stall due to its size.

I went back to my office and called the plaintiff’s counsel to demand that the plaintiff dismiss the case due to obvious factual misrepresentations. To further convince the lawyer to dismiss the case, I threatened to request that the court compel a “reenactment” of the plaintiff’s alleged journey down the hallway and into the bathroom – an obviously impossible task. The case settled for a nominal amount much to the relief and satisfaction of the restaurant owner.

Employment Wage and Hour Litigation

In defending employers in wage and hour litigation (particularly in a class action context), it is vitally necessary to understand the layout of the company’s operations, the physical plant layout of where breaks or lunches and where employer/employee meetings occur. In one memorable case involving a commercial roofing company, my visit to the company’s premises to check out the facility and work yard provided invaluable insights that effectively rebutted the plaintiffs’ false allegations that employees were universally and habitually forced to show up and work off the clock during preparation for the day’s work. Viewing the company premises allowed a clear picture of where employees would posse up each morning and the specific locations for the various assignments for loading materials and readying the vehicles that transported the workers to the job site. A quick visit to roofing company’s facility made it clear that many of the plaintiffs’ allegations and inferences were obviously wrong or vastly overblown.

It might be possible to litigate a wage and hour lawsuit brought against a roofing company (or some other type of employer) without ever seeing the workplace at issue. But I strongly believe that seeing with your own eyes the way that the workplace is set up provides a much more accurate and nuance way of developing a compelling defense. Seeing with your own eyes an employer’s break and lunch areas, private spaces for use by lactating mothers, or work stations provides a more accurate understanding of alleged problems and an enhanced ability to ascertain whether the allegations of wrongdoing are real or overblown in a specific case. And that level of personal understanding can often help you work with the client (or expert, if needed) to create helpful graphics and tables that will aid tremendously in demonstrating your client’s story in a trial or arbitration proceeding.

Real Estate Litigation

It’s a given that conducting a personal inspection in a real estate lawsuit should be mandatory. In a graphic example of the benefits that flow from a personal site visit, I represented a client who hired CohenDurrett, LLP, to represent her in a non-disclosure lawsuit against the seller of a home. Specifically, the gist of the case was that the seller failed to disclose to her a large amount of asbestos material in the attic of the home.

While its common to rely almost exclusively on contamination and remediation experts in such cases, I did climb into the attic myself for a look. There was a lot of asbestos that certainly would be reported in an expert’s evaluation. However, that case did not settle and my client was forced to proceed with arbitration on her fraud claims. Being armed with personal knowledge regarding the extent of the contamination in the attic enabled me to vigorously and decisively expose the seller’s repeated patently false assertions under oath that the material was unknown to him at the time of sale to the client. The arbitrator awarded the client complete relief.

Summary

These are graphic examples of situations where physically viewing the site at issue permitted a stronger evaluation of the case and a vastly superior overall strategy for representing the client. A good lawyer who understands the relevant law can simply read a complaint, without leaving his or her office, and often ascertain a viable litigation strategy by doing nothing more. But I believe that there’s no substitute for personally viewing the site as part of the process of formulating superior persuasive approaches and arguments. And, like most lawyers, I enjoy getting out of the office and meeting with clients!

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