THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION INVESTIGATIVE2017 GUIDE TO SERVICES

JULY/AUGUST 2017 / $5

EARN MCLE CREDIT PLUS ASBESTOS CHALLENGING DUTY OF CARE BINDING page 14 ARBITRATION page 22 Gag Orders and Social Media page 10 ON DECK Los Angeles lawyer Michael E. Meyer is the 2017-18 president of the Los Angeles County Bar Association page 7

FEATURES

14 Taking It Home BY MICHAEL B. GURIEN Secondary exposure, the sophisticated intermediary defense, and proof of causation continue to be key issues in asbestos duty-of-care litigation Plus: Earn MCLE credit. MCLE Test No. 269 appears on page 17.

22 Loosen the Bonds BY KARLA GILBRIDE AND ARTHUR H. BRYANT Despite the widespread expansion in the application of binding arbitration clauses, various legal rulings offer relief to those who challenge these agreements

29 Special Section 2017 Semiannual Guide to Investigative Services

Los Angeles Lawyer DEPARTME NTS the magazine of the Los Angeles County 7 President's Page 10 Practice Tips Bar Association An adventure, a challenge, and a personal Reevaluating gag orders in the era of July/August 2017 journey social media BY MICHAEL E. MEYER BY MARK J. GERAGOS, TENY R. GERAGOS, Volume 40, No. 5 TINA GLANDIAN, AND KAYLEE S. KREITENBERG 8 Barristers Tips COVER PHOTO: TOM KELLER Fellowship and professional development 40 Closing Argument for new attorneys Transforming a mediation into a positive BY JEANNE NISHIMOTO outcome for all parties BY RANDE S. SOTOMAYOR

ON THE COVER

LOS ANGELES LAWYER (ISSN 0162-2900) is published LACBA President Michael E. Meyer's law office is a showcase for the sports memorabilia he began collecting monthly, except for a combined issue in July/August, by the as an 11-year-old who swept the stands at Wrigley Field in exchange for passes to the games. Los Angeles County Bar Association, 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Period - icals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: $38 annually; single copy price: $5 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: Address Service Requested. Send address changes to Los Angeles Lawyer, P. O. Box 55020, 07Los Angeles CA 90055. /08.17 ROSS MEDIATION SERVICES integrity u commitment u Success VISIT US ON THE INTERNET AT WWW.LACBA.ORG/LALAWYER E-MAIL CAN BE SENT TO [email protected] Specialty aReaS EDITORIAL BOARD • Real Estate • Business/Commercial • Mortgage & Lending • Escrow/Title/Agency Chair • Trusts & Estates • Workplace JOHN C. KEITH • Construction • Multi-Party Articles Coordinator • Personal Injury • Professional Liability SANDRA MENDELL Assistant Articles Coordinator BARRY ROSS, ESQ., MBA TYNA ORREN 818.840.0950 Immediate Past Chair www.ROSSmediation.com TED M. HANDEL

JERROLD ABELES (PAST CHAIR) SCOTT BOYER REAL ESTATE DISPUTE CONSULTING CHAD C. COOMBS (PAST CHAIR) THOMAS J. DALY WARONZOF ASSOCIATES GORDON K. ENG Timothy R. Lowe, MAI, CRE, FRICS DONNA FORD (PAST CHAIR) STUART R. FRAENKEL MICHAEL A. GEIBELSON (PAST CHAIR) •economic damages •lease disputes SHARON GLANCZ •fair compensation •land use disputes STEVEN HECHT (PAST CHAIR) •property valuation •partnership interest value DENNIS F. HERNANDEZ •lost profits •reorganization plan feasibility JUSTIN KARCZAG MARY E. KELLY (PAST CHAIR) Waronzof Associates, Incorporated 310.322.7744 T 424.285.5380 F KATHERINE KINSEY 400 Continental Boulevard, Sixth Floor [email protected] RENA KREITENBERG El Segundo, CA 90245 www.waronzof.com JENNIFER W. LELAND PAUL S. MARKS (PAST CHAIR) COMM’R ELIZABETH MUNISOGLU CARMELA PAGAY GREGG A. RAPOPORT JACQUELINE M. REAL-SALAS (PAST CHAIR) LACEY STRACHAN THOMAS H. VIDAL

STAFF Editor-in-Chief SUSAN PETTIT Senior Editor JOHN LOWE Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA BEKAS Senior Manager MELISSA ALGAZE Administrative Coordinator MATTY JALLOW BABY

Copyright © 2017 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is pro hibited. Printed by R. R. Donnelley, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

4 Los Angeles Lawyer July/August 2017 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553 Telephone 213.627.2727 / www.lacba.org

LACBA EXECUTIVE COMMITTEE

President MICHAEL E. MEYER President-Elect BRIAN S. KABATECK Senior Vice President TAMILA C. JENSEN Vice President PHILIP H. LAM

Immediate Past President MARGARET P. STEVENS Barristers President JEANNE NISHIMOTO Barristers President-Elect EMPLOYMENT LAW REFERRALS JESSICA GORDON Paying Highest Referral Fees (Per State Bar Rules) Chief Executive Officer/Secretary RICK COHEN Chief Financial & Administrative Officer Honored to receive regular employment referrals from BRUCE BERRA over 100 of Californiaʼs fi nest attorneys

BOARD OF TRUSTEES Stephen Danz 877.789.9707 KRISTIN ADRIAN & Associates HON. SHERI A. BLUEBOND Main offi ce located in Los Angeles and nearby offi ces in Pasadena, Orange County, Inland Empire & San Diego SUSAN J. BOOTH Stephen Danz, Senior Partner 11661 San Vicente Boulevard, Suite 500, Los Angeles, CA 90049 RONALD F. BROT TANYA FORSHEIT JOHN F. HARTIGAN JENNIFER W. LELAND MATTHEW W. MCMURTREY F. FAYE NIA BRADLEY S. PAULEY ANGELA REDDOCK DIANA K. RODGERS MARC L. SALLUS MICHAEL R. SOHIGIAN EDWIN C. SUMMERS III KEVIN L. VICK WILLIAM L. WINSLOW FELIX WOO

AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES CULVER MARINA BAR ASSOCIATION GLENDALE BAR ASSOCIATION IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION JOHN M. LANGSTON BAR ASSOCIATION THE LGBT BAR ASSOCIATION OF LOS ANGELES MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION SOUTH BAY BAR ASSOCIATION SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

Los Angeles Lawyer July/August 2017 5 he expression, “May you live in interesting times,” might seem to be a blessing, but it is more wide ly T known as a curse. Commonly referred to as “the Chinese curse” (despite its apocryphal origins), the ex pres - sion is used ironically to imply that the qualities associated

with “uninteresting” times (peace and tranquility, for example) are preferable to the disorder and conflict that historically have marked “interesting” times. However one reads the expression, most will agree we now live in interesting times. The election of Donald Trump. Threatened repeal of Obamacare. Firing FBI Director James Comey. Talk of impeachment. Brexit. Syria. Refugees. Climate change. Social and political polarization. The Occupy movement. Trigger warnings, safe spaces, and “snowflakes.” The Kardashians. The “sharing” or “gig” economy. Micro- influencers. Personal branding. The Internet, iPhones and Androids, social media, apps, streaming, driverless cars, and countless other technological innovations of dis- ruptive impact. Then, of course, there is the legal profession. In Democracy in America, Alexis de Tocqueville opined that lawyers, whom he viewed as America’s aristocracy and the “masters of a science…not very generally known,” have “nothing to gain by innovation.” However, the legal profession has hardly been immune to the developments that have transformed other aspects of the economy. To me, the profession today feels quite different from the one in which I began practicing less than 15 years ago. A few years back, in an article for The New Republic, Noam Scheiber summarized this sense of change: “Of all the occupational golden ages to come and go in the twentieth century—for doctors, journalists, ad-men, autoworkers—none lasted longer, felt cushier, and was in all more golden than the reign of the law partner.” As Scheiber described it, the golden age lawyer’s existence was characterized by a “generous salary, the esteem of one’s neighbors, work that was more intellectual than purely commercial,” and most of all by “stability” and “a benevolent paternalism” under which, at many firms, “[a]dmission to the partnership after seven years was the natural order of the universe.” Post-golden age, one could expect to find instead: the wholesale collapse of firms; firms aggressively poaching clients from other firms; partners aggressively poaching clients from each other and backstabbing each other over credit and compensation; de-equitization or not making partner in the first place; and the reification of a “rain- maker”-based business model under which “[t]he most profitable partners steadily discarded their underachieving colleagues, because they didn’t want to share the spoils.” While Scheiber focused on big law firms, he also noted more generally applicable problems facing those entering the law in recent years, including: dramatically higher unemployment; skyrocketing student loan debt; outsourcing of work to lower- paid contract attorneys; and automation of work through legal software. Whatever the reasons for the sea changes, there seems little doubt that these are “interesting times” for lawyers. Against the backdrop of such rapid change, Los Angeles Lawyer has for decades striven to be a consistently informative and reliable source of legal information for the Los Angeles legal community. In my inaugural column as chair of the magazine’s editorial board, I want to assure our readers that we will continue to do so in the months and years to come. n

John Keith is the 2017-18 chair of the Los Angeles Lawyer Editorial Board. He practices business litigation with the law firm of Fenigstein & Kaufman in Century City.

6 Los Angeles Lawyer July/August 2017 president’s page BY MICHAEL E. MEYER

An Adventure, a Challenge, and a Personal Journey

AFTER ONE OF THE FIRST CONTESTED ELECTIONS in decades and Chicago grew, it did so by accentuating and building on all the various challenges to a subsequent election, the Los Angeles County positives and correcting the negatives. Bar Association is still divided, with many of its members talking I hope that you will join me in an effort to make LACBA even but not listening, to the overall detriment of LACBA. The world is better, to achieve more gender, age, and ethnic diversity, and to work changing and the legal profession has changed—in some ways not together to support one another other. To that end, I would like to for the better. My initial goals are to unify LACBA to embrace share with you with some key tenets that have helped shape my change and challenges, to provide better services and resources for career: our members, and to change the culture through greater transparency • Always do unto others as you would have them do unto you. and open decision-making. • Treat everyone fairly, with courtesy and respect. That means Remember the pride we all took in being members of a noble treating the janitor, receptionist, delivery person, and wait person profession? That noble profession has become a business where many lawyers and law firms are primarily ranked by how much money they make and where some lawyers who con- We need to come together and work together for the betterment tinue to do great legal work with integrity are being forced out of their firms when a simple solution would be to simply pay them less. of all our lawyers and their clients. Now, please don’t jump to the conclusion of wishing for the good old days. The good old days were nice in many respects, but they were not so nice for with the same courtesy and respect that you give to the chairman of people of color, women, people of some religions, and gays and the board, senior partner, or president of the company. transgenders. We need to come together and work together for the My grandfather came to the United States from Minsk, Belarus, betterment of all our lawyers and their clients, to develop thicker a place that was conquered by Russia, Germany, and a few other skins to be able to ignore real and imaginary slights, and to emphasize countries from time to time. He could not speak English. He worked the great things LACBA and its members are doing every day to as a janitor; saved his money; sent for his wife, brother, and sister; make the world a better place. learned to speak English; and became a successful businessman. I have served four terms as managing partner of the local offices He taught me how to treat people, and to this day I keep a picture of Pillsbury and then DLA Piper. I knew that each term would be in my office of him in front of his pushcart. When I complete a big temporary because if I did my job correctly over a long period of deal and people ask me how I cope with the pressure, I point to time I would eventually offend everyone. (Fortunately, the presidency that picture of my grandfather and explain that he had pressure, of LACBA is only a one-year term.) I learned to listen and to thank not I. those who sometimes disagreed with our policies because that meant • I remind everyone that while it is critical to take your job seriously, they cared and wanted to make things better. it is equally important not to take yourself too seriously. Some of my other goals are to make LACBA more relevant by • I emphasize that when you practice law, you must remember that increasing its public profile in a positive manner, getting younger your reputation is your most important asset and never do anything (with myself as an exception) and more diverse people, as well as that will jeopardize, compromise, or tarnish your reputation in any people of color and other minorities, into leadership positions. manner whatsoever. I recently went back to my University of Chicago law school • It is important what other people think of you, but at the end of reunion where I shared many fond memories with my classmates. the day the most important thing is what you think of yourself. We had a class of about 160, but it included people who went on to I hope each of you will join me on the journey to make LACBA become general counsel of General Motors, congressmen, a U.S. better, recognizing that we are already pretty darn good and that we senator, the prime minister of New Zealand, and distinguished law can get better by working together, by emphasizing what we have in professors. I was the only underachiever. common and do well while working on what we can do better. n A bittersweet memory was reconnecting with classmate Roberta Cooper Ramo. She went on to head a major law firm in New Mexico The 2017-18 president of LACBA, Michael E. Meyer is chairman of the Los and was the first woman president of the American Bar Association, Angeles offices of DLA Piper and a noted authority on real estate leasing all while raising a family. She will celebrate her fiftieth wedding transactions. An avid baseball fan and sports memorabilia collector, he anniversary soon. We had only 10 women in our class. Today, we serves on the boards of the Jackie Robinson Foundation, the Los Angeles have an entering class that is 45 percent women and a racial and Sports and Entertainment Commission, the Natasha Watley Foundation, and cultural mix that would make the UN proud. As the University of the Los Angeles Police Foundation.

Los Angeles Lawyer July/August 2017 7 barristers tips BY JEANNE NISHIMOTO

Fellowship and Professional Development for New Attorneys

FOR NEWER ATTORNEYS IN LOS ANGELES, it can be difficult to find and local officials. The committee has hosted events featuring Los a foothold in what often feels like a sprawling legal community. Angeles Mayor Eric Garcetti, state Senator Ben Allen, Los Angeles One of L.A.’s greatest strengths—its sheer size—can be overwhelming, District Attorney Jackie Lacey Los Angeles County Sheriff Jim and people new to the legal community can easily become lost. As McDonnell, Los Angeles City Attorney Mike Feuer, Beverly Hills the incoming Los Angeles County Bar Association Barristers president, Mayor John Mirisch, and many others. These are often designed to my goal is to prevent this by ensuring that there is a place for every be intimate events so that members are able to have real and mean- new and young attorney in the Barristers Section. ingful conversations with the officials. With over 6,500 members, Barristers is the largest section of the If you want to meet great people with diverse interests, our Los Angeles County Bar Association and one of its most diverse. Networking Committee hosts quarterly mixers for attorneys and Attorneys under 37 years of age or within their first five years of other professionals. Attorneys from around Los Angeles, working at practice are eligible to join the Barristers. As a result, our membership is made up of attorneys from across Los Angeles County who practice in all areas of the law and some who do not With over 6,500 members, Barristers is the largest section of the practice at all. We are employed as associates at small, midsize, and big firms, as solo prac- titioners, in-house counsel at major corpora- Los Angeles County Bar Association and one of its most diverse. tions, government attorneys at the local, state, and federal levels, and public interest attorneys at local and national legal services organizations. Our section is com- both plaintiff and defense firms, public interest organizations, in- mitted to providing relevant programs for this wide-ranging group. house, and everything in between, are able to come together to get to If you are looking to gain new legal skills, develop your practice, know each other in a relaxed and collegially setting, with an occasional or fulfill your MCLE requirements, our CLE Committee creates pro- celebrity sighting thrown in for good measure. After all, this is LA. grams designed specifically for attorneys in their first 10 years of We know that each Barristers member will eventually age out of practice. Past training topics range from fundamental skills such as our section and we want to be a springboard to participation in what to expect at your first trial to cutting edge issues like litigating other parts of LACBA. Through our Barristers Liaison Program, we in the age of social media. have partnered with the other LACBA sections to have a Barristers If you are interested in providing free legal services to low- and member serve as a liaison to the executive committees of 18 active moderate-income people, our Pro Bono Committee provides trainings sections. Liaisons attend their section’s executive committee meetings and volunteer opportunities. Barristers has partnered with LACBA’s and facilitate co-sponsored events between the Barristers and the Veterans Legal Services Project to assist veterans seeking expungements, other LACBA sections. and with local legal services groups to provide members with trainings Now that you have heard all that the Barristers Section has to to assist unaccompanied immigrant minors seeking legal status and offer, I hope you are convinced there is a place for you with us. The formerly abused and neglected children seeking foster care benefits. next step is to visit LACBA.org to ensure that your Barristers mem- (LACBA also has projects that assist people in the areas of domestic bership is current, or call LACBA Member Services at (213) 896- violence, immigration, and AIDS legal services.) If you want to get 6560 with any questions about your membership. We host programs involved in mentoring your future peers, our Law Student Outreach throughout the year that are open to Barristers members, often for Committee coordinates a mock interview program with the local free and often with complimentary drinks. If you are interested in law schools and participates in various law school events during the becoming more active in the section by joining a committee, you school year. This gives Barristers members an opportunity to find can visit the Barristers at LACBA.org/barristers where we provide someone to mentor and to stay involved with their local law schools. contact information for each of our committee chairs. If you want to meet the judges that you appear before in court, If you are still not convinced there is a place for you with Barristers, our Bench and Bar Committee hosts an annual mixer with members contact me and tell me how we can improve! My e-mail address is of the judiciary. Barristers members have the rare chance to speak [email protected]. I am committed to ensuring that the Barristers with judges outside of the courtroom. Our program always enjoys Section is serving all its members, and cannot do that without your wide support from the judiciary, which is not surprising considering input. I hope to see you at a Barristers event soon. n many judges—including the Honorable Margaret M. Morrow and the Honorable Lee Smalley Edmon—are former Barristers. The 2017-18 president of the Los Angeles County Bar Association Barristers If you are interested in meeting your local government officials, Section, Jeanne Nishimoto is a Legal Aid Foundation of Los Angeles staff the Government Relations Committee hosts events that feature state attorney.

8 Los Angeles Lawyer July/August 2017

practice tips BY MARK J. GERAGOS, TENY R. GERAGOS, TINA GLANDIAN, AND KAYLEE S. KREITENBERG

Reevaluating Gag Orders in the Era of Social Media

EXISTING LAWS GOVERNING GAG ORDERS require updates and revisions as times change and technology advances. This is especially true in light of the rapid growth and expansion of accessibility to information. Many of the current laws on the books pertaining to restrictive speech are now obsolete and should be reevaluated. Historically, the intended use of gag orders was to protect defen- dants from prejudicial information that could potentially impede the right to a fair trial; however, courts have slowly deviated from that focus. In addition, there is ongoing tension between the consti- tutionality of gag orders and their effectiveness. It is difficult for trial judges to predict what information will undermine juror impar- tiality and narrowly tailor orders that will effectively keep prejudicial information from entering the courtroom without overreaching into constitutional protections.1 The justification for gag orders was addressed in a 1994 amendment to the First Amendment of the U.S. Constitution that stated, “although [a] court order restraining news in advance of publication from report- ing facts about trial or defendant violates the First Amendment guar- antee of free press, [a] court order so restraining trial participants is constitutional as long as properly justified.”2 The term “properly justified” has been scrutinized by the various circuit courts, and its interpretation has resulted in a myriad of definitions. In Nebraska Press Association v. Stuart, the U.S. Supreme Court deemed invalid a restrictive order, entered by the Nebraska trial court and affirmed by the Nebraska Supreme Court, prohibiting reporting or commentary on judicial proceedings held in public.3 add ‘fuel to an already voracious fire of publicity’ and create a real Justice Lewis Powell’s concurrence acknowledged that a prior restraint substantial likelihood that some defendants… [m]ight be deprived a may only be issued when “necessary to prevent the dissemination of fair trial.”9 pretrial publicity that otherwise poses a high likelihood of prevent- Alternatively, the Sixth Circuit has utilized a standard of “clear ing… the Sixth Amendment requirement of impartiality [by the jury and present danger.” In United States v. Ford, the defendant argued members].”4 Similarly, in the decision in Radio & Television News that a lower standard, also referred to as the “near standard” taken Association of Southern California v. United States District Court from the U.S. Supreme Court case, Sheppard v. Maxwell, should for the Central District of California, the Ninth Circuit found that have been utilized.10 However, the Sixth Circuit explained that the restrictions on the statements of defendant’s trial counsel were nec- “near standard” solely applies to restraints on the press in criminal essary to reduce prejudicial publicity.5 The Ninth Circuit concluded cases as decided by the Supreme Court and that this matter did not that the prior restraint under such circumstances was reasonable fall within those constraints.11 The Sixth Circuit concluded that the and served a legitimate purpose.6 gag order in Ford failed to meet the “clear and present danger” test, On the other hand, the Second and Fourth Circuits require that which requires more than a possibility or “reasonable likelihood in pretrial publicity pose a “reasonable likelihood” of prejudice to a the future” as well as a “serious or imminent threat of a specific defendant’s right to a fair trial. In In re Russell, the Fourth Circuit nature for which can be narrowly tailored in an injunctive order.”12 concluded that the court acted within constitutional limits when In contrast, the Eleventh Circuit has acknowledged the various stan- restricting any potential witness to the proceeding from making any dards but expressly refuses to adopt any particular standard.13 statements to the public.7 Similarly, the Second Circuit, in In re The aforementioned opinions demonstrate the lack of universal Application of Dow Jones & Company, Inc., applied the “reasonably application across the circuit courts regarding the standard for analyzing necessary” standard to determine whether the pretrial publicity per- the propriety and scope of gag orders and the constitutional ramifications taining to that matter would prejudice a defendant’s ability to have a fair trial.8 Ultimately, the Second Circuit denied the news agencies’ Mark J. Geragos is a trial attorney at Geragos & Geragos, APC. Tina Glandian appeal from a gag order that restrained trial participants in that heads the firm’s New York offices. Teny R. Geragos practices criminal defense criminal case from speaking with the press, agreeing with the district at Brafman & Associates in New York. Kaylee S. Kreitenberg is a law student

HADI FARAHANI court’s reasoning that the “failure to restrain trial participants would at Southwestern Law School, graduating in 2018.

10 Los Angeles Lawyer July/August 2017 of the ongoing friction between First events accurately, but since the 1966 Sheppard to acknowledge and address. Amendment rights and the protection of the opinion in which the inability to effectively Other countries also have had to grapple right to a fair trial. This dichotomy has widened control media was acknowledged, such a con- with open access to vast forums of information substantially in the age of the Internet and clusion may not be as reasonable or justified and how to limit the information that poses the rise of social media. Pretrial publicity and today. It is an undeniable conclusion that a threat to national security. In Israel, for ex - media coverage have expanded globally and some 50 years later modern media is much ample, the government has often utilized gag no longer stem from one source. Media and more difficult to control. This is especially orders in an effort to prevent perceived threats news platforms no longer focus on local events true in light of the rapid growth of technology to national security.22 Thus, the creation of a but are now structured to target universal and and instantaneous access to information that censorship office was instituted early on in greatly expanded audiences on all manner of could demonstrate the heightened need for that country’s history. The Israeli Military topics not limited to specific geographic loca- controlling access to sensitive information by Censor requires journalists writing about tions. The lack of uniformity in the law con- the media and the difficulty in effectively lim- particular incidents to clear their stories with cerning interpretation of proper justification iting access. Thus, the Supreme Court’s solu- the censor’s office prior to publication. For for a gag order further complicates the analysis. tion set forth in the Sheppard opinion to many years the system was effective, but given Local issuance of gag orders with a municipal, “continue the case until the threat abates or the proliferation of blogs, Twitter, and global statewide, or even nationwide restriction does transfer it to another county” if it is deter- news sites, the censorship office may no longer not guarantee that international publications mined “there is reasonable likelihood that be effective in curtailing the dissemination of will refrain from reporting on these types of prejudicial news prior to trial will prevent a information on a global level.23 matters. Thus, it is imperative for courts to fair trial” provides little in the way of guidance For example, in December 2010, an Aus - determine whether a gag order, in this era of in this new era of unlimited information.19 tra l ian national broadcaster reported that an instant information on a world-wide scale, The cause for concern no longer arises Australian-Israeli working for the Mossad will serve the purpose for which such orders from local access to information. A gag order had hung himself in prison.24 Subsequently, historically were intended. in present day proceedings likely may not the censor’s office banned local media from Gag orders, which are ultimately within serve the purpose for which it is intended: to discussing events pertaining to the alleged a judge’s discretion, were born in an effort protect a litigant from unwanted or prejudicial suicide. However, this local ban did not pre- to protect parties involved in a proceeding publicity that could affect the litigant’s right vent the international media outlets from from the disclosure to the press or any out- to a fair and impartial jury or fair trial in picking up the story, disclosing the incident, siders of the events occurring in the court- general. Thus, the applicability of the rationale and reporting speculation and conjecture room.14 “Judges are permitted to issue gag in Sheppard could be viewed as obsolete. outside the state of Israel, thereby undermin- orders based on their own judgment or in If courts adhere to the precedent estab- ing the impact of the local ban. Israel did response to a request by one of the parties lished in Sheppard and its progeny, the notion not confirm or deny any of the events until to the proceeding.”15 Sheppard v. Maxwell of protection of rights to a fair trial should 16 hours after the Australian Broad casting was one of the first cases to address the be sufficient to support gag orders. Protection Corporation report was released, thereby “unfair and prejudicial news comment on of these rights has been the essence of what causing unnecessary discussion and buzz sur- pending cases” because of the court’s decision gag orders were historically intended to safe- rounding what should have been a local event to allow the media to infiltrate the proceeding guard. However, the courts appear to have with little global newsworthiness. Clearly, and courtroom.16 The Supreme Court delved significantly broadened the notion of pro- the prior restraint used by the Israeli gov- into the framers’ intentions and particularly tection. If the courts substantially deviate ernment was useless in that situation. focused on why the courts have been unwill- from the historical context for gag orders In the United States, currently no published ing to hinder the freedom exercised by the (i.e. to preserve the right to a fair trial), the cases specifically gag orders and their ability news, finding that the “unqualified prohibi- pur pose of the orders could be rendered obso- or lack thereof to limit pretrial and trial pub- tions laid down by the framers were intended lete. Moreover, as technology rapidly ad - licity on a global scale. But given the reality to give liberty of the press the broadest scope vances, the ability to limit the dissemination of instant access to information today, gag that could be countenanced in an orderly of information seems almost impossible. orders do not seem effectual in today’s society. society.”17 It appears Sheppard v. Maxwell With the ability to access reporting from other Server in Ireland triggered the recognition by the courts that counties, states, and countries, much like the the public’s increasing accessibility to infor- The Second Circuit recently addressed this case in Israel, a local gag order would have mation and difficulty in differentiating new reality in discussing the right to access little to no effect on access to information between fact and fiction places the defendant information maintained on a server located outside the reach of such an order. With such (or others involved in civil or criminal pro- in Ireland from a location within the Unit ed unfettered access to information, it is nearly ceedings) in the crossfire of various journalists States. The issue was whether the United States impossible to protect a courtroom from media and news reporting agencies and websites. could force Microsoft to produce an expansive bias short of sequestering a jury, which in Specifically, defense counsel in Sheppard amount of information associated with a spe- most cases is not feasible. v. Maxwell brought to the court’s attention cific e-mail account based in Ire land.20 The The number of unpublished authorities the influx of incorrectly reported testimony Second Circuit denied the warrant and con- touching on the issue of pretrial publicity in at trial and how the prosecution repeatedly cluded that electronic documents do not fall the age of the Internet is limited. The courts, made evidence available to the news media, within the same category as hard copies. The while acknowledging the difficulty of limiting ultimately causing most of the evidence dis- court based the conclusion on the fact that access to information, have concluded that seminated to be inadmissible. Yet, the court the location of documents on a computer in any bias can be ferreted out through voir did not attempt to warn the newspapers to a foreign country is “merely virtual.”21 Accord - dire. In Empire State Ethanol & Energy, LLC check the accuracy of their commentaries and ingly, the issue of access to discretionary infor- v. BBI International, the court denied the unilaterally refused to take action.18 In the mation on a global scale and the ability to defendant’s request for a gag order, concluding Sheppard court’s defense, it was not unjustified disseminate that information instantaneously there was no evidence the limited media atten- to assume that the journalists were reporting has now become a reality that courts are forced tion about the case had created a threat of

Los Angeles Lawyer July/August 2017 11 general bias against the defendant.25 The information.30 Since California has not yet information and rejects the notion that any defendant argued that a gag order was nec- promulgated a rule pertaining to the ethical bias can be ferreted out through the voir dire essary because a “reasonable likelihood” propriety of Internet research on jurors by process. If the court places a unilateral ban existed that the media disclosures would prej- counsel, the court in Oracle exercised its dis- on investigative efforts via the Internet by udice the defendant’s right to a fair trial.26 cretion by imposing an outright ban preventing counsel, how can the trial parties be certain The court pointed out that the defendant did counsel and the parties from conducting social they are eliminating all possibility of bias not establish that alternatives to a wholesale media and Internet searches on venire persons from entering the courtroom? gag order would be insufficient.27 Specifically, as well as the final empaneled jury. The court With the advent of blogs and other per- the court found that through the voir dire did address the notion that such a prohibition sonalized versions of the news online and process, “a court can identify those jurors would cause the lawyers to be precluded from elsewhere, an additional issue arises: even if whose prior knowledge of the case would information that is readily available to the a gag order could limit information coming disable them from rendering an impartial ver- press and public. “[W]ith an outright ban, from the press, how is the information limited dict.”28 The rationale behind the court’s analy- everyone in the gallery could have more infor- when it comes from a blogger who is merely sis arises from the belief that there is a tendency mation about the venire persons and the asserting his or her opinions in the exercise to overestimate the extent of public awareness empaneled jurors than the lawyers them- of free speech rights? If the Supreme Court and that even those who are aware are capable selves.”31 But the court concluded that while can determine that the statements of a court of setting aside their impressions to make an it cannot control the public, it can control the bailiff have the capacity to bias a jury then evaluation on the basis of evidence presented trial participants and help prevent certain dan- certainly comments made by bloggers and at trial.29 Even if the gag order had been gers in the voir dire process including the social media personalities pose a threat to a granted in this case, there would have been inherent unfairness in permitting lawyers to defendant’s right to a fair trial.34 Even assum- no guarantee that it could have effectively investigate venires while no such reciprocal ing the dissemination of such opinions over removed all access to information concerning right exists for venires to investigate the the Internet could be controlled, whose con- the litigation available through the various lawyers. Moreover, such investigation could stitutional rights should prevail? media outlets. At a certain point, there is only facilitate improper personal appeals to specific The media were originally intended to so much a gag order can control. But the jurors and violate the privacy of venires.32 provide a platform to share accurate report- assumptions made in Empire State Ethanol The Oracle court acknowledged the possibility ing of events occurring across the globe, but are premised on the likely incorrect conclusion that the attorneys would not easily agree to with the advent of online societies and chat that jurors are able to ignore media coverage such a ban, and in that scenario, the court groups coupled with the new phenomenon of cases in which they are serving. laid out instructions forcing the trial teams to of minute-by-minute sharing of personal The recent opinion in Oracle America Inc. disclose the full extent to which they would opinions through Twitter, Facebook or per- v. Google further complicates the boundary conduct research on jurors.33 Such limitation sonal blogs and now the notion of “fake between the voir dire process and access to clearly infringes the right to access public news,” the fine line between what is factual and what is opinion or what is newsworthy but potentially damaging to the right to a fair trial has blurred to the point of absurdity. Opinion is taken as fact and there is little to no probing or questioning the veracity of what is being disseminated. Accuracy in the media has been rendered irrelevant and fur- ther undermines the use and purpose of local gag orders. With these changes, it is impos- sible not to acknowledge that society today is far different from when our Founding Fathers enacted the Constitution. During his speech on the bicentennial of the Constitution on May 6, 1987, Justice Thur good Marshall stated: [W]e must be careful when focusing on the events which took place in Phila delphia two centuries ago, that we not overlook the momentous events which followed, and thereby lose our proper sense of perspective…. If, we seek in stead a sensitive understand ing of the Constitution’s inherent defects, and its promising evolution through 200 years of history, the celebration of the “Miracle of Philadelphia”… will, in my view, be a far more mean- ingful and humbling experience.35 In other words, the evolution of our coun- try is something that needs to be considered at all times. If laws and procedures enacted in an era long past no longer address the

12 Los Angeles Lawyer July/August 2017 needs of society or serve the purpose for which they were enacted, their legitimacy and application must be questioned. Current laws addressing media bias and the limiting of information to ensure a fair trial are show- ing signs of irrelevancy in the modern world. But until a court or the legislature takes up the issue squarely, attorneys are left with extrapolating from prior precedent and have little guidance in the navigation of Internet waters that will only continue to complicate the issue. For now, it is likely courts will con - tinue to issue gag orders, but with little like- lihood that such orders will limit the exposure of information bound to escape into the World Wide Web. n

1 Nebraska Press Ass’n v. Stuart, 427 U.S. 567 (1976). 2 U.S. CONST. amend. I. 3 Nebraska Press Ass’n, 427 U.S. at 570. 4 Id. at 571. 5 Radio & Television News Ass’n of S. Cal. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 781 F. 2d 1443, 1447 (9th Cir. 1986). 6 Id. at 1448. 7 In re Russell, 726 F. 2d 1007, 1011 (4th Cir. 1984). 8 In re Application of Dow Jones & Co., Inc., 842 F. 2d 603, 610 (2d Cir. 1988). 9 Id. at 611. 10 United States v. Ford, 830 F. 2d 596, 598(6th Cir. 1987). 11 Id. 12 Id. at 600. 13 United States v. Hill 893 F. Supp. 1039, 1041 (N.D. Fla. 1994), quoting News–Journal Corp. v. Foxman, 939 F. 2d 1499, 1515 n.18 (11th Cir.1991). 14 See Bonnie Birdsell, Reevaluating Gag Orders and Rape Shield Laws in the Internet Age: How Can We Better Protect Victims? 38 SETON HALL LEGIS. J. 71, 81 (2014). 15 Id., quoting Deanne Katz, Sex Assault Victim Savanna Dietrich’s Twitter Justice, FindLaw (July 23), 2012, http://blogs.findlaw.com . 16 Sheppard v. Maxwell, 384 U.S. 333, 362. 17 Id at 350. 18 Id at 360. 19 Id at 363. 20 In re Warrant to Search a Certain E-mail Account by Microsoft Corp., 829 F. 3d 197 (2d Cir. 2016). 21 Id at 229. 22 Tia Goldenberg, Gag orders silence Israeli press in digital age, Assoc. Press (Feb. 13, 2013), available at www.salon.com. 23 Id. 24 Id. 25 Empire State Ethanol & Energy, LLC v. BBI Int’l, No. 1:08-CV-623 GLS/DRH, 2009 WL 790962, at *10 (N.D. N.Y. Mar. 20, 2009) 26 Id. 27 Id. 28 Id. at *11, quoting Press–Enterprise Co. v. Superior Ct., U.S. 1, 15, 106 S. Ct. 2735, 92 L. Ed.2d 1 (1986). 29 Id., citing In re Application & Affidavit for a Search Warrant, 923 F. 2d 324, 329 (4th Cir. 1991). 30 Oracle Am., Inc. v. Google Inc.,172 F. Supp.3d 1100 (N.D. Cal. 2016). 31 Id. at 1103. 32 Id. 33 Id. 34 See Parker v. Gladden, 385 U.S. 363, 364 (1966). 35 Marshall, Thurgood, Reflections on the Bicentennial of the United States Constitution (May 6, 1987), avail- able at http://thurgoodmarshall.com.

Los Angeles Lawyer July/August 2017 13 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 17.

by Michael B. Gurien Taking it Home Recent court cases have aligned California with other states in reaffirming factors found in Rowland v. Christian determinative of asbestos tort liability

several decades, asbestos-re - who is directly exposed to a toxin carries it FOR lat ed personal injury claims home on his or her person or clothing, and have been an active area of litigation nation- a household member is in turn exposed wide, including in California. To this day, through physical proximity or contact with courts across the country continue to decide that worker or the worker’s clothing.”2 issues of importance in this area of the law, The first published California appellate often with ramifications beyond asbestos lit- decision to address this issue in the asbestos igation. Recent appellate decisions in Cal - context was Campbell v. Ford Motor Com - ifornia, including by the California Supreme pany3 in 2012. In Campbell, plaintiff Eileen Court, have addressed a variety of issues in Honer alleged that she developed “mesothe- the context of asbestos injury claims: liability lioma as a result of her exposure to asbestos for injuries from secondary or “take-home” from laundering her father’s and brother’s exposure to asbestos, the scope and operation asbestos-covered clothing during the time of the sophisticated intermediary doctrine they worked with asbestos as independent as a product liability defense, and proof of contractors hired by Ford [Motor Company] causation. to install asbestos insulation at its Metuchen, In recent years, courts in California and New Jersey plant.”4 On appeal following a elsewhere have addressed “whether employers jury verdict and judgment in Honer’s favor, or landowners owe a duty of care to prevent Ford argued that “it owed Honer no duty secondary exposure to asbestos.”1 This type as a matter of law because a ‘property owner of “exposure, sometimes called domestic or is not responsible for injuries caused by the take-home exposure, occurs when a worker acts or omissions of an independent contrac-

Michael B. Gurien is a partner in the El Segundo office of Waters Kraus & Paul, where he practices asbestos-related and other personal injury litigation, with a focus on law and motion and appellate work. RICHARD EWING

14 Los Angeles Lawyer July/August 2017 tor unless the property owner controlled the the defendant, a manufacturer of asbestos- conclusion that an employer responsible for work that allegedly caused the injury, or containing brake linings. Relying on Camp - exposing its employees to a toxin such as failed to warn of a known pre-existing con- bell, the trial court ruled that the defendant asbestos, or for failing to warn or take rea- cealed hazardous condition on the prop- did not owe a duty of care to Kesner and sonable protective measures, bears no respon- erty.’”5 Honer countered that “‘[a] premises granted a nonsuit for the defendant. The First sibility to any nonemployee foreseeably owner who knows or reasonably should District Court of Appeal reversed the judgment, affected by exposure to the toxin.”18 know of a condition on the premises, that holding that there was a duty of care. Shortly after Kesner, the Second District the owner should foresee exposes persons to In reaching its decision, the court of appeal Court of Appeal issued a divided opinion on an unreasonable risk, and who has no basis acknowledged “that the prospect of ‘inde- the take-home duty issue in Haver v. BNSF for believing that others will discover the terminate liability’ places a limitation on Railway Company.19 In Haver, Lynne Haver condition or realize the risk involved, is under those to whom the duty of exercising rea- died from mesothelioma allegedly caused by a duty to exercise ordinary care—either to sonable care may extend.”12 The court also exposure to asbestos carried home by her make the condition reasonably safe for others’ “recognize[d] the difficulty in articulating husband from his employment with the de - use or to give a warning adequate to enable the limits of that duty and the different con- fendant railroad. Relying on Campbell, the defendant demurred to the plaintiffs’ com- A defendant asserting the sophisticated plaint, arguing that it did not have a duty to protect Haver from exposure to asbestos used in its business operations. The trial court intermediary doctrine must do more agreed and sustained the demurrer without leave to amend. than simply show “that the user is an Finding no basis to distinguish or disagree with Campbell, the majority held that the employee or servant of the defendant did not owe Haver a duty of care and affirmed the judgment. Similar to Camp - bell, the majority expressed concern about sophisticated intermediary.” “‘the consequences of extending employers’ liability too far.’”20 The majority also dis- others to avoid the harm.’”6 clusions that courts throughout the country tinguished Kesner on the ground that Kesner Beginning its duty analysis with the general have reached when considering claims for involved a claim for products liability, not duty of care in Civil Code Section 1714(a), secondary exposure to toxics, particularly premises liability, which was the claim in that “‘“[e]veryone is responsible…for an in - asbestos, emanating from the workplace.”13 Haver. The dissent disagreed, finding that jury occasioned to another by his or her want These considerations, however, did not justify the defendant had a duty to protect Haver of ordinary care or skill in the management a categorical no-duty rule under the Rowland from asbestos exposures resulting from its of his or her property or person,”’”7 the factors. While “the duty of care undoubtedly negligent use of asbestos in its business. The court of appeal considered whether there does not extend to every person who comes dissent found that the defendant’s “duty arises was justification for a categorical exception into contact with an employer’s workers,” from Civil Code section 1714, subsection to this fundamental duty rule for take-home the court held that “the duty runs at least to (a), which makes everyone responsible for asbestos injury cases under the factors iden- members of an employee’s household who injuries caused by his or her negligence,” tified in Rowland v. Christian.8 Finding that are likely to be affected by toxic materials that the Rowland factors did not support a an exception was warranted, the court held brought home on the worker’s clothing.”14 categorical exception to this fundamental “that a property owner has no duty to protect Although Kesner “was not a member of his duty rule for take-home asbestos injury family members of workers on its premises uncle’s household in the normal sense, he claims, and that Kesner was correctly decided from secondary exposure to asbestos used was a frequent visitor, spending several nights and indistinguishable.21 during the course of the property owner’s a week in the home.”15 Balancing these cir- To resolve the discrepancy between Kesner business.”9 In reaching its decision, the court cumstances under the Rowland analysis, the and Haver, the California Supreme Court found that two of the Rowland factors—the court held that “the likelihood of causing granted review in both cases and consolidated burden to the defendant and the conse- harm to a person with such recurring and them for argument and decision. Concluding quences to the community—“weigh[ed] non-incidental contact with the employer’s that the Rowland factors did not justify a heavily against” a duty of care because “‘it employee…[wa]s sufficient to bring Kesner categorical no-duty rule, but instead called is hard to draw the line between those non- within the scope of those to whom the em - for a limitation on the class of persons to employee persons to whom a duty is owed ployer…owes the duty to take reasonable whom a duty of care is owed, the court said: and those nonemployee persons to whom no measures to avoid causing harm.”16 We hold that the duty of employers duty is owed,” and because “‘[t]he gist of The court of appeal in Kesner distin- and premises owners to exercise or - the matter is that imposing a duty toward guished Campbell because Campbell involved dinary care in their use of asbestos nonemployee persons saddles the defendant a claim for premises liability “based on Ford’s includes preventing exposure to as- employer with a burden of uncertain but passive involvement as owner of the plant bestos carried by the bodies and cloth- potentially very large scope.’”10 in which an independent contractor was ing of on-site workers. Where it is rea- Two years after Campbell, two court of installing asbestos insulation.”17 In contrast, sonably foreseeable that workers, their appeal decisions reached divergent conclusions the claim in Kesner arose out of the defen- clothing, or personal effects will act as on the take-home duty issue. In Kesner v. dant’s own use of asbestos in its manufac- vectors carrying asbestos from the Superior Court,11 Johnny Kesner developed turing operations, a distinguishing circum- premises to household members, em- and died from mesothelioma allegedly caused stance that resulted in a different balance ployers have a duty to take reasonable by exposure to asbestos carried home on his under the Rowland factors. That balance, care to prevent this means of trans- uncle’s clothing from his employment with the court concluded, did “not lead to the mission. This duty also applies to

16 Los Angeles Lawyer July/August 2017 MCLE Test No. 269 MCLE Answer Sheet #269 TAKING IT HOME The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. You may take tests from back Name issues online at http://www.lacba.org/mcleselftests. Law Firm/Organization

1. Under California law, there is a general duty of care intermediary purchaser or sold to a sophisticated pur- under which a person is responsible for injuries caused chaser. Address by his or her negligence. True. City True. False. State/Zip False. 12. In a claim for injury by an employee of an intermediary E-mail 2. The factors identified in Rowland v. Christian, 69 Cal. purchaser, a product supplier can establish a defense 2d 108, 112-13 (1968), are used to determine whether under the sophisticated intermediary doctrine based Phone there has been a breach of the duty of care in a negligence solely on evidence that the purchaser-employer was State Bar # action. sophisticated. True. True. INSTRUCTIONS FOR OBTAINING MCLE CREDITS False. False. 1. Study the MCLE article in this issue. 3. Secondary or “take-home” exposure to asbestos, in 13. Either direct or indirect (circumstantial) evidence 2. Answer the test questions opposite by marking the context of asbestos personal injury litigation, gen- can be used to prove the reliance element of the sophis- the appropriate boxes below. Each question erally refers to a person’s exposure to asbestos from ticated intermediary doctrine. has only one answer. Photocopies of this physical proximity to or contact with another person True. answer sheet may be submitted; however, this who was exposed to asbestos in the course of that per- False. form should not be enlarged or reduced. son’s work activities. 14. Under the sophisticated intermediary doctrine, 3. Mail the answer sheet and the $20 testing fee True. whether a product supplier actually and reasonably ($25 for non-LACBA members) to: False. relied on an intermediary to convey warnings to end Los Angeles Lawyer 4. Under California law, employers and landowners owe users typically raises questions of fact for the jury to MCLE Test a duty of care to prevent take-home exposure to asbestos. determine. P.O. Box 55020 True. True. Los Angeles, CA 90055 False. False. Make checks payable to Los Angeles Lawyer. 5. 15. Under California law, the duty of care to prevent take- To prove causation in an asbestos-related injury 4. Within six weeks, Los Angeles Lawyer will home exposure to asbestos extends to all persons case, the plaintiff must first prove some exposure to return your test with the correct answers, a injured from such exposure. asbestos from the defendant’s product and must then rationale for the correct answers, and a True. prove that the exposure was, in reasonable medical certificate verifying the MCLE credit you earned False. probability, a substantial factor in bringing about the through this self-study activity. 6. Whether a person is a member of a worker’s house- injury. 5. For future reference, please retain the MCLE hold, for purposes of the duty of care to prevent take- True. test materials returned to you. home exposure to asbestos, depends solely on whether False. ANSWERS 16. To establish causation in an asbestos-related cancer the person has a traditional family or biological rela- Mark your answers to the test by checking the tionship with the worker. case, the plaintiff is required to prove that asbestos appropriate boxes below. Each question has only True. fibers from the defendant’s product were the fibers, or one answer. False. among the fibers, that actually started the process of 7. malignant cellular growth. California is the only state that recognizes a duty of 1. n True n False care to prevent take-home exposure to asbestos. True. 2. n True n False True. False. False. 17. Causation in an asbestos-related cancer case can 3. n True n False 8. The sophisticated intermediary doctrine addresses be proven by competent expert testimony that every 4. n True n False the circumstances under which a product supplier can exposure to asbestos contributes to the risk of developing 5. n True n False discharge its duty to warn end users about the hazards the disease. 6. n True n False of its product by conveying warnings to an intermediary True. purchaser or by selling to a sophisticated purchaser. False. 7. n True n False True. 18. To prove causation in an asbestos-related injury 8. n True n False False. case, the plaintiff must provide an estimate of the dose 9. n True n False 9. The sophisticated intermediary doctrine is an affir- of asbestos received from the defendant’s product. 10. n True n False mative defense that the product supplier has the burden True. of proving. False. 11. n True n False True. 19. In determining causation in an asbestos-related 12. n True n False False. injury case, the jury is required to consider the length, 13. n True n False 10. To discharge its duty to warn under the sophisticated frequency, proximity, and intensity of exposure from 14. n True n False intermediary doctrine, a product supplier must always the defendant’s product, the particular properties of provide an adequate warning to the intermediary pur- the product, and any other potential causes of the injury. 15. n True n False chaser about the product’s particular hazards. True. 16. n True n False True. False. 17. n True n False False. 20. Only the testimony of a medical doctor can establish 18. n True n False 11. To discharge its duty to warn under the sophisticated causation in an asbestos-related injury case. intermediary doctrine, a product supplier is only required True. 19. n True n False to show that it provided an adequate warning to the False. 20. n True n False

Los Angeles Lawyer July/August 2017 17 premises owners who use asbestos on Accordingly, based on the supreme court’s first looking at several other product liability their property, subject to any exceptions decision in Kesner, California now “stand[s] defenses. Next, it reviewed the doctrine’s ori- and affirmative defenses generally in harmony” on the take-home duty issue gins in the Restatement (Second) of Torts,38 applicable to premises owners, such with other states “that have adopted a general its prior application in California case law, as the rules of contractor liability. Im- principle of tort liability analogous to section and its most recent iteration in the Re- portantly, we hold that this duty ex- 1714 or that allow recovery, as…in Rowland, statement (Third) of Torts.39 The court then tends only to members of a worker’s for foreseeable categories of injury regardless formally adopted the doctrine as an affirma- household. Because the duty is premised of the relationship of the parties.”31 Litigation tive defense and articulated a two-part test on the foreseeability of both the regu- on this subject will undoubtedly continue, for its application: larity and intensity of contact that including as to foreseeability and household We now formally adopt the sophisti- occurs in a worker’s home, it does not member status,32 but the existence of a duty cated intermediary doctrine as it has extend beyond this circumscribed cat- of care in this context is now settled law in been expressed in the Restatement pro- egory of potential plaintiffs.22 California. visions just discussed. Under this rule, Repeating arguments that the courts in a supplier may discharge its duty to Sophisticated Intermediary Doctrine Campbell and Haver found persuasive, the warn end users about known or know- defendants claimed “that a finding of duty A recurring question in asbestos injury liti- able risks in the use of its product if in these cases would open the door to an gation over the past several years has been it: (1) provides adequate warnings to ‘enormous pool of potential plaintiffs,’” result- whether a product manufacturer or supplier the product’s immediate purchaser, or ing in “great costs and uncertainty” and can satisfy its duty to warn ultimate users of sells to a sophisticated purchaser that “voluminous and frequently meritless claims the hazards of its product by conveying warn- it knows is aware or should be aware that will overwhelm the courts.”23 While ings to an intermediary purchaser or by selling of the specific danger, and (2) reason- acknowledging that these arguments “raise to a sophisticated intermediary. This issue ably relies on the purchaser to convey legitimate concerns regarding the unmanage- was recently addressed by the California appropriate warnings to downstream ability of claims premised upon incidental Supreme Court in Webb v. Special Electric users who will encounter the product. exposure, as in a restaurant or city bus,” the Company, Inc.33 Because the sophisticated intermediary California Supreme Court held that they did In Webb, plaintiff William Webb dev - doctrine is an affirmative defense, the not “clearly justify a categorical rule against eloped mesothelioma from exposure to supplier bears the burden of proving liability for foreseeable take-home expo- asbestos-cement pipe manufactured by Johns- that it adequately warned the inter- sure.”24 Rather, these “concerns point to the Manville Corporation using raw asbestos sup- mediary, or knew the intermediary need for a limitation on the scope of the duty plied by defendant Special Electric Com pany, was aware or should have been aware here,” which, as noted, the court limited “to Inc. Webb and his wife filed suit against Special of the specific hazard, and reasonably members of a worker’s household, i.e., per- Electric and others alleging, among other the- relied on the intermediary to transmit sons who live with the worker and are thus ories, that Special Electric was liable for failing warnings.40 foreseeably in close and sustained contact to warn Webb of the dangers of the asbestos To satisfy the doctrine’s first prong, the with the worker over a significant period of it supplied. During trial, Special Electric moved supreme court held that “generally the sup- time.”25 The court ex plained that “[t]his lim- for nonsuit and a directed verdict on plaintiffs’ plier must have provided adequate warnings itation comports with our duty analysis under failure-to-warn claims on the ground “that to the intermediary about the particular haz- Rowland,” because it “strikes a workable it had no duty to warn a sophisticated pur- ard.”41 As a “limited exception,” the court balance between ensuring that reasonably chaser like Johns-Manville about the health recognized that “[i]n some cases the buyer’s foreseeable injuries are compensated and pro- risks of asbestos.”34 Con struing the motions sophistication can be a substitute for actual tecting courts and defendants from the costs as a posttrial motion for judgment notwith- warnings, but this…only applies if the buyer associated with litigation of disproportion- standing the verdict, the trial court granted was so knowledgeable about the material ately meritless claims.”26 the motions and entered judgment for Special supplied that it knew or should have known As to the question of who is, and is not, Electric. The court of appeal reversed the about the particular danger.”42 If “[t]his nar- a member of a worker’s household, the judgment, holding that “the entry of JNOV row exception” applies, “the seller is not supreme court offered guidance by explaining was improper because substantial evidence required to give actual warnings telling the that “‘[b]eing a household member refers demonstrated that Special Electric breached buyer what it already knows.”43 In all other not only to the relationships among members a duty to warn Johns-Manville and foreseeable instances, however, the supplier must provide of a family, but also to the bonds which may downstream users like Webb about the risks the buyer with adequate warnings of the be found among unrelated persons adopting of asbestos exposure.”35 product’s specific dangers. nontraditional and quasi-familial living In the supreme court, the court phrased To satisfy the doctrine’s second prong, the arrangements.’”27 The court also observed the issue as follows: “[W]hen a company sup- supreme court made clear that a product sup- that, “in other legal contexts, the term ‘house- plies a hazardous raw material for use in plier cannot simply show that it warned or hold’ refers to persons who share ‘“physical making a finished product, what is the scope sold to a sophisticated intermediary. “To presence under a common roof”’”28 or to of the supplier’s duty to warn ultimate users establish a defense under the sophisticated “relationships aimed at common subsis- of the finished product about risks related to intermediary doctrine, a product supplier tence.”29 Additionally, the court recognized the raw material?”36 As the court ex plained, must show not only that it warned or sold to that “[t]he cause of asbestos-related diseases the answer to that question “implicates a de- a knowledgeable intermediary, but also that is the inhalation of asbestos fibers; [and that] fense known as the sophisticated intermediary it actually and reasonably relied on the inter- the general foreseeability of harm turns on doctrine,”37 which the court examined, a- mediary to convey warnings to end users.”44 the regularity and intimacy of physical prox- dopted, and applied to affirm the judgment “Several factors are relevant in deciding imity, not the legal or biological relationship, of the court of appeal. whether it is reasonable for a supplier to rely between the asbestos worker and a potential The supreme court began its analysis of on an intermediary to provide a warning,” plaintiff.” 30 the sophisticated intermediary doctrine by including “‘the gravity of the risks posed by

18 Los Angeles Lawyer July/August 2017 the product, the likelihood that the interme- must also be proof that the defendant had the court held that the plaintiff is not required diary will convey the information to the ulti- reason to believe that the intermediary would to “prove that fibers from the defendant’s mate user, and the feasibility and effectiveness act to protect the employee from the hazards product were the ones, or among the ones, of giving a warning directly to the user.’”45 of defendant’s product. As the court stated: that actually began the process of malignant Whether there was actual and reasonable Accordingly, to avoid liability, there cellular growth,” but may instead “meet the reliance “will typically raise questions of fact must be some basis for the supplier burden of proving that exposure to defen- for the jury to resolve unless critical facts to believe that the ultimate user knows, dant’s product was a substantial factor caus- establishing reasonableness are undisputed.”46 or should know, of the item’s hazards. ing the illness by showing that in reasonable In applying the doctrine to the case at In view of this requirement, the inter- medical probability it was a substantial factor issue, the supreme court first noted that mediary’s sophistication is not, as a contributing to the plaintiff’s or decedent’s Special Electric “arguably forfeited the sophis- matter of law, sufficient to avert lia- risk of developing cancer.”58 The court ex- ticated intermediary defense by failing to pre- bility; there must be a sufficient reason plained that “[t]he substantial factor standard sent it to the jury.”47 “Assuming the defense for believing that the intermediary’s is a relatively broad one, requiring only that was preserved,” the court held that “the sophistication is likely to operate to the contribution of the individual cause be record d[id] not establish as a matter of law that Special Electric discharged its duty to “The substantial factor standard warn by reasonably relying on a sophisticated intermediary.”48 The court observed that the evidence was in dispute as to whether Special [requires] only that the contribution Electric provided consistent warnings to Johns-Manville; that while the evidence of the individual cause be more than showed that Johns-Manville had knowledge “of the risks of asbestos in general,” it did negligible or theoretical.” not establish that Johns-Manville “knew about the particularly acute risks posed by the crocidolite asbestos Special Electric sup- protect the user, or that the user is more than negligible or theoretical,”59 and plied”; and that “the record d[id] not establish likely to discover the hazards in some it cautioned that “[u]ndue emphasis should as a matter of law that Special Electric actually other manner. The fact that the user not be placed on the term ‘substantial.’”60 and reasonably relied on Johns-Manville to is an employee or servant of the sophis- Since Rutherford, numerous appellate cases warn end users like William Webb about the ticated intermediary cannot plausibly have addressed the type and quantum of evi- dangers of asbestos.”49 As to the reliance be regarded as sufficient reason, as a dence that is sufficient to satisfy the Rutherford requirement, the court explained that a l - matter of law, to infer that the latter causation standard, including several decisions though “direct proof of actual reliance may will protect the former. We therefore in the last few years. In Izell v. Union Carbide be difficult to obtain when, as in the case of reject JCI’s contention that an inter- Corporation,61 published in 2014, defendant latent disease, the material was supplied to mediary’s sophistication invariably Union Carbide Cor poration argued that the an intermediary long ago[,]…actual reliance shields suppliers from liability to the testimony of plaintiff’s medical expert—that is an inference the factfinder should be able intermediary’s employees or servants.55 “[a]ll of the as bestos together contributes to to draw from circumstantial evidence about Under Webb and Pfeifer, suppliers of cause meso thelioma”—was insufficient to the parties’ dealings.”50 The trial record, asbestos or asbestos-containing products can establish causation under Rutherford because however, was “devoid of evidence supporting assert the sophisticated intermediary doctrine it “improperly conflates a threshold showing such an inference.”51 as an affirmative defense to product liability of exposure with proof of legal causation.”62 Finally, when the defendant supplies a failure-to-warn claims, provided they can According to Union Carbide, because, under raw material to the purchaser for use in man- satisfy its elements. Those elements, however, the expert’s testimony, “‘every exposure con- ufacturing a finished product, as was the are fact-intensive and, in most instances, will tributes to the overall increase in risk,’” this case in Webb, the supreme court noted that, raise questions of fact for the jury to deter- means that “‘proof of exposure automatically “[i]n addition to users of finished products mine, assuming the defendant has presented equates with proof that the exposure consti- incorporating the raw material, employees sufficient evidence for an instruction on the tuted a “substantial factor,”’” effectively of the purchaser may also encounter the raw doctrine. trans forming Rutherford’s two-step causation material in their work,” and that “[t]he ques- Almost 20 years ago, in Rutherford v. test into a one-step test limited to exposure.63 tion there is whether the supplier’s duty to Owens-llinois, Inc.,56 the California Supreme Rejecting Union Carbide’s argument, the warn extends to its customers’ employees.”52 Court established the standard for proving court of appeal initially observed that “proof Although the Webb court did not express causation in asbestos-related injury cases: of exposure establishes legal causation only any view on the application of the sophisti- In the context of a cause of action for if the jury accepts Dr. Mark’s expert medical cated intermediary doctrine in that context, asbestos-related latent injuries, the testimony that all exposures constitute a sub- it did cite and quote with approval from plaintiff must first establish some stantial factor contributing to the risk of Pfeifer v. John Crane Inc.,53 another asbestos threshold exposure to the defendant’s developing mesothelioma.”64 More impor- case that directly addressed the doctrine’s defective asbestos-containing products, tantly, the court held that the expert medical application to a claim by an employee of an and must further establish in reason- testimony was “not inconsistent with Ruther - intermediary purchaser. able medical probability that a par- ford’s two-step causation test.”65 As the court In Pfeifer, the court of appeal held that a ticular exposure or series of exposures explained: defendant asserting the sophisticated inter- was a ‘legal cause’ of his injury, i.e., a Nothing in Rutherford precludes a mediary doctrine must do more than simply substantial factor in bringing about plaintiff from establishing legal cau- show “that the user is an employee or servant the injury.57 sation through opinion testimony by of the sophisticated intermediary.”54 There As to “asbestos-related cancer case[s],” a competent medical expert to the

Los Angeles Lawyer July/August 2017 19 effect that every exposure to respirable on causation “because the instruction set of years, and the questions of causation, take- asbestos contributes to the risk of forth ‘the requirement in Rutherford that home asbestos injury liability, and the sophis- developing mesothelioma. On the con- causation be decided by taking into account ticated intermediary defense are some of the trary, Rutherford acknowledges the “the length, frequency, proximity and inten- key issues that courts in California and across scientific debate between the “every sity of exposure, the peculiar properties of the nation will continue to address in this exposure” and “insignificant expo- the individual product, [and] any other poten- area of the law. n sure” camps, and recognizes that the tial causes to which the disease could be conflict is one for the jury to resolve.66 attributed.”’” 75 The court disagreed, explain- 1 Kesner v. Superior Ct., 1 Cal. 5th 1132, 1140 (2016); Additionally, the court found that Union ing that “Rutherford does not require the see id. at 1161-65 (discussing non-California cases). Carbide’s argument “ignores the distinction jury to take these factors into account when 2 Id. at 1140. 3 Campbell v. Ford Motor Co., 206 Cal. App. 4th 15 Dr. Mark drew between significant exposures deciding whether a plaintiff’s exposure to an (2012), disapproved in Kesner, 1 Cal. 5th at 1156. that contributed to Mr. Izell’s risk of con- asbestos-containing product was a substantial An earlier case, Oddone v. Superior Ct., 179 Cal. App. tracting the disease and ‘trivial exposures’ factor in causing mesothelioma. Instead, those 4th 813 (2009), disapproved in Kesner, 1 Cal. 5th at that would not have been substantial factors factors are ones that a medical expert may 1156, also addressed the issue of take-home exposure increasing his risk.”67 rely upon in forming his or her expert medical liability, but not in the asbestos context. The alleged In Davis v. Honeywell Int’l Inc.,68 decided opinion.”76 “While Honeywell was free to exposures in Oddone involved toxic chemicals used in processing motion picture film. Id. at 815-16. less than two years after Izell, the defendant, discuss during its closing argument the factors 4 Campbell, 206 Cal. App. 4th at 19-20. Honeywell International Inc., argued that the set forth in its proposed instruction as factors 5 Id. at 29. trial court should have excluded expert med- the jury might consider in assessing the cred- 6 Id. ical testimony based on the every exposure ibility of Dr. Strauchen’s opinion testimony, 7 Id. at 26 (quoting Cabral v. Ralphs Grocery Co., 51 theory under Sargon Enter prises, Inc. v. instructing the jury on those factors was not Cal. 4th 764, 771 (2011)). 8 Rowland v. Christian 69 Cal. 2d 108 (1968). In 69 77 University of Southern Calif ornia, because required.” Rowland, the California Supreme Court explained 78 the testimony was “speculative,” “devoid of In Hernandez v. Amcord, Inc., the trial that “[a] departure from this fundamental principle evidentiary and logical support,” and “con- court granted the defendant’s motion for [in Civil Code section 1714(a)] involves the balancing trary to California causation law as set forth nonsuit, finding that the plaintiff had failed of a number of considerations; the major ones are the in Rutherford.”70 After “review[ing] much to present evidence establishing substantial foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the commentary and scientific literature factor causation in accordance with Ruther - of the connection between the defendant’s conduct cited in support of and against the ‘every ford. One of the plaintiff’s medical experts, and the injury suffered, the moral blame attached to exposure’ theory,” the court of appeal held Dr. Richard Lemen, had a “degree of Ph.D., the defendant’s conduct, the policy of preventing future that the trial court did not err in allowing rather than M.D.,” but according to the trial harm, the extent of the burden to the defendant and the testimony because “the theory is the sub- court, Rutherford requires “‘a doctor of some consequences to the community of imposing a duty to exercise care with resulting liability for breach, and ject of legitimate scientific debate.”71 Ex - kind, somebody with an M.D. after his the availability, cost, and prevalence of insurance for plaining that “the trial court ‘does not resolve name,’” to establish substantial factor cau- the risk involved.” Id. at 112-13. The court has scientific controversies’” in determining the sation.79 The trial court “also expressed con- instructed that, “in the absence of a statutory provision admissibility of expert testimony, the court cern that Dr. Lemen used the words ‘reason- establishing an exception to the general rule of Civil held that “it is for the jury to resolve the able scientific certainty’ and did not ‘utter Code section 1714, courts should create one only conflict between the every exposure theory the words “reasonable degree of medical where ‘clearly supported by public policy.’” Cabral v. Ralphs Grocery, 51 Cal. 4th 764, 771 (2011) (quot- 72 80 and any competing expert opinions.” probability.”’” ing Rowland, 69 Cal. 2d at 112). Disagreeing with the trial court, the court 9 ‘Every Exposure’ Theory Campbell, 206 Cal. App. 4th at 29-34. of appeal held that Rutherford does not 10 Id. at 32-33 (quoting Oddone v. Superior Ct., 179 With respect to Rutherford, Honeywell ar - “mandate[] that a medical doctor must Cal. App. 4th 813, 822 (2009)). 11 gued that “the ‘every exposure’ theory does ex pressly link together the evidence of sub- Kesner v. Superior Ct., 226 Cal. App. 4th 251 (2014), vacated and remanded to Kesner v. Superior 81 Ruth - not satisfy the supreme court’s direction in stantial factor causation.” Nor did Ct., 1 Cal. 5th 1132, 1165 (2016). Rutherford that a causation analysis must er ford “create a requirement that specific 12 Kesner, 226 Cal. App. 4th at 254. proceed from an estimate concerning how words must be recited by appellant’s expert” 13 Id. great a dose was received.”73 Rejecting this or “that the testifying expert in asbestos 14 Id. argument, the court held that: cases must always be ‘somebody with an 15 Id. 16 Id.; see id. at 256-61 (court’s analysis of Rowland Rutherford does not require a “dose M.D. after his name.’”82 Explaining that factors). level estimation.” Instead, it requires Ruther ford’s “‘reference to “medical prob- 17 Id. at 258. a determination, to a reasonable med- ability” in the [causation] standard “is no 18 Id. at 258-59 (emphasis in original). ical probability, that the plaintiff’s (or more than a recognition that asbestos injury 19 Haver v. BNSF Ry. Co., 226 Cal. App. 4th 1104 decedent’s) exposure to the defendant’s cases (like medical malpractice cases) involve (2014), rev’d and remanded sub nom., Kesner v. asbestos-containing product was a sub- the use of medical evidence,”’” the court Superior Ct., 1 Cal. 5th 1132, 1165 (2016). 20 Haver, 226 Cal. App. 4th at 1110 (quoting Meghan stantial factor in contributing to the held that “medical evidence does not nec- E. Flinn, A Continuing War with Asbestos: The Stale - risk of developing mesothelioma. The essarily have to be provided by a medical mate Among State Courts On Liability for Take-Home Rutherford court itself acknowledged doctor.”83 Asbestos Exposure, 71 WASH. & LEE L. REV. 707, that a plaintiff may satisfy this require- Accordingly, although established by the 711 (2014)). 21 ment through the presentation of California Supreme Court almost 20 years Haver, 226 Cal. App. 4th at 1112. 22 Kesner, 1 Cal. 5th at 1140; see id. at 1145-58 expert witness testimony that “each ago, the scope and operation of the Ruther - (court’s analysis of Rowland factors). exposure, even a relatively small one, ford causation standard remains a subject of 23 Id. at 1153. contributed to the occupational ‘dose’ frequent litigation in California. Because of 24 Id. at 1154. and hence to the risk of cancer.”74 the decades-long latency ordinarily associated 25 Id. at 1154-55. 26 Finally, Honeywell argued that the trial with asbestos-related diseases, asbestos injury Id. at 1155. The supreme court disapproved Camp - bell and Oddone “to the extent they are inconsistent court erred in refusing its proposed instruction litigation is likely to continue for a number with this opinion” in Kesner. Id. at 1156.

20 Los Angeles Lawyer July/August 2017 27 Id. at 1155 (quoting People v. Jeffers, 43 Cal. 3d ticated that it actually knew or reasonably should have (“We heed the admonition in Rutherford to be wary 984, 992 (1987)). known about the potential harm.” Webb, 63 Cal. 4th of the misapplication of the substantial factor test”) 28 Kesner, 1 Cal. 5th at 1155 (quoting People v. at 188. (footnote omitted). Wutzke, 28 Cal. 4th 923, 939 (2002)). 44 Id. at 189. 61 Izell v. Union Carbide Corp., 231 Cal. App. 4th 29 Kesner, 1 Cal. 5th at 1155 (citing Safeco Ins. Co. 45 Id. at 190 (quoting RESTATEMENT (THIRD), supra 962 (2014), rev. denied Feb. 18, 2015, S223511. of Am. v. Parks, 122 Cal. App. 4th 779, 792 (2004)). note 39); see also Webb, 63 Cal. 4th at 177. 62 Id. at 976. 30 Kesner, 1 Cal. 5th at 1155. 46 Webb, 63 Cal. 4th at 189-90. 63 Id. 31 Id. at 1165. 47 Id. at 192. 64 Id. at 976-77. 32 For example, the supreme court’s remand of the 48 Id. 65 Id. at 977. Kesner case “for further proceedings…includ[ed], if 49 Id. at 192-93 (emphasis in original). 66 Id. (citing Rutherford v. Owens-Illinois, Inc., 16 appropriate, a remand to the trial court for the parties 50 Id. at 193. Cal. 4th 953, 984-85 (1997)). to submit additional evidence on whether Johnny 51 Id. 67 Izell, 231 Cal. App. 4th at 977. Kesner was a member of George Kesner’s household 52 Id. at 185 n.9. 68 Davis v. Honeywell Int’l Inc., 245 Cal. App. 4th for purposes of the duty we recognize here.” Id. at 53 Pfeifer v. John Crane Inc., 220 Cal. App. 4th 1270 477 (2016), rev. denied May 25, 2016, S233753. 1165. (2013). 69 Sargon Enters. Inc. v. University of S. Cal., 55 Cal. 33 Webb v. Special Elec. Co., Inc., 63 Cal. 4th 167 54 Id. at 1296-97. 4th 747 (2012). (2016). 55 Id. (footnote omitted); see also id. at 1280 (“We 70 Davis, 245 Cal. App. 4th at 480. 34 Id. at 178. hold that when a manufacturer provides hazardous 71 Id.; see id. at 486-94 (court’s analysis of issue). 35 Id. at 179. goods to a ‘sophisticated’ intermediary that passes the 72 Id. at 480 (quoting Sargon, 55 Cal. 4th at 772). 36 Id. at 176. goods to its employees or servants for their use, the 73 Davis, 245 Cal. App. 4th at 492. 37 Id. supplier is subject to liability for a failure to warn the 74 Id. at 492-493 (citations omitted). 38 RESTATEMENT (SECOND) OF TORTS, §388, cmt. n. employees or servants of the hazards, absent some 75 Id. at 495. 39 RESTATEMENT (THIRD) OF TORTS, PRODUCTS LIABILITY, basis for the manufacturer to believe the ultimate users 76 Id. §2, cmt. i (1998) [hereinafter RESTATEMENT (THIRD)].. know or should know of the hazards.”); Webb, 63 77 Id. at 497. 40 Webb. 63 Cal. 4th at 187 (emphasis in original) Cal. 4th at 189 (quoting Pfeiffer, 220 Cal. App. 4th 78 Hernandez v. Amcord, Inc., 215 Cal. App. 4th 659 (footnote omitted); see also id. at 176-77. at 1296-97). (2013), rev. denied July 31, 2013, S211028. 41 Id. at 188. 56 Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 953 79 Id. at 668. 42 Id. (1997). 80 Id. 43 Id. In Stewart v. Union Carbide Corp., 190 Cal. 57 Id. at 982 (emphases in original) (footnote omit- 81 Id. at 675. App. 4th 23 (2010), the court stated that the sophis- ted). 82 Id. ticated intermediary doctrine, “where it applies at all, 58 Id.; see also id. at 957-58. 83 Id.; see also Paulus v. Crane Co., 224 Cal. App. applies only if a manufacturer provided adequate 59 Id. at 978; see also Bockrath v. Aldrich Chem. Co., 4th 1357, 1364 (2014) (“Although proof must be warnings to the intermediary.” Id. at 29. The supreme 21 Cal. 4th 71, 79 (1999) (“a very minor force that made to a reasonable medical probability, a medical court in Webb disapproved that statement in Stewart, does cause harm is a substantial factor,” citing Ruther - doctor need not expressly link together the evidence based on its conclusion that, “[a]lthough in most cases ford). of substantial factor causation. Nor is there a require- a warning to the intermediary will be necessary, warn- 60 Rutherford, 16 Cal. 4th at 969; see Jones v. John ment that ‘specific words must be recited by [plaintiffs’] ings are not required if the intermediary was so sophis- Crane, Inc., 132 Cal. App. 4th 990, 999-1000 (2005) expert.’”) (citation omitted).

Los Angeles Lawyer July/August 2017 21 by KARLA GILBRIDE and ARTHUR H. BRYANT LOOSEN THE BONDS Complaints arising from arbitration clauses that prohibit litigating claims in court may still be filed with government agencies or on behalf of the general public

ARBITRATION is an alternative dispute resolution system that people or organizations can agree to use as a precondition to litiga- tion, a settlement strategy once litigation has begun, or increasingly as a binding alternative to litigation. It usually resembles courts in that an arbitrator hears an adversarial presentation of arguments and evidence before ruling on the dispute. Few rules govern how arbitration must operate. Rather, the parties can decide how the system will work, who the arbitrator(s) will be, and what rules will apply. In many arbitrations, the decisions and awards are kept confidential, and unless the arbitration clause requires it, arbitrators do not have to explain the reasons for their decisions in writing or follow legal precedents. Appellate rights also vary with the terms of each clause, but for the most part they are very limited. Originally, arbitration was a way for merchants and businesses to resolve contractual disputes. However, courts were hesitant to en force agreements to arbitrate, likely because of an old common law rule prohibiting private parties from ousting courts of their jurisdiction. Thus, in 1925, Congress passed the Federal Arbitration Act (FAA), which directed courts to enforce arbitration agreements in the same way they would enforce any other contract.1 The legislative history of the FAA reveals that the statute was limited in scope: it was meant to ensure that federal courts had the power to enforce businesses’ voluntary agreements to arbitrate.2 Indeed, the law’s proponents “emphatically” rejected the idea that the law would apply to contracts “offered on a take-it-or-leave-it basis to captive customers or employees.”3 They also made clear that arbitration was meant to settle commercial disputes, not constitutional or statutory claims.4 Finally, the FAA’s drafters stated on the record that the FAA was not intended to displace state law.5

Karla Gilbride is the Cartwright-Baron staff attorney at Public Justice in its Washington, D.C. office, specializing in litigating challenges to forced arbitration provisions. She also has testified on the topic before the legislatures of California and New York. Arthur H. Bryant, chairman of Public Justice, works out of its Oakland office, specializing

in high-impact, socially significant litigation. KEN CORRAL

22 Los Angeles Lawyer July/August 2017

For years, the statute was enforced more look at the mechanics of forced arbitration would not be enforced. Arbitration jurispru- or less the way it was written,6 but, in the will show how these provisions play out in dence is based on the proposition that both 1980s, the conservative wing of the U.S. the context of real-world disputes between parties are consenting to enter into a contract Supreme Court began expanding arbitration corporations and consumers, employees, and in which they are knowingly waiving certain into areas in which the bargaining power small businesses. rights, which for consumers and employees between parties can be unbalanced. It did may not always be true. Effects of Forced Arbitration so by holding that, even though the FAA said Most arbitral services are for-profit enti- that arbitration contracts should be treat ed When the parties to a contract have compa- ties, and regardless of the arbitral provider’s like other contracts, the statute actually rable bargaining power and agree in an arms- structure, all arbitrators rely on repeat busi- reflected a federal policy in favor of arbitra- length negotiation about how to resolve their ness. Their primary customers are corpora- tion.7 The Supreme Court held that arbitra- disputes, arbitration can work well. For exam- tions that write arbitration clauses into their tion provisions in take-it-or-leave-it consumer ple, arbitration provisions are common in contracts. Arbitrators’ livelihoods depend on and employment contracts are en force able collective bargaining agreements negotiated being hired to arbitrate disputes. The struc- against individual litigants,8 that arbitrators between unions and employers, and busi- tural incentives are clear: arbitrators who can hear statutory claims as well as contrac- nesses often agree in advance to arbitrate give repeat clients favorable decisions are tual ones,9 and that state laws seeking to disputes that may arise between them. The more likely to be hired again. In interviews regulate arbitration by requiring arbitration informality of arbitral proceedings can make with The New York Times, over 30 arbitra- clauses to be more prominent than other arbitration faster and cheaper than litigation, tors admitted that there was real pressure types of contract terms are preempted by and the ability to pick industry specialists to on them to rule for corporations over con- the FAA.10 decide a matter can be more appealing than sumers or employees. Researchers have been In the last 10 years, the Supreme Court— a trial before a generalist judge or a jury of able to document this repeat player effect in in a series of 5-4 decisions written by the laypeople. When a corporation is facing off arbitration results—consumers and employees late Justice Antonin Scalia—continued to against an individual or a small business, are more likely to lose when they face cor- push the boundaries of arbitration jurispru- however, arbitration may favor the side that porations that have appeared before the same dence. In Rent-A-Center v. Jackson, for exam- wrote the agreement and designed the system. arbitrator in the past.19 ple, the Court held that contracts can require Features that make arbitration attractive in Arbitrators are not subject to the same that an arbitrator rather than a judge will a complex technical dispute between equals ethics rules as judges, and, due to confiden- decide whether an arbitration provision is or when there is a long bargaining history tiality concerns, arbitration is frequently con- enforceable in the first place.11 That same do not translate as well to disputes between ducted in secret. Moreover, judicial review opinion held that a contractual provision cable companies and their customers or is so limited and deferential that even deci- delegating questions of an arbitration clause’s between nursing homes and the families of sions that violate the law may be allowed to scope or enforceability to the arbitrator must residents who died under their care. stand.20 Thus, a system often characterized be enforced even if the whole contract may As the Supreme Court has emphasized, by diminished ethical standards, secret pro- be invalid.12 arbitration is a “matter of consent, not coer- ceedings, and minimal review can present The next year, in another 5-4 opinion in cion,”15 because it fundamentally is a matter fertile ground to conceal and perpetuate bias, AT&T Mobility LLC v. Concepcion, the of contract. When individual consumers, making it difficult at times to separate arbi- Supreme Court majority held that a Cali - employees, or small businesses contract with trators who are doing their best to remain fornia law forbidding class action waivers large corporations, there may be no meaningful fair and impartial from those who are not. in consumer contracts of adhesion, regardless way for the smaller party to negotiate the These are not just theoretical concerns. of whether those adhesive contracts also terms of the deal. The corporations write the For years, the largest provider of consumer required arbitration, was preempted by the rules and thus have the opportunity to maxi- arbitration in the country was the National FAA because such a neutral law would dis- mize their chances of success. For example, Arbitration Forum (NAF). The NAF had advantage arbitration, which is intended to when consumers purchase a product or sign direct financial ties to a major debt collector be simpler and faster than court and is thus up for a service that comes with a mandatory whose cases it arbitrated, and it marketed incompatible with class action procedures.13 arbitration provision, the circumstance is par- itself directly to creditors. Unsurprisingly, Finally, in American Express Co. v. Italian ticularly tenuous because the agreement is debt collectors sent the NAF hundreds of Colors Restaurant, Justice Scalia, again writ- achieved by an act as simple as clicking an thousands of cases a year, and the NAF ruled ing for five justices, held that small businesses “accept” button on a website or smartphone for the collectors almost every time. These were precluded by an arbitration clause with app (clickwrap) or sometimes even by visiting practices were stopped in 2009 when the a class action ban (waiver) from joining the website in which a link to the arbitration Minnesota attorney general sued the NAF together to prosecute their antitrust claims, provision can be found without taking any for fraud, leading to a consent decree under even though the expert fees and other costs additional steps (browsewrap). Indeed, a body which the NAF agreed to stop handling con- associated with pursuing those claims would of law has developed that concerns when a sumer disputes.21 The same structural incen- have been 10 times the amount that any indi- clickwrap agreement is sufficiently conspicuous tives and lack of oversight can be found vidual business could recover because it was to create a contract and when it is not.16 today as when the NAF was in its prime, still possible, if economically infeasible, for Generally, the browsewrap agreement has and as long as most arbitration proceedings the businesses to vindicate their statutory been found unenforceable.17 Contrast this remain shrouded in secrecy, it is difficult to rights in the arbitral forum.14 with the “voluntary, knowing, and intelligent” determine whether this unfortunate history These expansions of the Court’s arbitration standard used to test whether criminal defen- is repeating itself. jurisprudence have spurred corporations to dants agreed to waive their Fifth Amendment Most arbitration proceedings are con- insert predispute arbitration clauses, which rights.18 If that standard applied to determining ducted under strict confidentiality and secrecy are usually accompanied by class action bans whether consumers, workers, and small busi- rules with the result that the allegations, evi- (or waivers), into form contracts governing nesses were waiving their Seventh Amendment dence, reasoning, and awards are kept out almost every aspect of modern life. A closer right to a jury trial, most arbitration clauses of public view. Depriving the public of this

24 Los Angeles Lawyer July/August 2017 information introduces an element of risk the Equal Employment Opportunity Com - on an individual basis was very small. This that others may be harmed by the practices mission (EEOC).25 was true in court and in arbitration. Between that are the subject of the secret arbitration The claim-suppressing effects of forced these two fora, only about 3,000 consumers and prevents customers and investors from arbitration provisions are magnified when sought relief on an individual basis per year. voting with their pocketbooks by choosing they are coupled with provisions banning In contrast, the study found that class actions not to do business with companies that have the claims of more than one person from alleging unlawful practices in the relevant been accused of misconduct.22 being arbitrated together and banning any markets were brought by roughly 32 million The secrecy that often characterizes arbi- other class or collective proceeding. These consumers every year. Through class actions, tration impedes the development of the law. arbitration-class action ban combinations consumers received an average of $540 mil- Without public opinions and awards, impor- have become increasingly common in the lion annually, as well as other relief, including tant areas of consumer and employment law aftermath of the Supreme Court’s decisions the removal of illegal debts from their credit are stunted for lack of information about in Concepcion and Italian Colors. As a prac- records. Moreover, the value of deterring factually similar cases. As arbitration clauses tical matter, they immunize their corporate future misconduct was unquantifiable. proliferate, the amount of valuable decisional drafters from almost all legal challenges from These findings and others convinced the information that is removed from these areas consumers and most challenges from employ- CFPB that the biggest harm to consumers in of law only grows, because fewer disputes ees, because when companies take small the financial sector is not arbitration clauses are being resolved by judges whose opinions are public. While the informality of arbitration can The Fourth Circuit recently refused to make it cheaper and faster than court, there are important caveats to this supposed benefit. enforce an arbitration provision that First, there is no guarantee as to which, if any, procedural safeguards will apply. Some arbitration firms like the American Arbitr - prohibited consumers from bringing any ation Association have detailed rules of pro- cedure and evidence that mimic those found state or federal law claims on the basis in court. But arbitration may also go forward with no rules at all, or with rules that may be dictated in the contract by the corporation that such a provision impermissibly that will later be participating in the arbitration as a party. For example, under some arbitra- prevents consumers from effectively tion provisions, discovery is limited to one or two depositions or five document requests, or discovery may be prohibited altogether. vindicating their statutory rights. There is usually no possibility to appeal an arbitrator’s decision, even if it is contrary to law.23 Arbitrators are not required to provide amounts of money from large numbers of alone but their combination with class action a written opinion explaining the reasons for people, as Judge Richard Posner of the waivers. As a result, on May 5, 2016, the their award unless the particular contract Seventh Circuit observed, “The realistic alter- CFPB formally proposed a regulation that requires one.24 Even then the parties have to native to a class action is not 17 million indi- would prohibit banks, credit card companies, pay extra for the time it takes the arbitrator vidual suits, but zero individual suits, as only payday lenders, and others in the industry to write the opinion. a lunatic or a fanatic sues for $30.”26 from banning class actions.29 This proposed While the overall costs of arbitration may Consumer and employment claims that regulation has not yet been finalized, and be low compared with traditional litigation, have sufficiently high value to justify individual the CFPB will no doubt face legal challenges the actual costs for an individual or small litigation or arbitration are rare, and a $30,000 if and when it publishes a final rule on arbi- business may be much higher. Arbitrators are claim is not high-value for large corporations. tration. Even if this rule goes into effect, it paid for their services by the parties, and these It would make little difference to a corporate will not restrict class action bans in mandatory services can be extremely expensive, often bottom line whether these disputes are re - arbitration clauses used by corporations out- several hundred dollars per hour or more. solved in a judicial or arbitral forum. However, side of the financial services industry, includ- Unlike the American rule in which each party a $30 million class claim is another matter. ing phone companies, Internet providers, and pays its own attorneys’ fees, or the one-way In an attempt to bar this type of claim, a cor- employers. Meanwhile, those seeking to get statutory fee-shifting that requires defendants poration can simply include a phrase in the around forced arbitration provisions and pre- to pay the plaintiff’s attorneys’ fees if the corporate arbitration clauses banning all class serve access to the courts will have to look plaintiff prevails, some arbitration provisions actions in court and in arbitration. For indi- to other legal strategies. include two-way fee-shifting provisions that viduals with $30 claims who cannot consol- Despite Supreme Court decisions that require the loser to pay the winner’s attorneys’ idate their claims with others, the words of have fostered the spread of forced arbitration, fees, which could be onerous if the corporation Justice Elena Kagan’s dissent in Italian Colors some challenges to unfair arbitration clauses wins and the consumer or employee loses. come to mind: “Too darn bad.”27 remain viable. Arguments based on contract The loser-pays provisions have a natural chill- In 2015, the Consumer Financial Pro - formation, unconscionability, and the effective ing effect on claim filing and may explain tection Bureau (CFPB) completed a compre- vindication of rights can still succeed.30 Also, why fewer than 2000 employees initiated hensive study on the use of arbitration clauses claims brought by or on behalf of the gov- arbitration per year compared with 30,000 in consumer contracts.28 It found that the ernment are not subject to arbitration. annually who filed federal lawsuits and nearly number of consumers pursuing claims against Since arbitration is based on the agreement 100,000 annually who filed complaints with their financial service or product provider of the parties, arbitration cannot be required

Los Angeles Lawyer July/August 2017 25 if no agreement to arbitrate was formed.31 Three pitfalls can threaten an uncon- an arbitration clause from litigating their own The party seeking to compel arbitration must scionability challenge. First, unconscionability claims in court, they are not prevented from prove the existence of the arbitration agree- arguments must be directed solely at the arbi- filing complaints with government agencies ment and that all elements of a valid contract tration provision, and not the contract as a or even pursuing claims on the government’s are present—offer, acceptance, and consid- whole. A challenge that seeks to invalidate behalf or on behalf of the general public. As eration—with the particular consumer or the contract as a whole (other than a challenge the Supreme Court explained in the context employee whom it seeks to bind to arbitra- about whether a contract was formed) must of an employment discrimination claim, an tion. On occasion, corporations could only be decided by the arbitrator; a challenge that agency like the EEOC is statutorily empow- produce their standard contract, with no sig- seeks to invalidate only the arbitration clause ered to investigate and litigate discrimination nature(s) and no proof that the consumer is decided by the court.39 Second, in a strange claims and, as a nonsignatory to any individual ever saw or agreed to it. Federal and state recursive exercise created by the Supreme employee’s contract, is not bound by an arbi- courts have held that this is not enough.32 Court’s opinion in Rent-A-Center, if the arbi- tration clause in that contract.47 Sometimes, the contract was signed by some- tration clause contains a delegation provision Claims Under PAGA one who did not have legal authority or saying the arbitrator will decide the validity capacity to do so, an issue that often arises of the arbitration clause, any challenge must Similarly, claims under California’s Private in the nursing home context.33 In other cases, be directed to the delegation provision itself— Attorneys General Act (PAGA),48 are not pre - a nonsignatory third party may be trying to either that it is unconscionable or that it does empted by the FAA and cannot be waived enforce an arbitration clause because of a not clearly and unmistakably delegate the by an arbitration clause. As the California relationship with one of the contracting par- authority claimed to the arbitrator.40 Unless Supreme Court reasoned, claims under PAGA ties but may only do so if the requirements that delegation provision is invalid, the arbi- are not part of a private dispute between of agency, alter-ego, estoppel, or third-party trator will decide the rest. Finally, because an individual employee and employer but beneficiary status are met.34 of the Supreme Court’s ruling in Concepcion, rather between the state labor and workforce The issue of contract formation on the arbitration clauses usually cannot be held development agency and the employer.49 The Internet has become a particularly significant unconscionable because they eliminate class court explained that, because the FAA is topic. In this instance, the question is whether actions, although the enforceability of the about private disputes between contracting the website through which a user purchased waiver may be undermined by applicable parties, a claim advancing the state agency’s a product or service gave the consumer suf- state law. interest in compliance with the Labor Code ficient notice that the purchase would be The Supreme Court has said that if an cannot be waived by an arbitration clause.50 governed by contractual terms. In practice, arbitration clause blocks people from “effec- This decision has been followed by the Ninth this often requires courts to examine the tively vindicating” their statutory rights, the Circuit Court of Appeals, and the U.S. Su- design and layout of the website. If the court clause is unenforceable.41 However, in Italian preme Court has declined review.51 concludes that a reasonable user would not Colors, Justice Scalia revised this to limit arbi- More recently, the California Supreme have had constructive notice of the existence tration clauses that block people’s “right to Court reached the same conclusion about and applicability of contractual terms, the pursue” their statutory remedies.42 The arbitration provisions that purport to waive contract was never formed and its terms have Supreme Court has not yet applied this doc- a consumer’s ability to seek public injunctive no application to the parties. These types of trine to strike down an arbitration clause, but relief under the Consumers Legal Remedies cases have turned on the placement of hyper- numerous California courts have. For example, Act (CLRA)52, the Unfair Competition Law links, as well as the color and font size of in Parada v. Superior Court, the California (UCL)53 or the False Advertising Law (FAL).54 text on a webpage.35 Court of Appeals weighed the provisions of When Sharon McGill sued over Citibank’s an arbitration clause against evidence of the credit insurance program, Citibank tried to Unconscionability Issues plaintiffs’ ability to afford the process the invoke an arbitration clause that, among When a contract containing an arbitration clause mandated.43 The court found that the other things, forbade an arbitrator from clause has been formed, courts typically will requirement of a three-arbitrator panel, com- granting relief to anyone besides the individual refuse to enforce that clause if it is so unfair bined with a preresolution deposit of fees and bringing the claim. The California Supreme or one-sided that it is unconscionable. As no meaningful option for waiver of the deposit Court found that this clause prevented con- with contract formation, the question of requirement, put the arbitration far beyond sumers from obtaining injunctive relief under whether an arbitration clause is uncon- the plaintiffs’ ability to pay, and therefore the CLRA, UCL, or FAL in any forum, arbi- scionable is a hornbook contract law question “would substantially discourage or prevent tral or judicial, that would benefit the general applied in the arbitration context.36 What vindication of statutory rights.”44 public. Since ending corporate misconduct constitutes unconscionability varies by state. Other courts are following similar ap - in a manner that benefits the public as a California courts have found numerous com- proaches. The Fourth Circuit recently refused whole is one of the goals of all three statutes, mon arbitration terms unconscionable, includ- to enforce an arbitration provision that pro- such a ban on public injunctive relief was ing clauses that require: limiting the damages hibited consumers from bringing any state contrary to California public policy.55 While a party can receive; California residents to or federal law claims on the basis that such this opinion could affect many arbitration travel to a far-away state to arbitrate; indi- a provision impermissibly prevents consumers provisions that prohibit broad injunctive viduals to arbitrate claims but give corpora- from effectively vindicating their statutory relief, its ultimate fate is uncertain as the tions a choice of arbitration or litigation; rights.45 In another case, the Tenth Circuit U.S. Supreme Court may weigh in to establish individuals to pay excessive fees to arbitrate; held that a clause in the arbitration provision whether the California policy against public and the arbitration to be secret.37 As the requiring that the plaintiff-employee bear injunction bans is distinguishable from the California Supreme Court has clarified: “The her own costs in arbitration—including the policy against class action bans in adhesive ultimate issue in every case is whether the arbitrator’s fee—blocked her from effectively consumer contracts that was invalidated in terms of the contract are sufficiently unfair, vindicating her rights because those costs Concepcion. in view of all relevant circumstances, that a would be too high.46 Corporations have argued for years that court should withhold enforcement.”38 Even when individuals are prohibited by arbitration is cheaper, faster, and more effec-

26 Los Angeles Lawyer July/August 2017 tive than going to court. It may be, for those 8 See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 5, 2016), available at http://files.consumerfinance”.gov who truly agree to it, if the system itself is 500 U.S. 20 (1991). /f/documents/CFPB_Arbitration_Agreements_Notice 9 See e.g., _of_Proposed_Rulemaking.pdf. fair, and arbitration is used to resolve claims Shearson/Am. Express, 482 U.S. at 226. 10 See, e.g., Doctor’s Assocs. Inc. v. Casarotto, 517 30 For more information on fighting forced arbitration rather than eliminate them. But corporations’ U.S. 681, 687 (1996). clauses, see NATIONAL CONSUMER LAW CENTER, use of adhesion contracts and fine print to 11 Rent-A-Center v. Jackson, 561 U.S. 63, 71-72 (2010). CONSUMER ARBITRATION AGREEMENTS: ENFORCEABILITY force consumers, workers, and small busi- 12 Id. AND OTHER TOPICS (6th ed. 2011) or contact Public nesses into arbitration—often without their 13 AT&T Mobility LLC v. Concepcion, 131 S. Ct. Justice’s Mandatory Arbitration Abuse Prevention knowledge and whether they like it or not— 1740, 1751-52 (2011). Project at https://www.publicjustice.net/contact. 14 American Express Co. v. Italian Colors Rest., 133 31 Importantly, the U.S. Supreme Court’s “federal is not fair since it flouts the sole legal basis S. Ct. 2304, 2310-11 (2013). policy in favor of arbitration” does not apply to the for contractual arbitration, namely, that the 15 Volt Info. Scis. Inc. v. Board of Trs. of Leland threshold question of contract formation. See Comer parties actually agreed to it. Furthermore, it Stanford Jr. Univ., 489 U.S. 468, 478-79 (1989). v. Micor, 436 F. 3d 1098, 1104 n.11 (9th Cir. 2006). relegates disputes to a forum with little trans- 16 See, e.g., Meyer v. Kalanick, 15 Civ. 9796, 2016 32 See, e.g., Bazemore v. Jefferson Capital Sys., 827 F. parency and limited judicial review. This WL 4073071 (S.D. N.Y. July 29, 2016). 3d 1325 (11th Cir. 2016); FIA Card Servs. v. Weaver, 17 See, e.g., Nguyen v. Barnes & Noble, Inc., 763 F. 62 So. 3d 709, 718 (La. 2011); Midland Funding LLC process takes away important protections 3d 1171 (9th Cir. 2014). As explained in the syllabus v. Bordeaux, 147 A. 3d 885 (N.J. Super. App. Div. like the right to proceed collectively. of the case: “The panel held that there was no evidence 2016). To remedy this power imbalance, Con - that the website user had actual knowledge of the 33 See, e.g., Goliger v. AMS Props. Inc., 123 Cal. App. gress may need to restore the original lim - agreement. The panel further held that where a website 4th 374, 377 (2004). ited scope of the Federal Arbitration Act makes its terms of use available via a conspicuous 34 See, e.g., Lee v. Intellius, 737 F. 3d 1254, 1261-62 hyperlink on every page of the website but otherwise (9th Cir. 2013); Murphy v. DirectTV, Inc., 724 F. 3d through new legislation, or perhaps the provides no notice to users nor prompts them to take 1218, 1233 (9th Cir. 2013). Supreme Court in a future case will put some any affirmative action to demonstrate assent, even 35 See, e.g., Sgouros v. Transunion Corp., 817 F. 3d teeth into the “effective vindication” doctrine. close proximity of the hyperlink to relevant buttons 1029(7th Cir. 2016); Nguyen v. Barnes & Noble Inc., Regulatory efforts by the CFPB and other users must click on—without more—is insufficient to 763 F. 3d 1171 (9th Cir. 2014); Specht v. Netscape federal agencies—e.g., the Department of give rise to constructive notice.” Commc’ns Corp., 306 F. 3d 17 (2d Cir. 2002); Long 18 Education—may also curtail the use of arbi- See Miranda v. Arizona, 384 U.S. 436 (1966). v. Provide Commerce, Inc., 245 Cal. App. 4th 855 19 Jessica Silver-Greenberg & Michael Corkery, In (2d Dist. 2016). tration provisions in the industries over Arbitration, A ‘Privatization of the Justice System,’ 36 Sanchez v. Valencia Holding Co., 61 Cal. 4th 899, which these agencies have authority, as long N.Y. TIMES, Nov. 1, 2015, available at http://www 912-13 (2015). as Congress and the president allow these .nytimes.com. For research concluding that corporations 37 See, e.g., Newton v. American Debt Services, Inc., regulations to remain in place.56 Regardless are more likely to hire arbitrators that side with cor- 549 Fed. App’x 692 (9th Cir. 2014); Ting v. AT&T, of what the various branches of the federal porations and that consumers and employees do less 319 F. 3d 1126 (9th Cir. 2003). well in arbitration against repeat-player corporations, 38 Sanchez, 61 Cal. 4th at 911-12. government do about forced arbitration in see JOSHUA M. FRANK, STACKED DECK: A STATISTICAL 39 See Buckeye Check Cashing v. Cardegna, 546 U.S. the years to come, traditional contract law ANALYSIS OF FORCED ARBITRATION (Center for Respon - 440, 448-49 (2006). Note that this principle does not defenses aimed at formation and uncon- sible Lending May 2009) available at http://www affect the formation challenges discussed above, because scionability can continue to provide a bul- .responsiblelending.org/credit-cards/research-analysis those cases argue that no contract was ever formed in wark against the further erosion of funda- /stacked_deck.pdf; Alexander Colvin, An Empirical the first place, and unconscionability proceeds from Study of Employment Arbitration (2011), available at the assumption that a contract was formed but it mental rights in the fine print. Of particular http://digitalcommons.ilr.cornell.edu/cgi/viewcontent should be voided in whole or in part. interest to California practitioners, the Cal - .cgi?article=1586&context=articles. 40 See Rent-A-Center, W. v. Jackson, 561 U.S. 63, 68- ifornia Supreme Court’s rulings that PAGA 20 Hall Street Assocs., L.L.C. v. Mattel, 552 U.S. 576 70 (2010). claims and claims for public injunctive relief (2008). 41 American Express Co. v. Italian Colors Rest., 133 may not be waived through contract offer a 21 See FORCED ARBITRATION: CONSUMERS NEED PERM - S. Ct. 2304, 2310-12 (emphasis omitted). ANENT RELIEF 42 Id public policy-based defense of certain statu- (National Consumer Law Center April . 2010), available at https://www.nclc.org/images/pdf 43 See Parada v. Superior Court, 176 Cal. App. 4th tory rights. n /arbitration/report-forced-arbitration.pdf (discussing 1554, 1580-84 (2009). the conflicts of interest and allegations of corruption 44 See id. at 1584. See also Gutierrez v. Autowest, 1 9 U.S.C. §§1 et seq. surrounding the National Arbitration Forum). Inc., 114 App. 4th 77, 89-90 (2003). 2 See David S. Schwartz, Enforcing Small Print to 22 Drew Harwell, Hundreds Allege Sex Harassment, 45 Hayes v. Delbert, 811 F. 3d 666 (4th Cir. 2016). Protect Big Business: Employee and Consumer Rights Discrimination at Kay and Jared Jewelry Company, 46 Nesbitt v. FCNH, Inc., 811 F. 3d 371, 378-79 (10th Claims in an Age of Compelled Arbitration, 1 WIS. L. WASHINGTON POST, Feb. 27, 2017, available at Cir. 2016). REV. 33 (1997). https://www.washingtonpost.co). See also Steven 47 E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 288- 3 See Arthur Miller, Reflections on Federal Procedure, Davidoff Solomon, Arbitration Clauses Let American 89 (2002). 88 N.Y. U. L. REV. 286, 323-24 (2013); see also Prima Apparel Hide Misconduct, N.Y. TIMES, July 15, 2014, 48 LAB. CODE §§2698 et seq. Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. available at http://dealbook.nytimes.com. 49 See Iskanian v. CLS Transp. L.A., LLC, 59 Cal. 4th 395, 414 (1967) (Black, J., dissenting). 23 Hall St. Assocs., 552 U.S. 576. 348, 384-85 (2014). 4 See Cohen & Dayton, The New Federal Arbitration 24 Openshaw v. FedEx Ground Package Sys., Inc., 731 50 See id. at 388-89. Law, 12 VA. L. REV. 265, 279, 281 (1926). F. Supp. 2d 987, 997 (C.D. Cal. 2010). 51 See Sakkab v. Luxottica Retail N.A., Inc., 803 F. 5 See Margaret L. Moses, Statutory Misconstruction: 25 Jean R. Sternlight, Disarming Employees: How 3d 425, 431-32 (9th Cir. 2015). How the Supreme Court Created a Federal Arbitration American Employers are Using Mandatory Arbitration 52 CIV. CODE §§1770 et seq. Law Never Enacted by Congress, 34 FL. ST. U. L. to Deprive Workers of Legal Protection, 80 Brook. 53 BUS. & PROF. CODE §§17200 et seq. REV. 99, 103 (2006). L. Rev. 1309 (2015). 54 McGill v. Citibank, N.A., 2 Cal. 5th 945 (2017). 6 See, e.g., United Steelworkers of Am. v. Enterprise 26 See Carnegie v. Household Int’l, Inc., 376 F. 3d 55 Id. Wheel & Car Corp., 363 U.S. 593, 598-99 (1960); 656, 661 (7th Cir. 2004). 56 Press Release, U.S. Dep’t of Educ., U.S. Department Necchi Sewing Mach. Sales Corp. v. Necchi, S.p.A., 27 American Express Co. v. Italian Colors Rest., 133 of Education Announces Final Regulations to Protect 369 F. 2d 579, 582 (2d Cir. 1966); Agostini Bros. S. Ct. 2304, 2313 (2013) (Kagan, J., dissenting). Students and Taxpayers from Predatory Institutions Bldg. Corp. v. U.S. ex rel. Virginia-Carolina Elec. 28 Arbitration Study, Consumer Fin. Prot. Bureau (Mar. (Oct. 28, 2016), available at https://www.ed.gov Works, 142 F. 2d 854, 855-56 (4th Cir. 1944). 2015) available at http://files.consumerfinance.gov/f (describing final regulations to protect student loan 7 See, e.g., Shearson/Am. Express, Inc. v. McMahon, /201503_cfpb_arbitration-study-report-to-congress borrowers, including a provision prohib it ing schools 482 U.S. 220, 226 (1987); Mitsubishi Motors Corp. -2015.pdf. from placing forced arbitration provisions and class v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 29 12 C.F.R. Part 1040 (Proposed Rule 2016); see action bans in their agreements with students. (1985); Southland Corp. v. Keating, 465 U.S. 1, 16 Notice of Proposed Rulemaking: Arbitration Agree - (1984). ments, Bureau of Consumer Financial Protection (May

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30 Los Angeles Lawyer July/August 2017

HAYNIE & COMPANY, CPAS CIVIL INVESTIGATIONS CORROSION 4910 Campus Drive, Newport Beach, CA 92660- 2119, (949) 724-1880, fax (949) 724-1889, e-mail: THORNHILL & ASSOCIATES, INC. KARS ADVANCED MATERIALS, INC. [email protected]. Website: www P.O. Box 7307, Porter Ranch, CA 91327, (866) 888- Testing and Research Labs, 2528 West Woodland .hayniecpa.com. Contact Steven C. Gabrielson. 2280, ext. 704, e-mail: neal@thornhillandassociates Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax Consulting and expert witness testimony in a variety .com. Website: www.thornhillandassociates.com. (714) 527-7169, e-mail: [email protected]. Website: of practice areas: commercial damages, ownership Contact Neal Thornhill. It is our job to make your job www.karslab.com. Contact Drs. Ramesh J. Kar or disputes, economic analysis, business valuation, lost easier! As licensed independent adjusters and private Naresh J. Kar. Southern California’s premier materi- profits analysis, fraud/forensic investigations, taxation, investigators we provide a wide range of services. als/mechanical/metallurgical/structural/forensics labo- personal injury, wrongful termination, professional liabil- With access to the most comprehensive information ratory. Registered professional engineers with 30-plus ity, and expert cross examination. Extensive public databases and our methodical fieldwork, we leave no years in metallurgical/forensic/structural failure analy- speaking background assists in courtroom presenta- stone unturned. Liability investigations, msc/media- sis. Experienced with automotive, bicycles, tires, fire, tions. tions, recorded statements, locating witnesses, paint, plumbing, corrosion, and structural failures. We insureds, claimants, skip tracing, asset checks, criminal work on both plaintiff and defendant cases. Complete HIGGINS, MARCUS & LOVETT, INC. checks, trial monitoring, surveillance, process serving, in-house capabilities for tests. Extensive deposition 800 South Figueroa Street, Suite 710, Los Angeles, witness canvass, background checks, and discovery and courtroom experience (civil and criminal investi- CA 90017, (213) 617-7775, fax (213) 617-8372, e-mail: support. See display ad on page 30. gations). Principals are Fellows of American Society [email protected]. Website: www.hmlinc.com. for Metals and board-certified diplomates, American The firm Contact Mark C. Higgins, ASA, president. COMPUTER FORENSICS Board of Forensic Examiners. See display ad on has over 30 years of litigation support and expert tes- page 37. timony experience in matters involving business valua- SETEC INVESTIGATIONS tion, economic damages, intellectual property, loss of 8391 Beverly Boulevard, Suite 167, Los Angeles, CA business goodwill, and lost profits. Areas of practice DENTIST 90048, (800) 748-5440, fax (323) 939-5481, e-mail: include business disputes, eminent domain, bank- [email protected]. Website: www RICHARD BENVENISTE, DDS, MSD ruptcy, and corporate and marital dissolution. See dis- .setecinvestigations.com. Contact Todd Stefan. 19231 Victory Boulevard, Suite 256, Reseda, CA play ad on page 33. Setec Investigations offers unparalleled expertise in 91335, (818) 881-7337, fax (818) 881-6183, e-mail: KRYCLER, ERVIN, TAUBMAN, computer forensics and enterprise investigations [email protected]. Website: www.yourgums AND KAMINSKY providing personalized, case-specific forensic analysis .com. Contact Richard Benveniste, DDS, MSD. 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, and litigation support services for law firms and cor- Previous three-term officer of Dental Board of CA 91403, (818) 995-1040, fax (818) 995-4124. porations. Setec Investigations possesses the neces- California, having ruled on all phases of dental prac- Website: www.ketkcpa.com. Contact Michael J. sary combination of technical expertise, understanding tice. Practicing as an expert, consultant, evaluator and Krycler. Litigation support, including forensic of the legal system, and specialized tools and teacher in the treatment of TMJ, personal injury (PI), accounting, business appraisals, family law account- processes enabling the discovery, collection, investiga- lien cases, and dental injury. Multiple distinguished ing, business and professional valuations, damages, tion, and production of electronic information for service citations from California State Department of fraud investigations, and lost earnings. Krycler, Ervin, investigating and handling computer-related crimes or Consumer Affairs. Provider of continuing education Taubman, and Kaminsky is a full-service accounting misuse. Our expertise includes computer forensics, courses on oral diagnosis, oral medicine, treatment firm serving the legal community for more than 20 electronic discovery, litigation support, and expert modalities, TMJ diagnosis and therapy. Multiple long- years. See display ad on page 33. witness testimony. term professional organization memberships. Degrees/licenses: Doctor of Dental Surgery, (DDS); WHITE, ZUCKERMAN, WARSAVSKY, CONSTRUCTION Master of Science in Dentistry (MSD). LUNA & HUNT 15490 Ventura Boulevard, Suite 300, Sherman Oaks, FORENSISGROUP ECONOMIC DAMAGES CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park EXPERT WITNESS SERVICES SINCE 1991 Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax 301 North Lake Avenue, Suite 420, Pasadena, CA CMM, LLP (949) 219-9095, e-mail: [email protected]. Website: 91101, (800) 555-5422, (626) 795-5000, fax: (626) 795- With offices in Woodland Hills and El Segundo, (818) www.wzwlh.com. Contact Barbara Luna. Expert wit- 1950, email: [email protected]. Website: 986-5070, fax (818) 986-5034, e-mail: rschreiber ness testimony for complex litigation involving dam- www.forensisgroup.com. Contact Mercy Steenwyk. @cmmcpas.com. Website: www.cmmcpas.com. age analyses of lost profits, unjust enrichment, reason- 10,000 cases ForensisGroup has provided experts. Contact Robert Schreiber. Specialties: consultants able royalties, lost earnings, lost value of business, 8,000 clients have retained experts from us. We who provide extensive experience, litigation support, forensic accounting, fraud investigation, investigative respond in one hour or less. ForensisGroup is an and expert testimony regarding forensic accountants, analysis of liability, marital dissolution, and tax plan- expert witness services and consulting company pro- fraud investigations, economic damages, business val- ning and preparation. Excellent communicators with viding experts, expert witnesses, and consultants to uations, family law, bankruptcy, and reorganization. extensive testimony experience. Prior Big Four law firms, insurance companies, and other public and Degrees/licenses: CPAs, CFEs, MBAs. See display ad accountants. Specialties include accounting, breach of private firms in thousands of disciplines: construction, on page 38. contract, breach of fiduciary duty, business interrup- engineering, business, accounting, intellectual prop- tion, business dissolution, construction defects, erty, computers, IT, medical, real estate, insurance, WARONZOF ASSOCIATES, INC. delays, and cost overruns, fraud, insurance bad faith, product liability, premises liability, safety, and others, 400 Continental Boulevard, Sixth Floor, El Segundo, intellectual property (including trademark, patent, and including experts in complex and hard-to-find disci- CA 90245, (310) 322-7744, fax (424) 285-5380. copyright infringement, and trade secrets), malprac- plines. Let us give you the technical advantage and Website: www.waronzof.com. Contact Timothy R. tice, marital dissolution, personal injury, product liabil- competitive edge in your cases. Referrals, customized Lowe, MAI, CRE. Waronzof provides real estate and ity, real estate, securities, tax planning and prepara- searches, and initial phone consultations are free. See land use litigation support services including eco- tion, IRS audit defense, tracing, unfair advertising, display ad on page 38. nomic damages, lost profits, financial feasibility, lease unfair competition, valuation of businesses, and dispute, property value, enterprise value, partnership wrongful termination. See display ad on page 31. CORPORATE INVESTIGATIONS interest and closely held share value, fair compensa- tion, lender liability, and reorganization plan feasibil- ZIVETZ, SCHWARTZ & SALTSMAN, CPAS SAPIENT INVESTIGATIONS, INC. ity. Professional staff of five with advanced degrees 11900 West Olympic Boulevard, Suite 650, Los 1810 14th Street, Suite 212, Santa Monica, CA 90404, and training in real estate, finance, urban planning, Angeles, CA 90064-1046, (310) 826-1040, fax (310) and accounting. (310) 399-8200, fax (310) 496-2637. Website: www See display ad on page 4. 826-1065. Website: www.zsscpa.com. Contact .sapientpi.com. Contact David Cogan, CFE, Lester J. Schwartz, CPA/CFF, DABFE, DABFA, WHITE, ZUCKERMAN, WARSAVSKY, Managing Director. Sapient Investigations, Inc., the Michael D. Saltsman, CPA, MBA, Lynda R. Schauer, LUNA & HUNT Westside’s premier intelligence firm, works with attor- CPA, CVA, CGMA, David L. Bass, CPA, David 15490 Ventura Boulevard, Suite 300, Sherman Oaks, neys nationwide to conduct a wide variety of corpo- Dichner, CPA, ABV, Sandy Green, CPA, Silva CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park rate investigations, from proxy contests to trade Hakobyan, CPA, Argin Gharibian, CPA. Accounting Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax secrets thefts to internal fraud investigations. With experts in forensic accounting, tax issues, business (949) 219-9095, e-mail: [email protected]. Website: more than a decade of high-level experience, Sapient valuations and appraisals, marital dissolutions, emi- www.wzwlh.com. Contact Barbara Luna. Expert wit- Investigations, Inc.’s team understands the impor- nent domain, insurance losses, business interruption, ness testimony for complex litigation involving dam- tance of conducting these investigations quickly and goodwill, economic analysis, investigative auditing, age analyses of lost profits, unjust enrichment, reason- with precision in order to produce actionable intelli- loss of earning, commercial damages, and lost profits. able royalties, lost earnings, lost value of business, gence. For a consultation, please contact David Expert witness testimony preparation, settlement forensic accounting, fraud investigation, investigative Cogan, CFE, at (310) 399-8200 or visit www.sapientpi negotiations, and consultations. See display ad on analysis of liability, marital dissolution, and tax plan- .com. page 35. ning and preparation. Excellent communicators with

32 Los Angeles Lawyer July/August 2017 extensive testimony experience. Prior Big Four accountants. Specialties include accounting, breach of contract, breach of fiduciary duty, business interrup- tion, business dissolution, construction defects, delays, and cost overruns, fraud, insurance bad faith, intellectual property (including trademark, patent, and copyright infringement, and trade secrets), malprac- tice, marital dissolution, personal injury, product liabil- ity, real estate, securities, tax planning and prepara- tion, IRS audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 31.

ZIVETZ, SCHWARTZ & SALTSMAN, CPAS 11900 West Olympic Boulevard, Suite 650, Los Angeles, CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Website: www.zsscpa.com. Contact Lester J. Schwartz, CPA/CFF, DABFE, DABFA, Michael D. Saltsman, CPA, MBA, Lynda R. Schauer, CPA, CVA, CGMA, David L. Bass, CPA, David Dichner, CPA, ABV, Sandy Green, CPA, Silva Hakobyan, CPA, Argin Gharibian, CPA. Accounting experts in forensic accounting, tax issues, business valuations and appraisals, marital dissolutions, eminent domain, insurance losses, business interruption, goodwill, eco- nomic analysis, investigative auditing, loss of earning, commercial damages, and lost profits. Expert witness testimony preparation, settlement negotiations, and consultations. See display ad on page 35.

ELECTRONIC EVIDENCE/DATA RECOVERY

SETEC INVESTIGATIONS 8391 Beverly Boulevard, Suite 167, Los Angeles, CA 90048, (800) 748-5440, fax (323) 939-5481, e-mail: [email protected]. Website: www.setecinvestigations.com. Contact Todd Stefan. Setec Investigations offers unparalleled exper- tise in computer forensics and enterprise investiga- tions providing personalized, case-specific forensic analysis and litigation support services for law firms and corporations. Setec Investigations possesses the necessary combination of technical expertise, under- standing of the legal system, and specialized tools and processes enabling the discovery, collection, investigation, and production of electronic informa- tion for investigating and handling computer-related crimes or misuse. Our expertise includes computer forensics, electronic discovery, litigation support, and expert witness testimony.

ENGINEERING

EXPONENT 5401 McConnell Avenue, Los Angeles, CA 90066, (310) 754-2700, fax (310) 754-2799, e-mail: reza @exponent.com. Website: www.exponent.com. Contact Ali Reza. Fires and explosions, metallurgy and mechanical engineering, structural and geotechni- cal, accident reconstruction and analysis, human fac- tors, risk and reliability assessment, toxicology and human health, biomechanics, electrical and semicon- ductors, aviation, materials science, HVAC, energy Confidence At The Courthouse. consulting, construction defect, environmental fate and transport, and ground water quality. Business litigation is increasingly complex. That is why we believe valuation issues must be addressed with the same meticulous care ENGINEERING/GEOTECHNICAL as legal issues. Analysis must be clear. Opinions must be defensible. Expert testimony must be thorough and COTTON, SHIRES AND ASSOCIATES, INC. 330 Village Lane, Los Gatos, CA 95030-7218, (408) articulate. HML has extensive trial experience and can 354-5542, fax (408) 354-1852, 2804 Camino Dos Rios, provide legal counsel with a powerful resource for expert Suite 201, Thousand Oaks, CA 91320, (805) 375-1050, testimony and litigation support. fax (805) 375-1059, e-mail: losgatos@cottonshires .com. Website: www.cottonshires.com. Contact Patrick O. Shires. Full-service geotechnical engineer- For More Information Call 213-617-7775 ing consulting firm specializing in investigation, Or visit us on the web at www.hmlinc.com design, arbitration, and expert witness testimony with offices in Los Gatos, San Andreas, and Thousand BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS Oaks, California. Earth movement (settlement, soil creep, landslides, tunneling, and expansive soil), foun-

Los Angeles Lawyer July/August 2017 33 dation distress (movement and cracking of structures) fraud investigations, economic damages, business val- wrongful termination, professional liability, and expert drainage and grading (seeping slabs and ponding uations, family law, bankruptcy, and reorganization. cross examination. Extensive public speaking back- water in crawl space), pavement and slabs (cracking Degrees/licenses: CPAs, CFEs, MBAs. See display ad ground assists in courtroom presentations. and separating), retaining walls (movement, cracking, on page 38. and failures), pipelines, flooding and hydrology, FOOD SAFETY/HACCP design and construction deficiencies, expert testi- KRYCLER, ERVIN, TAUBMAN, mony at over 88 trials (municipal, superior, and fed- AND KAMINSKY FOOD SAFETY AND HACCP COMPLIANCE 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, eral); 230+ depositions; 300+ settlement conferences 20938 De Mina Street, Woodland Hills, CA 91364, CA 91403, (818) 995-1040, fax (818) 995-4124. in southern and northern California, Nevada, Hawaii (818) 703-7147, e-mail: [email protected]. Website: Website: www.ketkcpa.com. Contact Michael J. and Michigan. www.foodsafetycoach.com. Contact Jeff Nelken, Krycler. Litigation support, including forensic BS, MA. Forensic food safety expert knowledgeable accounting, business appraisals, family law account- in both food safety, accident prevention and hazard ENVIRONMENTAL ENGINEER ing, business and professional valuations, damages, analysis critical control point program development. fraud investigations, and lost earnings. Krycler, Ervin, WZI INC. (ENVIRONMENTAL ENGINEERS) Specializes in site inspections, investigations, reenact- Taubman, and Kaminsky is a full-service accounting 1717 28th Street, Bakersfield, CA 93301, (661) 326- ments and reviews Health Department compliance firm serving the legal community for more than 20 1112, fax (661) 326-6480, e-mail: mjwilson@wziinc reports. Specializes in expert witness testimony. years. See display ad on page 33. .com. Website: www.wziinc.com. Contact Mary Jane Litigation consultant in matters regarding food safety, Wilson. BS, petroleum engineering environmental SIMPSON CAWELTI, LLP Q.A., standards of performance, HACCP, crisis man- assessor REPA 450065. Specialties include regulatory agement, food-borne illness, burns, foreign objects, 100 West Broadway, Suite 1250, Glendale, CA 91210, compliance, petroleum, and power generation. accidents, health department representation, food (818) 500-0571, fax (818) 500-7215, e-mail: stephen spoilage, allergy, intentional contamination, and cus- @scllpfamilylaw.com. Website: www.scllpfamilylaw tomer complaints. Performs inspections, vendor audits, FAILURE ANALYSIS .com. Contact Stephen Cawelti. Simpson Cawelti training, and public speaking. Hands-on food safety advises clients in all areas of family law, parentage consultant for restaurants, manufacturers, distributors, KARS ADVANCED MATERIALS, INC. cases, and pre-and post-nuptial agreements. The firm country clubs, schools, nursing homes, and casinos. Testing and Research Labs, 2528 West Woodland also excels in domestic violence cases in family courts NRA SERVSAFE certified instructor. Thirty years of Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax of all Southern California counties. (714) 527-7169, e-mail: [email protected]. Website: food and hospitality experience. Registered as a food www.karslab.com. Contact Drs. Ramesh J. Kar or WHITE, ZUCKERMAN, WARSAVSKY, handler provider with the Los Angeles County Health Naresh J. Kar. Southern California’s premier materi- LUNA & HUNT Department. Provider # 015. Forensic food safety als/mechanical/metallurgical/structural/forensics labo- 15490 Ventura Boulevard, Suite 300, Sherman Oaks, expert. Food safety expert for CBS, NBC, Inside ratory. Registered professional engineers with 30-plus CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Edition, and CNN. Free consultation for law firms and years in metallurgical/forensic/structural failure analy- Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax insurance companies. See display ad on page 30. sis. Experienced with automotive, bicycles, tires, fire, (949) 219-9095, e-mail: [email protected]. Website: paint, plumbing, corrosion, and structural failures. We www.wzwlh.com. Contact Barbara Luna. Expert wit- FORENSIC ACCOUNTING work on both plaintiff and defendant cases. Complete ness testimony for complex litigation involving dam- in-house capabilities for tests. Extensive deposition age analyses of lost profits, unjust enrichment, reason- BRIAN LEWIS & COMPANY and courtroom experience (civil and criminal investi- able royalties, lost earnings, lost value of business, 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA gations). Principals are Fellows of American Society forensic accounting, fraud investigation, investigative 90024, (310) 475-5676, fax (310) 475-5268, e-mail: for Metals and board-certified diplomates, American analysis of liability, marital dissolution, and tax plan- [email protected]. Contact Brian Lewis, Board of Forensic Examiners. See display ad on ning and preparation. Excellent communicators with CPA, CVA. Forensic accounting, business valuations, page 37. extensive testimony experience. Prior Big Four cash spendable reports, estate, trust, and income tax accountants. Specialties include accounting, breach of services. FAMILY LAW contract, breach of fiduciary duty, business interrup- tion, business dissolution, construction defects, MARCUM LLP BRIAN LEWIS & COMPANY delays, and cost overruns, fraud, insurance bad faith, 2049 Century Park East, Suite 300, Los Angeles, CA 90067, (310) 432-7400, fax (310) 432-7502, e-mail: 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA intellectual property (including trademark, patent, and [email protected]. Website: 90024, (310) 475-5676, fax (310) 475-5268, e-mail: copyright infringement, and trade secrets), malprac- www .marcumllp.com. Contact Jennifer Dluzak, [email protected]. Contact Brian Lewis, tice, marital dissolution, personal injury, product liabil- Marketing Manager. The experts at Marcum draw CPA, CVA. Forensic accounting, business valuations, ity, real estate, securities, tax planning and prepara- from their employment and life experiences to help cash spendable reports, estate, trust, and income tax tion, IRS audit defense, tracing, unfair advertising, identify the appropriate responses. Our team of pro- services. unfair competition, valuation of businesses, and wrongful termination. See display ad on page 31. fessionals includes Certified Public Accountants, CCI FINANCIAL INVESTIGATIONS Certified Fraud Examiners, Accredited Senior Two locations: San Jose and Hollister, CA (831) 634- ZIVETZ, SCHWARTZ & SALTSMAN, CPAS Appraisers,Certified Protection Professionals, licensed 9400 or (408) 357-4114. Contact Sandra Copas, PI, 11900 West Olympic Boulevard, Suite 650, Los private investigators, former prosecutors, and law CFE at [email protected] or Bryan Copas, CPA, Angeles, CA 90064-1046, (310) 826-1040, fax (310) enforcement personnel. It’s time to ask Marcum. PI, CAMS at [email protected]. CA Private 826-1065. Website: www.zsscpa.com. Contact WHITE, ZUCKERMAN, WARSAVSKY, Investigator #25429. Exclusively dedicated to financial Lester J. Schwartz, CPA/CFF, DABFE, DABFA, LUNA & HUNT and fraud investigations, CCI is a private investigation Michael D. Saltsman, CPA, MBA, Lynda R. Schauer, 15490 Ventura Boulevard, Suite 300, Sherman Oaks, firm with CPAs and other certified forensic accounting CPA, CVA, CGMA, David L. Bass, CPA, David CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park and fraud specialists for your civil or criminal matter. Dichner, CPA, ABV, Sandy Green, CPA, Silva Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax CCI serves attorneys, businesses, individuals, and pro- Hakobyan, CPA, Argin Gharibian, CPA. Accounting (949) 219-9095, e-mail: [email protected]. Website: fessional fiduciaries throughout California. We locate, experts in forensic accounting, tax issues, business www.wzwlh.com. Contact Barbara Luna. Expert wit- interpret, and simplify complex financial information, valuations and appraisals, marital dissolutions, emi- ness testimony for complex litigation involving dam- making it easy to understand and easy to present in a nent domain, insurance losses, business interruption, age analyses of lost profits, unjust enrichment, reason- court of law. Services available: forensic accounting, goodwill, economic analysis, investigative auditing, able royalties, lost earnings, lost value of business, financial investigations, expert witness testimony, set- loss of earning, commercial damages, and lost profits. forensic accounting, fraud investigation, investigative tlement negotiations, consultations, nationwide Expert witness testimony preparation, settlement analysis of liability, marital dissolution, and tax plan- searches for hidden assets including bank, brokerage, negotiations, and consultations. See display ad on ning and preparation. Excellent communicators with IRA accounts, 401(k) plans, life insurance policies, page 35. extensive testimony experience. Prior Big Four credit reports, safe deposit boxes, real property, and accountants. Specialties include accounting, breach of vehicles. Contact us today at www.copas-inc.com for FINANCIAL contract, breach of fiduciary duty, business interrup- information on asset searches and other services that tion, business dissolution, construction defects, can help win your case. See display ad on page 35. HAYNIE & COMPANY, CPAS delays, and cost overruns, fraud, insurance bad faith, 4910 Campus Drive, Newport Beach, CA 92660-2119, intellectual property (including trademark, patent, and CMM, LLP (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson copyright infringement, and trade secrets), malprac- With offices in Woodland Hills and El Segundo, (818) @hayniecpa.com. Website: www.hayniecpa.com. tice, marital dissolution, personal injury, product liabil- 986-5070, fax (818) 986-5034, e-mail: rschreiber Contact Steven C. Gabrielson. Consulting and ity, real estate, securities, tax planning and prepara- @cmmcpas.com. Website: www.cmmcpas.com. expert witness testimony in a variety of practice areas: tion, IRS audit defense, tracing, unfair advertising, Contact Robert Schreiber. Specialties: consultants commercial damages, ownership disputes, economic unfair competition, valuation of businesses, and who provide extensive experience, litigation support, analysis, business valuation, lost profits analysis, wrongful termination. See display ad on page 31. and expert testimony regarding forensic accountants, fraud/forensic investigations, taxation, personal injury,

34 Los Angeles Lawyer July/August 2017 FRAUD INVESTIGATIONS

CLIFTONLARSONALLEN LLP 555 West 5th Street, Floor 35, Los Angeles, CA 90013, (213) 550-5422, email: David.Wall@claconnec t.com or [email protected]. Website: www.claconnect.com.Contact David Wall, JD, CPA, CFE or Ernie Cooper, CPA/CFF, CFE, Attorney, Former FBI Special Agent. CliftonLarsonAllen (CLA) helps clients with forensic auditing, investigation and technology, as well as computer forensics, bank- ruptcy, and business valuation. We have served as Chapter 11 trustees, examiners, and receivers in bank- ruptcy and insolvency proceedings. Should a need arise, as a professional services firm, CLA’s team of 5,000+ in 100+ locations across the U.S. delivers inte- grated advisory, outsourcing, and public accounting capabilities to help clients succeed professionally and personally. For more information visit CLAconnect .com. See display ad on page 30.

SAPIENT INVESTIGATIONS, INC. 1810 14th Street, Suite 212, Santa Monica, CA 90404, (310) 399-8200, fax (310) 496-2637. Website: www .sapientpi.com. Contact David Cogan, CFE, Managing Director. Sapient Investigations, Inc., the Westside’s premier intelligence firm, specializes in investigating fraud in companies and non-profit orga- nizations, whether internal or external. We assist our clients in uncovering evidence of wrongdoing, unravel the perpetrator’s financial network and compile cases that can be taken directly to law enforcement. Our principals are registered with the national Association of Certified Fraud Examiners. For a consultation, please contact David Cogan, CFE, at (310) 399-8200 or visit www.sapientpi.com.

WHITE, ZUCKERMAN, WARSAVSKY, LUNA & HUNT 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) 219-9095, e-mail: [email protected]. Website: www.wzwlh.com. Contact Barbara Luna. Expert wit- ness testimony for complex litigation involving dam- age analyses of lost profits, unjust enrichment, reason- able royalties, lost earnings, lost value of business, forensic accounting, fraud investigation, investigative analysis of liability, marital dissolution, and tax plan- ning and preparation. Excellent communicators with extensive testimony experience. Prior Big Four accountants. Specialties include accounting, breach of contract, breach of fiduciary duty, business interrup- tion, business dissolution, construction defects, delays, and cost overruns, fraud, insurance bad faith, intellectual property (including trademark, patent, and copyright infringement, and trade secrets), malprac- tice, marital dissolution, personal injury, product liabil- ity, real estate, securities, tax planning and prepara- tion, IRS audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 31.

HANDWRITING EXAMINATION

FORENSIC SCIENCE CONSULTANTS, INC. 433 Airport Boulevard, Suite 406, Burlingame, CA 94010, (650) 548-1652, email: [email protected]. Website: www.qdexams.com. Contact Linton Mohammed. Forensic examination of signatures and handwriting, detection of alterations, examination of machine printing and typewriting. Typical cases: wills, deeds, medical records, and business records. Expert testimony.

INSURANCE

THORNHILL & ASSOCIATES, INC. P.O. Box 7307, Porter Ranch, CA 91327, (866) 888- 2280, ext. 704, e-mail: neal@thornhillandassociates .com. Website: www.thornhillandassociates.com. Contact Neal Thornhill. It is our job to make your job

Los Angeles Lawyer July/August 2017 35 easier! As licensed independent adjusters and private investigators we provide a wide range of services. LITIGATION INVESTIGATIONS MEDICAL/UROLOGY With access to the most comprehensive information HIGGINS, MARCUS & LOVETT, INC. DUDLEY SETH DANOFF, MD, FACS databases and our methodical fieldwork, we leave no 800 South Figueroa Street, Suite 710, Los Angeles, Cedars-Sinai Medical Center, 8635 West 3rd Street, stone unturned. Liability investigations, msc/media- CA 90017, (213) 617-7775, fax (213) 617-8372, e-mail: Suite One West, Los Angeles, CA 90048, (310) 854- tions, recorded statements, locating witnesses, [email protected]. Website: www.hmlinc.com. 9898, fax (310) 854-0267, e-mail: [email protected]. insureds, claimants, skip tracing, asset checks, criminal Contact Mark C. Higgins, ASA, president. The firm Website: www.towerurology.com. Contact Dudley checks, trial monitoring, surveillance, process serving, has over 30 years of litigation support and expert tes- Seth Danoff, MD, FACS. Experience in urologic case witness canvass, background checks, and discovery timony experience in matters involving business valua- review and testimony for plaintiff and defense, court support. See display ad on page 30. tion, economic damages, intellectual property, loss of experience, and strategies. Extensive expertise in business goodwill, and lost profits. Areas of practice prostate, bladder, and kidney cancers; kidney trans- INTELLECTUAL PROPERTY/ include business disputes, eminent domain, bank- plantation; pelvic trauma; sexual dysfunction; penile ACQUISITIONS ruptcy, and corporate and marital dissolution. See implants; incontinence; infections; and stone disease. INVESTIGATIONS display ad on page 33. Publishing experience in scientific journals, books, lec- tures, training seminars, and course directorships. WHITE, ZUCKERMAN, WARSAVSKY, SAPIENT INVESTIGATIONS, INC. Princeton University, Summa Cum Laude; Yale LUNA & HUNT 1810 14th Street, Suite 212, Santa Monica, CA Medical School; Columbia University urologic training; 15490 Ventura Boulevard, Suite 300, Sherman Oaks, 90404, (310) 399-8200, fax (310) 496-2637. Website: Major, U.S. Air Force; Who’s Who in America; CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park www.sapientpi.com. Contact David Cogan, CFE, Academic appointment. Detailed CV available. Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax Managing Director. Sapient Investigations, Inc., the (949) 219-9095, e-mail: [email protected]. Website: Westside’s premier intelligence firm, works with attor- MEDICAL EXPERT WITNESSES www.wzwlh.com. Contact Barbara Luna. Expert wit- neys and corporate counsel on a wide variety of busi- (ALL SPECIALTIES) ness testimony for complex litigation involving dam- ness dispute and complex litigation matters. With more than a decade of experience, Sapient Investi - age analyses of lost profits, unjust enrichment, reason- AMFS MEDICAL EXPERTS NATIONWIDE gations, Inc.’s team specializes in developing hard-to- able royalties, lost earnings, lost value of business, 6425 Christie Avenue, Suite 260, Emeryville, CA get information and witness testimony in trade secret forensic accounting, fraud investigation, investigative 94608, (800) 275-8903. Website: cases, entertainment industry disputes and high-level www.AMFS.com. analysis of liability, marital dissolution, and tax plan- Welcome to AMFS where our in-house staff of attor- insurance matters where others have failed. For a con- ning and preparation. Excellent communicators with neys and physicians are on call to discuss your most sultation, please contact David Cogan, CFE, at (310) extensive testimony experience. Prior Big Four important medical legal matters, advise you as to their 399-8200 or visit www.sapientpi.com. accountants. Specialties include accounting, breach of merit, and locate/engage the best and most suitable contract, breach of fiduciary duty, business interrup- specialists to serve as expert witnesses and advisors. tion, business dissolution, construction defects, LITIGATION/LEGAL Based in California, AMFS has a 25-year history as the delays, and cost overruns, fraud, insurance bad faith, INVESTIGATION trusted medical expert partner to thousands of law intellectual property (including trademark, patent, and firms across the country and thousands of physicians, copyright infringement, and trade secrets), malprac- THORNHILL & ASSOCIATES, INC. surgeons, nurses, and related experts located in every tice, marital dissolution, personal injury, product liabil- P.O. Box 7307, Porter Ranch, CA 91327, (866) 888- U.S. jurisdiction. Please call Dan Sandman, Esq., ity, real estate, securities, tax planning and prepara- 2280, ext. 704, e-mail: neal@thornhillandassociates at (800) 275-8903 to discuss your matter alongside tion, IRS audit defense, tracing, unfair advertising, .com. Website: www.thornhillandassociates.com. one of our medical directors for a candid assessment unfair competition, valuation of businesses, and Contact Neal Thornhill. It is our job to make your and lightning-fast expert placement. AMFS: world wrongful termination. See display ad on page 31. job easier! As licensed independent adjusters and class medical specialists in over 5,000 areas of exper- private investigators we provide a wide range of tise. See display ad on page 33. INVESTIGATIONS services. With access to the most comprehensive information databases and our methodical fieldwork, MEDICAL LEGAL APPLIED FACTS we leave no stone unturned. Liability investigations, 901 Corporate Center Drive, Suite 104, Monterey msc/mediations, recorded statements, locating ROUGHAN & ASSOCIATES AT LINC, INC. witnesses, insureds, claimants, skip tracing, asset Park, CA 91754, (213) 892-8700, fax (213) 683-1938, 465 North Halstead Street, Suite 120, Pasadena, checks, criminal checks, trial monitoring, surveillance, e-mail: [email protected]. Website: CA 91107, (626) 351-0991, fax (626) 351-0992, e-mail: process serving, witness canvass, background www.appliedfacts.com. Contact Henry Kupperman. [email protected]. Contact Jan Roughan. Specialties: checks, and discovery support. International investigative firm providing services See display ad on Roughan and Associates at LINC is a case manage- throughout the world. Areas of expertise include page 30. ment and medical/legal consulting firm. Services/ internal corporate investigations, intellectual property products offered include: 1) Expert Testimony, 2) Life matters, investigative due diligence (including Patriot LOST PROFITS AND EARNINGS Care Plan (LCP) Construction/LCP Critique, 3) Medical Act). FCPA matters, litigation support and intelli- Record Organization/Summarization/Analysis, 4) gence, forensic accounting, compliance, surveillance, WHITE, ZUCKERMAN, WARSAVSKY, Medical Bill Auditing, 5) Expert Witness Identification, security consulting, and computer forensics. Our pro- LUNA & HUNT 6) IME Attend ance, 7) Video Services (e.g., Day In Life, fessional staff includes top experts from the fields of 15490 Ventura Boulevard, Suite 300, Sherman Oaks, Settle ment Brief, IME Evaluation, NDT/PT Evaluation, law, law enforcement, intelligence services, account- CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park etc.), 8) Questions for: Deposition/Cross Examination , ing, investigative journalism, computer forensics, and Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, 9) Medical/Psychiatric Case Management. See display research analysis. Assignments are performed pur- fax (949) 219-9095, e-mail: [email protected]. ad on page 37. suant to a prearranged budget. Website: www.wzwlh.com. Contact Barbara Luna. Expert witness testimony for complex litigation involv- MERGERS/ACQUISITIONS LIFE CARE PLANNERS ing damage analyses of lost profits, unjust enrichment, reasonable royalties, lost earnings, lost value of BENCHMARK INVESTIGATIONS business, forensic accounting, fraud investigation, AMFS MEDICAL EXPERTS NATIONWIDE 32158 Camino Capistrano, # A-415, San Juan investigative analysis of liability, marital dissolution, 6425 Christie Avenue, Suite 260, Emeryville, CA Capistrano, CA 92675, (800) 248-7721, fax (949) and tax planning and preparation. Excellent communi- 94608, (800) 275-8903. Website: www.AMFS.com. 248-0208, e-mail: [email protected]. Website: cators with extensive testimony experience. Prior Big Welcome to AMFS where our in-house staff of attor- www.BenchmarkInvestigations.com. Contact Jim Four accountants. Specialties include accounting, neys and physicians are on call to discuss your most Zimmer, CPI. National agency. Professional investiga- breach of contract, breach of fiduciary duty, business important medical legal matters, advise you as to their tions with emphasis on accuracy, detail, and expedi- interruption, business dissolution, construction merit, and locate/engage the best and most suitable ence. Asset/financial searches; background investiga- defects, delays, and cost overruns, fraud, insurance specialists to serve as expert witnesses and advisors. tions; DMV searches; domestic/marital cases; due bad faith, intellectual property (including trademark, Based in California, AMFS has a 25-year history as the diligence investigations; mergers/acquisitions special- patent, and copyright infringement, and trade trusted medical expert partner to thousands of law ist; personal injury defense cases; process service; sur- secrets), malpractice, marital dissolution, personal firms across the country and thousands of physicians, veillance/photograph; witness location/interviews; injury, product liability, real estate, securities, tax surgeons, nurses, and related experts located in every workplace investigations—theft, harassment, discrimi- planning and preparation, IRS audit defense, tracing, U.S. jurisdiction. Please call Dan Sandman, Esq., nation, drugs; worker’s comp cases—AOE/COE and unfair advertising, unfair competition, valuation of at (800) 275-8903 to discuss your matter alongside sub rosa. Bilingual agents. Fully insured. Correspond - businesses, and wrongful termination. See display one of our medical directors for a candid assessment ents nationwide. CA Private Investigator license #PI ad on page 31. and lightning-fast expert placement. AMFS: world 12651. class medical specialists in over 5,000 areas of exper- tise. See display ad on page 33.

36 Los Angeles Lawyer July/August 2017 METALLURGY ning and preparation. Excellent communicators with Michael D. Saltsman, CPA, MBA, Lynda R. Schauer, extensive testimony experience. Prior Big Four CPA, CVA, CGMA, David L. Bass, CPA, David EAG, INC. (FORMERLY SEAL LABORATORIES) accountants. Specialties include accounting, breach of Dichner, CPA, ABV, Sandy Green, CPA, Silva contract, breach of fiduciary duty, business interrup- Hakobyan, CPA, Argin Gharibian, CPA. Accounting 250 North Nash Street, El Segundo, CA 90245, (310) tion, business dissolution, construction defects, experts in forensic accounting, tax issues, business 322-2011, fax (310) 322-2243, e-mail: [email protected]. delays, and cost overruns, fraud, insurance bad faith, valuations and appraisals, marital dissolutions, emi- Website: www.eag.com. Contact Dr. Kumar or intellectual property (including trademark, patent, and nent domain, insurance losses, business interruption, Thomas Tan. EAG performs metallurgical analysis copyright infringement, and trade secrets), malprac- goodwill, economic analysis, investigative auditing, and failure analysis investigations of various metallic tice, marital dissolution, personal injury, product liabil- loss of earning, commercial damages, and lost profits. and non-metallic products and components used in ity, real estate, securities, tax planning and prepara- Expert witness testimony preparation, settlement the aerospace, transportation, consumer products, tion, IRS audit defense, tracing, unfair advertising, negotiations, and consultations. See display ad on construction and medical device industries Addition - unfair competition, valuation of businesses, and page 35. ally, we assist our clients with product design, materi- wrongful termination. See display ad on page 31. als selection, product improvement and quality assur- ance programs involving metallurgical issues. From ZIVETZ, SCHWARTZ & SALTSMAN, CPAS PLASTIC AND COSMETIC routine metallurgical testing to complex consulting, 11900 West Olympic Boulevard, Suite 650, Los RECONSTRUCTIVE SURGERY EAG ensures the highest standard of quality for metal- Angeles, CA 90064-1046, (310) 826-1040, fax (310) lurgical evaluations. STANLEY P. FRILECK, MD, F.A.C.S. 826-1065. Website: www.zsscpa.com. Contact 3770 Highland Avenue, Suite 201, Manhattan Beach, Lester J. Schwartz, CPA/CFF, DABFE, DABFA, KARS ADVANCED MATERIALS, INC. CA 90266, (310) 820-1491, fax (310) 826-1977, e-mail: Testing and Research Labs, 2528 West Woodland Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527-7169, e-mail: [email protected]. Website: www.karslab.com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. Southern California’s premier materi- als/mechanical/metallurgical/structural/forensics labo- ratory. Registered professional engineers with 30-plus years in metallurgical/forensic/structural failure analysis. Experienced with automotive, bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both plaintiff and defendant cases. Complete in- house capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Principals are Fellows of American Society for Metals and board-certified diplomates, American Board of Forensic Examiners. See display ad on page 37.

ORTHOPEDIC SURGEON

WILLIAM B. STETSON, MD 191 South Buena Vista Street, Suite 470, Burbank, CA 91505, (818) 848-3030, fax (818) 848-2228, e-mail: [email protected]. Website: www .sportsmedicinedr.com. Contact W. Stetson, MD. Dr. Stetson is fellowship trained in arthroscopic surgery of the shoulder, knee, elbow, and ankle. He is an associate clinical professor of orthopedic surgery at the USC Keck School of Medicine. He also has exten- sive experience in sports medicine and orthopedic trauma.

PERSONAL INJURY

MEA FORENSIC ENGINEERS & SCIENTISTS 23281 Vista Grande Drive, Laguna Hills, CA 92653, (949) 855-4632, e-mail: bradley.rutledge@meaforensic .com. Website: www.meaforensic.com. Contact Bradley Rutledge, MS, PE, Biomechanical Engineer. Bradley Rutledge conducts accident reconstruction and biomechanical analyses to assess injury causation in cases involving automobile collisions, slip/trip and fall, and sports injuries. Performs assessments of loads applied to the body, injury mechanics, and the rela- tionship between the applied loads and the injury. Performs analyses on occupant kinematics, seat belt use and effectiveness, and slip/trip and fall potential and kinematics. Conducts research on biomechanics of injury, staged crash tests, occupant kinematics, and slip and falls.

WHITE, ZUCKERMAN, WARSAVSKY, LUNA & HUNT 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) 219-9095, e-mail: [email protected]. Website: www.wzwlh.com. Contact Barbara Luna. Expert wit- ness testimony for complex litigation involving dam- age analyses of lost profits, unjust enrichment, reason- able royalties, lost earnings, lost value of business, forensic accounting, fraud investigation, investigative analysis of liability, marital dissolution, and tax plan-

Los Angeles Lawyer July/August 2017 37 [email protected]. Website: www.drfrileck .com. Contact Amanda Campbell. Diplomate, American Board of Plastic Surgery; assistant clinical professor at UCLA and Veterans Administration Hospital—Wadsworth; president emeritus, UCLA Plastic Surgery Society. Over 25 years of experience in private and medical/legal practice specializing in plas- tic and reconstructive surgery, cosmetic and burn reconstruction. Expert witness and consultation in medical malpractice, product liability, and personal injury. Technical advisory for film and television.

JEFFREY L. ROSENBERG, MD 1245 Wilshire Boulevard, Suite 601, Los Angeles, CA 90017, (213) 977-0257, fax (213) 977-0501. Plastic and reconstructive surgery, burn specialist. Diplomate, American Board of Plastic Surgery. Member, American Burn Association and American Society of Plastic Surgeons. Past-president, California Society of Plastic Surgeons.

POLYGRAPH

JACK TRIMARCO & ASSOCIATES POLYGRAPH INC. 9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA 90212, (310) 247-2637, e-mail: [email protected]. Website: www.jacktrimarco.com. Contact Jack Trimarco. Former manager of the Federal Bureau of Investigation’s polygraph program in Los Angeles. Former Inspector General Polygraph Program, Department of Energy. Nationally known and respected polygraph expert. I have the credentials you would want when you have a client polygraphed, a case reviewed, or a motion made regarding poly- graph. My unique background allows me to bring the highest levels of service and expertise to any poly- graph situation. Current member of the Ethics Committee, California Association of Polygraph Examiners (CAPE). Hundreds of appearances on national TV, including Dr. Phil, Oprah, Greta, Nancy Grace, The O’Reilly Factor, and Hannity & Colmes. Degrees/licenses: BS Psychology, Certified APA, AAPP, CAPE, AAFE. PRIVATE INVESTIGATIONS

BENCHMARK INVESTIGATIONS 32158 Camino Capistrano, # A-415, San Juan Capistrano, CA 92675, (800) 248-7721, fax (949) 248-0208, e-mail: [email protected]. Website: www.BenchmarkInvestigations.com. Contact Jim Zimmer, CPI. National agency. Professional investiga- tions with emphasis on accuracy, detail, and expedi- ence. Asset/financial searches; background investiga- tions; DMV searches; domestic/marital cases; due diligence investigations; mergers/acquisitions special- ist; personal injury defense cases; process service; sur- veillance/photograph; witness location/interviews; workplace investigations—theft, harassment, discrimi- nation, drugs; worker’s comp cases—AOE/COE and sub rosa. Bilingual agents. Fully insured. Correspond - ents nationwide. CA Private Investigator license #PI 12651.

KINSEY INVESTIGATIONS 4712 Admiralty Way, suite 866, Marina del Rey, CA 90292, (310) 613-3755, e-mail: ba@kinseyinvestigations .com Website: www.kinseyinvestigations.com. Contact Barbara Wolford. Child custody issues, sur- veillance, data recovery, spousal support, lost profits, domestic investigations, asset search, cheating spouse, bankruptcy, corporative investigations, and civil criminal investigations.

PARRENT SMITH INVESTIGATIONS & RESEARCH 10158 Hollow Glen Circle, Los Angeles, CA 90077, (310) 275-8619, (800) 516-2448 or 805-439-2824, fax (310) 274-0503, e-mail: [email protected] or [email protected]. Website: www

38 Los Angeles Lawyer July/August 2017 .psinvestigates.com. Contact Joanne Parrent or Nic ence. Asset/financial searches; background investiga- 309, Mission Hills, CA 91345, (818) 361-1321, Smith. PSI is a full-service investigative firm. Nic Smith tions; DMV searches; domestic/marital cases; due fax (818) 365-6522, e-mail: [email protected]; has 40 years in the field conducting investigations for diligence investigations; mergers/acquisitions special- [email protected]. Website: www.forrylaw attorneys in thousands of civil and criminal cases. We ist; personal injury defense cases; process service; sur- .com. Contact Craig B. Forry, JD, GRI, Realtor. specialize in all types of litigation support including veillance/photograph; witness location/interviews; Expert witness/consultant, broker/agent standard of asset searches; witness interviews; fraud investiga- workplace investigations—theft, harassment, discrimi- care, escrow, real estate damages, foreclosure, real tions; corporate, family, and environmental cases. Nic nation, drugs; worker’s comp cases—AOE/COE and estate disclosure, HOA, landlord-tenant, leases, mort- Smith is a court-qualified expert in security and inves- sub rosa. Bilingual agents. Fully insured. Correspond - gages, transactions, residential and commercial, busi- tigative standards. Joanne Parrent, formerly an author ents nationwide. CA Private Investigator license #PI ness agent/broker standard of care, and legal mal- and journalist, brings her investigative research back- 12651. practice. Available for consultations, depositions, and ground to all matters. Offices in Los Angeles and courtroom testimony. Degrees/licenses: B.A., J.D.; Central CA. Services throughout California and the QUESTIONED DOCUMENTS California attorney for 33 years. California broker for world. See display ad on page 38. 12 years, Realtor; Graduate Realtor Institute. FORENSIC SCIENCE CONSULTANTS, INC. Memberships: National and California Association of THORNHILL & ASSOCIATES, INC. 433 Airport Boulevard, Suite 406, Burlingame, CA Realtors; Southland Regional Association of Realtors; P.O. Box 7307, Porter Ranch, CA 91327, (866) 888- 94010, email: [email protected]. Website: www California State Bar; LACBA. 2280, ext. 704, e-mail: neal@thornhillandassociates .qdexams.com. Contact Linton Mohammed. .com. Website: www.thornhillandassociates.com. Forensic examination of signatures and handwriting, SURVEILLANCE It is our job to make your job Contact Neal Thornhill. detection of alterations, examination of machine easier! As licensed independent adjusters and private printing and typewriting. Typical cases: wills, deeds, THORNHILL & ASSOCIATES, INC. investigators we provide a wide range of services. medical records, and business records. Expert P.O. Box 7307, Porter Ranch, CA 91327, (866) 888- With access to the most comprehensive information testimony. 2280, ext. 704, e-mail: neal@thornhillandassociates databases and our methodical fieldwork, we leave no .com. Website: www.thornhillandassociates.com. stone unturned. Liability investigations, msc/media- REAL PROPERTY Contact Neal Thornhill. It is our job to make your tions, recorded statements, locating witnesses, job easier! As licensed independent adjusters and insureds, claimants, skip tracing, asset checks, criminal private investigators we provide a wide range of checks, trial monitoring, surveillance, process serving, E. ROBERT MILLER & ASSOCIATES 330 Primrose Road, Suite 606, Burlingame, CA 94010, services. With access to the most comprehensive witness canvass, background checks, and discovery information databases and our methodical fieldwork, support. See display ad on page 30. (650) 373-0705, fax (650) 373-0709, email: elymiller @hotmail.com. Website: www.erobertmiller.com. we leave no stone unturned. Liability investigations, Contact Bob Miller or David Saldivar. Bob Miller and msc/media tions, recorded statements, locating PROCESS SERVICE David Saldivar are experts in property management witnesses, insureds, claimants, skip tracing, asset checks, criminal checks, trial monitoring, surveillance, BENCHMARK INVESTIGATIONS for all types of commercial and residential real estate. Experience in arbitration, litigation, lease terms, per- process serving, witness canvass, background 32158 Camino Capistrano, # A-415, San Juan sonal injury, property damage, industry standards of checks, and discovery support. See display ad Capistrano, CA 92675, (800) 248-7721, fax (949) care. Retained in over 1000 lawsuits. on page 30. 248-0208, e-mail: [email protected]. Website: www.BenchmarkInvestigations.com. Contact Jim FORRY LAW GROUP; FORRY REALTY Zimmer, CPI. National agency. Professional investiga- GROUP INC. tions with emphasis on accuracy, detail, and expedi- 15501 San Fernando Mission Boulevard, Suite

Los Angeles Lawyer July/August 2017 39 closing argument BY RANDE S. SOTOMAYOR

Transforming a Mediation into a Positive Outcome for All Parties

WHILE NO TWO MEDIATIONS ARE EVER THE SAME, this one looked between rooms and discussing compelling reasons for everyone to pretty “normal” in advance: a residential real estate sale involving move closer to agreement, the gap between demands and offers claims of nondisclosure and concealment of water damage and exten- remained stubbornly large. The lawyers were advising limits; the sive mold. The parties and lawyers were pessimistic about the parties were convinced they were right and their opponents were prospects of settlement and, as usual, the attorneys initially objected wrong. They were ready to proceed to arbitration. Still, they listened. to a joint opening session. It typically is an uphill battle with counsel And then it happened. and clients who think a joint session will exacerbate the dispute, The day had grown long. The seller and I were chatting about prompt a blow-up, or reveal facts they would rather save for trial. his prior career, his family, and his new home in a new town. (And I strongly favor joint sessions. They allow the parties to observe I did bring out the chocolate.) The seller became very quiet. Then, their opponents as witnesses and the lawyers in action, as well as to very slowly, and tearfully, he began to speak words that I believe informally exchange information, while every- one confronts the discomfort of the adversarial proceeding. Also, it all takes place in a confi- Paying close attention to what one’s opponent is saying while trying to dential setting in which the parties are not required to settle, but well might. In this case, the first thing that went right discover what he or she really thinks and wants helps solutions emerge. was that all parties and counsel kept an open mind about the joint session. We discussed pros and cons and all agreed to give it a try. Mediation sessions are necessarily flexible, and a good mediator can were the “magic” in this case. He said, “As much as I feel I have tell when it is time to separate into caucus. been wronged, I can see how [the buyers] feel that they too have Part of my regular spiel is to discuss the importance and value of been wronged.” He suggested a compromise that I delivered to the listening to understand as opposed to listening in order to respond. other room along with his revelation. That led to more tears…and Lawyers are trained to nimbly respond to arguments on the fly. It is a settlement. difficult to put yourself in the other guy’s shoes, especially if your The agreement was drafted and signed. We had another joint client is depending on you to set the other guy straight about the session, followed by handshakes, expressions of gratitude (and awe), facts and be a tough negotiator. This is when determined lawyers and a further agreement of “no hard feelings.” and determined clients can be an effective team. Paying close attention These people got it. They took responsibility for exploring solu- to what one’s opponent is saying while trying to discover what he tions. They prepared for the mediation independently and with their or she really thinks and wants helps solutions emerge, along with lawyers. They listened to each other. They turned destructive inter- an evaluation of what you really think and want. action into constructive cooperation by expanding their perception In this case, it got a little ugly. After all, the buyers were claiming of the case through flexibility, open-mindedness, listening to under- they were deceived. Still, the joint session was civil and polite. The stand, and humanizing the ordeal. lawyers made full presentations, and the parties asked each other It all came together when the parties began to imagine each questions. Importantly, the parties and attorneys carefully examined other’s point of view, even while disagreeing with it. The human the bases for each side’s position and the circumstances surrounding interaction between warring counsel and parties allowed them to the sale of the house. I could see each side strategically deciding take a break from the war and discover reasons and ways to close how to engage, how much to disclose at certain points, and becoming the gap and end the dispute. eager to work toward a nonlitigated solution. This case is cause to celebrate the trust lawyers can place in the The buyers insisted the seller must have been aware of the water parties once they have fully prepared themselves and their clients damage and mold, but the seller had lived there for only two years and set the stage for an empowering process of resolution. This and insisted he did not know of the problem. Off they went to their was not just a mutually unhappy result of mediation. Instead, it was separate caucus rooms to dig their heels in and maintain their right- a result that reinforced the parties’ self-determination and the eousness in private. However, everyone still listened, primarily because usefulness of a relational approach that led to understanding others’ the lawyers and parties were well prepared. Their documents, witness points of view. interviews, and expert reports were all in order. The lawyers knew That day, everyone got to be a hero. I hope more parties, lawyers, their cases and had spent considerable time with their clients before and mediators have incredible days like that one. n the day of the mediation discussing process, objectives, risks, costs, and alternatives to settlement. Rande S. Sotomayor is a Los Angeles-based mediator, conflict management Over the course of the day, as I was shuttling back and forth consultant, and arbitrator.

40 Los Angeles Lawyer July/August 2017