November 2018 / $5

EXPERTSEMIANNUAL WITNESSES GUIDE TO THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION

NOVEMBER 2018 / $5

SCOTUS PLUS Acceptance Civil Code of Patent Section Inter Partes 1714.10 Review Preﬁling page 22 Order page 30 On Direct: Feminist Brenda Feigen page 10 LACBA Meets Veterans’ Legal Needs page 60 TheThe WildWild WestWest ofof CryptocurrencyCryptocurrency

EARN MCLE CREDIT Los Angeles lawyer Nathan J. Hochman presents an overview of strategies used by U.S. government agencies to regulate and control cryptocurrency activity page 14

FEATURES 14 Policing the Wild West of Cryptocurrency BY NATHAN J. HOCHMAN As cryptocurrency can be used to facilitate crimes ranging from narcotics trafficking to terrorist financing, U.S. regulatory agencies work hard to adapt enforcement strategies to developments in this new technology Plus: Earn MCLE credit. MCLE Test No. 282 appears on page 19. 22 The Institution of Inter Partes Review BY KYLE KELLAR Two recent U.S. Supreme Court decisions have clarified and changed the patent inter partes review process 30 When Attorneys and Clients Conspire BY RENA E. KREITENBERG Civil conspiracy claims between attorneys and clients are tricky and governed by significant legal rules

36 Special Section Semiannual Guide to Expert Witnesses

Los Angeles Lawyer DEPARTME NTS the magazine of the Los Angeles County 8 President's Page 12 Barristers Tips Bar Association New and expanded programs enhance National Labor Relations Board creates November 2018 and benefit LACBA new social media guidance BY BRIAN S. KABATECK BY KRISTINA M. FERNANDEZ MABRIE Volume 41, No. 8 10 On Direct 60 Closing Argument COVER PHOTOS CREDIT: Attend LACBA's Third Armed Forces Ball TOM KELLER Brenda Feigen, Feminist INTERVIEW BY DEBORAH KELLY and help a vet BY ADAM SIEGLER

LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the 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, Los Angeles CA 90055. 11.18 Visit us on the internet at www.lacba.org/lalawyer E-mail can be sent to [email protected] Follow Los Angeles Lawyer on Twitter at @LALawyerMag

EDITORIAL BOARD Chair THOMAS J. DALY Articles Coordinator TYNA ORREN Articles Coordinator JUSTIN KARCZAG Secretary TBD Immediate Past Chair JOHN C. KEITH

JERROLD ABELES (PAST CHAIR) TOM K. ARA SCOTT BOYER NORMAN A. CHERNIN CHAD C. COOMBS (PAST CHAIR) KEITH A. CUSTIS GORDON K. ENG MICHAEL A. GEIBELSON (PAST CHAIR) SHARON GLANCZ GABRIEL G. GREEN STEVEN HECHT (PAST CHAIR) DENNIS F. HERNANDEZ HON. MARY HOUSE TIFFANY BACI HUNTER MARY E. KELLY (PAST CHAIR) KATHERINE KINSEY DIANA HUGHES LEIDEN LYDIA G. LIBERIO CAROLINE SONG LLOYD PAUL S. MARKS (PAST CHAIR) SANDRA MENDELL COMM’R ELIZABETH MUNISOGLU CARMELA PAGAY GREGG A. RAPOPORT JACQUELINE M. REAL-SALAS (PAST CHAIR) SHAIL PANKAJ SHAH 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 © 2018 by the Los Angeles County Bar Assoc - iation. 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 Circula - tion (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 November 2018 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 BRIAN S. KABATECK President-Elect RONALD F. BROT Senior Vice President TAMILA C. JENSEN Vice President BRADLEY S. PAULEY Treasurer WILLIAM L. WINSLOW Vice President Of Diversity/Affiliate Outreach PHILIP H. LAM Assistant Vice President FELIX THOMAS WOO Assistant Vice President DANIEL J. BUCKLEY Assistant Vice President KRISTIN ADRIAN Immediate Past President MICHAEL E. MEYER Barristers President JESSICA GORDON Barristers President-Elect VICTORIA MCLAUGHLIN Executive Director/Secretary STANLEY S. BISSEY Chief Financial & Administrative Officer BRUCE BERRA BOARD OF TRUSTEES SUSAN J. BOOTH JESSE A. CRIPPS GARY A. FARWELL TANYA FORSHEIT JO-ANN W. GRACE JOHN F. HARTIGAN AMOS E. HARTSTON DANIEL T. HUANG RICHARD L. KELLNER JENNIFER W. LELAND EVE LOPEZ MATTHEW W. MCMURTREY F. FAYE NIA ANN I. PARK MICHAEL R. SOHIGIAN EDWIN C. SUMMERS KENDRA THOMAS KEVIN L. VICK 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 SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

Los Angeles Lawyer November 2018 5 FROM THE EDITOR

olicing cryptocurrencies poses unique challenges to U.S. regulators and law enforcement agencies as P they scramble to figure out how to regulate and enforce laws in a virtual currency world that can operate anonymously, electronically, quickly, across borders, and without

intermediaries or paper trails. In the first of a two-part series, Nathan J. Hochman, deputy chair of Morgan, Lewis & Bockius LLP’s White Collar Litigation and Government Investigations practice, explores government enforcement efforts in this area and the difficulty of adapting potentially outdated rules and regulations to a new financial technology. Our cover story, “Policing the Wild West of Crypto- currency,” starts on page 14. In one day last spring, the U.S. Supreme Court issued two separate opinions on the patent inter partes review process, the first upholding its constitutionality and the second clarifying the scope of the governing statute. In his article, “The Institution of Inter Partes Review,” on page 22, Kyle Kellar of Lewis Roca Rothergerber Christie’s inter partes review team, explains why Oil States Energy Services, LLC v. Greene’s Energy Group, LLC was more closely watched by the patent bar but SAS Institute, Inc. v. Iancu may have more impact. Mesisca Riley & Kreitenberg partner Rena Kreitenberg examines causes of action against attorneys for civil conspiracy with a client. Such claims have always been thorny as they are subject to a prefiling order pursuant to Civil Code Section 1714.10. The statutory mandates and exceptions to the prefiling order within Section 1714.10 are specific, Kreitenberg says, but courts have interpreted their application in ways that are at times unclear. Her article, “When Attorneys and Clients Conspire,” starts on page 30. In his “President’s Page” column, LACBA President Brian Kabateck details progress on his pledge to significantly increase new membership benefits before the end of his term. Read about recent and coming changes that enhance and benefit LACBA on page 8. Kristina Fernandez Mabrie of Foley & Lardner writes this month’s “Barrister’s Tips” (page 12) about the National Labor Relations Board’s im portant new guidance on workplace policies in the wake of the board’s groundbreaking decision in The Boeing Company. Deborah Kelly’s “On Direct” interview on page 10 is with Brenda Feigen, American feminist, film producer, and attorney. A seminal figure in the struggle for gender equality, a former vice president of the National Organization of Women, and a cofounder of Ms. magazine in 1972, Feigen also cofounded the ACLU’s Women’s Rights Project with now U.S. Supreme Court Justice Ruth Bader Ginsburg. In tandem with National Veterans and Military Families Month, Greenberg Traurig litigator and pro bono coordinator Adam Siegler focuses his “Closing Argument” (page 60) on LACBA’s Veterans Legal Services Project that works to identify and address opportunities to assist veterans, active military personnel, and reservists with their legal needs. Mark your calendars: LACBA’s Armed Forces Committee, which Siegler chairs, will host its Third Armed Forces Ball on March 2, 2019. Rounding out the issue is Los Angeles Lawyer’s Semiannual Guide to Expert Witnesses, which starts on page 36. n

Susan Pettit is the Editor-in-Chief of Los Angeles Lawyer.

6 Los Angeles Lawyer November 2018 president’s page BY BRIAN S. KABATECK

New and Expanded Programs Enhance and Beneﬁt LACBA

IN RECENT PRESIDENT’S PAGE COLUMNS, I firms and lawyers who are LACBA members. In LACBA’s down- highlighted things that need to change in town offices, members already have free access to our virtual order to bring LACBA into the twenty- office experience for members. In addition, a members’ lounge first century. I have urged an embrace of and discounted meeting space is available at LACBA headquarters. change. The Board of Trustees is dedicated We offer free and discounted continuing legal education and to effectuating change this year. I have one free section program to members participating in our “bring pledged to introduce at least 20 new mem- a guest” campaign. Members are encouraged to bring a guest to bership benefits before the end of my term. their section meetings and programs. The guest attends for free. What do we have to lose by aggressively LACBA is grateful for the Metropolitan News-Enterprise and changing? its ongoing sponsorship and support whereby LACBA members This month, I want to focus on recent and coming changes enjoy free access to our daily e-briefs that recap recent case deci- that enhance and benefit LACBA. We have more than 20,000 sions. The e-briefs are available to every LACBA member. members, 26 practice sections, and 15 committees that successfully First- and second-year members of the California Bar are now sponsor and support over 250 programs a year. We are the voice given free memberships to LACBA and we have just reduced the of the legal community in Los Angeles for the law student, the dues for lawyers in their third-through-seventh years of practice. new lawyer, the member who needs to be reminded of why he or Bridging the Gap she became a lawyer, as well as senior and retired lawyers. We are the center of the legal community, and we can help remind lawyers LACBA has reinstituted the “Bridging the Gap” program, which that what they do matters and that when times are tough, they will be offered next spring. The program was held last spring for are not alone. Our relationships with each other are professional the first time in many years and included a star-studded cast of and personal, and in difficult moments we are a family that looks lawyers discussing their own specialties, providing newer lawyers after one another and advocates for those who cannot. with an opportunity to learn about various practice niches in the profession. This year we are opening the program to law students. New and Expanded Programs We have extended free memberships to all students attending law Here are some of the programs that are currently being offered school in California. and expanded and some that will be offered by the end of the year: The Barristers Section is in the process of changing its name LACBA is developing something special: a way for law firms to the Barristers/Young Lawyers Section. They offer networking of any size to sponsor their own programs (either in their offices for newer lawyers as well as an opportunity to grow in the com- or a venue of their choice), which will be open to all members. munity and meet other lawyers facing challenges and successes For example, an appellate firm in Burbank may wish to offer a in the first seven years of practice. In addition, we are asking the free program on preparing the perfect writ. The firm can hold the sections to extend special continuing education to newer lawyers seminar in its offices, while LACBA can promote and offer MCLE that will explain the practice areas that sections cover. credit for the program, as well as advertise the program to its At the other end of the spectrum, we now offer free memberships members. The program would be free to LACBA members and to retired lawyers and 50-plus year members of LACBA. In addi- provide a perfect opportunity to showcase the firm. tion, lawyers over the age of 55 are eligible for the senior lawyers We are working hard to increase our unparalleled relationships division in which more seasoned lawyers meet and network with and access to the federal and state bench. LACBA is unique in its their contemporaries. ability to offer a wide range of programs to interact with sitting Over its 140 years in existence, LACBA has broken ground judges. Many judges are members of section executive committees, on inclusion and diversity, and our current commitment to diversity and the current presiding judge of the Los Angeles Superior Court and outreach is second to none. This year, we added a permanent is a LACBA assistant vice president. We work with the bench to vice president position for diversity and outreach. Phil Lam is promote judicial independence and access to justice. currently serving as the inaugural vice president. LACBA is promoting financial independence for newer lawyers. Every year, the litigation section hosts a lunch with more than This includes student loan consolidation available through affinity 100 sitting federal and state judges in attendance. In the last year, partners, where newer lawyers can get advice on reducing the monthly burden of paying high-interest student loans. The 2018-19 president of the Los Angeles County Bar Association, Brian S. The preferred providers program that LACBA has in place Kabateck is founder and managing partner of Kabateck Brown Kellner LLP includes a number of discounted services from legal providers. in Los Angeles where he practices in the areas of personal injury, insurance We are also implementing e-filing for the Los Angeles Superior bad faith, pharmaceutical litigation, wrongful death, class action, mass Court and our partners. The service will offer discounts to law torts, and disaster litigation.

8 Los Angeles Lawyer November 2018 every sitting Calif ornia Supreme Court justice participated in at least one LACBA program. When every newly appointed or elected judge is enrobed, the current president of LACBA is invited to participate and address the new judges—the only local bar association included. We have instituted an international travel program with continuing education. This year, our members are traveling to Cuba and, in the near future, Mexico and Nurem berg, Germany—for the 75th com- memoration of the trials—and many other opportunities. LACBA’s commitment to the community is also wide-ranging, offering an open association with four service programs (AIDS Legal Services Project, Domestic Violence Legal Services Project, Immigration Legal Assistance Project, and Veterans Legal Services Project) and pro bono opportunities for member volunteers who serve the needs of nearly 18,000 Angelinos every year. Social Media We have a significant presence and opportunity on all social media platforms. We have electronic memberships for attorneys across California and the United States even if they do not live or work in Los Angeles County. A newly launched podcast series, “ADMITTED,” is directed to law students and newer lawyers. The podcast received over 1,000 unique downloads of the first five episodes. More content and subject areas directed to all levels of expertise are in development. In early 2019, we are integrating a mobile app that will allow members to create their own LACBA experience. This will offer members an opportunity to learn about specially curated programs that may be of interest, as well as to promote programs to LACBA members. Throughout the year we have had many “fun” programs, including in May a recep- tion and private screening of the docu- mentary film RBG, about the life and career of U.S. Supreme Court Justice Ruth Bader Ginsburg, plus basketball games, parties, the Armed Services Ball honoring our war veterans, the annual Shattuck Price Out standing Lawyer, Out standing Jurist awards dinner and installation of new offi- cers and trustees. We are constantly looking for more benefits and programs to bring to our members, including enhancements to ex - isting programs such as discounts on in - surance, malpractice insurance, and more. We welcome your suggestions and participation in the execution of our programs. Stay tuned, more changes are just around the corner. n

Los Angeles Lawyer November 2018 9 on direct INTERVIEW BY DEBORAH KELLY

Brenda Feigen American Feminist, Film Producer, and Attorney

At Harvard Law School (HLS), you were gether you launched a class-action law- one of 32 women in a class of 565. How suit. About what? The Harvard Club di did that feel? It began to be a real issue not allow any female graduates for me shortly after I got there. I wasn’t of Harvard to be members. allowed to join the only eating club in the whole law school; it only let male What’s the trickiest thing for a female students in. feminist to be married to a male feminist? I don’t think it was tricky; it was a mar- Is there another early memory? I wanted riage of equals. to continue playing squash, which I had done at Vassar. No women were allowed In the early 1970s, as National Legislative on the squash courts that belonged to Vice President for the National Organiza- HLS. I put my hair into a hat and dressed tion of Women (NOW), you coordinated as baggily as I could and played for about testimony to the U.S. Senate on the Equal a half a minute before this old man Rights Amendment (ERA). What went chased me out of the building. right? There was an enormous groundswell of support. Was there a class in which the professor designated only one day per year to call on What went wrong? Phyllis Schafly—she Founder of Feigen Law Group in Los Angeles, female students? Yes. You could stand up was so crazy and seriously deranged. She Brenda Feigen is a seminal figure in the struggle if you mustered the courage to say some- spread lies all over the country. for gender equality whose legal practice areas thing, but the whole idea of the Socratic Such as? In Illinois, she promised women include constitutional, antidiscrimination, enter- Method is for the professor to ask a ques- they would stop getting alimony if they tainment, employment, environmental, business tion and the person answers. Then, they divorced. transactions, and family law. After obtaining a go back and forth in a repartee. degree in mathematics (Phi Beta Kappa) from And now? In 2006, Justice Ruth Ginsburg Vassar College, Feigen went on to graduate from Were there daily micro-aggressions? We wrote in the Virginia Military Institute Harvard Law School. In 1970, she was elected were just not part of the conversation. case that for a classification based on gen- National Vice President for Legislation of the der to withstand judicial scrutiny, there National Organization of Women and became Was there an epiphany when you knew must be “an Exceeding Persuasive Rea- cofounder of Ms. Magazine. Feigen also you were a feminist? In Professor Paul son” for its continued existence. Right cofounded the Women’s Rights Project with now Freund’s Constitutional Law class, we now, the law is as strong as it would be Justice Ruth Bader Ginsburg at the American were talking about a Michigan case. Bar- with the ERA being in place. Civil Liberties Union in 1972, later expanding its maids were not allowed to work unless their husbands or fathers were propri- scope to include the Reproductive Freedom Then, no ERA? Its ratification and perma- etors of the bar. The U.S. Supreme Court Rights Project. The author of numerous articles, nent placement in our Constitution will upheld the statute. Freund made a big she has produced a film, Navy SEALS, and pub- have tremendous symbolic significance. lished her memoir, Not One of the Boys: Living joke of it. Life as a Feminist. You worked with Gloria Steinem and What did you do? I stood up—I was furi- Catherine Samuels to form the Women’s ous. The whole class started laughing at Action Alliance, which considered a me. I realized I was going to have to do newsletter that evolved into Ms. Maga- What is the first thing in the day that something about this. makes you smile? When I open the shades zine. Is the NOW quarterly magazine still and see that the sun is shining. Your father was a lawyer, and your mother relevant? I know it is. a housewife. Were they supportive of your Do you think the honorific “Ms.” has In 1966, you were offered a fully funded choice to become a lawyer? My father stuck? Yes. I was stunned when I saw joint J.D./M.B.A. program at Columbia but didn’t think it was a good profession. My that Wimbledon called Serena “Mrs. turned it down. Why? I wanted to be in mother was supportive of me no matter Williams.” Cambridge. I was getting out of a rela- what I did. tionship with a guy who was going to In 1972, you were asked to codirect with New York University Law School. In 1968, you married Marc Fasteau, and to- then Professor Ginsburg the ACLU

10 Los Angeles Lawyer November 2018 Women’s Rights Project. Do you recall a face. But, as soon as it got going to pro- What trait do you wish you could change in special case? Fronterio v. Richardson in- duction, the men took over. Director Lewis yourself? I wish I were more patient. volved a female Air Force officer who Teague told me he would quit if I went on was given housing and medical benefits location. He should be run out of town. How do you get your news? The newspa- for her husband only if she could show per, Rachel [MSNBC’s The Rachel Mad- that he was more than half dependent on What are your favorite movies? Hidden dow Show], the Internet, and a few min- her for his support. She was discriminated Figures, Carol, and Silkwood. utes of ABC’s network nightly news. against and so was her husband because You’re working on a television series pro- What is the one feature do you wish you he was not getting the same benefits as ject with Lily Tomlin. Has the industry could work on your iPhone? I wish I could wives. Ruth loved those double-edged changed for females? Yes. Creative Artists more easily dictate a speech I have to give sword cases. Agency—the most powerful agency in the on my iPhone. If you know how to do What was it like working with Ruth city—said that they are devoted to the that, let me know. Ginsburg? She doesn’t chit-chat about concept of 50/50 by 2020. What is your favorite holiday? Thanksgiving. the weather or the traffic. Her head is in With Justice Anthony Kennedy’s retire- the law. ment, what concerns you about the future? What is your favorite vacation spot? Hawaii; I love to snorkel. In 1978, you ran and lost by 3 percent for Justice Kennedy warmed my heart with the Democratic nomination for a state sen- his strong enunciation of the principle of What do you do on a three-day weekend? human dignity—he became the swing ate seat, spending $38,000 against your Occasionally, go to the Ojai Valley Inn. opponent’s $600,000. If you had had more vote. We’re not going to have that now. to spend, would you have won? I don’t It’s going to be very, very bad. We won’t What is your Starbucks’ order? Decaf think so. He would always have been able be able to look to them for justice. Mocha Frappuccino with nonfat milk. to get more money. What was your best job? When I worked Which world leaders do you most respect? What was the goal of the first wave of at the ACLU. Golda Meier. Does Ruth Ginsburg qualify feminism? Getting the vote. as a world leader? I can make the argu- What was your worst job? Working at a ment. Second wave? Equality and control over law firm that wanted me to lie. I left. our bodies. What is the one thing you would like to What is one trait you like in yourself? I’m change in the world? I want it to be 50/50 rambunctious. How does the MeToo# Movement fit in? in terms of absolutely everything. Aggressively standing up to men who in any way think they can take advantage of any woman.

You said that calling out actual harassment as it happens is extremely effective? How so? You can’t have it both ways. You have to reject it right away. FEE DISPUTE SERVICES What was your takeaway from the 2017 Women’s March? We all came together.

What are you working on now? I am representing a group of female dockwork- Mandatory Fee Arbitration: ers up and down the Pacific West Coast Subject to Business and Professions Code sections 6200-6206. who have filed charges against Pacific Maritime Association, alleging that when Voluntary Fee Arbitration: they get pregnant they need to stop work Not subject to BPCs. almost immediately. Law Firm Mediation: Do you have a favorite slogan from the Internal disputes involving partners, associates, staff attorneys, and support movement? The personal is political. staff, including firm name disputes, firm to firm, dissolution, experts, sanction liability, expenses, and other issues. Will Roe v. Wade survive the Trump administration? Yes. Contact ACMAS today: If just President Trump and you had a (213) 896-6426, [email protected], LACBA.org/ACMAS glass of wine together, what would you ask him? If one of your daughters got pregnant and wanted an abortion, would Interested in becoming a fee dispute arbitrator you stop her? or mediator for LACBA? Contact ACMAS for details.

In the 1990s, you produced Navy SEALS, a A service of the Los Angeles Hollywood action movie. Was Hollywood a County Bar Association friendly place for women? Yes, on the sur-

Los Angeles Lawyer November 2018 11 barristers tips BY KRISTINA M. FERNANDEZ MABRIE

National Labor Relations Board Creates New Social Media Guidance

SOCIAL MEDIA AFFECT EVERY FACET of contemporary life, including NLRA-protected conduct is outweighed by legitimate justifications. how employees interact with coworkers, engage with an employer, As clarified in the general counsel’s memo, rules in this category and conduct themselves inside and outside of work. While social will depend on context—how do the rules apply to an employee’s media can be beneficial to companies, they also can place them everyday job. An example of a rule that might fall in this category at risk. Employers may face challenges with the novel and unpre- is an overly broad confidentiality rule that encompasses all dictable ways in which an employee can unintentionally—or employer business, rather than just proprietary information. intentionally—jeopardize confidential or proprietary information, The third category includes rules that the NRLB will designate engage in harassing or uncivil behavior, or tarnish the company as unlawful because they would prohibit or limit NLRA-protected name with even one tweet. conduct, and the adverse impact on NLRA rights is not outweighed In the past, employers attempting to regulate an employee’s by justifications associated with the rule. An example of such a general behavior and use of social media risked running afoul of rule is one prohibiting employees from discussing wages or Sections 7 and 8(a)(1) of the National Labor Relations Act benefits with one another. (NLRA).1 The Obama-era ruling by the National Labor Relations In light of Boeing and recent NLRB guidance, employers Board (NLRB) in Lutheran Heritage2 interpreted these sections should feel more comfortable implementing reasonable social as prohibiting employers from implementing or maintaining poli- media and civility policies designed to protect genuine business cies or rules that an employee could reasonably construe as interests, including confidential information, trade secrets, orga- chilling or discouraging their Section 7 rights. This interpretation nizational security, and harassing or uncivil behavior. The goal was so broad that the NRLB relied on it in invalidating numerous when drafting a compliant social media or civility policy is to innocuous employer policies, including those prohibiting harassing ensure that it fits squarely within Boeing’s first category of rules. behavior and promoting a positive workplace environment.3 Thus, employers’ language should be clear and concise, limiting Under Lutheran, the board was also swift to strike down many specific, rather than general, behavior. The policy should be easy social media policies and workplace civility standards. to implement, uniformly enforced, and backed by a legitimate The current administration’s board is taking a more employer- business justification that can be easily communicated to employ- friendly approach. In Boeing,4 the NRLB explicitly overruled the ees. Employers should also consider providing employees with Lutheran test, replacing it with a new standard for evaluating any rationalizations that support the new policy. n whether facially lawful workplace rules, policies, or employee handbook provisions unlawfully interfere with employees’ exercise 1 Under Section 7 of the NLRA, 29 U.S.C. §157, employees have the right to of Section 7 rights. In June 2018, the NLRB’s Office of the General engage in protected concerted activity, which includes the right to organize, form, Counsel published Guidance on Handbook Rules Post-Boeing, or join a union, bargain collectively, and discuss terms and conditions of employment. Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere which reiterated the new standard and provided even greater with, restrain, or coerce employees in the exercise of the rights guaranteed in clarity on how the new standard should be applied.5 Section 7.” Under the new standard, when evaluating a facially neutral 2 See Martin Luther Memorial Home, Inc. d/b/a Lutheran Heritage Village-Livonia policy, rule, or handbook provision, the board considers: 1) the and Vivian A. Foreman (343 NLRB No. 646 (Nov. 19 2004)), where the NRLB nature and extent of the potential impact on NLRA rights and held that an employer’s civility rules are unlawful if they explicitly restrict activities protected by Section 7. Even if the rule does not explicitly restrict Section 7, it may 2) the legitimate business justifications associated with the rule. if: “(1) employees would reasonably construe the language to prohibit Section 7 The Boeing board provided three prospective policy categories. activity; (2) the rule was promulgated in response to union activity; or (3) the rule The first category includes rules and policies that the Board has been applied to restrict the exercise of Section 7 rights.” designates to be facially lawful. A facially lawful rule is one that, 3 In T-Mobile U.S.A., Inc. (363 NLRB No. 171 (2016)), the NRLB found a series when reasonably interpreted, does not prohibit or interfere with of workplace rules in T-Mobile’s and MetroPCS’ employee handbooks unlawful, including provisions requiring positive workplace behavior and prohibiting workplace the exercise of any NLRA rights. A rule will also be facially recordings. The board concluded that those workplace rules would reasonably lawful when a legitimate business justification outweighs the tend to chill employees in the exercise of their NLRA Section 7 rights. potential adverse impact on protected NLRA rights, e.g., a policy 4 In Boeing, the NRLB analyzed whether a policy prohibiting employees from prohibiting cameras—as in Boeing—that is supported by legitimate using cameras violated employees NLRA rights. See The Boeing Company and privacy or security concerns. The NLRB also has held that rules Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001, 365 NLRB No. 154 (Dec. 14, 2017). requiring harmonious interactions and relationships among 5 Memorandum GC 18-04, Guidance on Handbook Rules Post-Boeing (June 6, employees—and other rules requiring employees abide by basic 2018). standards of civility—fall within the first category. The second category includes rules that require scrutiny on a Kristina M. Fernandez Mabrie is an associate at Foley & Lardner LLP in Los case-by-case basis as to whether the rule would prohibit or interfere Angeles in the firm’s business litigation & dispute resolution practice group, with NLRA rights, and if so, whether any adverse impact on labor & employment practice group, and sports industry team.

12 Los Angeles Lawyer November 2018

Nathan J. Hochman is deputy chair of Morgan, Lewis & BockiusLewisMorgan,CollarchairLLP’s& Whitedeputyof Government InvestigationsHochmanis workedand formerly LitigationJ. practice. NathanHe as assistant attorney general for the U.S. Department of Justice’s Tax Division andas anassistant U.S. attorney for the Central District of California. blockchain foundations of Bitcoin, offoundations blockchain lished a nine-page White Paper in October 2008 laying out the out laying 2008 October in Paper White nine-page a lished have predicted that when the enigmatic Satoshi Nakamoto pub- as the “Wild West” of cryptocurrency has arrived. Few would Few arrived. has cryptocurrency West”of “Wild the as to transform every industry across the globe. billions of dollars, having grown exponentially with the capacity offer $25 back then. Today, they would be worth over $60 million cryptocurrency market would be measured in the hundreds of hundreds the in measured be would market cryptocurrency 14 h sed ih hc cytcrec hs mre i the in emerged has cryptocurrency which with speed The To applyforcredit,pleasefollowtheinstructionsontestanswersheetpage19. By readingthisarticleandansweringtheaccompanyingtestquestions,youcanearnoneMCLEcredit. MCLE ARTICLEANDSELF-ASSESSMENTTEST Los Angeles Lawyer In responsetononreportingbycryptocurrencyusers,DOJuses the “stick”ofcriminalprosecutionstodrivecomplianceand IRS presentstaxpayersa“carrot”ofvoluntarydisclosure Thosepizzas cost theBritish manwho took upthe May 22, 2010, the first reported Bitcoin transaction curd hn Foia a ofrd o a for pay to offered man Florida a when occurred two large Papa John’s pizzas with 10,000 bitcoins. November 2018 2 less than a decade later the later decade a than less by NATHANJ.HOCHMAN 1 capital gains treatment. to gains capital subject potentially “property” is it (IRS), Service Revenue struggled to decide haveexactlyagencies whatenforcement cryptocurrencylaw States, is.United Tothe In the ticipants.Internal outdated laws potentiallyto protect financial markets and Main enforce Street par- and it regulate to able been have agencies financial which with speed the outstripped has world financial issued or used subject is to it registrationhow on and“security,”depending reportinga be requirements.may it (SEC), mission “commodity,” To the Commodity Futures Trading Commission (CFTC), it is a a “convertible virtual currency.” as mostlytreated is it (FinCEN),NetworkEnforcement Crimes 5 whilethetoDepartment Treasury’sof Financial 3 To the Securities and Exchange Com Exchange and Securities Tothe - 6 O W T F O E N O T R A P 4

MICHAEL CALLAWAY

To appreciate how the “crypto-sheriffs” have attempted to since the entire history of the blockchain can be viewed anywhere enforce the current laws on the books to address “crypto-schemes,” in the world at any time of the day or night.7 “crypto-fraud,” and other forms of “crypto-crime,” it is important What if Lisa wants to convert her 10 bitcoins into traditional to understand how cryptocurrency works and the types of crimes or “fiat” currency (e.g., U.S. dollars, euros, Japanese yen)? There that may emanate from its use. are several options: she can exchange her bitcoins directly with any person willing to buy them for traditional currency or she What is Cryptocurrency? can exchange them through a virtual currency exchanger—e.g., Cryptocurrency or virtual currency is broadly speaking a digital Coinbase, the largest virtual currency exchanger in the United representation of value that may function as a medium of exchange, States. These exchangers function as a link between virtual cur- a unit of account, and/or a store of value. The revolutionary rencies and traditional currencies since they can accept conventional aspects of this currency are that it does not require a central checks, credit card, debit card, or wire transfer payments in authority like a bank to act as the gatekeeper for the currency exchange for virtual currency, exchange one virtual currency for transactions; instead, it runs on a decentralized peer-to-peer global another virtual currency, and exchange virtual currency for tra- network of computers that rely on network participants to validate ditional currency. Through these exchangers, virtual currencies and log transactions on a permanent, public distributed ledger, can now be used for purchases from over 100,000 merchants commonly known as a blockchain. (e.g., Overstock.com, Home Depot, Dell, Amazon, Microsoft, Bitcoin is the most widely known form of cryptocurrency, and Expedia). Virtual currency exchangers also provide digital though there are over 1,500 alternatives (“altcoins”) including wallet services that help users quickly authorize virtual currency the widely transacted Ether, Litecoin, and Ripple. To understand transactions; millions of users have taken advantage of these a cryptocurrency transaction, one can use a hypothetical Bitcoin digital wallets provided by exchangers. For example, Coinbase, transaction as an example. Assume “Bob” wants to transfer to which started in 2012, maintains over 5 million wallets with “Lisa” 10 bitcoins valued at $10,000 each to purchase $100,000 wallet services available in 190 countries and over $50 billion of goods from Lisa. Bob has 10 bitcoins in his Bitcoin wallet, traded on its exchange.8 Its wallets can be readily ac cessed through which is like an electronic folder where he stores his digital cur- a computer or mobile device like a smartphone. rency; Lisa also has a digital wallet. Bob and Lisa have “public While many champion cryptocurrency as a highly innovative keys” to their digital wallets, which are cryptographically generated medium for financial transactions, cryptocurrency’s opponents digital addresses analogous to bank account numbers. Bob sends decry it as fraud. For instance, Warren Buffet, the “Oracle of Lisa a message transmitting his 10 bitcoins to Lisa’s public key Omaha” and CEO of Berkshire Hathaway, has stated emphat- and “signs” it with his “private key,” a randomly generated string ically that “[i]n terms of cryptocurrencies, generally, I can say of alphanumeric characters known only to Bob that function with almost certainty that they will come to a bad ending.”9 like a PIN for his bank account. The difference between a PIN Charlie Munger, vice-chairman of Berkshire Hathaway, has been number and a private key, however, is that if Bob loses his private even more pessimistic about the cryptocurrency craze, calling it key, there is no way to recover it and thus no way to access any “totally asinine” and a “noxious poison.”10 Jamie Dimon, the cryptocurrency in his digital wallet. The Bob-Lisa transfer of 10 CEO of JPMorgan Chase, has described cryptocurrency mania bitcoins is then broadcast to a decentralized global network for as “worse than [the] tulip bulb [craze in the 17th century].… verification. Participants in the network, called miners, use a pre- Someone is going to get killed. Currencies have legal support. determined verification process to confirm whether Bob is the It will blow up.”11 rightful owner of those 10 bitcoins. If they are the first to solve Enforcement Concerns a mathematical puzzle relating to this transaction, new virtual currency coins are generated and awarded to that miner. After For U.S. regulators and law enforcement officials, figuring out verification, the transaction settles, is time-stamped, and perma- how to regulate and enforce laws in a virtual currency world nently recorded as part of another block on the blockchain. The that can operate anonymously, electronically, incredibly quickly, verification process, which happens very quickly, helps ensure across borders, and without intermediaries or paper trails poses the security of the transaction since no individual entry can be unique problems. These problems include using cryptocurrency altered without changing every previous entry on the blockchain to: 1) facilitate crimes ranging from narcotics trafficking and on the majority of computers in the global network. child pornography to money laundering, ransomware, and terrorist The advantages to the financial transaction of Bob and Lisa financing (Christine Lagarde, the head of the Inter national are manifold. First, the transaction occurs without any interme- Monetary Fund, has warned that cryptocurrencies can become a diary—like a financial institution—but directly between Bob and “major new vehicle for money laundering and the financing of Lisa. Second, there are no wire transaction fees, credit reports, terrorism”12); 2) promote tax evasion by hiding income; and 3) collateral requirements, or escrow commissions involved in the defraud individuals and companies through Ponzi schemes and transaction (other than minor “miner” transaction fees incurred). similar market manipulations involved in initial coin offerings Third, the transaction transpires in minutes rather than hours or and cryptocurrency-based businesses. days as the funds do not need to move from one bank to another. In addition, outright theft is a serious concern. Since cryp- Fourth, the transaction does not require Bob or Lisa to know tocurrency acts like “cash on steroids” because it is not only each other; as long as Bob has Lisa’s public key to her digital anonymous but can be moved instantly to any digital wallet any- account, they both can remain anonymous to each other. The where in the world, thieves have hacked into and stolen cryp- blockchain records their digital addresses but does not otherwise tocurrency from exchanges. For example, in January 2018, over reveal any other aspect of identity or location. Fifth, the transaction $500 million of a digital currency called NEM was stolen when can occur from anywhere in the world as long as the parties have thieves hacked into Coincheck, Inc., one of Japan’s biggest cryp- access to the Internet, whether the parties are literally sitting next tocurrency exchanges.13 This followed the 2013-2014 theft of to each other in a room or separated across the globe. Sixth, approximately 850,000 bitcoins worth at the time more than once the transaction is accomplished and recorded on the $450 million from Mt. Gox, a Japanese bitcoin exchange handling blockchain, it is final, cannot be reversed, and is transparent over 70 percent of all bitcoin transactions worldwide in that

16 Los Angeles Lawyer November 2018 period.14 Large-scale theft continued in August 2016, when over September 2016, the IRS was criticized by the Treasury Inspector 115,000 bitcoins worth about $72 million were stolen from the General for Tax Administration for doing very little to identify exchange platform Bitfinex in Hong Kong.15 In addition, crooks and address “taxpayer noncompliance issues for transactions have hacked people’s digital wallets to steal their cryptocurrency,16 involving virtual currencies.”22 stolen powerful computers used to “mine” for virtual currencies,17 In light of this criticism and facing an abysmal rate of virtual embezzled virtual currency from their employers,18 and forced currency transaction self-reporting, how has the IRS decided to individuals through threats and violence to physically hand over encourage increasing taxpayer compliance? The answers can be their private keys, unlocking all their virtual currency.19 found in the playbook of how the IRS has confronted the problem

As one of the crypto-sheriffs, the IRS has treated cryptocurrencies as “property,” a definition that may well work when the number of crypto-transactions are in the millions but not if they are in the hundreds of millions or billions.

In light of the enormity and diversity of the crimes that may of unreported offshore income. For years prior to 2008, Congress be associated with cryptocurrency, U.S. regulatory agencies—the held numerous hearings complaining that there was $100 billion IRS, the SEC, the CFTC, and the FinCEN—have begun to try a of unreported U.S. taxpayers’ income overseas. Recently, it was number of approaches to enforce current laws and to modify estimated that there was approximately $25 billion of cryptocur- such laws to adapt to this new technology. rency-related taxes owed in 2017 with a tremendous amount of Prior to 2014, the IRS had not weighed in on how cryptocur- underreporting of such taxes in years prior.23 As in the present rencies should be treated for tax purposes. It had a choice: it situation, the IRS then lacked financial resources to hire thousands could treat cryptocurrency as a traditional “currency” like a U.S. of agents to scour the planet to locate that concealed foreign dollar or European euro that is designated as legal tender, circulates, income. Indeed, the resource issue has only worsened since 2010 and is customarily used and accepted as a medium of exchange, as the IRS’s enforcement budget has actually been cut by approx- or it could treat it as “property” similar to a stock or bond. If imately 20 percent over the past eight years, reducing the number designated as “currency,” cryptocurrencies’ use in financial trans- of agents, audits, and investigations substantially.24 Lacking actions would not have intrinsic gain or loss that could be taxed internal ability to locate these unreported accounts, the IRS turned upon sale or exchange. If classified as “property,” each time the to third parties—notably large Swiss banks like UBS—to provide cryptocurrency was sold or exchanged in any transaction, it that information. Working with the U.S. Department of Justice would generate a taxable gain or loss depending on the taxpayer’s (DOJ), the IRS participated in having a John Doe summons cost to purchase the cryptocurrency, as adjusted (i.e., the taxpayer’s served on UBS in 2008. A John Doe summons does not identify adjusted tax basis). In IRS Notice 2014-21, the IRS chose the a particular U.S. taxpayer but a class of U.S. taxpayers that fall latter option, viz., treating any virtual currency that could be within a certain group of those who may have broken the tax converted into traditional currencies as property.20 The significance laws. With the potential to be held in contempt for not producing of this ruling cannot be understated. As property, every time a records responsive to the summons and facing repercussions to virtual currency is used to buy any goods, pay for any services, its ability to bank in the United States, UBS eventually agreed to or exchanged for any other virtual or traditional currencies, the hand over to the DOJ information for over 4,000 Swiss accounts taxpayer has to determine: 1) its cost basis in the currency held by U.S. taxpayers as part of a deferred prosecution agreement (typically, the fair market value (FMV) of the virtual currency at that included a $780 million penalty. Having driven a prosecutorial the time he or she obtained it), 2) any adjustments to cost basis spike into the formerly impenetrable body of the “secret Swiss after obtaining it, 3) the FMV of the property or service received bank account,” the DOJ subsequently entered into agreements at the time it is sold or exchanged, and 4) any resulting taxable with over 80 Swiss financial institutions to obtain an enormous gain or loss from that sale or exchange. For example, if one buys amount of information concerning U.S. taxpayers’ unreported a pair of $100 shoes on Amazon with virtual currency, one would overseas accounts.25 Over the same time period, 2009 to the pre- have to figure out the cost basis of that virtual currency when it sent, the DOJ has brought over 100 criminal prosecutions against is obtained (e.g., $50, assuming it was purchased for $50), any U.S. taxpayers, their financial advisors, lawyers, and foreign adjustments after obtaining it (assuming none), the FMV of the bankers, as well as a number of foreign banks, obtaining felony shoes received for the virtual currency ($100 in this case), and convictions and billions of dollars in restitution and penalties. the amount of gain realized ($50, the difference of $100 of FMV While the DOJ has used the “stick” of criminal prosecutions received and $50 adjusted cost basis). That $50 gain would then to drive compliance, the IRS has offered taxpayers a “carrot” of have to be reported on one’s tax return. There is no de minimis voluntary disclosure to avoid such prosecutions. Starting in March exception to this reporting requirement. 2009 and concluding on September 28, 2018, the IRS’s Offshore With millions of virtual currency transactions happening Voluntary Disclosure Program (OVDP) traded criminal amnesty annually, the IRS expected a torrential rainstorm of reporting in exchange for taxpayers voluntarily coming forward with their after 2014. Instead, less than a light drizzle of 1,000 taxpayers unreported foreign accounts and assets, amending their returns reported a virtual currency transaction in 2014 or 2015.21 In and filing all disclosure forms for the prior eight years, cooperating

Los Angeles Lawyer November 2018 17 with the IRS in disclosing all aspects of from Coinbase, compare it with the tax- apply to the unique aspects of virtual cur- their foreign accounts, and paying signifi- payers’ disclosures on their tax returns, rency. As one of these crypto-sheriffs, the cant tax, interest, and penalties. To date, and start bringing waves of coordinated IRS has treated cryptocurrencies as “prop- the OVDP and its streamlined versions civil and criminal prosecutions across the erty,” a definition that may well work when have witnessed over 100,000 taxpayers country to try to achieve deterrence through the number of crypto-transactions are in complete the programs, and the IRS has the threat of significant taxes, penalties, the millions but not if they are in the hun- received over $10 billion in payments.26 and imprisonment. The IRS and DOJ will dreds of millions or billions. Thus, the IRS, In addition, Congress passed legislation in then seek to serve John Doe summonses on like other crypto-law enforcers, will have 2010, the Foreign Account Tax Compliance other virtual currency exchangers to obtain to quickly adapt to the changing technology Act (FATCA), that over the past years has more information about taxpayers’ mal- to stave off that technology overrunning resulted in hundreds of agreements with feasance, seek to have Congress pass legis- Main Street and Wall Street. n foreign financial institutions as well as a lation concerning third-party reporting of network of inter-governmental agreements virtual currency transactions, and then have 1 Eric Mack, The Bitcoin Pizza Purchase That’s Worth with scores of countries to produce a the IRS implement a voluntary disclosure $7 Million Today, FORBES, Dec. 23, 2013, available tsunami of reporting of U.S. taxpayers’ program for those with unreported virtual at https://www.forbes.com; Aaron Hankin, Bitcoin Pizza Day: Celebrating the $20 Million Pizza Order foreign bank accounts to the IRS. currency transactions. This potential Virtual , Inves - opedia (May 22, 2017, https://www.investopedia This formula—issue a John Doe sum- Currency Voluntary Disclosure Program .com/news/bitcoin-pizza-day-celebrating-20-million mons to an entity that has key information will offer the advantages of criminal non- -pizza-order. about unreported income and use the “car- prosecution and minimal penalties if tax- 2 Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic rot and stick” of criminal prosecutions and payers with such unreported transactions Cash System, https://bitcoin.org/bitcoin.pdf (last viewed voluntary disclosure programs as well as “come in from the cold,” file amended Sept. 25, 2018). 3 I.R.S. Notice 2014-21, available at https://www targeted legislation to drive taxpayer com- returns, pay taxes and interest owed, and .irs.gov/irb/2014-16_IRB#NOT-2014-21 [hereinafter pliance—is now beginning in the cryp- provide the IRS with details of their virtual I.R.S. Notice 2014-21]. tocurrency world. In November 2016, the currency transactions. The IRS will then 4 Letter from Mary Jo White, S.E.C. Chair, to Hon. DOJ filed a lawsuit in Northern California build a database of virtual currency trans- Thomas P. Carper, Chairman, U.S. Senate Comm. on asking the court to authorize the service actions, like it did with offshore account Homeland Sec. and Governmental Affairs (Aug. 30, 2013), available at http://online.wsj.com/public of a John Doe summons to Coinbase, the information, and use computer analytics /resources/documents/VCurrenty111813.pdf; Jay largest cryptocurrency exchanger in the and artificial intelligence to determine which Clayton, S.E.C. Chair, Statement on Cryptocurrencies United States, seeking information on all taxpayers to audit for noncompliance. and Initial Coin Offerings (Dec. 11, 2017), available of its millions of virtual currency account This game plan, premised on the IRS’s at https: //www.sec.gov/news/public-statement/state- holders from 2013 to 2015.27 A year later, designation of cryptocurrency as property, ment-clayton-2017-12-11; Speech of William Hinman, Director, S.E.C. Div. of Corp. Fin., Digital Asset in November 2017, the court narrowed may work as long as the use of virtual cur- Transactions: When Howey Met Gary (Plastic) (June the summons and ordered Coinbase to rencies as a medium of exchange does not 14, 2018), available at https://www.sec.gov/news/speech provide the IRS with certain records related explode into the hundreds of millions or /speech-hinman-061418. to all Coinbase users who bought, sold, billions of transactions or start being used 5 See In re Coinflip, Inc., et al., CFTC No. 15-29, https: sent, or received more than $20,000 worth as a country’s legal tender. However, as evi- //www.cftc.gov/sites/default/files/idc/groups/public of cryptocurrencies in a single year between denced by statements made by authorities /@lrenforcementactions/documents/legalpleading /enfcoinfliprorder09172015.pdf (Sept. 17, 2015). 28 31 32 2013 and 2015. Coinbase estimated that in Venezuela and the Marshall Islands 6 U.S. Dep’t of Treasury Financial Crimes Enforcement this more circumscribed summons affects that they will launch their own cryptocur- Network, Application of FinCEN’s Regulations to 14,355 accounts holders involving 8.9 mil- rencies in 2018 and by the growing list of Persons Administering, Exchanging, or Using Virtual lion transactions. companies who are accepting virtual cur- Currencies, FIN-2013-G001(March 18, 2013), avail- Then Principal Deputy Assistant Attorn - rencies as payment for goods and services, able at https://www.fincen.gov/resources/statutes -regulations /guidance/application-fincens-regulations ey General Caroline D. Ciraolo, head of the IRS may need to consider at some point -persons-administering. the DOJ’s Tax Division, warned taxpayers soon updating its 2014 guidance to deal 7 Certain types of virtual currencies—e.g., those on about what was coming: “Tools like the with the realities of the emerging crypto - the Ethereum blockchain—can embed smart contracts John Doe summons authorized today send currency world. For in stance, rather than or self-executing contracts onto their blockchain, the clear message to U.S. taxpayers that treat all virtual currency as property, the requiring certain conditions be met before the financial transaction is complete. For a more detailed explanation whatever form of currency they use—bit- IRS should consider creating more defined on the potential use of these smart contracts, see Ameer coin or traditional dollars and cents—we categories that focus on the particular use Rosic, Smart Contracts: The Blockchain Technology will work to ensure that they are fully of the cryptocurrency (e.g., medium of ex- That Will Replace Lawyers, Blockgeeks, https://block- reporting their income and paying their change, investment, utility token, etc.) to geeks.com/guides/smart-contracts/ (last viewed Sept. fair share of taxes.”29 Treasury Secretary determine its taxability. Otherwise, the 25, 2018). 8 See Steven Mnuchin later added: “If you have tidal wave of unreported virtual currency About Coinbase, Coinbase, www.coinbase.com /about (last viewed Sept. 25, 2018). a wallet to own bitcoins, that company transactions will threaten to undermine 9 Warren Buffett thinks cryptocurrencies will end badly, has the same obligation as a bank to know the foundations of the American tax self- CNBC, Jan. 10, 2018, https://www.msn.com/en-us [you as a customer]…. We can track those reporting system. /finance/markets/warren-buffett-thinks-cryptocurrencies activities. The rest of the world doesn’t The Wild West was won when the rule -will-end-badly/vi-BBIdryM. 10 have that, so one of the things we will be of law—based on fairness, justice, due Tim Bradshaw, Berkshire’s Charlie Munger calls bitcoin “totally asinine,” FINANCIAL TIMES, Feb. 14, working very closely with the G-20 is mak- process, and consistent enforcement— 2018, available at https://www.ft.com; Liz Moyer, ing sure that this doesn’t become the Swiss replaced the rule of anarchy. With the explo- Berkshire’s Charlie Munger Calls Bitcoin “Noxious bank account.”30 sion of the Wild West of cryptocurrency Poison,” CNBC, Feb. 14, 2018, https://www.cnbc If the IRS and DOJ follow their past over the past several years, the crypto- .com. 11 game plan, they will take the information sheriffs have been trying to adapt rules and Thomas Heath, Is Bitcoin Another Tulip Craze or a Leg it i mate Investment? WASH. POST, Sept. 14, 2017, about virtual currency transactions received regulations enacted for a different age to avail able at https://www.washingtonpost.com; Mari -

18 Los Angeles Lawyer November 2018 MCLE Test No. 282 MCLE Answer Sheet #282 POLICING THE WILD WEST OF CRYPTOCURRENCY 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. Cryptocurrency is a digital representation of value True. Address that may function as a medium of exchange, a unit of False. City account, and/or a store of value. 12. The Internal Revenue Service treats cryptocurrencies True. transactions for income tax purposes as “property” State/Zip False. transactions, subject to capital gains treatment. E-mail 2. Cryptocurrencies require financial institutions to True. Phone validate their transactions. False. State Bar # True. 13. If one uses cryptocurrency to buy a $20 pizza at False. the local pizzeria, there is no possibility that that INSTRUCTIONS FOR OBTAINING MCLE CREDITS 3. To validate a Bitcoin transaction, participants in the person will owe the IRS capital gains tax on that trans- 1. Study the MCLE article in this issue. network called “miners” receive bitcoins for being the action. 2. Answer the test questions opposite by marking first to solve a mathematical puzzle related to the ver- True. the appropriate boxes below. Each question ification of this transaction. False. has only one answer. Photocopies of this True. answer sheet may be submitted; however, this 14. There is a de minimis exception to reporting capital form should not be enlarged or reduced. False. gains on a cryptocurrency transaction on a federal tax 3. Mail the answer sheet and the $25 testing fee 4. The potential advantages to cryptocurrency trans- return. ($35 for non-LACBA members) to: actions over financial transactions through banks True. Los Angeles County Bar Association include being faster, having smaller transaction fees, False. Attn: Los Angeles Lawyer Test and the ability to be conducted anywhere in the world 15. Over 1 million taxpayers reported virtual currency P.O. Box 55020 Los Angeles, CA 90055 as long as the parties have access to the Internet. transactions on their federal tax returns from 2014 True. through 2015. Make checks payable to: Los Angeles County Bar Association. False. True. 5. Purchasers of cryptocurrencies can never exchange False. 4. Within six weeks, Los Angeles Lawyer will return your test with the correct answers, a them into traditional “fiat” currencies like U.S. dollars 16. A “John Doe” summons requires a company that rationale for the correct answers, and a or euros. receives it to turn over records for a class of U.S. tax- certiﬁcate verifying the MCLE credit you earned True. payers that falls within a certain defined group of those through this self-study activity. False. who may have broken the tax laws, e.g., those U.S. 5. For future reference, please retain the MCLE 6. A “private key” to a digital wallet is a randomly gen- taxpayers who have not reported their virtual currency test materials returned to you. erated string of alphanumeric characters that functions transactions. ANSWERS like a PIN for a bank account. True. Mark your answers to the test by checking the True. False. appropriate boxes below. Each question has only False. 17. The IRS was completely thwarted in its effort to get one answer. 7. Virtual currencies cannot yet be used for purchases names and records of U.S. account holders from 1. n True n False from retail merchants. Coinbase, the largest cryptocurrency exchanger in the 2. n True n False True. U.S., when it served Coinbase with a John Doe summons False. for such names and records. 3. n True n False True. 4. n True n False 8. Warren Buffet, CEO of Berkshire Hathaway, is a False. major proponent of the use of cryptocurrencies. 5. n True n False True. 18. The IRS and the Department of Justice have used 6. n True n False False. the “carrot and stick” approach of voluntary disclosure 7. n True n False programs and criminal prosecutions to incentivize tax- 9. Cryptocurrencies concern law enforcement officials 8. n True n False payers in the past (e.g., with offshore unreported bank since those who use them can operate: 9. n A n B n C n D n E accounts) to report such accounts or face the potential A. Anonymously. of criminal consequences. 10. n True n False B. Electronically. True. 11. n True n False C. Very quickly across borders. False. D. Without intermediaries or paper trails. 12. n True n False E. All of the above. 19. The IRS has increased its enforcement staff by over 13. n True n False 20 percent in the last eight years. 10. Cryptocurrency has been used to facilitate crimes 14. n True n False True. ranging from narcotics trafficking to money laundering 15. n True n False False. to terrorist financing. 16. n True n False True. 20. No country has launched its own cryptocurrency. 17. True False False. True. n n False. 18. n True n False 11. Since cryptocurrencies are digitally based, they 19. True False cannot be stolen from those who possess or store n n them. 20. n True n False

Los Angeles Lawyer November 2018 19 nova, Polina, Term Sheet—Thursday, September 28, https://www.yahoo.com/news/u-charges-chicago-trader Taxpayers Come Back Into Compliance, IR-2016- FOR TUNE, Sept. 28, 2018, available at http://fortune.com -stealing-bitcoin-232117784—sector.html. 137 (Oct. 21, 2016), available at https://www /2017/09/28/term-sheet-thursday-september-28. Query 19 Edoardo Maggio, Criminals Are Reportedly Abduct - .irs.gov/newsroom/offshore-voluntary-compliance whether cryptocurrency naysayers will have to expe- ing the “Cryptorich” to Steal their Bitcoin, Business -efforts-top-10-billion-more-than-100000-taxpayers rience the fate of Robert Metcalfe, the inventor of the Insider (Feb. 19, 2018), https://www.businessinsider -come-back-into-compliance. Ethernet, who in 1995 predicted that the Internet .com/criminals-are-reportedly-abducting-the-cryptorich 27 United States v. Coinbase, Inc. et al., No. 17-cv- would soon go spectacularly supernova and in 1996 -to-steal-their-bitcoin-2018-2. 01431-JSC (N.D. Cal. Nov. 2016). catastrophically collapse. Two years later, during the 20 I.R.S. Notice 2014-21, supra note 3. 28 Id., Order re Petition to Enforce IRS Summons sixth International World Wide Web Conference in 21 United States v. Coinbase, Inc., et al., Case No. 17-cv (Nov. 28, 2017). 1997, he literally ate his words by blending a copy of -01431-JSC (Order re Petition to Enforce IRS Summons) 29 Press Release, U.S. Dep’t of Justice, Court Authorizes his prior statement with some water and then con- (Nov. 28, 2017), available at https://cases.justia.com Service of John Doe Summons Seeking the Identities suming the resultant smoothie with a spoon. /federal/districtcourts/california/candce/3:2017cv01431 of U.S. Taxpayers Who Have Used Virtual Currency 12 Christine Lagarde, Addressing the Dark Side of the /308850/78/0.pdf?ts=1512035973. (Nov. 30, 2016), available at https://www.justice.gov Crypto World, IMF Blog (March 13, 2018), https: 22 Treasury Inspector General for Tax Administration, /opa/pr/court-authorizes-service-john-doe-summons //blogs.imf.org. As the Use of Virtual Currencies in Taxable Trans - -seeking-identities-us-taxpayers-who-have-used. 13 Olga Kharif, Record Crypto Heist Raises the Appeal actions Becomes More Common, Additional Actions 30 Saleha Mohsin, Mnuchin Warns Against Bitcoin of a New Type of Exchange, BLOOMBERG, Jan. 29, Are Needed to Ensure Taxpayer Compliance, Refer - Becoming the Next “Swiss Bank Account,” BLOOM- 2018, available at https://www.bloomberg.com ence No. 2016-30-083 (Sept. 21, 2016), available at BERG, Jan. 12, 2018, available at https://www.bloomberg /news/articles/2018-01-30/record-crypto-heist-raises https://www.treasury.gov/tigta/auditreports/2016reports .com/news/articles/2018-01-12/mnuchin-warns-against -the-appeal-of-a-new-type-of-exchange. /201630083fr.pdf. -bitcoin-becoming-next-swiss-bank-account. 14 Paul Vigna, 5 Things about Mt. Gox’s Crisis, WALL 23 Daniel Roberts, Americans May Owe $25 Billion in 31 Venezuela launched the “petro” or “petromonda” ST. J., Feb. 25, 2014, available at https://blogs.wsj Crypto Taxes—But How Much Will They Report?, in February 2018, which it claims to be backed by .com/briefly/2014/02/25/5-things-about-mt-goxs-crisis. Yahoo! Finance (April 11, 2018), https://finance.yahoo the country’s oil and mineral reserves to supplement 15 Clare Baldwin, Bitcoin Worth $72 Million Stolen .com/news/americans-may-owe-25-billion-crypto-taxes- its plummeting bolivar fuerte currency. On March from Bitfinex Exchange in Hong Kong, Reuters (Aug. much-will-report-123754863.html. 19, 2018, the United States issued an executive order 2, 2016), https://www.reuters.com/article/us-bitfinex 24 Skylar Dubelko, Fewer Tax Cases Being Prosecuted, prohibiting all transactions, financing, and dealings -hacked-hongkong/bitcoin-worth-72-million-stolen-from 131 (60) DAILY J., Mar. 28, 2018; Chuck Marr & Cecile by a U.S. person or within the United States in the -bitfinex-exchange-in-hong-kong-idUSKCN10E0KP. Murray, IRS Funding Cuts Compromise Taxpayer Ser - Venez uelan digital currency. See Yaya Fanusie & 16 Jen Wieczner, Hacking Coinbase: The Great Bitcoin vice and Weaken Enforcement, Ctr. on Budget and Policy Michaela Frai, Crypto Investors Should Stay Away Bank Robbery, FORTUNE, Aug. 22, 2017, available at Priorities (April 4, 2016), https://www.cbpp.org from Venez uela’s Petro, Coindesk (March 26, 2018), http://fortune.com/2017/08/22/bitcoin-coinbase-hack. /research/federal-tax/irs-funding-cuts-compromise https://www.coindesk.com/crypto-investors-stay 17 Bitcoin Heist: 600 Powerful Computers Stolen in Ice - -taxpayer-service-and-weaken-enforcement. -away-venezuelas-petro. land, Associated Press (March 2, 2018), https://www 25 U.S. Dep’t of Justice, Swiss Bank Program, https:// 32 Gertrude Chavez-Dreyfuss, Marshall Islands to Issue .nbcnews.com/news/world/bitcoin-heist-600-poweful www.justice.gov/tax/swiss-bank-program (last viewed Own Sovereign Cryptocurrency, Reuters (Feb. 28, -computers-stolen-iceland-n852811. on Sept. 13, 2018). 2018), https://www.reuters.com/article/us-crypto 18 Jonathan Stempel, U.S. Charges Chicago Trader 26 Press Release, I.R.S., Offshore Voluntary Com - -currencies-marshall-islands/marshall-islands-to-issue with Stealing Bitcoin, Yahoo! News (Feb. 15, 2018), pliance Efforts Top $10 Billion; More Than 100,000 -own-sovereign-cryptocurrency-idUSKCN1GC2UD.

20 Los Angeles Lawyer November 2018

by Kyle Kellar

InterThe Institution Partes of Review

Now that SAS Institute Inc. v. Iancu has ended the partial institution policy, inter partes review petitioners can no longer count on the estoppel safe harbor

Consti tution of the a patent was improperly granted, its only consuming, and unreliable,” and he said THE United States grants avenue to narrow the scope of, or alto- he hoped that authorizing the Patent Of - Con gress the power gether cancel, the patent was through the fice to reexamine granted patents would “[t]o promote the progress of science… courts—a lengthy and expensive process, “reduc[e] the need for expensive, time- by securing for limited times to…inventors often concluding with a lay jury’s deter- consuming litigation over the validity of a the exclusive right to their…discoveries.”1 mining the validity of an inherently tech- patent.”13 In furtherance of this constitutional grant, nical patent.9 On December 12, 1980, the Patent Act Congress codified the first Patent Act in In the 1970s, industry leaders in general of 1952 was amended to create ex parte 1790.2 The Patent Acts of 1793,3 1836,4 were of the opinion that the U.S. patent reexamination.14 Ex parte reexamination, 1870,5 and 19526 followed. While each system was failing domestic industry by still available today, permits anyone to of these acts built upon and reformed U.S. granting too few and low-quality patents request that an issued patent be reexamined patent law in its own way, they all had that routinely failed to pass muster at the by the Patent Office in view of prior art one limitation in common: they granted courts.10 While these views were undoubt- documents provided by the requester.15 the U.S. Patent Office (and the U.S. De - edly subjective, the Patent Office’s yearly Prior art documents are essentially those partment of State before the Patent Office)7 statistics reveal a marked period of stag- limited oversight of granted patents, effec- nancy throughout the 1970s.11 Kyle Kellar is an associate in the Menlo Park, tively preventing so-called “post-grant In an effort to improve the U.S. patent California office of Lewis Roca Rothgerber Christie review.” system, President Jimmy Carter announced LLP and a member of the firm’s inter partes review Notably, neither the Patent Office nor that he would seek passage of patent re - team. His practice focuses on intellectual property any third party could force reexamination examination legislation.12 In 1979, Presi - prosecution and litigation, including patent and of an issued patent without the patent dent Carter warned Congress that “the trademark prosecution, portfolio management, owner’s consent.8 If a third party believed pat ent process has become expensive, time- and enforcement. HADI FARAHANI

22 Los Angeles Lawyer November 2018 documents that were publicly available tive law judges of the Patent Trial and of the challenged claims but also challeng- sufficiently in advance of the invention Appeal Board (PTAB).26 ing the constitutionality of IPR.38 The claimed by the patent.16 If the prior art To initiate an IPR, a third-party peti- Federal Circuit summarily re jected Oil documents would reveal to someone of tioner files a petition with the PTAB iden- States’ appeal in view of its prior decision ordinary skill in the field of the invention tifying “each [patent] claim challenged” finding IPR constitutional, and Oil States that the invention was not new or only an and “the grounds on which the challenge appealed to the Supreme Court.39 obvious variation of what had been done to each claim is based,” that is, a prior art Oil States argued that inter partes review before, then the invention is not pat - document or combination of prior art doc- improperly permits an administrative entable.17 If, after reviewing the prior art uments that show the unpatentability of agency other than an Article III court— documents, the patent examiner determines the challenged claim.27 If the PTAB finds the Patent Office—to resolve disputes that a “substantial new question of pa t - that “the ground would demonstrate that involving patent rights, which were tradi- entability” has been raised by the request, there is a reasonable likelihood that at least tionally heard in courts at common law.40 the patent is reexamined by the Patent one of the claims challenged in the petition Because patent invalidity actions were tra- Office, substantially following the proce- is unpatentable,” it will initiate an IPR ditionally “the subject of a suit at the com- dures for initial examination of a patent “trial”; otherwise, the petition is dismissed mon law, or in equity,” similar to the federal application.18 and no IPR is initiated.28 If IPR is instituted district court’s long-established jurisdiction and proceeds to a final written decision— over patent validity matters, Oil States con- Ex Parte Reexamination Controversy similar to a court’s ruling—the petitioner tended that “Congress may not ‘withdraw The introduction of ex parte reexamina- is estopped from relitigating “any ground from judicial cognizance’ cases adjudicating tion at the Patent Office was not without that the petitioner raised or reasonably that matter.”41 Oil States also argued that controversy, and in 1985, the U.S. Court could have raised during that inter partes patent rights are private rights and thus of Appeals for the Federal Circuit con- review” in another proceeding before the are not properly considered under the pub- sidered the constitutionality of this prac- Patent Office or at a district court.29 lic-rights doctrine, analogizing patent rights tice. In Patlex Corporation v. Mossinghoff Drawing parallels to the introduction to private land ownership, with a patent (Gerald Mossinghoff was the then-acting of ex parte reexamination, patent owners owner’s having the power to exclude others commissioner of the Patent Office), the soon challenged the constitutionality of from practicing the owner’s invention just plaintiff argued that ex parte reexamination inter partes review, arguing that it is “un - as a land owner has the power to prevent de prived patent owners of their right to con stitutional because any action revoking others from trespassing on the owner’s have the validity of their patents determined a patent must be tried in an Article III land.42 by a jury and an Article III court, as had court with the protections of the Seventh Greene’s Energy, on the other hand, been the tradition for centuries.19 Un - Amendment.”30 Finding IPR constitu- argued that the act of granting a patent is persuaded, the court found that “the thresh- tional, the Federal Circuit stated that the a public right derived from a “federal reg- old question usually is whether the PTO… Patent Office’s “sole authority is to decide ulatory scheme,” namely the Patent Act.43 properly granted the patent” and held ex issues of” patent law, which “derives from Because “IPR is a narrow procedural mech- parte reexamination as a constitutional an extensive federal regulatory scheme… anism Congress has chosen to enable the means to “facilitate the correction of gov- and is created by federal law.”31 Because PTO to correct its own patentability deter- ernmental mistakes.”20 the Patent Office is “an administrative mination errors,” Greene’s Energy con- During the stagnancy of the 1970s and agency specially assigned to ‘examination tended that the correction of erroneously early 1980s, the annual number of utili - and issuance of patents,’” the court held or improperly granted patents is properly ty patent filings at the Patent Office grew that “assigning review of patent validity within the Patent Office’s authority.44 from 103,175 in 1970 to 109,625 in 1982.21 to the PTO is consistent with Article III.”32 In a 7-2 decision, the Supreme Court After the introduction of ex parte reexam - Un surprisingly, the court analogized its held IPR constitutional.45 Justice Clarence ination in 1980 and the formation of the holding to prior cases holding ex parte Thomas, writing for the majority, suc- Federal Circuit Court of Appeals in 1982— reexamination constitutional.33 cinctly stated that “[i]nter partes review together ushering in the modern patent falls squarely within the public-rights doc- Supreme Court Weighs In era—the number of utility patent filings trine.”46 From the outset of the majority’s grew to 164,558 in 1990, surpassed 200,000 On April 24, 2018, the U.S. Supreme Court opinion, it is clear they were not swayed by 1995, and crossed the 500,000 threshold addressed the constitutionality of inter par- by the historical underpinnings of patent in 2011.22 tes review in Oil States Energy Services, validity actions in English tradition, in Faced with this ever-increasing number LLC v. Greene’s Energy Group, LLC.34 which Oil States had focused much of its of patent filings and, once again, “a grow- In 2012, Oil States sued Greene’s Energy briefing, instead the majority focused on ing sense that questionable patents are too al leging that it infringed its patent related the public-rights doctrine. easily obtained and are too difficult to to technology for protecting oil wellhead Oil States argued that granted patents challenge,”23 Congress set about overhaul- equipment.35 Greene’s Energy responded are “private property, and thus private ing U.S. patent law in 2011, culminating by challenging the validity of Oil States’ rights”;47 the Court instead focused on the in the Leahy-Smith America Invents Act patent at the district court and by peti- Patent Office’s decision to grant a patent, (AIA).24 The AIA created a new set of post- tioning the PTAB to institute IPR of Oil emphatically stating that “the decision to grant review proceedings meant to “im - States’ patent.36 In 2015, the PTAB issued grant a patent is a matter involving public prove patent quality and limit unnecessary its final written decision finding the chal- rights.”48 The Court recognized that “the and counterproductive litigation costs.”25 lenged claims of Oil States’ patent un - grant of a patent is a matter between ‘the The most popular of these newly created patentable.37 Oil States appealed the PTAB’s public, who are the grantors, and…the post-grant proceedings is inter partes review decision to the Federal Circuit, the desig- patentee.’”49 And, by “issuing patents, the (IPR), a quasi-litigation proceeding con- nated appellate route for challenging IPR PTO take[s] from the public rights of ducted before a panel of three administra- decisions, arguing not only the patentability immense value, and bestow[s] them upon

24 Los Angeles Lawyer November 2018 the patentee.”50 A patent “gives the patent grieved patent owner to latch onto this SAS appealed the PTAB’s decision, owner the right to exclude others…,” a statement. In early August, Advanced Audio arguing that Title 35 of U.S. Code Section right which “did not exist at common Devices, LLC petitioned the Supreme Court 318(a) requires that the PTAB determine law.”51 Because “the determination to grant to determine if the invalidation of its pat - the patentability of every challenged a patent is a ‘matte[r] involving public ent by the PTAB without “just compensa- claim.67 Section 318(a) states that “[i]f an rights,’” the Court ruled that decisions re - tion” violated the Takings Clause of the inter partes review is instituted…, the Pat - versing this determination similarly involved Fifth Amendment to the U.S. Constitution.61 ent Trial and Appeal Board shall issue a public rights and thus need not be adjudi- Second, the majority noted that its deci- final written decision with respect to the cated by an Article III court.52 sion does “not address whether other patent pat entability of any patent claim challenged Rebuffing Oil States’ contention that matters, such as infringement actions, can by the petitioner….”68 Justice Gorsuch, patents should be considered the patent be heard in a non-Article III forum.”62 now writing for the 5-4 majority, found owner’s private property, the Court clarified Similar to the PTAB, the International that the use of “any” in Section 318(a) “means the Board must address every claim the petitioner has challenged.”69 The major- Oil States argued that granted patents are ity found this interpretation consistent with Congress’s intent to structure IPR as a peti- “private property, and thus private rights”; tioner-driven procedure rather than director-driven.70 the Court instead focused on the Patent Oil States commanded most commen- tators’ attention while these cases were Office’s decision to grant a patent, pending, but SAS has since seized the patent community’s attention as the driver emphatically stating that “the decision to of major change. That is, although the Oil States case had the potential to end grant a patent is a matter involving public IPR altogether, the final decision keeping IPR alive had no substantive impact on rights.” [Citations omitted.] current IPR practice.71 SAS, on the other hand, immediately impacted almost half of pending IPRs.72 that “[p]atents convey only a specific form Trade Commission (ITC) is a non-Article Confirming the substantial and immediate of property right—a public franchise.”53 III forum employing administrative law impact of SAS, two days after the decision And because patents are a public franchise judges but, different from the PTAB, has was handed down, the Patent Office issued that is “‘derived altogether’ from statutes, the authority to adjudicate patent infringe- a memorandum making clear that “if the [they] ‘are to be regulated and measured ment matters between private parties. At PTAB institutes a trial, the PTAB will insti- by these laws, and cannot go beyond press time, no notable case challenging the tute on all challenges raised in the peti- them.’”54 The Court pointedly noted that constitutionality of the ITC’s authority to tion.”73 This April 26 memorandum orig- “[o]ne such regulation is inter partes adjudicate infringement matters has been inally appeared to go a step further than review.”55 initiated. SAS by requiring that if an IPR is instituted, Justice Neil Gorsuch, writing for the institution must address all grounds as well Supreme Court Weighs In Again dissent, opined that patents should be con- as all challenged claims, but the Federal sidered private rights rather than a public On the same day it issued its Oil States Cir cuit quickly confirmed the Patent Office’s franchise by focusing on the granted patent decision, the Supreme Court issued its deci- understanding of SAS as also requiring rather than on the act of granting the sion in SAS Institute Inc. v. Iancu (Andrei institution as to all grounds.74 patent as the majority had.56 “Until re - Iancu is the current director of the Patent In the immediate aftermath of SAS and cently,” Justice Gorsuch wrote, “most Office).63 SAS Institute, a private American the Patent Office’s April 26 memoran - everyone considered an issued patent a multinational software company, sought dum, the PTAB’s then-Chief Judge David personal right—no less than a home or a inter partes review of all 16 claims of Ruschke reportedly stated that “about 45 farm—that the federal government could ComplementSoft’s patent in response to a percent” of cases pending at the PTAB revoke only with the concurrence of inde- patent infringement suit brought against “require some correction” to comply with pendent judges.”57 SAS.64 ComplementSoft is a software pro- the requirements of SAS, that is, “to bring He continued, stating that “[b]ut in the ductivity tool for SAS users and program- institution of all claims and all grounds.”75 statute before us Congress has tapped an mers. While the PTAB agreed that inter To bring these pending cases into compli- executive agency, the Patent Trial and partes review of ComplementSoft’s patent ance with SAS, the PTAB has been issuing Appeal Board, for the job.”58 was warranted based on SAS’s petition, it orders supplementing its institution deci- In addition to failing to move the needle only instituted review of claims 1 and 3 sions to include all challenged claims and/ on IPR, the majority took efforts to ex pli - through 10, not all 16 claims as SAS had or grounds, leaving it to the parties to c itly “emphasize the narrowness” of its requested, a practice known as “partial determine if additional briefing or time to holding, essentially providing the frame- institution.”65 In its final written decision, respond is necessary.76 As recently as July, work for future challenges.59 First, the the PTAB found claims 1, 3, and 5 through the Federal Circuit was still remanding majority stated that “our decision should 10 unpatentable, upheld the validity of IPRs to the PTAB for reconsideration in not be misconstrued as suggesting that claim 4, and, consistent with the practice light of SAS.77 In fact, the Federal Circuit patents are not property for purposes of “partial institution,” did not address has been addressing deficient IPRs so fre- of the Due Process Clause or the Takings the remaining claims of ComplementSoft’s quently that it has begun referring to such Clause.”60 It did not take long for an ag - patent.66 matters as “request[s] for SAS-based relief”

26 Los Angeles Lawyer November 2018 and “SAS-based action.”78 tecting backup invalidity arguments for 11 See U.S. Patent Activity, Calendar Years 1790 to Moreover, petitioners for IPR must later proceedings. If the petitioner were the Present, U.S. Patent and Trademark Office Patent Technology Monitoring Team, https://www.uspto now seriously consider the estoppel that unsuccessful in having the challenged claims .gov/web/offices/ac/ido/oeip/taf/h_counts.htm (accessed attaches to IPR decisions. Prior to SAS, invalidated before the PTAB, it could move April 23, 2018). In 1970, 103,175 utility patent appli- the Federal Circuit, in Shaw Industries forward at the district court with the cations were filed and 64,429 utility patents were Group, Inc. v. Automated Creel Systems, grounds that had explicitly not been con- granted. In 1979, there were only 100,494 utility Inc., ruled that the estoppel provisions of sidered in the IPR, relying on Shaw’s inter- patent applications filed with only 48,854 utility patents granted. Section 315(e), which bar a petitioner pretation of the estoppel safe harbor to 12 President Jimmy Carter, Industrial Innovation from requesting or maintaining a proceed- protect these grounds from Section 315(e)’s Initiatives Message to the Congress on Administration ing before the Patent Office or in a civil estoppel provisions. Actions and Proposals (Oct. 31, 1979) (transcript avail - suit “with respect to that claim on any With SAS effectively ending the PTAB’s able at http://www.presidency.ucsb.edu/ws/index.php ground that the petitioner raised or rea- partial institution policy, the previous ?pid=31628) (“At my direction, the Patent and sonably could have raised during that inter approach to shoehorning multiple, redun- Trademark Office will undertake a major effort to upgrade and modernize its processes, in order to restore partes review,” did not attach to grounds dant grounds into an IPR petition hoping the incentive to patent—and ultimately develop— submitted in a petition that were not con- to protect some invalidity arguments in inventions. I will also seek legislation to provide the sidered by the PTAB due to a partial insti- the estoppel safe harbor is no longer a Patent and Trademark Office with greater authority tution because “[t]he IPR does not begin viable strategy. Now, IPRs are instituted to reexamine patents already issued, thereby reducing until it is instituted.”79 Thus, grounds not as to all grounds or not instituted at all, the need for expensive, time-consuming litigation over the validity of a patent.”). considered by the PTAB were not “raised” effectively blockading Shaw’s safe harbor. 13 Id. nor could they “reasonably [] have been Post-SAS, petitioners will want to focus 14 See 35 U.S.C. §§300 et seq. raised” during the IPR because the board on crafting strong petitions for inter partes 15 See generally, 35 U.S.C. §302 (2015) (“Any person determined which grounds were to be review. Rather than advancing redundant at any time may file a request for reexamination by raised in its institution decision, creating grounds as backup positions for later pro- the Office of any claim of a patent on the basis of any 80 prior art cited under the provisions of section 301.”). a so-called estoppel “safe harbor.” ceedings, that briefing space is better served 16 See Gopro, Inc. v. Contour IP Holding LLC, 898 fully fleshing-out the primary ground(s). Effect on Estoppel Safe Harbor F. 3d 1170, 1174 (Fed. Cir. 2018) (quoting Blue After the SAS decision, IPRs are now Calypso, LLC v. Groupon, Inc., 815 F. 3d 1331, 1348 Before SAS, district courts took primarily two closer to being the “all in” proposition (Fed. Cir. 2016)) (“We have interpreted §102 broadly, different approaches to the estoppel safe har- that was intended by then-Senator Jon Kyl finding that even relatively obscure documents qualify as prior art so long as the relevant public has a means bor. Some district courts broadly interpreted of Arizona, who believed IPRs “should of accessing them…. Accordingly, ‘[a] reference will the estoppel safe harbor as extending to prior generally serve as a complete substitute for be considered publicly accessible if it was disseminated art not raised to the PTAB.81 On the other at least some phase of the litigation,” and or otherwise made available to the extent that persons hand, the notoriously plaintiff-friendly Eastern petitioners are well served to treat them interested and ordinarily skilled in the subject matter Dis trict of Texas read Shaw as narrowly as as such.85 n or art exercising reasonable diligence, can locate it.’”). 17 possible, holding that art that was or “rea- See Gopro, 898 F. 3d at 1174 (“Section 102(b) provides that a person shall be entitled to a patent unless 1 U.S. CONST., art. 1, §8. sonably could have [been] raised” to the the invention was described in a printed publication 2 Patent Act of 1790, Ch. 7, 1 Stat. 109. PTAB, in addition to the grounds litigated more than one year prior to the date of application 3 Patent Act of 1793, 1 Stat. 318. during the IPR, were subject to estoppel with for patent in the United States. The printed publication 4 Patent Act of 1836, 5 Stat. 117. rule is based on the principle that once an invention only those grounds set forth in a petition 5 Patent Act of 1870, 16 Stat. 198. is in the public domain, it can no longer be patented and explicitly rejected by the PTAB being 6 Patent Act of 1952, 66 Stat. 792. by anyone.”). 82 7 The U.S. Patent Office was created by the Patent protected by the estoppel safe harbor. 18 35 U.S.C. §§304 (2013) and 305 (2009) (“If, in a Act of 1836. Trademark registration was added in What art “reasonably could [have] determination made under the provisions of subsection 1881. Prior to the Patent Act of 1836, the U.S. been raised”? In one case, a patent owner 303(a), the Director finds that a substantial new ques- Department of State was charged with examining and tion of patentability affecting any claim of a patent is demonstrated to the court that a simple granting patents. raised, the determination will include an order for Internet search of key terms from its 8 Patlex Corp. v. Mossinghoff, 758 F. 2d 594, 601 reexamination of the patent for resolution of the ques- (Fed. Cir. 1985), on reh’g, 771 F. 2d 480 (Fed. Cir. patent revealed that three references cited tion…. After the times for filing the statement and 1985) (“Before its enactment, the methods of achieving as prior art documents were among the reply provided for by section 304 have expired, reex- administrative review of an issued patent were very first 10 results, indicating to the court amination will be conducted according to the proce- limited. Gould emphasizes that such review could not dures established for initial examination under the that these references reasonably could be achieved other than at the initiative of the patentee. provisions of sections 132 and 133.”). have been raised in the prior IPR peti- At the time Gordon Gould’s patents were issued, there 19 Patlex Corp. v. Mossinghoff, 758 F. 2d 594, 603 tion.83 Generally, the determination comes was no way the PTO or private persons could have (Fed. Cir. 1985). forced these patents back into the examination phase down to what “a skilled searcher’s diligent 20 Id. at 604. against his will (except for their involvement in an search” would have revealed—a rather 21 U.S. Patent Statistics Chart Calendar Years 1963- interference).”). subjective standard.84 2015, U.S. Patent and Trademark Office Patent 9 Patlex, 758 F. 2d at 601 (citing Iowa State Univ. Technology Monitoring Team, available at https:// Under either interpretation, those Research Found., Inc. v. Sperry Rand Corp., 444 F. www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm grounds explicitly not considered by the 2d 406, 409 (4th Cir. 1971). See also McCormick (accessed Apr. 23, 2018). In 1982, the U.S. Patent Harvesting Mach. Co. v. C. Aultman Co., 169 U.S. board were protected in the estoppel safe Office granted 57,888 utility patents, 90,365 in 1990, 606, 608 (1898) (“The only authority competent to harbor and available for later proceedings, 101,419 in 1995, and 224,505 in 2011. Id. set a patent aside, or to annul it, or to correct it for such as at the district court. With this in 22 28 U.S.C. §1295 (1982). . any reason whatever, is vested in the courts of the 23 Am. Invents Act, H.R. Rept. No. 112-98, pt. 1, at mind, IPR petitioners were incentivized to United States, and not in the department which issued 39 (2011). include numerous, redundant grounds in the patent.”). 24 Leahy-Smith Am. Invents Act, Pub. L. 112-29, 125 10 See Robert Hunt, Patent Reform: A Mixed Blessing an IPR petition, reasonably expecting that Stat. 284 (Sept. 16, 2011). For the U.S. Economy?, BUS. REV., Fed. Reserve Bank of the PTAB would only consider some of 25 Am. Invents Act, H.R. Rept. No. 112-98, pt. 1, at Philadelphia, Nov. 1999, available at https://philadelphiafed the proffered grounds under its “partial 40 (2011). .org/-/media/research-and-data/publications/business 26 Id. at 46-48. institution” policy, thereby effectively pro- -review/1999/november-december/brnd99rh.pdf.

Los Angeles Lawyer November 2018 27 27 35 U.S.C. §312(a)(3) (2015). 2013). 28 37 C.F.R. §42.108(c) (2016). 65 SAS, 138 S. Ct. at 1354. 29 35 U.S.C. §§315(e)(1), (2) (2014). 66 Id. 30 MCM Portfolio LLC v. Hewlett-Packard Co., 812 67 Id. F. 3d 1284, 1288 (Fed. Cir. 2015). 68 35 U.S.C. §318(a) (2014). 31 Id. at 1289-90 (quoting Stern v. Marshall, 564 U.S. 69 SAS, 138 S. Ct. at 1354 (emphasis in original) 462, 494 (2011)) (internal quotations omitted). (“When used (as here) with a ‘singular noun in affir- 32 MCM Portfolio, 812 F. 3d at 1291. The Court also mative contexts,’ the word ‘and’ ordinarily ‘refer[s] noted that “[t]here is notably no suggestion that to a member of a particular group or class without Congress lacked authority to delegate to the PTO the distinction or limitation’ and in this way ‘impl[ies] power to issue patents in the first instance. It would every member of the class or group.’”) (quoting Oxford be odd indeed if Congress could not authorize the English Dictionary (3d ed., Mar. 2016), www.oed.com PTO to reconsider its own decisions.” Id. /view/Entry/8973 (OED) (accessed Apr. 20, 2018))). 33 Id. (citing Joy Techs. v. Manbeck, 959 F. 2d 226 70 SAS, 138 S. Ct. 1355 (“From the outset, we see (Fed. Cir. 1992)). that Congress chose to structure a process in which 34 Oil States Energy Servs., LLC v. Greene’s Energy it’s the petitioner, not the Director, who gets to define Group, LLC, 584 U.S. ___, 138 S. Ct. 1365 (2018). the contours of the proceeding. And ‘[j]ust as Congress’ 35 Id. at 1372. choice of words is presumed to be deliberate’ and 36 Id. deserving of judicial respect, ‘so too are its structural 37 Id.; see also Greene’s Energy Grp., LLC v. Oil States choices.’”) (quoting University of Tex. Sw. Medical Energy Servs., LLC, IPR2014-00216, Paper 53 Ctr. v. Nassar, 570 U.S. 338, 353 (2013))). (P.T.A.B. May 1, 2015). 71 James Heintz, High Court Seems Poised to Con firm 38 Oil States, 138 S. Ct. at 1372. Constitutionality of IPR, Law360 (Nov. 29, 2017), 39 Id.; see also MCM Portfolio, 812 F.3d at 1288-93 avail able at https://www.law360.com/articles/988089/ and Oil States Energy Servs., LLC v. Greene’s Energy high-court-seems-poised-to-confirm-constitutionality Group, LLC, 639 Fed. Appx. 639 (Fed. Cir. 2016) -of-ipr. (invoking Federal Circuit Rule 36, which permits the 72 Matthew Bultman, Almost Half of Pending PTAB court to “enter a judgment of affirmance without opin- Cases Impacted by SAS Ruling, Law360 (June 5, ion” when it determines certain conditions exist and 2018), available at https://www.law360.com “an opinion would have no precedential value”). /articles/1049132/almost-half-of-pending-ptab-cases 40 Oil States, 138 S. Ct. at 1376–77. -impacted-by-sas-ruling. 41 Id. at 1376 (quoting Stern, 564 U.S. at 484) (citations 73 Guidance on the Impact of SAS on AIA Trial omitted)). Proceedings (Apr. 26, 2018), https://www.uspto.gov 42 Brief for Petitioner at 28-29, Oil States Energy /sites/default/files/documents/guidance_on_the_impact Servs., LLC v. Greene’s Energy Group, LLC, 16-712, _of_sas_on_aia_trial_proceedings_%20(april_26,_2018) 2017 WL 3713059 (U.S. Aug. 24, 2017) [hereinafter .pdf. Brief for Petitioner]. 74 See PGS Geophysical AS v. Iancu, 891 F. 3d 1354, 43 Brief for Respondent Greene’s Energy Group, LLC 1360 (Fed. Cir. 2018) (“We read those and other at 30, Oil States Energy Servs., LLC v. Greene’s Energy similar portions of the SAS opinion as interpreting the Group, LLC, 16-712, 2017 WL 4805231 (U.S. Oct. statute to require a simple yes-or-no institution choice 23, 2017). respecting a petition, embracing all challenges included 44 Id. at 29. in the petition, and we have seen no basis for a contrary 45 Oil States, 138 S. Ct. at 1379. understanding of the statute in light of SAS.”). 46 Id. at 1373. 75 Id. 47 Brief for Petitioner, supra note 42, at 29. 76 See, e.g., Dexcom, Inc. v. Waveform Tech., Inc., 48 Oil States, 138 S. Ct. at 1373 (emphasis in origi- IPR2017-01051, Paper No. 30 (April 27, 2018 nal). P.T.A.B.). 49 Id. (quoting United States v. Duell, 172 U.S. 576, 77 BioDelivery Scis. Int’l, Inc. v. Aquestive Therapeutics, 586 (1899)). Inc., 898 F. 3d 1205, 1210 (Fed. Cir. 2018). 50 Oil States, 138 S. Ct. at 1373 (quoting United States 78 See, e.g., PGS Geophysical, 891 F. 3d at 1359 and v. Am. Bell Tel. Co., 128 U.S. 315, 370 (1888)) (internal BioDelivery Scis., 898F. 3d at 1208. quotations omitted). 79 Shaw Indus. Group, Inc. v. Automated Creel Sys., 51 Oil States, 138 S. Ct. at 1374 (quoting 35 U.S.C. Inc., 817 F. 3d 1293, 1300 (Fed. Cir. 2016), cert. §154(a)(1) and Gayler v. Wilder, 10 How. 477, 494 denied, 137 S. Ct. 374 (2016). (1851)) (internal quotation omitted). 80 Id. at 1298-99. 52 Oil States, 138 S. Ct. at 1374 (quoting Murray’s 81 Intellectual Ventures I LLC v. Toshiba Corp., 221 Lessee v. Hoboken Land & Improvement Co., 18 F. Supp. 3d 534, 553-54 (D. Del. 2016); Verinata How. 272, 284 (1856)) (internal quotations omitted). Health, Inc. v. Ariosa Diagnostics, Inc., No. 12-CV- 53 Oil States, 138 S. Ct. at 1375 (citing Pfaff v. Wells 005501-SI, 2017 WL 235048, at *3-4 (N.D. Cal. Jan. Elec., Inc., 525 U.S. 55, 63-64 (1998)). 19, 2017). 54 Oil States, 138 S. Ct. at 1375 (quoting Brown v. 82 Biscotti Inc. v. Microsoft Corp., No. 2:13-CV- Duchesne, 19 How. 183, 195 (1857)). 01015-JRG-RSP, 2017 WL 2526231, at *7 (E.D. Tex. 55 Oil States, 138 S. Ct. at 1375. May 11, 2017). 56 Id. at 1380 (Gorsuch, J., dissenting). 83 Cobalt Boats, LLC v. Sea Ray Boats, Inc., No. 57 Id. 2:15CV21, 2017 WL 2605977, at *2-4 (E.D. Va. June 58 Id. 5, 2017); see also, Oil-Dri Corp. of Am. v. Nestle 59 Id. at 1379. Purina Petcare Co., No. 15-CV-1067, 2017 WL 60 Id. 3278915, at *9–10 (N.D. Ill. Aug. 2, 2017) (estopping 61 Petition for Writ of Certiorari at 7-9, Advanced Purina from raising certain prior art documents that Audio Devices, LLC v. HTC Corporations and HTC “‘a reasonably skilled patent searcher’ would have America, Inc., No. 18-183, (Aug. 9, 2018). located” based on undisputed declaration testimony 62 Oil States, 138 S. Ct. at 1379. of Oil-Dri’s expert witness). 63 SAS Inst., Inc. v. Iancu, 584 U.S. ___, 138 S. Ct. 84 Clearlamp, LLC v. LKQ Corp., No. 12 C 2533, 1348 (2018). 2016 WL 4734389, at *9 (N.D. Ill. Mar. 18, 2016). 64 SAS Inst., Inc. v. ComplementSoft, LLC, IPR2013- 85 The Patent Reform Act of 2007, S. Rept. No. 110- 00226, Paper No. 1 at 1, 10, 58 (P.T.A.B. March 29, 259, at 66 (2008).

28 Los Angeles Lawyer November 2018

by Rena E. Kreitenberg

California courts continue to grapple with attorney-client civil conspiracy claims and the application of the preﬁling order requirement

premised on a civil conspiracy between an attorney and his CLAIMS or her client have always been tricky as they are subject to a prefiling order pursuant to Civil Code Section 1714.10. By its language, Section 1714.10 affects a “cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based on the attorney’s representation of the client.”1 Such a claim may not be included in a complaint unless the court enters an order allowing “the pleading that includes the claim for civil conspiracy.”2 The court may do so only after a showing by the plaintiff of a “reasonable probability” of prevailing “in the action.”3 Originally enacted in 1988, “‘Section 1714.10 was intended to weed out the harassing claim of conspiracy that is so lacking in reasonable foundation as to verge on the frivolous.’”4 The purpose of the statute is to “discourage frivolous claims that an attorney conspired with his or her client to harm another. Therefore, rather than requiring the attorney to defeat the claim by showing it is legally meritless, the plaintiff must make a prima facie showing before being allowed to assert the claim.”5

Rena E. Kreitenberg is a partner in the Los Angeles law firm of Mesisca Riley & Kreitenberg LLP where her practice focuses on civil litigation and appeals, emphasizing real estate, negligence, and employment actions. KEN CORRAL

30 Los Angeles Lawyer November 2018

Section 1714.10 on its face appears Section 1714.10 continues to accumulate, not necessarily have triggered Section straightforward. It provides in pertinent and California case authority has contin- 1714.10 and concluded that appellate re- part: ued to apply the prefiling requirement to view was warranted as to all of the causes No cause of action against an attor- attorney-client conspiracy claims.13 of action pleaded, regardless of the labels ney for a civil conspiracy with his attributed thereto, because general alle- Aiding and Abetting or her client arising from any at- gations that were incorporated into each tempt to contest or compromise a Case law has also addressed whether Sec - and every cause of action involved conduct claim or dispute, and which is based tion 1714.10 applies to allegations of that fell within the scope of the statute.20 upon the attorney’s representation “aiding and abetting” a tort as between Other Considerations of the client, shall be included in a an attorney and client. The elements to complaint or other pleading unless establish a civil conspiracy are somewhat There are other considerations, however, the court enters an order allowing different from those required for aiding before concluding that a pleading or claim the pleading that includes the claim and abetting. The California Court of is subject to Section 1714.10. California for civil conspiracy to be filed after Appeal for the Sixth District addressed law has made it exceedingly difficult to the court determines that the party this issue in Berg & Berg Enterprises, successfully plead an aiding and abetting seeking to file the pleading has LLC v. Sherwood Partners.14 claim against an attorney who does not established that there is a reasonable The Berg court considered the similar- otherwise owe an independent duty to probability that the party will pre- ities and differences between conspiracy the plaintiff or have a financial incentive vail in the action.6 and aiding and abetting and concluded outside of fees paid for the legal repre- The only exceptions to this rule are that even though aiding and abetting does sentation. when “(1) the attorney has an independent not require a defendant to expressly agree In Doctors’ Company et al. v. Superior legal duty to the plaintiff, or (2) the attor- to join in the wrongful conduct, it is sim- Court of Los Angeles County, the Calif - ney’s acts go beyond the performance of a ilar to a conspiracy because “it necessarily ornia Supreme Court created the so-called professional duty to serve the client and requires a defendant to reach a conscious “agent’s immunity rule” that “a conspir- involve a conspiracy to violate a legal duty decision to participate in tortious activity acy cause of action cannot lie ‘if the in furtherance of the attorney’s financial for the purpose of assisting another in per- alleged conspirator, though a participant gain.”7 forming a wrongful act.”15 The court in in the agreement underlying the injury, Based on the express language of the Berg also pointed out that “a plaintiff’s was not personally bound by the duty statute, a failure to obtain a court order object in asserting [an aiding and abetting violated by the wrongdoing and was act- as required “shall be a defense to any theory] is to hold those who aid and abet ing only as the agent or employee of the action for civil conspiracy” and may be in the wrongful act responsible as joint party who did have that duty.’”21 In other raised by the attorney upon the first tort feasors for all damages ensuing from words, “an agent is not liable for con- appearance by “demurrer, motion to strike, the wrong” and “[t]he aider and abettor’s spiring with the principal when the agent or such other motion or application as conduct need not, as ‘separately considered,’ is acting in an official capacity on behalf may be appropriate.” 8 The defense is dis- constitute a breach of duty. [Cita tions.]”16 of the principal.”22 positive and requires dismissal of all con- The Berg court concluded that “[e]ven Section 1714.10 was amend ed to add spiracy claims with prejudice.9 though aiding and abetting…does not gen- subsection c, which codified the two excep- The statutory mandates and exceptions erally require that the defendant owe an tions to the agent’s immunity rule: 1) when to the prefiling order requirement within independent duty, we believe that as the attorney has an independent legal duty Section 1714.10 are specific, but courts pleaded against an attorney for conduct to the plaintiff, or 2) when the attorney’s have interpreted their application in ways arising from the representation of a client, acts go beyond the performance of a pro- that are at times unclear. As one court of and depending on the particular allega- fessional duty to serve the client and appeal recently put it, these opinions have tions, this tort would still fall within the involve a conspiracy to violate a legal duty arguably rendered the statute “practically ambit of Section 1714.10 and would thus in furtherance of the attorney’s financial meaningless.”10 California courts have be subject to its requirements and excep- gain.23 “The relationship of attorney and recognized that once the two exceptions tions. [Citation omitted.]”17 client is one of agent and principal.”24 to Section 1714.10 were added, applica- Based on Berg and the express language Thus, when applying the agent’s immunity tion of Section 1714.10 became more dif- of Section 1714.10, it is reasonable to rule, courts have consistently rejected ficult because tort liability arising from a conclude that when general allegations of claims alleging the requisite financial conspiracy “presupposes that the co-con- “aiding and abetting” are incorporated advantage arising solely from an attorney’s spirator is legally capable of committing into a cause of action, the cause of action receipt of fees for the services provided the tort, i.e., that he or she owes a duty is arguably subject to a prefiling order.18 to the client as compensation for the rep- to plaintiff recognized by law and is poten- The more fundamental issue, however is resentation.25 tially subject to liability for breach of that not the “label” of the claim such as “con- The Second District Court of Appeal duty.”11 As such, the independent duty spiracy” or “aiding and abetting,” but in American Master Lease LLC v. Idanta ex ception will likely be automatically trig- rather, whether the conduct alleged “arose Partners, Ltd. addressed the exception of gered if any valid conspiracy claim is out of its agreement to represent [the independent legal duty to decide whether alleged because conspiracy is not an inde- client] and conduct in which it jointly the plaintiff “could maintain a cause of pendent tort and “cannot create a duty engaged with its client,…in the course of action for aiding and abetting a breach or abrogate an immunity.”12 Yet, notwith- that legal representation.”19 The Berg of fiduciary duty in the absence of a fidu- standing the foregoing characterization court was faced with a pleading that incor- ciary duty [owed by defendants].”26 The of the status of Section 1714.10, case law porated prior general allegations of con- defendants argued that there was no interpreting and discussing the scope of duct (including aiding and abetting) in to “sound policy reason to distinguish be - the requirements of and exceptions to causes of action that by their title may tween liability for conspiracy to breach a

32 Los Angeles Lawyer November 2018 fiduciary duty and liability for aiding and within Section1714.10 and were subject an attorney to a client, nor does it allege abetting a breach of fiduciary duty by to its requirements and exceptions and any financial gain that goes beyond that requiring that a conspirator but not an pointed out that “[t]he major significance to be realized through compensation paid aider and abettor owe a fiduciary duty to of a conspiracy cause of action ‘lies in for professional legal services.”34 The the plaintiff.”27 the fact that it renders each participant court explained that the independent duty Relying on Howard v. Superior Court in the wrongful act responsible as a joint exception to Section 1714.10 “obviously of Los Angeles, the court in American tortfeasor for all damages ensuing from speaks to a relationship beyond that of Master Lease disagreed and held that an the wrong, irrespective of whether or not attorney-client.”35 The Klotz court ac - aider and abettor may be held liable for he was a direct actor and regardless of the knowledged that an independent legal breach of a duty he or she does not owe degree of his activity.[Citations omitted.]’”30 duty may also arise to trigger the excep- if he or she provided substantial assistance tion. In Klotz, however, the exception was Independent Duty Exception to the party in breach of a fiduciary duty.28 not met because the conduct alleged was The Second District discussed the differ- Other cases that have found an indepen- not intended to “circumvent established ences between the two theories of liability, dent legal duty under Section 1714.10(c) legal channels to accomplish a desired and concluded that conduct based on have addressed causes of action involving result,” nor outside the performance of conspiracy and aiding and abetting are breach of fiduciary duty, misappropria- the “normal services of an attorney.”36 similar enough to be subsumed within tion or fraud.31 The “independent duty The Klotz court held that such conduct “exposes counsel to a host of tort claims— including a cause of action for attorney- client conspiracy.”37 The court of appeal reversed the denial of the motion to strike and found the conduct in that case “consisted of an allegedly harmful conflict of interest and did not arise out of the breach of any duty independent of the attorney client relationship” and instead, “from the course of the provision of services in connection with the settlement of a claim or dispute.”38 Thus, a prefiling order was required. In Favila v. Katten Muchin Rosenman LLP, on the other hand, the Second District reversed the trial court’s order denying leave to amend to allege a conspiracy claim. The Second District held that the pleading was within the “independent legal duty” exception to the statute limiting civil conspiracy claims against attorneys.39 Citing Doctors’ Com - pany, the Favila court concluded that the Civil Code Section 1714.10’s ambit, even exception” was addressed recently by the claim alleged a fraudulent scheme to trans- though that particular issue was not before Second District in Klotz v. Milbank, fer assets for a grossly undervalued price the court: Tweed, Hadley & McCloy.32 In Klotz, and thus fell within Section 1714.10(c)’s In Howard v. Superior Court (cita- the client’s former business associates exception.40 tion omitted) the issue was whether brought an action against the law firm Financial Gain Exception a client attempting to plead a cause and attorney for breach of fiduciary duty, of action for aiding and abetting conspiracy, and legal malpractice. The The Second District in Klotz also ad - against an attorney had to comply court of appeal reversed the trial court’s dressed the “financial gain” exception with Civil Code former Section order denying attorney defendants’ motion whereby an attorney obtains an “eco- 1714.10, which required the plain- to strike the second cause of action for nomic advantage over and above mone- tiff to obtain a court order before conspiracy and held that the client’s former tary compensation received in exchange pleading such a civil conspiracy business associates’ claims against the for professional services actually rendered claim. The court noted that “[i]n client’s attorney and law firm required a on behalf of a client.” 41 The Klotz court the abstract, there may be a distinc- prefiling order. stated, however that the financial gain tion between an aiding and abetting The Klotz court acknowledged that exception “does not apply to fees charged, cause of action and one for civil “an attorney has an independent legal even where the fees were excessive or the conspiracy,” but held that because duty to refrain from defrauding non- services unnecessary” because “[s]uch al - the alleged conduct fell “within the clients.”33 However, the court of appeal legations could be made by an adversary ambit” of the statute, the statute concluded that the two exceptions to in any case, thus significantly weakening applied to the plaintiff’s aiding and Section 1714.10 did not apply to the con- the gatekeeping function of the statute.”42 abetting claim.29 spiracy claim at issue in that case because Even if the pleading falls within the The Howard court held that claims the complaint did not allege “any duty ambit of Section 1714.10, there is author- against an attorney for “aiding and abet- of defendants…that is beyond the duty ity that the plaintiff may amend if the ting” a client’s fraudulent conduct fell inherent in the rendition of services of claim can be asserted without reliance on

Los Angeles Lawyer November 2018 33 civil conspiracy between an attorney and fects.50 The burden of proving a reasonable prefiling order. 14 client. However, courts have not directly probability of amending the complaint to Berg & Berg Enters. v. Sherwood Partners, LLC, 131 Cal. App. 4th 802 (2005). addressed whether a plaintiff can avoid state a cause of action “is squarely on the 15 Id. at 823–24 n.10. 51 the prefiling order in Section 1714.10 by plaintiff.” 16 Id. amending the complaint to remove con- 17 Id.; see also, Howard v. Superior Ct., 2 Cal. App. Right to Amend spiracy and aiding and abetting allegations 4th 745 (1992) (holding that allegations of “aiding or otherwise amend after a motion to strike Based on the foregoing, it is probable that and abetting” are the equivalent to alleging a civil conspiracy for purposes of Section 1714.10). has been filed but before the ruling on the a plaintiff may be permitted to exercise 18 Berg, 131 Cal. App. 4th at 820. motion as is the case with a demurrer. the initial “right to amend” under Section 19 Id. In Favila v. Katten Muchin Rosenman 472 within the time limits provided by 20 Id. at 820–21. LLP, the court of appeal held that even this statute. But once a motion to strike 21 Doctors’ Co. v. Superior Ct., 49 Cal. 3d 39, 44 when the allegations of a complaint fall under Section 1714.10 is filed, the trial (1989); see also Pavicich v. Santucci, 85 Cal. App. within an exception to Section 1714.10, court must evaluate the pleading, allega- 4th 382, 391 (2000). 22 Berg, 131 Cal. App. 4th at 817; see Applied Equip. the trial court still must make an affir- tions, and claims; make a determination Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, mative ruling whether “the pleading on whether Section 1714.10 and either of 512 (1994); Favila v. Katten Muchin Rosenman LLP, its face fails to state a viable cause of its exceptions apply; and then decide 188 Cal. App. 4th 189, 208 (2010). action against the attorney and the defi- whether the plaintiff can amend the plead- 23 CIV. CODE §1714.10(c); see Doctors’ Co., 49 Cal. ciency cannot be remedied by amending and/or allegations and claims so as 3d at 45; accord Berg, 131 Cal. App. 4th at 818, 826; Skarbrevik v. Cohen, England & Whitfield, 231 Cal. 43 ment.” The Second District found that to avoid application of Section 1714.10. App. 3d 692, 710 (1991). the trial court “is in the same position as If the trial court finds that plaintiff has 24 Shafer v. Berger, Kahn, Shafton, Moss, Figler, it would be in ruling on a demurrer and made a showing that the pleading can be Simon & Gladstone, 107 Cal. App. 4th 54, 69 (2003). in deciding whether, after sustaining a successfully amended without triggering 25 See Berg, 131 Cal. App. 4th at 834; Skarbrevik, demurrer, leave to amend the complaint Section 1714.10, leave to amend should 231 Cal. App. 3d at 710. 26 44 American Master Lease LLC v. Idanta Partners, should be allowed.” be granted. However, if the ability to Ltd., 225 Cal. App. 4th 1451, 1472 (2014). Any analysis must also take into con- amend cannot be shown, the pleading 27 Id. at 1471. sideration the requirements of Code of and/or claim(s) must be dismissed with 28 Howard v. Superior Ct., 2 Cal. App. 4th 745 (1992); Civil Procedure Section 472, which ad - prejudice. American Master Lease, 225 Cal. App. 4th at 1474. dresses the right to amend a pleading. Notwithstanding the dicta in Pavicich 29 American Master Lease, 225 Cal. App. 4th at 1474. 30 Section 472 states in pertinent part that v. Santucci and Favila concerning the Howard, 2 Cal. App. 4th at 748. 31 See, e.g., Villa Pacific Bldg. Co. v. Superior Ct., an amendment is allowed without prior viability of Section 1714.10, courts con- 233 Cal. App. 3d 8 (1991) (lawyers engaged to perform court approval “if the amended pleading tinue to grapple with civil conspiracy transactional work for real estate investors sued for is filed and served no later than the date claims between attorney and clients and conspiring with clients to misappropriate assets); for filing an opposition to the demurrer the prefiling order requirement. Thus, Pierce v. Lyman, 1 Cal. App. 4th 1093 (1991) (attorney or motion to strike.”45 It would appear where it is anticipated such a claim will representing trustees sued for civil conspiracy with trustees in an action for fraud and breach of fiduciary that under Section 472 an amended plead- be alleged, counsel should be familiar with duty); Howard, 2 Cal. App. 4th 745 (attorneys rep- ing may be filed without prior court Section 1714.10 prior to filing and review resenting the buyers of real property who drafted approval if it is filed within the timeframe any allegations and claims in light of its allegedly false documents sued as having “aided and permitted to oppose a motion to strike provisions. n abetted” their clients); Berg, 31 Cal. App. 4th 802 under Section 1714.10. (breach of fiduciary duty and related causes of action concerning attorney’s performance as an assignee for 1 However, Section 1714.10 does not CIV. CODE §1714.10(a). the benefit of creditors); Evans v. Pillsbury, Madison 2 provide for an automatic right to file an Id. & Sutro, 65 Cal. App. 4th 599, 604 (1998) (law firm 3 amended pleading in the face of the motion Id. sued investors “to coerce them into abandoning their 4 to strike. Indeed, the purpose of Section Rickley v. Goodfriend, 212 Cal. App.4th 1136, rights”). 1148 (2013); see Central Concrete Supply Co., Inc. 1714.10 is similar to an anti-SLAPP 32 Klotz v. Milbank, Tweed, Hadley & McCloy, 238 v. Bursak 182 Cal. App. 4th 1092, 1098 (2010). Cal. App. 4th 1339 (2015). motion under Code of Civil Pro cedure 5 Klotz v. Milbank, Tweed, Hadley & McCloy, 238 33 Id. Section 425.16. Section 1714.10 estab- Cal. App. 4th 1339, 1350 (2015). 34 Id. at 1351-52. 6 lishes a special proceeding of a civil nature, CIV. CODE §1714.10. 35 Id. 7 and an order under the statute is appeal- CIV. CODE §1714.10(c); Klotz v. Milbank, Tweed, 36 Id. Hadley & McCloy, 238 Cal. App. 4th 1339, 1352 able as a final judgment in a civil action.46 37 Id. (2015). 38 Id. at 1352. When a motion to strike pursuant to 8 CIV. CODE §1714.10(b); Berg & Berg Enters., LLC 39 Favila v. Katten Muchin Rosenman LLP, 188 Cal. Section 1714.10 is filed, the court must v. Sherwood Partners, Inc., 131 Cal. App. 4th 802, App. 4th 189, 207-8 (2010). “‘initially determine whether the pleading 816 (2005). 40 Id. at 210. 9 falls either within the coverage of the Evans v. Pillsbury, Madison & Sutro, 65 Cal. App. 41 Id. 4th 599, 607 (1998). 42 Id. statute or, instead, within one of its stated 10 Favila v. Katten Muchin Rosenman LLP, 188 Cal. 43 exceptions.’”47 Thereafter, the trial court Id. at 210-11. App. 4th 189, 209 (2010). 44 Id. may consider whether the plaintiffs have 11 Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 45 CODE CIV. PROC. §472. 7 Cal. 4th 503, 511 (1994). a plausible factual basis to amend the 46 3 WITKIN, CAL. PROC. 5TH ACTIONS §212 (2008). 12 complaint so as not to trigger Section Id. 47 Stueve v. Berger Kahn, 222 Cal. App. 4th 327, 331 13 The court of appeal in Pavicich v. Santucci (85 1714.10.48 If the trial court finds that the (2013). Cal. App. 4th 382, 396 (2000)) concluded “given the 48 See Central Concrete Supply Co. v. Bursak, 182 claims are not subject to amendment, the rules of the law of conspiracy, the wording of Section 49 Cal. App. 4th 1092, 1101 (2010). claims must be dismissed with prejudice. 1714.10, and its legislative history, it appears that 49 Id. Leave to amend should not be granted if there are no viable conspiracy actions to which Section 50 Favila v. Katten Muchin Rosenman LLP, 188 Cal. there is no basis for the court to conclude 1714.10’s pleading hurdle might apply.” Yet, since App. 4th 189, 211 (2010). further amendment would cure the de- 2000 there have been attorney conspiracy claims that 51 Blank v. Kirwan, 39 Cal. 3d 311, 318 (1985). were found to be subject to CIV. CODE §1714.10’s

34 Los Angeles Lawyer November 2018

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Contact Norman Katz, managing partner. 22222 Sherman Way, Suite 212, Canoga Park, CA trials. Qualified since 1974 in State, Federal, and Nationally recognized banking, finance, insurance, 91311, (818) 886-7140, fax (818) 886-7146, e-mail: International courts of law. and real estate consulting group (established 1973). [email protected]. Contact Diana G. Lesgart, Experienced litigation consultants/experts include WILLIAM KUNZMAN, PE CPA, CFE, CVA, CFF. Specialized accounting and senior bankers, lenders, consultants, economists, litigation support services in the areas of family law lit- 1111 Town and Country #34, Orange, CA 92868, accountants, insurance underwriters/brokers. Spe- igation, including tracing of separate and community (714) 904-2821, e-mail: [email protected]. cialties include: lending customs, practices, policies, property assets, pension plan tracing, forensic Website: www.traffic-engineer.com. Contact in all types of lending (real estate, business/commer- accounting, business valuations, goodwill calculation, William Kunzman, PE. Traffic expert witness since cial, construction, consumer/credit card), banking expert testimony, cash available for support, Moore- 1979, both defense and plaintiff. Auto, pedestrian, operations/administration, trusts and investments, Marsden calculations, fraud investigations, real estate bicycle, and motorcycle accidents. Largest plaintiff economic analysis and valuations/damages assess- analysis, community property balance sheet. Over 30 verdicts: 1) $12,200,000 in pedestrian accident case ment, insurance claims, coverages and bad faith, real years of accounting experience with over 25 years of against Caltrans, 2) $10,300,000 in case against Los estate development, brokerage, appraisal, escrow, litigation support specialization. Appointed as Section Angeles Unified School District. Largest settlement: and title insurance. 730 accounting expert. Ms. Lesgart’s profile can be $2,000,000 solo vehicle accident case against Cal- found at http://www.jurispro.com/DianaLesgartCPA. trans. Best defense verdicts: 1) $0 while defending FULCRUM INQUIRY Expert is English/Spanish bilingual. See display ad Caltrans and opposition sought $16,000,000. 2) $0 888 South Figueroa Street, Suite 2000, Los Angeles, on page 37. defending City of Long Beach and opposition sought CA 90017, (213) 787-4100, fax (213) 891-1300, $15,000,000. Before becoming expert witness, e-mail: [email protected]. Website: www.fulcrum MDD FORENSIC ACCOUNTANTS employed by Los Angeles County Road Department, .com. Contact David Nolte. Our professionals are 600 Wilshire Boulevard, Suite 1620, Los Angeles, CA Riverside County Road Department, City of Irvine, experienced CPAs, MBAs, ASAs, CFAs, affiliated 90017, (213) 624-7118, fax (213) 624-7120, e-mail: and Federal Highway Administration. Knowledge of professors, and industry specialists. Our analysis and [email protected]. Website: www.mdd.com. governmental agency procedures, design, geomet- research combined with unique presentation tech- Contact Dan Markowicz. MDD Forensic Accoun- rics, signs, traffic controls, maintenance, and pedes- niques have resulted in an unequaled record of suc- tants provide litigation services and expert witness trian protection barriers. Hundreds of cases. Under- cessful court cases and client recoveries. Our exper- testimony in courts, arbitrations and mediations graduate work—UCLA, graduate work—Yale tise encompasses damages analysis, loss profit around the world. Time and again, our assessments University. studies, business and intangible asset valuations, have stood up to the scrutiny of cross-examination,

36 Los Angeles Lawyer November 2018 making our firm the choice of legal professionals around the world. For more information, please visit our website at www.mdd.com. RGL FORENSICS Los Angeles Office: 811 Wilshire Boulevard, Suite 1747, Los Angeles, CA 90017, (213) 996-0900. Orange County Office: 625 City Drive South, Suite 290, Orange, CA 92868, (714) 740-2100. Contact Hank Kahrs, [email protected], Alan Lurie, [email protected]. San Diego Office: 11440 W. Bernardo Court, Suite 300, San Diego, CA 92127, (619) 236-0377. Contact Rich Holstrom, [email protected]. RGL Forensics is an international firm of forensic financial experts exclusively dedicated to damage analysis, fraud investigation, and valuation. Serving the legal, insurance, and business communities for more than 30 years, the firm is unique in its ability to combine investigative accounting, business valuation, fraud, and forensic technology expertise. For attorneys, we discover and define financial value in transactions and civil and criminal disputes, and when necessary provide expert witness testimony in court and arbitration proceedings. For more information about RGL, please visit www.rgl.com. MICHAEL D. ROSEN, CPA, PHD, ABV 3780 Kilroy Airport Way, Suite 200, Long Beach, CA 90806, (562) 256-7052, fax (562) 256-7001, e-mail: [email protected]. Website: www.mrosencpa .com. Contact Michael D. Rosen. We are litigation consultants, forensic accountants, expert witnesses. Our mission is to tell the financial story that underlies every business litigation matter and to convey that story in a clear and concise manner to the trier of fact. Our findings allow a realistic assessment of the case and support settlement efforts. Our work is designed to render conclusive opinions and to withstand cross-examination. We specialize in business damages (lost profits and loss in value), personal damages (lost earnings), and business valuation. SCHULZE HAYNES LOEVENGUTH & CO. 660 South Figueroa Street, Suite 1280, Los Angeles, CA. 90017, (213) 627-8280, fax (213) 627-8301, e-mail: [email protected]. Website: www.schulzehaynes.com. Contact Karl J. Schulze. Our credentials include CPA, CVA, ABV, CFE, CFF and PhD. Our expertise includes analysis and testimony over a broad range of industries and issue areas. We provide advisory and testimony in matters involving economic damages, intellectual property disputes, employment, fraud and embezzlement, governance and shareholder matters, and alter ego, among others. We have worked with middle-market and Fortune 500 companies and have provided guidance on corporate governance, crisis management, strategic planning, insolvency management, acquisition and feasibility analysis and debt restructuring. We perform business valuations in disputed matters as well as for transactional purposes. Our experience includes serving as CEO, CFO, CRO, and our principals average well over 30 years' experience each. See display ad on page 41. SMITH DICKSON, AN ACCOUNTANCY CORPORATION 18100 Von Karman Avenue, Suite 420, Irvine, CA 92612, (949) 553-1020, fax (949) 553-0249, e-mail: [email protected]. Website: www .smithdickson.com. Contact Deborah Dickson, CPA, CFF, MAFF. CPA 30+ years, testifying 20+ years, forensic accounting and litigation support. Forensic expert witness in Federal Courts and State Civil and Probate Courts. The professionals at Smith Dickson clearly, independently, and accurately analyze financial information, calculate damages, evaluate claims, prepare expert reports and render expert testimony. Thousands of hours of forensic account-

Los Angeles Lawyer November 2018 37 ing, deposition and trial experience. Damage calcula- President. BTI Appraisal has been providing litigation KRYCLER, ERVIN, TAUBMAN, AND tions; lost profits; forensic accounting; expert testi- and appraisal services since 1974 in the areas of real KAMINSKY mony; intellectual property; fraud & embezzlement; estate, machinery and equipment, vehicles, personal 15303 Ventura Boulevard, Suite 1040, Sherman real estate; trust & estate beneficiary disputes, tax property and business valuation. Well written and Oaks, CA 91403, (818) 995-1040, fax (818) 995- controversy; business valuations; business documented reports reduce litigation costs and 4124. Website: www.ketkcpa.com. Contact dissolution. expedite dispute resolution. Our work has passed the Michael J. Krycler. Litigation support, including most rigorous scrutiny of the IRS, the SEC, govern- forensic accounting, business appraisals, family law WHITE, ZUCKERMAN, WARSAVSKY, ment condemning agencies, state and federal courts. LUNA & HUNT accounting, business and professional valuations, The collective experience of our nationally regarded damages, fraud investigations, and lost earnings. 15490 Ventura Boulevard, Suite 300, Sherman Oaks, professionals can address projects of all sizes and Krycler, Ervin, Taubman, and Kaminsky is a full-ser- CA 91403, (818) 981-4226, fax (818) 981-4278, locations. vice accounting firm serving the legal community for 4 Park Plaza, 2nd Floor, Irvine, CA 92614, (949) 219- more than 25 years. See display ad on page 57. 9816, fax (949) 219-9095, e-mail: expert@wzwlh COASTLINE REALTY ADVISORS .com. Website: www.wzwlh.com. Contact Barbara 3020 Old Ranch Parkway, Suite 300, Seal Beach, CA WARONZOF ASSOCIATES, INC. Luna. Expert witness testimony for complex litigation 90740, (562) 598-2402, fax (562) 598-9097, e-mail: 400 Continental Boulevard, Sixth Floor, El Segundo, involving damage analyses of lost profits, unjust [email protected]. Website: www CA 90245, (310) 322-7744, fax (424) 285-5380. enrichment, reasonable royalties, lost earnings, lost .coastlinerealtyadvisors.com. Contact Michael V. Website: www.waronzof.com. Contact Timothy R. value of business, forensic accounting, fraud investi- Sanders, MAI, SRA. Real estate valuation and dam- Lowe, MAI, CRE. Waronzof provides real estate and gation, investigative analysis of liability, and marital age analysis expert in residential and commercial/ land use litigation support services including eco- dissolution, and tax planning and preparation. Excel- industrial property. MAI and SRA designations from nomic damages, lost profits, financial feasibility, lease lent communicators with extensive testimony experi- the Appraisal Institute, also membership in IRWA and dispute, property value, enterprise value, partnership ence. Prior Big Four accountants. Specialties include FEWA; numerous articles and publications. Valuation interest and closely held share value, fair compensa- accounting, breach of contract, breach of fiduciary expertise includes construction defect, geotechnical, tion, lender liability, and reorganization plan feasibility. duty, business interruption, business dissolution, water intrusion, easement/title, environmental, view, Professional staff of five with advanced degrees and construction defects, delays, and cost overruns, proximate nuisance, natural disasters, estate/casualty training in real estate, finance, urban planning, and fraud, insurance bad faith, intellectual property loss, marriage dissolution, appraisal review,and stan- accounting. See display ad on page 55. (including trademark, patent, and copyright infringe- dard of care. ment, and trade secrets), malpractice, marital disso- ARCHITECTURE lution, personal injury, product liability, real estate, FULCRUM INQUIRY securities, tax planning and preparation, IRS audit 888 South Figueroa Street, Suite 2000, Los Angeles, A & E FORENSICS defense, tracing, unfair advertising, unfair competi- CA 90017, (213) 787-4100, fax (213) 891-1300, 2121 Montiel Road, San Marcos, CA 92069, tion, valuation of businesses, and wrongful termina- e-mail: [email protected]. Website: www.fulcrum (877) 839-7302, fax (760) 480-7477, e-mail: steve tion. See display ad on page 45. .com. Contact David Nolte. Our professionals are @aeforensics.com. Website: www.aeforensics.com. experienced CPAs, MBAs, ASAs, CFAs, affiliated Contact Steve Norris, AIA, PE, GE, HG, CEG, ZIVETZ, SCHWARTZ & SALTSMAN, CPAS professors, and industry specialists. Our analysis and CASP, LEED. Architect, engineer, contractor— 5990 Sepulveda Boulevard, Suite 650, Sherman research combined with unique presentation tech- standard of care expert. Retained over 200 times, Oaks, CA 91411, (310) 826-1040, fax (310) 826- niques have resulted in an unequaled record of suc- deposed over 100 times, and testified in trial over 20 1065. Website: www.zsscpa.com. Contact Lester cessful court cases and client recoveries. Our exper- times. Waterproofing, water intrusion, building enve- J. Schwartz, CPA/CFF DABFE, DABFA; Michael tise encompasses damages analysis, loss profit lope, zoning setbacks, concrete performance, path of D. Saltsman, CPA, MBA; Lynda R. Schauer, studies, business and intangible asset valuations, travel, structural analysis, earthquake-fire damage, CPA, CVA, CGMA; David L. Bass, CPA; David fraud investigations, statistics, forensic economic and plan analysis. Landslides, retaining wall failure, Dichner, CPA; Sandy A. Green, CPA; Silva analysis, royalty audits, strategic and market assess- settlement, flooding, grading, septic, expansive soils, Hakobyan, CPA; Troy Hoang, CPA. Accounting ments, competitive surveys, analysis of computerized mud flows, pavement distress, ground water evalua- experts in forensic accounting, tax issues, business data, injury and employment damages, and a wide tion, and slope analysis. Cost estimates, construction valuations, and appraisals, marital dissolutions, emi- range of other financial advisory services. management, delay analysis, and contracts. Serving nent domain, insurance losses, business interruption, Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and all California, Hawaii, and Oklahoma. See display ad goodwill, economic analysis, investigative auditing, MBAs in accounting, finance, economics, and related on page 53. loss of earning, commercial damages, and lost prof- subjects. See display ad on back cover. its. Expert witness testimony preparation, settlement ATTORNEY FEE DISPUTES/ISSUES negotiations, and consultations. See display ad on GURSEY | SCHNEIDER LLP page 41. 1888 Century Park East, Suite 900, Los Angeles, KPC LEGAL AUDIT SERVICES, INC. CA 90067, (310) 552-0960, fax (310) 557-3468, 550 North Brand Boulevard, Suite 1500, Glendale, e-mail: [email protected]. Website: ADA/DISABILITY DISCRIMINATION CA 91203, (818) 547-5000, fax (818) 547-5329, e- www.gursey.com. Contact Stephan Wasserman. mail: [email protected]. Website: www.kpclegal HRM CONSULTING, INC. Gursey | Schneider is an accounting firm specializing .com. Contact André E. Jardini. KPC Legal Audit in forensic accounting, litigation support services, 2050 Gateway Place, Suite 100-177, San Jose, CA Services, Inc. is a dba of the law firm Knapp, business valuation, and appraisal services for a vari- 95110, (209)728-8905, fax (209) 728-8970, e-mail: Petersen & Clarke P.C. KPC Legal Audit’s profes- ety of purposes, including marital dissolution, gift and [email protected]. Website: www sional staff includes experienced trial attorneys, audi- estate planning, eminent domain, goodwill loss, busi- .hrmconsulting.com. Contact Beth Brascugli De tors, and accounting personnel who have been per- ness disputes, malpractice, tax matters, bankruptcy, Lima, MBA, SPHR—CA. Expert witness Beth De forming legal audits for over 20 years. They utilize a damage and cost-profit assessments, insurance Lima, has testified for both plaintiff and defense in the customized audit software program to provide audit claims, and entertainment industry litigation. Gursey | following areas: human resources standards of care, services, consultation, and litigation support regard- Schneider has over 40 years of experience as expert employment ADA accommodation, FEHA, FMLA, ing outside legal expenses. CFRA, ADA & EEOC violations. Wrongful termination, witnesses in litigation support. See display ad on performance management, discrimination, sexual page 47. O’CONNOR AND ASSOCIATES harassment, exempt analysis, labor market assess- HIGGINS, MARCUS & LOVETT, INC. 201 Mission Street, Suite 710, San Francisco, CA ment, and vocational evaluations. She holds national 94105, (415) 693-9960, fax (415) 692-6537, e-mail: 800 South Figueroa Street, Suite 710, Los Angeles, and California specific certification—Senior Profes- [email protected]. Website: www.joclaw.com. CA 90017, (213) 617-7775, fax (213) 617-8372, sional in Human Resource (SPHR-CA), certified medi- Contact John D. O’Connor. Attorney John e-mail: [email protected]. Contact Mark C. Higgins, ator, and consulting since 1992. O’Connor provides both litigation and expert consul- ASA. The firm has over 30 years of litigation support tancy services in a broad range of attorney fee and expert testimony experience in matters involving APPRAISAL & VALUATION issues, including disputes over appropriate billing business valuation, economic damages, intellectual rates, litigation efficiency, task assignment and property, loss of business goodwill, and lost profits. BTI APPRAISAL staffing, litigation success and prevailing party deter- Areas of practice include business disputes, eminent 605 West Olympic Boulevard, Suite 820, Los Ange- mination, and litigation skill. His work in this regard domain, bankruptcy, and corporate and marital dis- les, CA 90015, (213) 532-3800, fax (213) 532-3807, has been widely lauded by clients, lawyers, courts, solution. See display ad on page 49. e-mail: [email protected] or megan@btiappraisal and arbitrators. See display ad on page 49. .com. Website: www.btiappraisal.com. Contact Ben F. Tunnell III, Chairman or Megan O’Rourke,

38 Los Angeles Lawyer November 2018 ATTORNEY MALPRACTICE [email protected]. Website: www.irsa.us. Special- ized forensic staff, broad range of consulting and JOEL MARK expert testimony, 47 years of courtroom experience 919 Box Canyon Trail, Palm Desert, CA 92211 (760) for Dr. Solomon, combined courtroom experience for 200-4554, mobile (805) 701-7731, fax (760) 772- company 390 person years. Accident reconstruction, 6665, e-mail: [email protected]. Consulting/ biomechanics, human factors, safety, accident pre- expert witness experience: One hundred plus assign- vention, adequacy of warnings, computer animation ments in attorney fee disputes; attorney ethics, attor- and simulations, 3D scanning, drone photography, ney malpractice (litigation). Specialties include busi- construction defect, criminal defense, criminal prose- ness litigation, intellectual property, commercial law, cution, premises, product integrity, product liability, professional liability, and banking. Previous position/ product testing, warnings, and lost income calcula- appointments: California State Bar Committee on tions. Auto, bicycle, bus, chair, elevator, escalator, Mandatory Fee Arbitration, California State Bar Com- forklift, gate, ladder, machinery, motorcycle, press, mittee on Professional Responsibility and Conduct; recreational equipment, rollercoaster, slip/trip and fall, appointed expert consultant by the Los Angeles stairs, swimming pool, and truck. Litigation and County Superior Court, State Bar MFA Presiding claims, defense/plaintiff, educational seminars, and Arbitrator (2009-2012); State Bar of California Special mediation and arbitration services. Deputy Trial Counsel for Disciplinary Matters (2010- present). Membership in professional societies: BUSINESS LACBA, State Bar of California. Degrees/license: UC Berkeley (AB, 1969), UC Berkeley: Hastings College FORENSISGROUP of Law (JD, 1972); Admitted California 1972, Col- EXPERT WITNESS SERVICES SINCE 1991 orado, 1994. 301 North Lake Avenue, Suite 420, Pasadena, CA 91101, (800) 555-5422, (626) 795-5000, fax (626) BANKING 795-1950, e-mail: [email protected]. Website: www.forensisgroup.com. Contact Tiffani ADVISORS/EXPERTS @ MCS Cheung. As a leader in expert witness services for ASSOCIATES over 25 years, we specialize in providing clients with 17731 Irvine Boulevard, Suite 200, Tustin, CA 92780, a premier selection of experts and consultants at an (949) 263-8700, fax (949) 263-0770, e-mail: experts unsurpassed level of service. Over 20,000 clients @mcsassociates.com. Website: www.mcsassociates have relied on us for an easy way of connecting with .com. Contact Norman Katz, managing partner. highly qualified experts across a wide range of indus- Nationally recognized banking, finance, insurance, tries to gain a competitive edge. We offer customized and real estate consulting group (established 1973). searches, referrals, and initial phone consultations at Experienced litigation consultants/experts include no cost or obligation to you. In over 30,000 cases, senior bankers, lenders, consultants, economists, we’ve provided experts to uncover the truth from accountants, insurance underwriters/brokers. Spe- thousands of complex subject matters such as con- cialties include: lending customs, practices, policies, struction, engineering, business, accounting, intellec- in all types of lending (real estate, business/commer- tual property, computers, IT, medical, real estate, cial, construction, consumer/credit card), banking insurance, product liability, premises liability, and oth- operations/administration, trusts and investments, ers, including hard-to-find disciplines. We’re commit- economic analysis and valuations/damages assess- ted to being socially responsible to our clients and ment, insurance claims, coverages and bad faith, real our local and global communities through education, estate development, brokerage, appraisal, escrow, nutrition and other programs. See display ad on and title insurance. page 37. BANKRUPTCY BUSINESS APPRAISAL/VALUATION FULCRUM INQUIRY ADVISORS/EXPERTS @ MCS 888 South Figueroa Street, Suite 2000, Los Angeles, ASSOCIATES CA 90017, (213) 787-4100, fax (213) 891-1300, 17731 Irvine Boulevard, Suite 200, Tustin, CA 92780, e-mail: [email protected]. Website: www.fulcrum (949) 263-8700, fax (949) 263-0770, e-mail: experts .com. Contact David Nolte. Our professionals are @mcsassociates.com. Website: www.mcsassociates experienced CPAs, MBAs, ASAs, CFAs, affiliated .com. Contact Norman Katz, managing partner. professors, and industry specialists. Our analysis and Nationally recognized banking, finance, insurance, research combined with unique presentation tech- and real estate consulting group (established 1973). niques have resulted in an unequaled record of suc- Experienced litigation consultants/experts include cessful court cases and client recoveries. Our exper- senior bankers, lenders, consultants, economists, tise encompasses damages analysis, loss profit accountants, insurance underwriters/brokers. Spe- studies, business and intangible asset valuations, cialties include: lending customs, practices, policies, fraud investigations, statistics, forensic economic in all types of lending (real estate, business/commer- analysis, royalty audits, strategic and market assess- cial, construction, consumer/credit card), banking ments, competitive surveys, analysis of computerized operations/administration, trusts and investments, data, injury and employment damages, and a wide economic analysis and valuations/damages assess- range of other financial advisory services. Degrees/ ment, insurance claims, coverages and bad faith, real licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in estate development, brokerage, appraisal, escrow, accounting, finance, economics, and related sub- and title insurance. jects. See display ad on back cover. ARROWFISH | ECONOMIC DAMAGES BIOMECHANICS/RECONSTRUCTION/ AND BUSINESS VALUATION EXPERTS HUMAN FACTORS/ANIMATIONS 350 10th Avenue, Suite 1000, San Diego, CA 92101, (801) 839-5778, fax: (801) 877-4830, INSTITUTE OF RISK & SAFETY e-mail: [email protected]. Website: ANALYSES www.arrowfishconsulting.com. Contact Jeremiah KENNETH A. SOLOMON, PHD, PE, POST Grant. With over 200 years of combined experience PHD CHIEF SCIENTIST from backgrounds at the Big Four accounting firms, 5324 Canoga Avenue, Woodland Hills, CA 91364, Fortune 500 companies, and successful entrepre- (818) 348-1133, fax (818) 348-4484, e-mail: kenneth- neurial ventures, Arrowfish has the experience, train-

Los Angeles Lawyer November 2018 39 ing, and credentials to exceed all your expectations. HIGGINS, MARCUS & LOVETT, INC. WHITE, ZUCKERMAN, WARSAVSKY, Our primary services include: economic damages 800 South Figueroa Street, Suite 710, Los Angeles, LUNA & HUNT (both commercial and personal litigation), business CA 90017, (213) 617-7775, fax (213) 617-8372, 15490 Ventura Boulevard, Suite 300, Sherman Oaks, appraisal/valuation, forensic accounting and insur- e-mail: [email protected]. Contact Mark C. Higgins, CA 91403, (818) 981-4226, fax (818) 981-4278, ance claims (ex. business interruption). For large-firm ASA. The firm has over 30 years of litigation support 4 Park Plaza, 2nd Floor, Irvine, CA 92614, (949) 219- experience, training, and quality with small-firm flexi- and expert testimony experience in matters involving 9816, fax (949) 219-9095, e-mail: expert@wzwlh bility, service, and pricing, look no further. Call today! business valuation, economic damages, intellectual .com. Website: www.wzwlh.com. Contact Barbara Offices in San Diego, Las Vegas, Salt Lake City, Den- property, loss of business goodwill, and lost profits. Luna. Expert witness testimony for complex litigation ver, Dallas, Chicago, and Washington, DC. Areas of practice include business disputes, eminent involving damage analyses of lost profits, unjust BRIAN LEWIS & COMPANY domain, bankruptcy, and corporate and marital dis- enrichment, reasonable royalties, lost earnings, lost solution. See display ad on page 49. value of business, forensic accounting, fraud investi- 10866 Wilshire Boulevard, 10the Floor, Los gation, investigative analysis of liability, and marital Angeles, CA 90024, (310) 446-2734, e-mail: brian RGL FORENSICS dissolution, and tax planning and preparation. Excel- @brianlewis-cpa.com. Contact Brian Lewis, CPA, Los Angeles Office: 811 Wilshire Boulevard, Suite lent communicators with extensive testimony experi- CVA. Forensic accounting, business valuations, and 1747, Los Angeles, CA 90017, (213) 996-0900. ence. Prior Big Four accountants. Specialties include cash spendable reports. Orange County Office: 625 City Drive South, Suite accounting, breach of contract, breach of fiduciary CMM, LLP 290, Orange, CA 92868, (714) 740-2100. Contact duty, business interruption, business dissolution, Hank Kahrs, [email protected], Alan Lurie, alurie With offices in Woodland Hills and El Segundo, (818) construction defects, delays, and cost overruns, @rgl.com. San Diego Office: 11440 W Bernardo 986-5070, fax (818) 986-5034, e-mail: rschreiber fraud, insurance bad faith, intellectual property Court, Suite 300, San Diego, CA 92127, (619) 236- @cmmcpas.com. Website: www.cmmcpas.com. (including trademark, patent, and copyright infringe- 0377. Contact Rich Holstrom, holstrom@rgl Contact Robert Schreiber. Specialties: consultants ment, and trade secrets), malpractice, marital disso- .com. RGL Forensics is an international firm of foren- who provide extensive experience, litigation support, lution, personal injury, product liability, real estate, sic financial experts exclusively dedicated to damage and expert testimony regarding forensic accountants, securities, tax planning and preparation, IRS audit analysis, fraud investigation, and valuation. Serving fraud investigations, economic damages, business defense, tracing, unfair advertising, unfair competi- the legal, insurance, and business communities for valuations, family law, bankruptcy, and reorganization, valuation of businesses, and wrongful termina- more than 30 years, the firm is unique in its ability to tion. Degrees/licenses: CPAs, CFEs, MBAs. See tion. See display ad on page 45. combine investigative accounting, business valuation, display ad on page 43. fraud, and forensic technology expertise. For attor- ZIVETZ, SCHWARTZ & SALTSMAN, CPAS FULCRUM INQUIRY neys, we discover and define financial value in trans- 5990 Sepulveda Boulevard, Suite 650, Sherman 888 South Figueroa Street, Suite 2000, Los Angeles, actions and civil and criminal disputes, and when Oaks, CA 91411, (310) 826-1040, fax (310) 826- CA 90017, (213) 787-4100, fax (213) 891-1300, necessary provide expert witness testimony in court 1065. Website: www.zsscpa.com. Contact Lester e-mail: [email protected]. Website: www.fulcrum and arbitration proceedings. For more information J. Schwartz, CPA/CFF DABFE, DABFA; Michael .com. Contact David Nolte. Our professionals are about RGL, please visit www.rgl.com. D. Saltsman, CPA, MBA; Lynda R. Schauer, CPA, CVA, CGMA; David L. Bass, CPA; David experienced CPAs, MBAs, ASAs, CFAs, affiliated SCHULZE HAYNES LOEVENGUTH & CO. professors, and industry specialists. Our analysis and Dichner, CPA; Sandy A. Green, CPA; Silva 660 South Figueroa Street, Suite 1280, Los Angeles, research combined with unique presentation tech- Hakobyan, CPA; Troy Hoang, CPA. Accounting CA. 90017, (213) 627-8280, fax (213) 627-8301, niques have resulted in an unequaled record of suc- experts in forensic accounting, tax issues, business e-mail: [email protected]. Website: www cessful court cases and client recoveries. Our exper- valuations, and appraisals, marital dissolutions, emi- .schulzehaynes.com. Contact Karl J. Schulze. Our tise encompasses damages analysis, loss profit nent domain, insurance losses, business interruption, credentials include CPA, CVA, ABV, CFE, CFF and studies, business and intangible asset valuations, goodwill, economic analysis, investigative auditing, PhD. Our expertise includes analysis and testimony fraud investigations, statistics, forensic economic loss of earning, commercial damages, and lost prof- over a broad range of industries and issue areas. We analysis, royalty audits, strategic and market assess- its. Expert witness testimony preparation, settlement provide advisory and testimony in matters involving ments, competitive surveys, analysis of computerized negotiations, and consultations. See display ad on economic damages, intellectual property disputes, data, injury and employment damages, and a wide page 41. employment, fraud and embezzlement, governance range of other financial advisory services. Degrees/ and shareholder matters, and alter ego, among oth- licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in CIVIL LITIGATION ers. We have worked with middle-market and For- accounting, finance, economics, and related sub- tune 500 companies and have provided guidance on GURSEY | SCHNEIDER LLP jects. See display ad on back cover. corporate governance, crisis management, strategic 1888 Century Park East, Suite 900, Los Angeles, GURSEY | SCHNEIDER LLP planning, insolvency management, acquisition and CA 90067, (310) 552-0960, fax (310) 557-3468, 1888 Century Park East, Suite 900, Los Angeles, CA feasibility analysis and debt restructuring. We perform e-mail: [email protected]. Website: www.gursey.com. 90067, (310) 552-0960, fax (310) 557-3468, e-mail: business valuations in disputed matters as well as for Contact Gary Krausz. Gursey | Schneider special- Website: www.gursey.com. Contact Stephan transactional purposes. Our experience includes izes in forensic accounting and litigation support ser- Wasserman. Gursey | Schneider is an accounting serving as CEO, CFO, CRO, and our principals aver- vices in the areas of civil litigation, business disputes, firm specializing in forensic accounting, litigation sup- age well over 30 years' experience each. See dis- bankruptcy, damage and cost-profit insurance port services, business valuation, and appraisal ser- play ad on page 41. claims, court accountings, fraud investigations, accounting malpractice, intellectual property, con- vices for a variety of purposes, including marital dis- SQUAR & ASSOCIATES solution, gift and estate planning, eminent domain, struction, government accounting, and entertainment 1001 Dove Street, Suite 100, Newport Beach, CA goodwill loss, business disputes, malpractice, tax litigation. Gursey | Schneider has over 40 years of 92660, (714) 825-0300, Cell (949) 375-4388, fax matters, bankruptcy, damage and cost-profit assess- experience as expert witnesses in accounting related (866) 810-9223, e-mail: rsquar@squarassociates ments, insurance claims, and entertainment industry matters. See display ad on page 47. .com. Website: www.squarassociates.com. Contact litigation. Gursey | Schneider has over 40 years of Richard M. Squar. Squar & Associates provides experience as expert witnesses in litigation support. COMPOSITE & FIBERGLASS superior litigation support and tax services, including See display ad on page 47. expert witness testimony, strategy development, MATERIALS HAYNIE & COMPANY, CPAS document discovery, deposition assistance, compu- KARS’ ADVANCED MATERIALS, INC. tation of damages, arbitration consulting, forensic 4910 Campus Drive, Newport Beach, CA 92660- Testing and Research Labs, 2528 West Woodland accounting, rebuttal testimony, fiduciary accountings, 2119, (949) 724-1880, fax (949) 724-1889, e-mail: Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax and trial exhibit preparation. Our areas of expertise [email protected]. Website: www (714) 527-7169, e-mail: [email protected]. Website: include loss of earnings analysis, breach of contract, .hayniecpa.com. Contact Steven C. Gabrielson. www.karslab.com. Contact Dr. Ramesh Kar, Dr. partnership dissolution, reconstruction of accounting Consulting and expert witness testimony in a variety Naresh Kar, Dr. Nikhil Kar. Southern California’s records, embezzlement and fraud, contract costs, of practice areas: commercial damages, ownership premier materials/mechanical/metallurgical/structural lost profits, damage computations, and malpractice disputes, economic analysis, business valuation, lost /forensics laboratory. Registered professional engi- cases. Our practice focuses on closely held entrepre- profits analysis, fraud/forensic investigations, taxation, neers with 30+ years in metallurgical/forensic/struc- neurial firms in a wide variety of industries. See dis- personal injury, wrongful termination, and profes- tural/mechanical failure analysis. Experienced with play ad on page 43. sional automotive, bicycles, tires, fire, paint, plumbing, cor- liability. rosion, and structural failures. We work on both plaintiff and defendant cases. Complete in-house capabili-

40 Los Angeles Lawyer November 2018 ties for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Princi- pals are Fellows of American Society for Metals and Fellows, American College of Forensic Examiners. See display ad on page 53. COMPUTER FORENSICS FULCRUM INQUIRY 888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: [email protected]. Website: www.fulcrum .com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research combined with unique presentation tech- niques have resulted in an unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis, loss profit studies, business and intangible asset valuations, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, competitive surveys, analysis of computerized data, injury and employment damages, and a wide range of other financial advisory services. Degrees /licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, finance, economics, and related subjects. See display ad on back cover. SETEC INVESTIGATIONS 8391 Beverly Boulevard, Suite 167, Los Angeles, CA 90036, (800) 748-5440, fax (323) 939-5481, e-mail: [email protected]. Website: www .setecinvestigations.com. Contact Todd Stefan. Setec Investigations offers unparalleled expertise in computer forensics and enterprise investigations providing personalized, case-specific forensic analysis and litigation support services for law firms and corporations. Setec Investigations possesses the necessary combination of technical expertise, understanding of the legal system, and specialized tools and processes enabling the discovery, collection, investigation, and production of electronic information for investigating and handling computer-related crimes or misuse. Our expertise includes computer forensics, electronic discovery, litigation support, and expert witness testimony. COMPUTERS/INFORMATION SCIENCES COSGROVE COMPUTER SYSTEMS, INC. 7411 Earldom Avenue, Playa del Rey, CA 90293, (310) 823-9448, e-mail: [email protected]. Website: www.cosgrovecomputer.com. Contact John Cosgrove. John Cosgrove, PE, has over 50 years of experience in computer systems and has been a self-employed, consulting software engineer since 1970. He was a part-time lecturer in the UCLA School of Engineering and LMU graduate schools. He provided an invited article, “Software Engineering and Litigation,” for the Encyclopedia of Software Engineering. He is a Certified Forensic Consultant (CFC), holds the CDP, is a member of ACM, ACFEI, FEWA, a life senior member of IEEE Computer Soci- ety, NSPE, a Fellow of the National Academy of Forensic Engineers (an affiliate of NSPE), and a professional engineer in California. Formal education includes a BSEE from Loyola University (now LMU) and a master of engineering from UCLA. He currently serves as Past President of the UCLA Engineering Alumni Association.

Los Angeles Lawyer November 2018 41 CONSTRUCTION .com. Contact Christi Fu, PE, LEED AP, CCM. securities, tax planning and preparation, IRS audit ARCADIS is an industry leader in the analysis of con- defense, tracing, unfair advertising, unfair competi- ACORN CONSULTING SERVICES, LLC struction claims and specializes in the avoidance, liti- tion, valuation of businesses, and wrongful termina- 10617 North Hayden Road, Suite B-108, Scottsdale, gation and resolution of construction disputes. Our tion. See display ad on page 45. AZ 85260, (602) 888-7250, fax (520) 577-0851, firm offers a full range of services, including litigation e-mail: [email protected]. Website: www support, expert testimony, schedule analysis, change COSMETIC, PLASTIC AND .acornconsultingengineer.com. Contact William R. order evaluation, delay/impact analysis, discovery/ RECONSTRUCTIVE SURGERY Acorn. William Acorn is founder and principal of deposition assistance, cause effect-impact analysis, Acorn Consulting Services, LLC. As a consulting contractor financial audits, merit analysis, document JOHN M. SHAMOUN, MD, FACS, INC. mechanical engineer, Bill has more than 40 years of database envelopment/management, and perfor- 366 San Miguel, Suite 310, Newport Beach, CA experience as a professional engineer and is a recog- mance audits. 92660, (949) 759-3077, fax (949) 759-3087, e-mail: nized expert in assessing, evaluating, remediating, [email protected]. Website: www.ideallook.com. and providing testimony on complex project design, CORPORATE INVESTIGATIONS Contact Yvonne. Specialties: only plastic surgeon in construction, and operation matters. His consulting the United States board certified by the 1) American FULCRUM INQUIRY expertise has been influential in shaping approaches Board of Surgery, 2) American Board of Plastic to code compliance and life safety in semiconductor 888 South Figueroa Street, Suite 2000, Los Angeles, Surgery, 3) American Board of Facial Plastic and and similar advanced technology facilities. He repre- CA 90017, (213) 787-4100, fax (213) 891-1300, Reconstructive Surgery, and 4) American Board of sents both plaintiffs and defendants. See display ad e-mail: [email protected]. Website: www.fulcrum Forensic Medicine. Extensive experience in all on page 37. .com. Contact David Nolte. Our professionals are aspects of cosmetic, plastic, and reconstructive experienced CPAs, MBAs, ASAs, CFAs, affiliated FORENSISGROUP surgery of the breast, nose, face, eye, and body. professors, and industry specialists. Our analysis and Well-published author of several textbook chapters EXPERT WITNESS SERVICES SINCE 1991 research combined with unique presentation tech- 301 North Lake Avenue, Suite 420, Pasadena, CA and journal articles related to above topics. Extensive niques have resulted in an unequaled record of suc- experience in medical malpractice case review, con- 91101, (800) 555-5422, (626) 795-5000, fax (626) cessful court cases and client recoveries. Our exper- 795-1950, e-mail: [email protected]. sultation, written evaluation and testimony in deposi- tise encompasses damages analysis, loss profit tions and trial for plaintiff and defense. Articulate sub- Website: www.forensisgroup.com. Contact Tiffani studies, business and intangible asset valuations, Cheung. As a leader in expert witness services for specialty consultant with up-to-date knowledge and fraud investigations, statistics, forensic economic expertise of plastic surgery literature and standards of over 25 years, we specialize in providing clients with analysis, royalty audits, strategic and market assess- a premier selection of experts and consultants at an care. Opinions supported by extensive subspecialty ments, competitive surveys, analysis of computerized education, training, and experience. unsurpassed level of service. Over 20,000 clients data, injury and employment damages, and a wide have relied on us for an easy way of connecting with range of other financial advisory services. CREDIT REPORTING, SCORING highly qualified experts across a wide range of indus- Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and tries to gain a competitive edge. We offer customized MBAs in accounting, finance, economics, and related & DAMAGES EXPERT searches, referrals, and initial phone consultations at subjects. See display ad on back cover. no cost or obligation to you. In over 30,000 cases, EASY CREDIT RELIEF, INC. we’ve provided experts to uncover the truth from RGL FORENSICS 2625 Townsgate Road, Suite 330, Westlake Village, thousands of complex subject matters such as con- Los Angeles Office: 811 Wilshire Boulevard, Suite CA 91361, (805) 267-1118, fax (805) 267-1101, struction, engineering, business, accounting, intellec- 1747, Los Angeles, CA 90017, (213) 996-0900. e-mail: [email protected]. Website: www tual property, computers, IT, medical, real estate, Orange County Office: 625 City Drive South, Suite .creditdamagesexpert.com. Contact Doug Minor. insurance, product liability, premises liability, and oth- 290, Orange, CA 92868, (714) 740-2100. Contact Credit reporting, score and damages expert witness/ ers, including hard-to-find disciplines. We’re commit- Hank Kahrs, [email protected], Alan Lurie, alurie consultant with over 30 years of experience. He has ted to being socially responsible to our clients and @rgl.com. San Diego Office: 11440 W Bernardo passed the required examination to receive from the our local and global communities through education, Court, Suite 300, San Diego, CA 92127, (619) 236- CDIA a Fair Credit Reporting Act Certification and can nutrition and other programs. See display ad on 0377. Contact Rich Holstrom, [email protected]. help with credit report evaluation preparing credit page 37. RGL Forensics is an international firm of forensic damages report, modern credit scoring and reporting financial experts exclusively dedicated to damage codes, types of credit damages, assessing violations KGA, INC. analysis, fraud investigation, and valuation. Serving of the Fair Credit Reporting Act (FCRA), as well as 1409 Glenneyre Street, Suite A, Laguna Beach, CA the legal, insurance, and business communities for industry standards of dispute resolution process and 92651, (949) 497-6000, fax (949) 494-4893, e-mail: more than 30 years, the firm is unique in its ability to review of residential mortgage loan documents. Eval- [email protected]. Website: www.kgainc.com. combine investigative accounting, business valuation, uate testimony, and developing questions for deposi- Contact Kurt Grosz. Construction and environmen- fraud, and forensic technology expertise. For attor- tion and trial. Since 2010 he has been involved in tal consultants since 1991. Licensed engineers and neys, we discover and define financial value in trans- over 100 cases, as well as been qualified and testified contractors. ICC building, plumbing, mechanical, actions and civil and criminal disputes, and when in both Federal and State Courts. concrete, and accessibility inspectors. Certified pro- necessary provide expert witness testimony in court fessional estimators. Trial experts, arbitrators, and and arbitration proceedings. For more information DENTIST insurance appraisers/umpires. about RGL, please visit www.rgl.com. RICHARD BENVENISTE, DDS, MSD THE REYNOLDS GROUP WHITE, ZUCKERMAN, WARSAVSKY, 19231 Victory Boulevard, Suite 256, Reseda, P.O. Box 1996, Tustin, CA 92781-1996, (714) LUNA & HUNT CA 91335, (818) 881-7337, fax (818) 881-6183, 730-5397, fax (714)730-6476, e-mail: edreynolds 15490 Ventura Boulevard, Suite 300, Sherman Oaks, e-mail: [email protected]. Website: www @reynolds-group.com. Website: www.reynolds CA 91403, (818) 981-4226, fax (818) 981-4278, .doctorbenveniste.com. Contact Richard -group.com. Contact Ed Reynolds, RCE, Princi- 4 Park Plaza, 2nd Floor, Irvine, CA 92614, (949) 219- Benveniste, DDS, MSD. Previous three-term officer pal. An environmental consulting, and contracting 9816, fax (949) 219-9095, e-mail: expert@wzwlh of State Dental Board of California, having ruled on all firm. Expertise: environmental contamination, assess- .com. Website: www.wzwlh.com. Contact Barbara phases of dental practice. Practicing as an expert, ment, remediation, reasonable value of construction, Luna. Expert witness testimony for complex litigation consultant, evaluator and teacher in the treatment of standard of care, and related financial matters. involving damage analyses of lost profits, unjust TMJ, personal injury (PI), lien cases, and dental injury. Degrees in Civil Engineering: USC (BS), University of enrichment, reasonable royalties, lost earnings, lost Multiple distinguished service citations from California Houston (MS), (MBA) Harvard. California Registered value of business, forensic accounting, fraud investi- State Department of Consumer Affairs. Provider of Civil Engineer, Licensed A, B, HAZ California Con- gation, investigative analysis of liability, and marital continuing education courses on oral diagnosis, oral tractor. 30 years’ experience. Adjunct Faculty Mem- dissolution, and tax planning and preparation. Excel- medicine, treatment modalities, TMJ diagnosis and ber USC Viterbi School of Engineering Department of lent communicators with extensive testimony experi- therapy. Multiple long-term professional organization Civil and Environmental Engineering. ence. Prior Big Four accountants. Specialties include memberships. Degrees/licenses: Doctor of Dental accounting, breach of contract, breach of fiduciary Surgery, (DDS); Master of Science in Dentistry (MSD). CONSTRUCTION DISPUTES duty, business interruption, business dissolution, JAY GROSSMAN DDS construction defects, delays, and cost overruns, ARCADIS 11980 San Vicente Boulevard, Suite 507, Brentwood, fraud, insurance bad faith, intellectual property 445 South Figueroa Street, Suite 3650, Los Angeles, CA 90049, (310) 820-0123, e-mail: jaygrossman- (including trademark, patent, and copyright infringe- CA 90071, (213) 797-5275, fax (213) 486-9894, [email protected]. Website: www.expertwitness.den- ment, and trade secrets), malpractice, marital disso- e-mail: [email protected]. Website: www.arcadis tal. Contact Dr. Jay Grossman. Dental malpractice lution, personal injury, product liability, real estate,

42 Los Angeles Lawyer November 2018 & injury expert testimony. As of January 2018: Have been deposed over 100 times; reviewed over 600 cases for both defense and plaintiff including peer review, accidents, and malpractice. 60% plaintiff / 40% defense. Have qualified in Superior Court over 50 times and never been disqualified. At least 95% of my time is spent in patient care. I can be counted on to be ethical, competent, prepared and analytical as well as articulate and persuasive at depositions and court appearances. Published and have been written about in print, radio, and TV over 175 times. (http:// www.drjaydds.com/expert-testimony—click on Media Coverage/Write ups) Expert on issues including: standard of care, cosmetics, lasers, extractions, nerve damage, valuation, informed consent, antibiotic coverage, TMJ/TMD, orthodontics including Invisalign, sleep apnea, treatment planning, occlusion and vertical dimension, electrosurgery, abscess, resorption, implants, crowns, root canal, veneers, periodontics, failure to diagnose or refer, and patent infringement. Licensed in 42 states to opine on standard of care, with specific license in California, Nevada, and the Northeast as well as a Florida Expert Certification. Graduated NYU 1988; Lieutenant, United States Navy 1989-91; private practice Brent- wood, CA since 1991, serving over 13,000 patients on a fee for service basis; Professorship at 2 Universi- ties: UCLA School of dentistry as well as Western University College of dental medicine. Member: American Academy of Cosmetic Orthodontics-2013, ADA since 1991 and Peer Review Committee ADA 1995-2009, Delta Dental Peer Review 2000-present, Founder & CEO-Homeless Not Toothless 1991-present. www.homelessnottoothless.org, providing over $3-Million in probono dental care to homeless veterans, foster children and the indigent. DNA PURE GOLD FORENSICS, INC. 303 Brookside Avenue, Suite 140, Redlands, CA 92373, (909) 793-3820, fax: (909) 793-3842, e-mail: [email protected]. Website: www .puregoldforensics.com. Contact Theron L. Vines. Pure Gold Forensics offers forensic DNA testing and body fluid identification. We are the only accredited private DNA lab in Southern California. Our state-of- the-art forensic DNA testing facility uses the latest technology in equipment and chemistry in order to produce quality results in an efficient and timely manner. We pride ourselves as being the top forensic DNA experts in the field. It is our goal here at Pure Gold Forensics to treat each case with the attention and detail it deserves. ECONOMIC DAMAGES ADVISORS/EXPERTS @ MCS ASSOCIATES 17731 Irvine Boulevard, Suite 200, Tustin, CA 92780, (949) 263-8700, fax (949) 263-0770, e-mail: experts @mcsassociates.com. Website: www.mcsassociates .com. Contact Norman Katz, managing partner. Nationally recognized banking, finance, insurance, and real estate consulting group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Spe- cialties include: lending customs, practices, policies, in all types of lending (real estate, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and valuations/damages assessment, insurance claims, coverages and bad faith, real estate development, brokerage, appraisal, escrow, and title insurance.

Los Angeles Lawyer November 2018 43 ARROWFISH | ECONOMIC DAMAGES claims, court accountings, fraud investigations, credentials include CPA, CVA, ABV, CFE, CFF and AND BUSINESS VALUATION EXPERTS accounting malpractice, intellectual property, con- PhD. Our expertise includes analysis and testimony 350 10th Avenue, Suite 1000, San Diego, CA struction, government accounting, and entertainment over a broad range of industries and issue areas. We 92101, (801) 839-5778, fax: (801) 877-4830, e-mail: litigation. Gursey | Schneider has over 40 years of provide advisory and testimony in matters involving [email protected]. Website: www experience as expert witnesses in accounting related economic damages, intellectual property disputes, .arrowfishconsulting.com. Contact Jeremiah matters. See display ad on page 47. employment, fraud and embezzlement, governance and shareholder matters, and alter ego, among oth- Grant. With over 200 years of combined experience HIGGINS, MARCUS & LOVETT, INC. from backgrounds at the Big Four accounting firms, ers. We have worked with middle-market and For- 800 South Figueroa Street, Suite 710, Los Angeles, Fortune 500 companies, and successful entrepre- tune 500 companies and have provided guidance on CA 90017, (213) 617-7775, fax (213) 617-8372, neurial ventures, Arrowfish has the experience, train- corporate governance, crisis management, strategic e-mail: [email protected]. Contact Mark C. ing, and credentials to exceed all your expectations. planning, insolvency management, acquisition and Higgins, ASA. The firm has over 30 years of litiga- Our primary services include: economic damages feasibility analysis and debt restructuring. We perform tion support and expert testimony experience in mat- (both commercial and personal litigation), business business valuations in disputed matters as well as for ters involving business valuation, economic damages, appraisal/valuation, forensic accounting and insur- transactional purposes. Our experience includes intellectual property, loss of business goodwill, and ance claims (ex. business interruption). For large-firm serving as CEO, CFO, CRO, and our principals aver- lost profits. Areas of practice include business dis- experience, training, and quality with small-firm flexi- age well over 30 years' experience each. See disputes, eminent domain, bankruptcy, and corporate bility, service, and pricing, look no further. Call today! play ad on page 41. and marital dissolution. See display ad on page 49. Offices in San Diego, Las Vegas, Salt Lake City, Den- SMITH DICKSON, AN ACCOUNTANCY ver, Dallas, Chicago, and Washington, DC. IPMETRICS LLC CORPORATION CHRISTOPOULOS ECONOMICS 9320 Chesapeake Drive, Suite 110, San Diego, CA 18100 Von Karman Avenue, Suite 420, Irvine, CA CONSULTING GROUP 92123, (858) 538-1533, e-mail: [email protected]. 92612, (949) 553-1020, fax (949) 553-0249, e-mail: Website: www.ipmetrics.com. Contact Daryl 555 Anton Boulevard, Suite 150, Costa Mesa, [email protected]. Website: Martin, managing principal. Since 2000, IPMetrics CA 92626, (714) 442-8561, fax (714) 586-5940, www.smithdickson.com. Contact Deborah Dick- LLC has specialized in intellectual property consulting e-mail: [email protected]. Website: www son, CPA, CFF, MAFF. CPA 30+ years, testifying encompassing valuation, infringement damages .econconsulting.com. Contact Jim Christopoulos. 20+ years, forensic accounting and litigation sup- assessment, and monetization services. Contact us Jim Christopoulos is well versed in the calculation of port. Forensic expert witness in Federal Courts and for projects related to patent, trademark, and copy- past and present value future economic damages for State Civil and Probate Courts. The professionals at right infringement damages and contract disputes, as all matters such as employment litigation, business Smith Dickson clearly, independently, and accu- well as rights of publicity and trade secret issues. litigation, wrongful death, and personal injury, includ- rately analyze financial information, calculate dam- Services include assisting counsel in the preparation ing the calculation of future medical care costs. We ages, evaluate claims, prepare expert reports and of damages cases, including initial discovery provide credible testimony and produce clear sum- render expert testimony. Thousands of hours of requests, drafting of declarations, participation in mary reports of relevant conclusions. forensic accounting, deposition and trial experience. arbitration/mediation, reporting on economic dam- Damage calculations; lost profits; forensic account- CORPORATE SCIENCES, INC. ages, rebutting opposing experts, and preparing ing; expert testimony; intellectual property; fraud & 3215 East Foothill Boulevard, Pasadena, CA counsel for opposing expert depositions. embezzlement; real estate; trust & estate beneficiary 91107, (626) 440-7200, fax: (626) 440-1800, RGL FORENSICS disputes, tax controversy; business valuations; busi- e-mail: [email protected]. Website: www ness dissolution. Los Angeles Office: 811 Wilshire Boulevard, Suite .corporatesciences.com. Contact Dr. Joseph S. 1747, Los Angeles, CA 90017, (213) 996-0900. D’Antoni, Managing Principal. Corporate Sci- WARONZOF ASSOCIATES, INC. Orange County Office: 625 City Drive South, Suite ences, Inc., provides over 40 years of financial analy- 400 Continental Boulevard, Sixth Floor, El Segundo, 290, Orange, CA 92868, (714) 740-2100. Contact sis and expert testimony in all types of commercial lit- CA 90245, (310) 322-7744, fax (424) 285-5380. Hank Kahrs, [email protected], Alan Lurie, alurie igation. Extensive experience in a broad range of Website: www.waronzof.com. Contact Timothy R. @rgl.com. San Diego Office: 11440 W Bernardo industries for computing economic damages, lost Lowe, MAI, CRE. Waronzof provides real estate and Court, Suite 300, San Diego, CA 92127, (619) 236- profits, valuation and appraisal, fraud, breach of con- land use litigation support services including eco- 0377. Contact Rich Holstrom, rholstrom@rgl tract, partnership disputes, and bankruptcy-related nomic damages, lost profits, financial feasibility, lease .com. RGL Forensics is an international firm of foren- matters. Professionals also serve as mediators, arbi- dispute, property value, enterprise value, partnership sic financial experts exclusively dedicated to damage trators, special masters, and third-party administra- interest and closely held share value, fair compensa- analysis, fraud investigation, and valuation. Serving tors as well as consulting and testifying experts. tion, lender liability, and reorganization plan feasibility. the legal, insurance, and business communities for Professional staff of five with advanced degrees and FULCRUM INQUIRY more than 30 years, the firm is unique in its ability to training in real estate, finance, urban planning, and 888 South Figueroa Street, Suite 2000, Los Angeles, combine investigative accounting, business valuation, accounting. See display ad on page 55. CA 90017, (213) 787-4100, fax (213) 891-1300, fraud, and forensic technology expertise. For attor- e-mail: [email protected]. Website: www.fulcrum neys, we discover and define financial value in trans- WHITE, ZUCKERMAN, WARSAVSKY, .com. Contact David Nolte. Our professionals are actions and civil and criminal disputes, and when LUNA & HUNT experienced CPAs, MBAs, ASAs, CFAs, affiliated necessary provide expert witness testimony in court 15490 Ventura Boulevard, Suite 300, Sherman Oaks, professors, and industry specialists. Our analysis and and arbitration proceedings. For more information CA 91403, (818) 981-4226, fax (818) 981-4278, research combined with unique presentation tech- about RGL, please visit www.rgl.com. 4 Park Plaza, 2nd Floor, Irvine, CA 92614, (949) 219- 9816, fax (949) 219-9095, e-mail: expert@wzwlh niques have resulted in an unequaled record of suc- MICHAEL D. ROSEN, CPA, PHD, ABV cessful court cases and client recoveries. Our exper- .com. Website: www.wzwlh.com. Contact Barbara 3780 Kilroy Airport Way, Suite 200, Long Beach, CA tise encompasses damages analysis, loss profit Luna. Expert witness testimony for complex litigation 90806, (562) 256-7052, fax (562) 256-7001, e-mail: studies, business and intangible asset valuations, involving damage analyses of lost profits, unjust [email protected]. Website: www.mrosencpa fraud investigations, statistics, forensic economic enrichment, reasonable royalties, lost earnings, lost .com. Contact Michael D. Rosen. We are litigation analysis, royalty audits, strategic and market assess- value of business, forensic accounting, fraud investi- consultants, forensic accountants, expert witnesses. ments, competitive surveys, analysis of computerized gation, investigative analysis of liability, and marital Our mission is to tell the financial story that underlies data, injury and employment damages, and a wide dissolution, and tax planning and preparation. Excel- every business litigation matter and to convey that range of other financial advisory services. Degrees/ lent communicators with extensive testimony experi- story in a clear and concise manner to the trier of licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in ence. Prior Big Four accountants. Specialties include fact. Our findings allow a realistic assessment of the accounting, finance, economics, and related sub- accounting, breach of contract, breach of fiduciary case and support settlement efforts. Our work is jects. See display ad on back cover. duty, business interruption, business dissolution, designed to render conclusive opinions and to with- construction defects, delays, and cost overruns, GURSEY | SCHNEIDER LLP stand cross-examination. We specialize in business fraud, insurance bad faith, intellectual property 1888 Century Park East, Suite 900, Los Angeles, damages (lost profits and loss in value), personal (including trademark, patent, and copyright infringe- CA 90067, (310) 552-0960, fax (310) 557-3468, damages (lost earnings), and business valuation. ment, and trade secrets), malpractice, marital disso- e-mail: [email protected]. Website: www.gursey.com. SCHULZE HAYNES LOEVENGUTH & CO. lution, personal injury, product liability, real estate, Contact Gary Krausz. Gursey | Schneider special- securities, tax planning and preparation, IRS audit 660 South Figueroa Street, Suite 1280, Los Angeles, izes in forensic accounting and litigation support ser- defense, tracing, unfair advertising, unfair competi- CA. 90017, (213) 627-8280, fax (213) 627-8301, vices in the areas of civil litigation, business disputes, tion, valuation of businesses, and wrongful termina- e-mail: [email protected]. Website: www bankruptcy, damage and cost-profit insurance tion. See display ad on page 45. .schulzehaynes.com. Contact Karl J. Schulze. Our

44 Los Angeles Lawyer November 2018

ZIVETZ, SCHWARTZ & SALTSMAN, CPAS ELECTRONIC DISCOVERY trans. Best defense verdicts: 1) $0 while defending 5990 Sepulveda Boulevard, Suite 650, Sherman Caltrans and opposition sought $16,000,000. 2) $0 SETEC INVESTIGATIONS Oaks, CA 91411, (310) 826-1040, fax (310) 826- defending City of Long Beach and opposition sought 8391 Beverly Boulevard, Suite 167, Los Angeles, CA 1065. Website: www.zsscpa.com. Contact Lester $15,000,000. Before becoming expert witness, 90036, (800) 748-5440, fax (323) 939-5481, e-mail: J. Schwartz, CPA/CFF DABFE, DABFA; Michael employed by Los Angeles County Road Department, [email protected]. Website: www D. Saltsman, CPA, MBA; Lynda R. Schauer, Riverside County Road Department, City of Irvine, .setecinvestigations.com. Contact Todd Stefan. CPA, CVA, CGMA; David L. Bass, CPA; David and Federal Highway Administration. Knowledge of Setec Investigations offers unparalleled expertise in Dichner, CPA; Sandy A. Green, CPA; Silva governmental agency procedures, design, geomet- computer forensics and enterprise investigations pro- Hakobyan, CPA; Troy Hoang, CPA. Accounting rics, signs, traffic controls, maintenance, and pedes- viding personalized, case-specific forensic analysis experts in forensic accounting, tax issues, business trian protection barriers. Hundreds of cases. Under- and litigation support services for law firms and cor- valuations, and appraisals, marital dissolutions, emi- graduate work—UCLA, graduate work—Yale porations. Setec Investigations possesses the neces- nent domain, insurance losses, business interruption, University. sary combination of technical expertise, understand- goodwill, economic analysis, investigative auditing, ing of the legal system, and specialized tools and loss of earning, commercial damages, and lost prof- ENGINEERING processes enabling the discovery, collection, investi- its. Expert witness testimony preparation, settlement gation, and production of electronic information for 4X FORENSIC ENGINEERING negotiations, and consultations. See display ad on investigating and handling computer-related crimes LABORATORIES, INC. page 41. or misuse. Our expertise includes computer foren- 5262 Oceanus Drive, Huntington Beach, CA 92649, ECONOMICS sics, electronic discovery, litigation support, and (714) 450-8500, fax (714) 450-8599, e-mail: phil expert witness testimony. @4Xforensic.com. Website: www.4Xforensic.com. ADVISORS/EXPERTS @ MCS Contact Phil Van Herle. 4X Forensic Engineering ASSOCIATES EMPLOYMENT/DISCRIMINATION/ Laboratories is a full-service forensic engineering lab- 17731 Irvine Boulevard, Suite 200, Tustin, CA HARASSMENT/RETALIATION oratory. We provide expert witness and analytical and 92780, (949) 263-8700, fax (949) 263-0770, e-mail: testing services in the following areas: fires and [email protected]. Website: www HRM CONSULTING, INC. explosions: electrical and gas product defect investi- .mcsassociates.com. Contact Norman Katz, 2050 Gateway Place, Suite 100-177, San Jose, gations, thermal and fire modeling and laboratory managing partner. Nationally recognized banking, CA 95110, (209)728-8905, fax (209) 728-8970, testing; water loss: materials, corrosion, and failure finance, insurance, and real estate consulting group e-mail: [email protected]. Website: www analysis of plumbing products; failure analysis: metal- (established 1973). Experienced litigation consultants/ .hrmconsulting.com. Contact Beth Brascugli De lurgy, product testing, and computerized stress experts include senior bankers, lenders, consultants, Lima, MBA, SPHR—CA. Expert witness Beth De analysis; accident reconstruction: automotive, trucks, economists, accountants, insurance underwriters Lima, has testified for both plaintiff and defense in the construction equipment, and premises liability. See /brokers. Specialties include: lending customs, prac- following areas: human resources standards of care, display ad on page 49. tices, policies, in all types of lending (real estate, busi- employment ADA accommodation, FEHA, FMLA, A & E FORENSICS ness/commercial, construction, consumer/credit CFRA, ADA & EEOC violations. Wrongful termination, 2121 Montiel Road, San Marcos, CA 92069, card), banking operations/administration, trusts and performance management, discrimination, sexual (877) 839-7302, fax (760) 480-7477, e-mail: steve investments, economic analysis and valuations/dam- harassment, exempt analysis, labor market assess- @aeforensics.com. Website: www.aeforensics.com. ages assessment, insurance claims, coverages and ment, and vocational evaluations. She holds national Contact Steve Norris, AIA, PE, GE, HG, CEG, bad faith, real estate development, brokerage, and California specific certification—Senior Profes- CASP, LEED. Architect, engineer, contractor—stan- appraisal, escrow, and title insurance. sional in Human Resource (SPHR-CA), certified medi- dard of care expert. Retained over 200 times, ator, and consulting since 1992. CMM, LLP deposed over 100 times, and testified in trial over 20 With offices in Woodland Hills and El Segundo, (818) EMPLOYMENT/WAGE EARNING times. Waterproofing, water intrusion, building enve- 986-5070, fax (818) 986-5034, e-mail: rschreiber lope, zoning setbacks, concrete performance, path of @cmmcpas.com. Website: www.cmmcpas.com. CAPACITY travel, structural analysis, earthquake-fire damage, and plan analysis. Landslides, retaining wall failure, Contact Robert Schreiber. Specialties: consultants RGL FORENSICS settlement, flooding, grading, septic, expansive soils, who provide extensive experience, litigation support, Orange County Office: 625 City Drive South, Suite mud flows, pavement distress, ground water evalua- and expert testimony regarding forensic accountants, 290, Orange, CA 92868, (714) 740-2100. Contact tion, and slope analysis. Cost estimates, construction fraud investigations, economic damages, business Hank Kahrs, [email protected], Alan Lurie, alurie management, delay analysis, and contracts. Serving valuations, family law, bankruptcy, and reorganiza- @rgl.com. San Diego Office: 11440 W Bernardo all California, Hawaii, and Oklahoma. See display ad tion. Degrees/licenses: CPAs, CFEs, MBAs. See dis- Court, Suite 300, San Diego, CA 92127, (619) 236- on page 53. play ad on page 43. 0377. Contact Rich Holstrom, [email protected]. FULCRUM INQUIRY RGL Forensics is an international firm of forensic EXPONENT 888 South Figueroa Street, Suite 2000, Los Angeles, financial experts exclusively dedicated to damage 5401 McConnell Avenue, Los Angeles, CA 90066, CA 90017, (213) 787-4100, fax (213) 891-1300, analysis, fraud investigation, and valuation. Serving (310) 754-2700, fax (310) 754-2799, e-mail: reza e-mail: [email protected]. Website: www.fulcrum the legal, insurance, and business communities for @exponent.com. Website: www.exponent.com. .com. Contact David Nolte. Our professionals are more than 30 years, the firm is unique in its ability to Contact Ali Reza. Specialties: fires and explosions, experienced CPAs, MBAs, ASAs, CFAs, affiliated combine investigative accounting, business valuation, metallurgy and mechanical engineering, structural professors, and industry specialists. Our analysis and fraud, and forensic technology expertise. For attor- and geotechnical, accident reconstruction and analy- research combined with unique presentation tech- neys, we discover and define financial value in trans- sis, human factors, risk and reliability assessment, niques have resulted in an unequaled record of suc- actions and civil and criminal disputes, and when toxicology and human health, biomechanics, electri- cessful court cases and client recoveries. Our exper- necessary provide expert witness testimony in court cal and semiconductors, aviation, materials science, tise encompasses damages analysis, loss profit and arbitration proceedings. For more information HVAC, energy consulting, construction defect, studies, business and intangible asset valuations, about RGL, please visit www.rgl.com. scheduling, environmental remediation, water quality fraud investigations, statistics, forensic economic and policy. ENGINEER/TRAFFIC analysis, royalty audits, strategic and market assess- SCS ENGINEERS ments, competitive surveys, analysis of computerized WILLIAM KUNZMAN, PE 3900 Kilroy Airport Way, Suite 100, Long Beach, data, injury and employment damages, and a wide 1111 Town and Country #34, Orange, CA 92868, CA 90806, (562) 426-9544, fax (562) 427-0805, range of other financial advisory services. Degrees/ (714) 904-2821, e-mail: [email protected]. e-mail: [email protected]. Website: www licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in Website: www.traffic-engineer.com. Contact .scsengineers.com. Contact Julio Nuno, VP. SCS accounting, finance, economics, and related sub- William Kunzman, PE. Traffic expert witness since provides expert witness services related to environ- jects. See display ad on back cover. 1979, both defense and plaintiff. Auto, pedestrian, mental studies and engineering, water resources, bicycle, and motorcycle accidents. Largest plaintiff solid waste and air quality and industrial hygiene and verdicts: 1) $12,200,000 in pedestrian accident case safety services. We are a 46-year old consulting firm against Caltrans, 2) $10,300,000 in case against Los with 68 offices across the US and nearly 800 employ- Angeles Unified School District. Largest settlement: ees. Our Long Beach office has more than 30 profes- $2,000,000 solo vehicle accident case against Cal- sional engineers, scientists, and subject matter

46 Los Angeles Lawyer November 2018 experts available on short notice to serve asbestos, ENVIRONMENTAL ENGINEER EXPERT REFERRAL SERVICE lead-based paint, and other specialty areas requiring expert witness services. WZI INC. (ENVIRONMENTAL PRO/CONSUL ENGINEERS) TECHNICAL AND MEDICAL EXPERTS ENVIRONMENTAL 1717 28th Street, Bakersfield, CA 93301, (661) 1945 Palo Verde Avenue, Suite 200, Long Beach, CA 326-1112, fax (661) 326-6480, e-mail: mjwilson 90815, (800) 392-1119, fax (562) 799-8821, e-mail: SCS ENGINEERS @wziinc.com. Website: www.wziinc.com. Contact [email protected]. Website: www.expertinfo.com. 3900 Kilroy Airport Way, Suite 100, Long Beach, Mary Jane Wilson. BS, petroleum engineering Contact Jesse De La Torre. Right expert right CA 90806, (562) 426-9544, fax (562) 427-0805, environmental assessor REPA 450065. Specialties away! We are listed and recommended by the A.M. e-mail: [email protected]. Website: www include regulatory compliance, petroleum, and Best Company. We welcome your rush cases! .scsengineers.com. Contact Julio Nuno, VP. SCS power generation. 15,000 medical and technical experts in over 3,000 provides expert witness services related to environ- fields, many in the Southern California area. Pro/Con- mental studies and engineering, water resources, ESCROW sul always strives to provide the best experts at a solid waste and air quality and industrial hygiene and reasonable cost, including medical doctors for IME’s, safety services. We are a 46-year old consulting firm ADVISORS/EXPERTS @ MCS biomechanical engineers, accident reconstruction, with 68 offices across the US and nearly 800 employ- ASSOCIATES electrical engineers, fire cause and origin, neuropsy- ees. Our Long Beach office has more than 30 profes- 17731 Irvine Boulevard, Suite 200, Tustin, CA chology, accounting and economics, materials and sional engineers, scientists, and subject matter 92780, (949) 263-8700, fax (949) 263-0770, metallurgy, engineering, plastics, appraisal and valua- experts available on short notice to serve asbestos, e-mail: [email protected]. Website: tion, construction, human factors, insurance, lighting, lead-based paint, and other specialty areas requiring www.mcsassociates.com. Contact Norman Katz, marine, mechanical, medical billing, roof, safety, expert witness services. managing partner. Nationally recognized banking, security, SOC, toxicology, MDs, RNs, etc. Free finance, insurance, and real estate consulting group resume binder. See display ad on page 51. THE REYNOLDS GROUP (established 1973). Experienced litigation consul- P.O. Box 1996, Tustin, CA 92781-1996, (714) tants/experts include senior bankers, lenders, TASA (A DIVISION OF THE TASA 730-5397, fax (714)730-6476, e-mail: edreynolds consultants, economists, accountants, insurance GROUP, INC.) @reynolds-group.com. Website: www underwriters/brokers. Specialties include: lending Providing Outstanding Local, National .reynolds-group.com. Contact Ed Reynolds, RCE, customs, practices, policies, in all types of lending and Global Experts in ALL Categories. Principal. An environmental consulting, and con- (real estate, business/commercial, construction, Plaintiff/Defense. Civil/Criminal. tracting firm. Expertise: environmental contamination, consumer/credit card), banking operations/adminis- Contact Deborah Morris. (800) 523-2319, fax (800) assessment, remediation, reasonable value of con- tration, trusts and investments, economic analysis 329-8272, e-mail: [email protected]. Website: struction, standard of care, and related financial mat- and valuations/damages assessment, insurance www.TASAnet.com. Since 1956, TASA has been ters. Degrees in Civil Engineering: USC (BS), Univer- claims, coverages and bad faith, real estate develop- your source for a variety of superior quality, indepen- sity of Houston (MS), (MBA) Harvard. California ment, brokerage, appraisal, escrow, and title dent testifying and consulting experts. We offer more Registered Civil Engineer, Licensed A, B, HAZ Califor- insurance. than 11,000 diverse categories of expertise and hard- nia Contractor. 30 years’ experience. Adjunct Faculty to-find specialties in technology, business, the arts, Member USC Viterbi School of Engineering Depart- and sciences, including 1,000+ medical areas ment of Civil and Environmental Engineering. through our sister company, TASAmed. Our experi-

Los Angeles Lawyer November 2018 47 enced referral advisors target your criteria and con- DR. FAYE AND ASSOCIATES RGL FORENSICS nect you with the experts available to discuss your 15650 Devonshire Street, Suite 210, Granada Hills, Orange County Office: 625 City Drive South, Suite case. There is no charge for our services until you CA 91344, (661) 476-9076, fax (661) 558-4164, 290, Orange, CA 92868, (714) 740-2100. Contact engage or designate an expert witness we refer. Visit e-mail: [email protected]. Website: www Hank Kahrs, [email protected], Alan Lurie, our website to search expert profiles by expertise key .DrFayeSnyder.com. Contact Dr. Faye. I, Dr. Faye [email protected]. San Diego Office: 11440 W word, order due diligence research reports on your Snyder, am offering expedient, high-quality child cus- Bernardo Court, Suite 300, San Diego, CA 92127, expert witness or opposing counsel’s, request an tody evaluations on a sliding scale. I am a psycholo- (619) 236-0377. Contact Rich Holstrom, expert through our online form. Explore the Knowl- gist and a marriage and family therapist, who [email protected]. RGL Forensics is an interna- edge Center to read expert-authored articles and founded a nonprofit agency 30 years ago that treats tional firm of forensic financial experts exclusively view archived webinars. While on our website, you high-conflict clients. I am the author of seven books dedicated to damage analysis, fraud investigation, can register for upcoming webinars and sign up to on parenting and assessment. I specialize in parental and valuation. Serving the legal, insurance, and busi- receive our electronic newsletters. Save $175 (admin alienation, domestic violence/anger management, ness communities for more than 30 years, the firm is fee) on your first expert witness designation with sexual abuse allegations, attachment, discipline and unique in its ability to combine investigative account- Promo Code: LA18. Be sure to check out our insert other parenting issues. Call me at 661-476-9076 or ing, business valuation, fraud, and forensic technol- and display ad in this issue! Please see our insert write [email protected]. ogy expertise. For attorneys, we discover and define in this issue and display ad on page 39. financial value in transactions and civil and criminal GURSEY | SCHNEIDER LLP disputes, and when necessary provide expert witness FAILURE ANALYSIS 1888 Century Park East, Suite 900, Los Angeles, CA testimony in court and arbitration proceedings. For 90067, (310) 552-0960, fax (310) 557-3468, 20355 more information about RGL, please visit www.rgl.com. 4X FORENSIC ENGINEERING Hawthorne Boulevard, First Floor, Torrance, CA LABORATORIES, INC. 90503, (310) 370-6122, fax (310) 370-6188, 2211 WHITE, ZUCKERMAN, WARSAVSKY, 5262 Oceanus Drive, Huntington Beach, CA 92649, Michelson Drive, Suite 830, Irvine, CA 92612, (949) LUNA & HUNT (714) 450-8500, fax (714) 450-8599, e-mail: phil 265-9900, fax (949) 265-9901, 50 California Street, 15490 Ventura Boulevard, Suite 300, Sherman Oaks, @4Xforensic.com. Website: www.4Xforensic.com. Suite 1320, San Francisco, CA 94111, (415)855- CA 91403, (818) 981-4226, fax (818) 981-4278, Contact Phil Van Herle. 4X Forensic Engineering 8400, fax (415) 855-8410, e-mail: [email protected] 4 Park Plaza, 2nd Floor, Irvine, CA 92614, (949) 219- Laboratories is a full-service forensic engineering lab- or [email protected]. Website: www.gursey 9816, fax (949) 219-9095, e-mail: expert@wzwlh oratory. We provide expert witness and analytical and .com. Contact Tina Fujisaki or Kristen L. Gille- .com. Website: www.wzwlh.com. Contact Barbara testing services in the following areas: fires and spie. Forensic accounting and litigation support ser- Luna. Expert witness testimony for complex litigation explosions: electrical and gas product defect investi- vices in all areas relating to marital dissolution, includ- involving damage analyses of lost profits, unjust gations, thermal and fire modeling and laboratory ing business valuation, tracing and apportionment of enrichment, reasonable royalties, lost earnings, lost testing; water loss: materials, corrosion, and failure real property and assets, net spendable evaluations, value of business, forensic accounting, fraud investi- analysis of plumbing products; failure analysis: metal- determination of gross cash flow available for support gation, investigative analysis of liability, and marital lurgy, product testing, and computerized stress and analysis of reimbursement claims and marital dissolution, and tax planning and preparation. Excel- analysis; accident reconstruction: automotive, trucks, standards of living. See display ad on page 47. lent communicators with extensive testimony experi- construction equipment, and premises liability. See ence. Prior Big Four accountants. Specialties include display ad on page 49. HAYNIE & COMPANY, CPAS accounting, breach of contract, breach of fiduciary 4910 Campus Drive, Newport Beach, CA 92660- duty, business interruption, business dissolution, KARS’ ADVANCED MATERIALS, INC. 2119, (949) 724-1880, fax (949) 724-1889, e-mail: construction defects, delays, and cost overruns, Testing and Research Labs, 2528 West Woodland [email protected]. Website: www fraud, insurance bad faith, intellectual property Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax .hayniecpa.com. Contact Steven C. Gabrielson. (including trademark, patent, and copyright infringe- (714) 527-7169, e-mail: [email protected]. Website: Consulting and expert witness testimony in a variety ment, and trade secrets), malpractice, marital disso- www.karslab.com. Contact Dr. Ramesh Kar, Dr. of practice areas: commercial damages, ownership lution, personal injury, product liability, real estate, Naresh Kar, Dr. Nikhil Kar. Southern California’s disputes, economic analysis, business valuation, lost securities, tax planning and preparation, IRS audit premier materials/mechanical/metallurgical/structural/ profits analysis, fraud/forensic investigations, taxation, defense, tracing, unfair advertising, unfair competi- forensics laboratory. Registered professional engi- personal injury, wrongful termination, and profes- tion, valuation of businesses, and wrongful termina- neers with 30+ years in metallurgical/forensic/struc- sional liability. tion. See display ad on page 45. tural/mechanical failure analysis. Experienced with automotive, bicycles, tires, fire, paint, plumbing, cor- KRYCLER, ERVIN, TAUBMAN, AND ZIVETZ, SCHWARTZ & SALTSMAN, CPAS rosion, and structural failures. We work on both plain- KAMINSKY 5990 Sepulveda Boulevard, Suite 650, Sherman tiff and defendant cases. Complete in-house capabili- 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA 91411, (310) 826-1040, fax (310) 826- ties for tests. Extensive deposition and courtroom Oaks, CA 91403, (818) 995-1040, fax (818) 995- 1065. Website: www.zsscpa.com. Contact Lester experience (civil and criminal investigations). Princi- 4124. Website: www.ketkcpa.com. Contact J. Schwartz, CPA/CFF DABFE, DABFA; Michael pals are Fellows of American Society for Metals and Michael J. Krycler. Litigation support, including D. Saltsman, CPA, MBA; Lynda R. Schauer, Fellows, American �College of Forensic Examiners. forensic accounting, business appraisals, family law CPA, CVA, CGMA; David L. Bass, CPA; David See display ad on page 53. accounting, business and professional valuations, Dichner, CPA; Sandy A. Green, CPA; Silva damages, fraud investigations, and lost earnings. Hakobyan, CPA; Troy Hoang, CPA. Accounting FAMILY LAW Krycler, Ervin, Taubman, and Kaminsky is a full-ser- experts in forensic accounting, tax issues, business vice accounting firm serving the legal community for valuations, and appraisals, marital dissolutions, emi- BRIAN LEWIS & COMPANY more than 25 years. See display ad on page 57. nent domain, insurance losses, business interruption, 10866 Wilshire Boulevard, 10the Floor, Los goodwill, economic analysis, investigative auditing, Angeles, CA 90024, (310) 446-2734, e-mail: brian PAMELA WAX-SEMUS, CFE WS ENTERPRISES loss of earning, commercial damages, and lost prof- @brianlewis-cpa.com. Contact Brian Lewis, CPA, its. Expert witness testimony preparation, settlement 107 North Reino Road, #402, Newbury Park, CA CVA. Forensic accounting, business valuations, and negotiations, and consultations. See display ad on 91320, (805) 499-3035, fax (805) 498-0468, cash spendable reports. page 41. e-mail: [email protected]. Website: www CMM, LLP .tracingqueen.net. Contact Pamela Wax-Semus, With offices in Woodland Hills and El Segundo, (818) CFE. I am experienced in most areas of litigation FEES & ETHICS 986-5070, fax (818) 986-5034, e-mail: rschreiber support services with a particular emphasis in tracing JOEL MARK @cmmcpas.com. Website: www.cmmcpas.com. of assets, real property allocation, stock option analy- 919 Box Canyon Trail, Palm Desert, CA 92211 (760) Contact Robert Schreiber. Specialties: consultants sis, reimbursements and related allocation issues. 200-4554, fax (760) 772-6665, e-mail: jmark4law who provide extensive experience, litigation support, I have vast experience not only in marital dissolution @gmail.com. Consulting/expert witness experience: and expert testimony regarding forensic accountants, matters. My expertise extends to trust and probate Ninety-five plus assignments in attorney fee disputes; fraud investigations, economic damages, business accountings, fraud, and other litigation-related attorney ethics, attorney malpractice (litigation). Spe- valuations, family law, bankruptcy, and reorganiza- matters. cialties include business litigation, intellectual prop- tion. Degrees/licenses: CPAs, CFEs, MBAs. See dis- erty, commercial law, professional liability, and bank- play ad on page 43. ing. Previous position/appointments: California State Bar Committee on Mandatory Fee Arbitration, Califor- nia State Bar Committee on Professional Responsibil-

48 Los Angeles Lawyer November 2018 ity and Conduct; appointed expert consultant by the Los Angeles County Superior Court, State Bar MFA Presiding Arbitrator (2009-2012); State Bar of Califor- nia Special Deputy Trial Counsel for Disciplinary Mat- ters (2010-present). Membership in professional societies: LACBA, State Bar of California. Degrees/ license: UC Berkeley (AB, 1969), UC Berkeley: Hast- ings College of Law (JD, 1972); Admitted California 1972, Colorado, 1994. FINANCIAL ADVISORS/EXPERTS @ MCS ASSOCIATES 17731 Irvine Boulevard, Suite 200, Tustin, CA 92780, (949) 263-8700, fax (949) 263-0770, e-mail: experts @mcsassociates.com. Website: www.mcsassociates .com. Contact Norman Katz, managing partner. Nationally recognized banking, finance, insurance, and real estate consulting group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Spe- cialties include: lending customs, practices, policies, in all types of lending (real estate, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and valuations/damages assessment, insurance claims, coverages and bad faith, real estate development, brokerage, appraisal, escrow, and title insurance. FULCRUM INQUIRY 888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: [email protected]. Website: www.fulcrum .com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research combined with unique presentation tech- niques have resulted in an unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis, loss profit studies, business and intangible asset valuations, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, competitive surveys, analysis of computerized data, injury and employment damages, and a wide range of other financial advisory services. Degrees/ licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, finance, economics, and related subjects. See display ad on back cover. HAYNIE & COMPANY, CPAS 4910 Campus Drive, Newport Beach, CA 92660- 2119, (949) 724-1880, fax (949) 724-1889, e-mail: [email protected]. Website: www .hayniecpa.com. Contact Steven C. Gabrielson. Consulting and expert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis, business valuation, lost profits analysis, fraud/forensic investigations, taxation, Confidence At The Courthouse. personal injury, wrongful termination, and professional liability. Business litigation is increasingly complex. That is why we believe valuation issues must be addressed with the same meticulous care FIRE/EXPLOSIONS as legal issues. Analysis must be clear. Opinions must be 4X FORENSIC ENGINEERING defensible. Expert testimony must be thorough and LABORATORIES, INC. articulate. HML has extensive trial experience and can 5262 Oceanus Drive, Huntington Beach, CA 92649, provide legal counsel with a powerful resource for expert (714) 450-8500, fax (714) 450-8599, e-mail: phil testimony and litigation support. @4Xforensic.com. Website: www.4Xforensic.com. Contact Phil Van Herle. 4X Forensic Engineering Laboratories is a full-service forensic engineering lab- For More Information Call 213-617-7775 oratory. We provide expert witness and analytical and Or visit us on the web at www.hmlinc.com testing services in the following areas: fires and explosions: electrical and gas product defect investi- BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS gations, thermal and fire modeling and laboratory testing; water loss: materials, corrosion, and failure

Los Angeles Lawyer November 2018 49 analysis of plumbing products; failure analysis: metal- e-mail: [email protected]. Website: www FORENSIC ANALYSIS lurgy, product testing, and computerized stress .tracingqueen.net. Contact Pamela Wax-Semus, analysis; accident reconstruction: automotive, trucks, CFE. I am experienced in most areas of litigation BRIAN LEWIS & COMPANY construction equipment, and premises liability. See support services with a particular emphasis in tracing 10866 Wilshire Boulevard, 10the Floor, Los Angeles, display ad on page 49. of assets, real property allocation, stock option analy- CA 90024, (310) 446-2734, e-mail: brian@brianlewis sis, reimbursements and related allocation issues. I -cpa.com. Contact Brian Lewis, CPA, CVA. Foren- FOOD SAFETY/HACCP have vast experience not only in marital dissolution sic accounting, business valuations, and cash spend- matters. My expertise extends to trust and probate able reports. FOOD SAFETY AND HACCP accountings, fraud, and other litigation-related mat- COMPLIANCE ters. GEOTECHNICAL ENGINEERING 20938 De Mina Street, Woodland Hills, CA 91364, (818) 703-7147, e-mail: [email protected]. Website: RGL FORENSICS A & E FORENSICS www.foodsafetycoach.com. Contact Jeff Nelken, Orange County Office: 625 City Drive South, Suite 2121 Montiel Road, San Marcos, CA 92069, (877) BS, MA. Master allergy trainer and forensic food 290, Orange, CA 92868, (714) 740-2100. Contact 839-7302, fax (760) 480-7477, e-mail: steve safety expert knowledgeable in both food safety, Hank Kahrs, [email protected], Alan Lurie, @aeforensics.com. Website: www.aeforensics.com. accident prevention and hazard analysis critical con- [email protected]. San Diego Office: 11440 W Contact Steve Norris, AIA, PE, GE, HG, CEG, trol point program development. Specializes in expert Bernardo Court, Suite 300, San Diego, CA 92127, CASP, LEED. Architect, engineer, contractor— witness testimony and litigation consultant in matters (619) 236-0377. Contact Rich Holstrom, standard of care expert. Retained over 200 times, regarding food safety, Q.A., standards of perfor- [email protected]. RGL Forensics is an interna- deposed over 100 times, and testified in trial over 20 mance, HACCP, crisis management, food-borne ill- tional firm of forensic financial experts exclusively times. Waterproofing, water intrusion, building enve- ness, burns, foreign object, accidents, health depart- dedicated to damage analysis, fraud investigation, lope, zoning setbacks, concrete performance, path of ment representation, food spoilage, allergy, and valuation. Serving the legal, insurance, and busi- travel, structural analysis, earthquake-fire damage, intentional contamination and customer complaints. ness communities for more than 30 years, the firm is and plan analysis. Landslides, retaining wall failure, Performs inspections, vendor audits, site visits, unique in its ability to combine investigative account- settlement, flooding, grading, septic, expansive soils, reviews Health Department and third party inspec- ing, business valuation, fraud, and forensic technol- mud flows, pavement distress, ground water evaluations, training and public speaking. Hands-on food ogy expertise. For attorneys, we discover and define tion, and slope analysis. Cost estimates, construction safety consultant for restaurants, manufacturers, dis- financial value in transactions and civil and criminal management, delay analysis, and contracts. Serving tributors, country clubs, schools, nursing homes, and disputes, and when necessary provide expert witness all California, Hawaii, and Oklahoma. See display ad casinos. NRA SERVSAFE certified instructor. Thirty testimony in court and arbitration proceedings. For on page 53. years of food and hospitality experience. 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As a consulting 1888 Century Park East, Suite 900, Los Angeles, CA involving damage analyses of lost profits, unjust mechanical engineer, Bill has more than 40 years of 90067, (310) 552-0960, fax (310) 557-3468, e-mail: enrichment, reasonable royalties, lost earnings, lost experience as a professional engineer and is a recog- [email protected] or [email protected]. Web- value of business, forensic accounting, fraud investi- nized expert in assessing, evaluating, remediating, site: www.gursey.com. Contact Tina Fujisaki or gation, investigative analysis of liability, and marital and providing testimony on complex project design, Kristen L. Gillespie. Gursey | Schneider specializes dissolution, and tax planning and preparation. Excel- construction, and operation matters. His consulting in forensic accounting and litigation support services lent communicators with extensive testimony experi- expertise has been influential in shaping approaches in the areas of civil litigation, business disputes, bank- ence. Prior Big Four accountants. Specialties include to code compliance and life safety in semiconductor ruptcy, damage and cost-profit insurance claims, accounting, breach of contract, breach of fiduciary and similar advanced technology facilities. He repre- court accountings, fraud investigations, accounting duty, business interruption, business dissolution, sents both plaintiffs and defendants. See display ad malpractice, intellectual property, construction, gov- construction defects, delays, and cost overruns, on page 37. ernment accounting, and entertainment litigation. fraud, insurance bad faith, intellectual property Gursey | Schneider has over 40 years of experience (including trademark, patent, and copyright infringe- INSURANCE as expert witnesses in accounting related matters. ment, and trade secrets), malpractice, marital disso- See display ad on page 47. lution, personal injury, product liability, real estate, ADVISORS/EXPERTS @ MCS securities, tax planning and preparation, IRS audit ASSOCIATES PAMELA WAX-SEMUS, CFE defense, tracing, unfair advertising, unfair competi- 17731 Irvine Boulevard, Suite 200, Tustin, CA 92780, WS ENTERPRISES tion, valuation of businesses, and wrongful termina- (949) 263-8700, fax (949) 263-0770, e-mail: experts 107 North Reino Road, #402, Newbury Park, CA tion. See display ad on page 45. @mcsassociates.com. Website: www.mcsassociates 91320, (805) 499-3035, fax (805) 498-0468, .com. Contact Norman Katz, managing partner.

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Contact Daryl 1970 Broadway #830, Oakland, CA 94612, (510) ment, insurance claims, coverages and bad faith, real Martin, managing principal. Since 2000, IPMetrics 832-2583, fax (510) 839-8642. Website: www.njp estate development, brokerage, appraisal, escrow, LLC has specialized in intellectual property consulting .com. Contact Lois Heaney. Jury consulting ser- and title insurance. encompassing valuation, infringement damages vices including jury selection, mock trials and focus assessment, and monetization services. Contact us groups, survey research, venue evaluation, witness LOLA HOGAN INSURANCE for projects related to patent, trademark, and copy- preparation, theme development and case presenta- CONSULTING, LLC right infringement damages and contract disputes, as tion. Expert testimony experience on voir dire issues, 1149 Seaview Avenue, Pacific Grove, CA 93950, well as rights of publicity and trade secret issues. venue and jury composition. More than 40 years of (831) 402-4069, e-mail: [email protected]. Services include assisting counsel in the preparation experience in state and federal civil and criminal Website: www.lolahogan.com. Contact Lola of damages cases, including initial discovery cases. Hogan, CPCU ARM ARe. Claims handling— requests, drafting of declarations, participation in property casualty. Commercial and personal lines, arbitration/mediation, reporting on economic dam- LITIGATION SUPPORT bad faith, duty to defend. ages, rebutting opposing experts, and preparing counsel for opposing expert depositions. SQUAR & ASSOCIATES MITCHELL L. LATHROP 1001 Dove Street, Suite 100, Newport Beach, CA 600 West Broadway, Suite 500, San Diego, CA SMITH DICKSON, AN ACCOUNTANCY 92660, (714) 825-0300, Cell (949) 375-4388, fax 92101-3357, (619) 955-5951, fax (619) 566-4034, CORPORATION (866) 810-9223, e-mail: rsquar@squarassociates e-mail: [email protected]. Website: www 18100 Von Karman Avenue, Suite 420, Irvine, .com. Website: www.squarassociates.com. Contact .LathropADR.com. Contact Mitchell L. Lathrop. CA 92612, (949) 553-1020, fax (949) 553-0249, Richard M. Squar. Squar & Associates provides Expert consulting and testimony in insurance matters, e-mail: [email protected]. Website: superior litigation support and tax services, including including claim handling, bad faith, standard of care, www.smithdickson.com. Contact Deborah expert witness testimony, strategy development, property and casualty, D&O, primary and excess, and Dickson, CPA, CFF, MAFF. CPA 30+ years, testify- document discovery, deposition assistance, compu- reinsurance disputes. Also, lawyers’ professional ing 20+ years, forensic accounting and litigation sup- tation of damages, arbitration consulting, forensic responsibility, and malpractice. Curriculum vitae will port. Forensic expert witness in Federal Courts and accounting, rebuttal testimony, fiduciary accountings, be supplied upon request. Over 50 years of experi- State Civil and Probate Courts. The professionals at and trial exhibit preparation. Our areas of expertise ence. Former Presiding Referee of the State Bar Smith Dickson clearly, independently, and accurately include loss of earnings analysis, breach of contract, Court. A.M. Best recommended expert. analyze financial information, calculate damages, partnership dissolution, reconstruction of accounting evaluate claims, prepare expert reports and render records, embezzlement and fraud, contract costs, JANICE A. RAMSAY, ATTORNEY expert testimony. Thousands of hours of forensic lost profits, damage computations, and malpractice 5 Saros, Irvine, CA 92603, (949) 854-9375, fax (949) accounting, deposition and trial experience. Damage cases. Our practice focuses on closely held entrepre- 854-9375, e-mail: [email protected]. Website: www calculations; lost profits; forensic accounting; expert neurial firms in a wide variety of industries. See dis- .JaniceARamsay.com. Contact Janice A. Ramsay. testimony; intellectual property; fraud & embezzle- play ad on page 43. Property insurance consultation and testimony as to ment; real estate; trust & estate beneficiary disputes, the customs and practices of the insurance industry tax controversy; business valuations; business LOSS CARE PLAN/LOSS EARNINGS in handling property insurance claims in insurance dissolution. bad faith cases. RGL FORENSICS WHITE, ZUCKERMAN, WARSAVSKY, Los Angeles Office: 811 Wilshire Boulevard, Suite INTELLECTUAL PROPERTY LUNA & HUNT 1747, Los Angeles, CA 90017, (213) 996-0900. 15490 Ventura Boulevard, Suite 300, Sherman Oaks, Orange County Office: 625 City Drive South, Suite CONSOR IP CONSULTING AND CA 91403, (818) 981-4226, fax (818) 981-4278, 290, Orange, CA 92868, (714) 740-2100. Contact VALUATION 4 Park Plaza, 2nd Floor, Irvine, CA 92614, (949) 219- Hank Kahrs, [email protected], Alan Lurie, 7342 Girard Avenue, Suite 8, La Jolla, CA 92037, 9816, fax (949) 219-9095, e-mail: expert@wzwlh [email protected]. San Diego Office: 11440 W (858) 454-9091, fax (858) 454-7819, e-mail: info .com. Website: www.wzwlh.com. Contact Barbara Bernardo Court, Suite 300, San Diego, CA 92127, @consor.com. Website: www.consor.com. Contact Luna. Expert witness testimony for complex litigation (619) 236-0377. Contact Rich Holstrom, rhol- Jeff Anderson or Weston Anson. CONSOR IP involving damage analyses of lost profits, unjust [email protected]. RGL Forensics is an international Consulting and Valuation has been a global industry enrichment, reasonable royalties, lost earnings, lost firm of forensic financial experts exclusively dedicated leader in intellectual property valuation, expert wit- value of business, forensic accounting, fraud investi- to damage analysis, fraud investigation, and valua- ness services, monetization assistance, licensing gation, investigative analysis of liability, and marital tion. Serving the legal, insurance, and business com- strategies and more for the last 30 years. Our dissolution, and tax planning and preparation. Excel- munities for more than 30 years, the firm is unique in experts use real-world evidence and marketing crite- lent communicators with extensive testimony experi- its ability to combine investigative accounting, busi- ria to help our intellectual property clients reach their ence. Prior Big Four accountants. 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For more FULCRUM INQUIRY (including trademark, patent, and copyright infringe- information about RGL, please visit www.rgl.com. ment, and trade secrets), malpractice, marital disso- 888 South Figueroa Street, Suite 2000, Los Angeles, lution, personal injury, product liability, real estate, CA 90017, (213) 787-4100, fax (213) 891-1300, MARKETING securities, tax planning and preparation, IRS audit e-mail: [email protected]. Website: www.fulcrum defense, tracing, unfair advertising, unfair competi- DR. MICHAEL A. KAMINS - DRUCKER .com. Contact David Nolte. Our professionals are tion, valuation of businesses, and wrongful termina- SCHOOL OF MANAGEMENT, experienced CPAs, MBAs, ASAs, CFAs, affiliated tion. See display ad on page 45. CLAREMONT UNIVERSITY professors, and industry specialists. 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52 Los Angeles Lawyer November 2018 celebrity identity inclusive of cases involving President Trump (Trump University), Jay-Z, the rock group Boston, Taylor Swift, and The Doors as well as Sam- sung vs. Apple. Rate for deposition, trial and consultation at $695/hr. and a 10 hour retainer. MARRIAGE DISSOLUTION RGL FORENSICS Los Angeles Office: 811 Wilshire Boulevard, Suite 1747, Los Angeles, CA 90017, (213) 996-0900. Orange County Office: 625 City Drive South, Suite 290, Orange, CA 92868, (714) 740-2100. Contact Hank Kahrs, [email protected], Alan Lurie, [email protected]. San Diego Office: 11440 W Bernardo Court, Suite 300, San Diego, CA 92127, (619) 236-0377. Contact Rich Holstrom, rholstrom @rgl.com. RGL Forensics is an international firm of forensic financial experts exclusively dedicated to damage analysis, fraud investigation, and valuation. Serving the legal, insurance, and business communities for more than 30 years, the firm is unique in its ability to combine investigative accounting, business A & E FORENSICS valuation, fraud, and forensic technology expertise. For attorneys, we discover and define financial value AIA, PE, GE, CEG, GBC, CASp in transactions and civil and criminal disputes, and Steven B. Norris, when necessary provide expert witness testimony in 2121 Monel Road San Marcos, CA 92069 (877) 839-7302 court and arbitration proceedings. For more information about RGL, please visit www.rgl.com. ■ ARCHITECTURE ■ C O N S T RUCTION ■ ADA MECHANICAL ENGINEERING 4X FORENSIC ENGINEERING ■ GEOTECHNICAL ■ CIVIL ■ STRUCTURAL LABORATORIES, INC. ENGINEERING ENGINEERING ENGINEERING 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) 450-8500, fax (714) 450-8599, e-mail: phil @4Xforensic.com. Website: www.4Xforensic.com. www.aeforensics.com Contact Phil Van Herle. 4X Forensic Engineering Laboratories is a full-service forensic engineering laboratory. We provide expert witness and analytical and testing services in the following areas: fires and explosions: electrical and gas product defect investigations, thermal and fire modeling and laboratory testing; water loss: materials, corrosion, and failure analysis of plumbing products; failure analysis: metallurgy, product testing, and computerized stress analysis; accident reconstruction: automotive, trucks, construction equipment, and premises liability. See display ad on page 49. ACORN CONSULTING SERVICES, LLC 10617 North Hayden Road, Suite B-108, Scottsdale, AZ 85260, (602) 888-7250, fax (520) 577-0851, e-mail: [email protected]. Website: www. acornconsultingengineer.com. Contact William R. Acorn. William Acorn is founder and principal of Acorn Consulting Services, LLC. As a consulting mechanical engineer, Bill has more than 40 years of experience as a professional engineer and is a recognized expert in assessing, evaluating, remediating, and providing testimony on complex project design, construction, and operation matters. His consulting expertise has been influential in shaping approaches to code compliance and life safety in semiconductor and similar advanced technology facilities. He repre- sents both plaintiffs and defendants. See display ad on page 37. MEDICAL MRK MEDICAL CONSULTANTS 6555 Coyle Avenue, Suite 235, Carmichael, CA 95608, (800) 403-1647. Website: www .mrkmedconsultants.com. Contact Edward Younger, III, MD., Medical Director. Board certified in orthopedic surgery. With over 30 consultant specialists, MRK provides expert witness services throughout California. Our consultants are dedicated

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We work on both times and reviewed more than 1,500 cases, including and witness since 1978 (both defense and plaintiff). plaintiff and defendant cases. Complete in-house Medicare audits for the government. See display ad Expertise/research: musculoskeletal, neuromuscular, capabilities for tests. Extensive deposition and court- on page 49. peripheral and central nervous system disorders room experience (civil and criminal investigations). (CVA, TBI, SCI, CP, MS, peripheral neuropathy), bot- MRK MEDICAL CONSULTANTS Principals are Fellows of American Society for Metals ulinum toxin on nerve & muscle, and clinical applica- and Fellows, American College of Forensic Examin- 6555 Coyle Avenue, Suite 235, Carmichael, tions of electrical stimulation. ers. See display ad on page 53. CA 95608, (800) 403-1647. Website: www .mrkmedconsultants.com. Contact Edward

54 Los Angeles Lawyer November 2018 METALLURGY EAG, INC. (FORMERLY SEAL LABORATORIES) 250 North Nash Street, El Segundo, CA 90245, ( 310) 322-2011, fax (310) 322-2243. Website: www .eag.com. Contact Dr. Arun Kumar at akumar @eag.com or Thomas Tan at [email protected]. EAG performs metallurgical analysis and failure analysis investigations of various metallic and non- metallic products and components used in the aerospace, transportation, consumer products, construction and medical device industries. Additionally, we assist our clients with product design, materials selection, product improvement and quality assur- ance programs involving metallurgical issues. From routine metallurgical testing to complex consulting, EAG ensures the highest standard of quality for metallurgical evaluations.

KARS’ ADVANCED MATERIALS, INC. REAL ESTATE DISPUTE CONSULTING Testing and Research Labs, 2528 West Woodland Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527-7169, e-mail: [email protected]. Website: ARONZOF SSOCIATES www.karslab.com. Contact Dr. Ramesh Kar, Dr. W A MAI, CRE, FRICS Naresh Kar, Dr. Nikhil Kar. Southern California’s Timothy R. Lowe, premier materials/mechanical/metallurgical/structural /forensics laboratory. Registered professional engi- •economic damages • neers with 30+ years in metallurgical/forensic/struc- lease disputes tural/mechanical failure analysis. Experienced with •fair compensation •land use disputes automotive, bicycles, tires, fire, paint, plumbing, cor- •property valuation •partnership interest value rosion, and structural failures. We work on both plaintiff and defendant cases. Complete in-house capabili- •lost profits •reorganization plan feasibility ties for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Princi- Waronzof Associates, Incorporated 310.322.7744 T 424.285.5380 F pals are Fellows of American Society for Metals and 400 Continental Boulevard, Sixth Floor [email protected] Fellows, American�College of Forensic Examiners. El Segundo, CA 90245 www.waronzof.com See display ad on page 53. METEOROLOGY AIR, WEATHER, AND SEA CONDITIONS, INC. P.O. Box 512, Pacific Palisades, CA 90272, (818) 645-8632, fax (310) 454-6530, e-mail: [email protected]. Website: www.weatherman .org. Contact Jay Rosenthal, AMS Certified Consulting Meteorologist (CCM). Experienced and authoritative expert testimony, reports and analyses of wind, rain, storms, fog, ice, lightning, climatic conditions, flooding, waves, specialist in wildfires, ice, dust, auto/boat/ship/aircraft accident reconstruction, property damage, slip and falls, construction, mold issues, homeland security applications, air pollution, transport, and risk identification. Movie industry applications, cinematography, and visual effects. Deter- mining unusualness, normalcy, and foreseeability. Official data, site visits, clear and convincing testimony. See display ad on page 57. ORTHOPEDIC SURGEON MRK MEDICAL CONSULTANTS 6555 Coyle Avenue, Suite 235, Carmichael, CA 95608, (800) 403-1647. Website: www .mrkmedconsultants.com. Contact Edward Younger, III, MD., Medical Director. Board certified in orthopedic surgery. With over 30 consultant specialists, MRK provides expert witness services throughout California. Our consultants are dedicated to maintaining the highest standards of objective review and analysis of personal injury cases. MRK coordinates the scheduling and report process and has physicians available to help you determine your expert witness needs.

Los Angeles Lawyer November 2018 55 RICHARD C. ROSENBERG, MD WHITE, ZUCKERMAN, WARSAVSKY, PLASTICS BOARD CERTIFIED ORTHOPEDIC LUNA & HUNT KARS’ ADVANCED MATERIALS, INC. SURGERY 15490 Ventura Boulevard, Suite 300, Sherman Oaks, Testing and Research Labs, 2528 West Woodland 18370 Burbank Boulevard, #614 Tarzana, CA CA 91403, (818) 981-4226, fax (818) 981-4278, Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax 91356, (818) 996-6800, fax (818) 996-2929, e-mail: 4 Park Plaza, 2nd Floor, Irvine, CA 92614, (949) 219- (714) 527-7169, e-mail: [email protected]. Website: [email protected]. Website: www 9816, fax (949) 219-9095, e-mail: expert@wzwlh www.karslab.com. Contact Dr. Ramesh Kar, Dr. .drrosenberg.com. Orthopedic surgery & sports med- .com. Website: www.wzwlh.com. Contact Barbara Naresh Kar, Dr. Nikhil Kar. Southern California’s icine; Experienced in IME, QME, AME evaluations. Luna. Expert witness testimony for complex litigation premier/materials/mechanical/metallurgical/struc- Medical/legal reports and expert testimony. Personal involving damage analyses of lost profits, unjust tural/forensics laboratory. Registered professional injury and workers’ compensation. Satellite offices in enrichment, reasonable royalties, lost earnings, lost engineers with 30+ years in metallurgical/forensic/ Oxnard and Santa Ana, California. value of business, forensic accounting, fraud investi- structural/mechanical failure analysis. Experienced gation, investigative analysis of liability, and marital with automotive, bicycles, tires, fire, paint, plumbing, WILLIAM B. STETSON, MD dissolution, and tax planning and preparation. Excel- corrosion, and structural failures. We work on both 191 South Buena Vista Street, Suite 470, Burbank, lent communicators with extensive testimony experi- plaintiff and defendant cases. Complete in-house CA 91505, (818) 848-3030, fax (818) 848-2228, e- ence. Prior Big Four accountants. Specialties include capabilities for tests. Extensive deposition and court- mail: [email protected]. Website: www accounting, breach of contract, breach of fiduciary room experience (civil and criminal investigations). .sportsmedicinedr.com. Contact W. Stetson, MD. duty, business interruption, business dissolution, Principals are Fellows of American Society for Metals Dr. Stetson is fellowship trained in arthroscopic construction defects, delays, and cost overruns, and Fellows, American College of Forensic Examin- surgery of the shoulder, knee, elbow, and ankle. He fraud, insurance bad faith, intellectual property ers. See display ad on this page 53. is an Associate Clinical Professor of orthopedic (including trademark, patent, and copyright infringe- surgery at the USC Keck School of Medicine. He also ment, and trade secrets), malpractice, marital disso- has extensive experience in sports medicine and lution, personal injury, product liability, real estate, PLUMBING orthopedic trauma. securities, tax planning and preparation, IRS audit 4X FORENSIC ENGINEERING defense, tracing, unfair advertising, unfair competi- LABORATORIES, INC. PEDIATRIC EXPERT WITNESS tion, valuation of businesses, and wrongful termina- 5262 Oceanus Drive, Huntington Beach, CA 92649, tion. See display ad on page 45. MICHAEL WEINRAUB, MD, FAAP (714) 450-8500, fax (714) 450-8599, e-mail: phil 777 South Figueroa Street, Suite 650, Los Angeles, ZIVETZ, SCHWARTZ & SALTSMAN, CPAS @4Xforensic.com. Website: www.4Xforensic.com. CA 90017, (213) 335-6512, fax (213) 335-6517, 5990 Sepulveda Boulevard, Suite 650, Sherman Contact Phil Van Herle. 4X Forensic Engineering e-mail: [email protected]. Website: Oaks, CA 91411, (310) 826-1040, fax (310) 826- Laboratories is a full-service forensic engineering lab- www.michaelweinraubmd.com. Contact Dr. 1065. Website: www.zsscpa.com. Contact Lester oratory. We provide expert witness and analytical and Michael Weinraub. Experience in general pediatrics J. Schwartz, CPA/CFF DABFE, DABFA; Michael testing services in the following areas: fires and applied to legal matters involving children. Board Cer- D. Saltsman, CPA, MBA; Lynda R. Schauer, explosions: electrical and gas product defect investi- tified Pediatrician. Child abuse and neglect, Mun- CPA, CVA, CGMA; David L. Bass, CPA; David gations, thermal and fire modeling and laboratory chausen syndrome by proxy, shaken baby syndrome Dichner, CPA; Sandy A. Green, CPA; Silva testing; water loss: materials, corrosion, and failure (SBS), lead poisoning, fetal alcohol spectrum disorder Hakobyan, CPA; Troy Hoang, CPA. Accounting analysis of plumbing products; failure analysis: metal- (FASD), pediatric malpractice, childhood injury and experts in forensic accounting, tax issues, business lurgy, product testing, and computerized stress product liability, developmental disabilities (autism), valuations, and appraisals, marital dissolutions, emi- analysis; accident reconstruction: automotive, trucks, healthcare of foster children, and adoption/custody nent domain, insurance losses, business interruption, construction equipment, and premises liability. See evaluation for health supervision concerns. goodwill, economic analysis, investigative auditing, display ad on page 49. loss of earning, commercial damages, and lost prof- ACORN CONSULTING SERVICES, LLC PERSONAL INJURY its. Expert witness testimony preparation, settlement 10617 North Hayden Road, Suite B-108, Scottsdale, negotiations, and consultations. See display ad on KGA, INC. AZ 85260, (602) 888-7250, fax (520) 577-0851, page 41. 1409 Glenneyre Street, Suite A, Laguna Beach, CA e-mail: [email protected]. Website: www 92651, (949) 497-6000, fax (949) 494-4893, e-mail: PLASTIC AND COSMETIC .acornconsultingengineer.com. Contact William R. [email protected]. Website: www.kgainc.com. Acorn. William Acorn is founder and principal of Contact Kurt Grosz. Construction and environmen- RECONSTRUCTIVE SURGERY Acorn Consulting Services, LLC. As a consulting mechanical engineer, Bill has more than 40 years of tal consultants since 1991. Licensed engineers and BRENT MOELLEKEN, MD, FACS contractors. ICC building, plumbing, mechanical, experience as a professional engineer and is a recog- Beverly Hills office, 120 South Spalding Drive, Suite concrete, and accessibility inspectors. Certified pro- nized expert in assessing, evaluating, remediating, 110, Beverly Hills, CA 90212, (310) 273-1001, fax fessional estimators. Trial experts, arbitrators, and and providing testimony on complex project design, (310) 205-4881. Santa Barbara office, 601 East insurance appraisers/umpires. construction, and operation matters. His consulting Arrellaga Street, Suite 103, Santa Barbara, CA. expertise has been influential in shaping approaches RGL FORENSICS 93103, (805) 798-9299. Website: www.drbrent.com. to code compliance and life safety in semiconductor Los Angeles Office: 811 Wilshire Boulevard, Suite Contact Mallery. IME, deposition, trial experience, and similar advanced technology facilities. He repre- 1747, Los Angeles, CA 90017, (213) 996-0900. medical record review, plastic and reconstruction sents both plaintiffs and defendants. See display ad Orange County Office: 625 City Drive South, Suite surgery, accident reconstructions, microsurgical on page 37. 290, Orange, CA 92868, (714) 740-2100. Contact nerve repairs, dog bite reconstructions, and laser Hank Kahrs, [email protected], Alan Lurie, scar services. Associate Clinical Professor of Surgery, PODIATRY—FOOT SPECIALIST [email protected]. San Diego Office: 11440 W UCLA Division of Plastic Surgery. Bernardo Court, Suite 300, San Diego, CA 92127, STEVEN L. ROSENBERG, DPM (619) 236-0377. Contact Rich Holstrom, PLASTIC SURGERY/BURN 2901 Wilshire Boulevard, Suite 110, Santa Monica, [email protected]. RGL Forensics is an interna- SPECIALIST CA 90403, (310) 828-3336, fax (310) 828-0096, tional firm of forensic financial experts exclusively e-mail: [email protected]. Website: www dedicated to damage analysis, fraud investigation, JEFFREY L. ROSENBERG, MD .rosenbergstevendpm.com. Expert witness, plaintiff and valuation. Serving the legal, insurance, and busi- 1245 Wilshire Boulevard, Suite 601, Los Angeles, and defense, IME, podiatric surgery, medicine, sports ness communities for more than 30 years, the firm is CA 90017, (213) 977-0257, fax (213) 977-0501, medicine, trauma injuries, and pain management. unique in its ability to combine investigative account- e-mail: [email protected]. Website: www Second opinion reports, x-ray review, and evalua- ing, business valuation, fraud, and forensic technol- .jrosenbergmd.com. Contact Wendy. Plastic and tions. Treating all ages, infants, children and adults. ogy expertise. For attorneys, we discover and define reconstructive surgery, burn specialist. Diplomate, Over 36 years of experience. financial value in transactions and civil and criminal American Board of Plastic Surgery. Member, Ameri- disputes, and when necessary provide expert witness can Burn Association and American Society of Plastic testimony in court and arbitration proceedings. For Surgeons. Past-President, California Society of Plas- more information about RGL, please visit www.rgl tic Surgeons. Asst. Clinical Professor of Plastic .com. Surgery, USC.

56 Los Angeles Lawyer November 2018 POLYGRAPH estate development, brokerage, appraisal, escrow, and title insurance. LOUIS ROVNER, PHD/POLYGRAPH WEST CANTERBURY LAW GROUP 815 Moraga Drive, Los Angeles, CA 90049, (818) 14300 North Northsight Boulevard, Suite 129, 340-6963, e-mail: [email protected]. Web- Scottsdale, AZ 85260, 480) 240-0040, fax (480) site: www.Polygraph-West.com. Your clients need 656-5966, e-mail: [email protected]. Website: an expert, not a technician. Dr. Rovner has an inter- www.craigcherney.com. Contact Craig Cherney. national reputation for expertise and integrity. He Real estate expert witness in land acquisition, pro- has testified numerous times in criminal and civil fessional land management, land entitlements, zon- courts in California and other states. He is a widely ing, due diligence, title policies, closings, fiduciary published author, a credentialed scientist, and has duties of loyalty, diligence and full disclosure, run conducted thousands of polygraph tests. Former pro forma analytics, joint venture and land manager university professor (Psychology and Statistics), expert. Expert in fiduciary standards of care when Instructor at two polygraph schools. Extensive managing third party real estate capital toward the knowledge of polygraph research. PhD in Psychol- highest and best use of land whether vacant, enti- ogy, full member American Psychological Associa- tled, partially improved, or fully improved. tion, American Psychology and Law Society, Ameri- SAMUEL K. FRESHMAN, BA, JD can Polygraph Association. Over 35 years of 5901 West Century Boulevard, Suite 1010, Los experience. Call for current CV. Angeles, CA 90045, (310) 410-2300, fax (310) 410- PSYCHOLOGY/PSYCHOLOGICAL 2919. Contact Samuel K. Freshman. Attorney and real estate broker since 1956, banker, professor legal ASSESSMENT malpractice, arbitration, brokerage malpractice, JUDY HO, PHD, ABPP, CFMHE leases, syndication, construction, property manage- LICENSED CLINICAL PSYCHOLOGIST ment, finance, due diligence, conflict of interest, title insurance, banking, escrow, and development. Tenured Associate Professor at Pepperdine Univer- Expert witness 30-plus years in state and federal sity; Diplomate, American Board of Professional Psy- courts. Twenty-one published articles, arbitrator and chology; Diplomate, National Board of Forensic Eval- mediator, general partner $300,000,000+, shopping uators. Office: 1600 Rosecrans Avenue, Media centers, apartments, and industrial property. JD Center 4th Floor, Manhattan Beach, CA 90266. (310) Stanford (1956). See display ad on page 55. 745-8887, e-mail: [email protected]. Website: www.drjudyho.com. Dr. Ho conducts forensic, neu- LAWRENCE H. JACOBSON, ESQ. ropsychological, and Independent Medical Evalua- 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, tions and provides expert testimony regarding psy- CA 90212, (310) 271-0747, fax (310) 271-0757, chological testing methods, results, and conclusions e-mail: [email protected]. Website: www for civil & criminal proceedings, including 1) personal .lawrencejacobson.com. Past President, Beverly injury (including psychological injury and traumatic Hills Bar Association. Expert witness: lawyer mal- brain injury claims), 2) fitness for duty, 3) employ- practice in business and real estate transactions, ment/discrimination/wrongful termination cases, 4) fee disputes, standard of care for real estate bro- sexual assault and trauma cases, 5) professional kers and mortgage brokers, and real estate docu- licensing disputes, and 6) assessment of compe- ment custom and usage. Practicing real estate and tency, risk, and psychological state/functioning at business law in California since 1968. See display time of criminal offense. Dr. Ho is a member of the ad on page 53. International Neuropsychological Society, National Academy of Neuropsychology, and Division 40 (Soc. THE REYNOLDS GROUP for Clin Neuropsych) and 41 (American Psych-Law P.O. Box 1996, Tustin, CA 92781-1996, (714) Soc.) of the American Psychological Association. Dr. 730-5397, fax (714)730-6476, e-mail: edreynolds Ho is a two-time recipient of the National Institute of @reynolds-group.com. Website: www.reynolds Mental Health National Services Research Award, -group.com. Contact Ed Reynolds, RCE, Princi- and the chair of the Institutional Review Board at pal. An environmental consulting, and contracting Pepperdine University. She conducts clinical and firm. Expertise: environmental contamination, assess- community research on mental health, publishes ment, remediation, reasonable value of construction, empirical studies, book chapters, and books, and is a standard of care, and related financial matters. frequent invited speaker at various national and local Degrees in Civil Engineering: USC (BS), University of conferences and media outlets. A list of her retained Houston (MS), (MBA) Harvard. California Registered cases are available upon request. Civil Engineer, Licensed A, B, HAZ California Con- tractor. 30 years’ experience. Adjunct Faculty Mem- REAL ESTATE ber USC Viterbi School of Engineering Department of Civil and Environmental Engineering. ADVISORS/EXPERTS @ MCS ASSOCIATES WARONZOF ASSOCIATES, INC. 17731 Irvine Boulevard, Suite 200, Tustin, CA 92780, 400 Continental Boulevard, Sixth Floor, El Segundo, (949) 263-8700, fax (949) 263-0770, e-mail: experts CA 90245, (310) 322-7744, fax (424) 285-5380. @mcsassociates.com. Website: www.mcsassociates Website: www.waronzof.com. Contact Timothy R. .com. Contact Norman Katz, managing partner. Lowe, MAI, CRE. Waronzof provides real estate and Nationally recognized banking, finance, insurance, land use litigation support services including eco- and real estate consulting group (established 1973). nomic damages, lost profits, financial feasibility, lease Experienced litigation consultants/experts include dispute, property value, enterprise value, partnership senior bankers, lenders, consultants, economists, interest and closely held share value, fair compensa- accountants, insurance underwriters/brokers. Spe- tion, lender liability, and reorganization plan feasibility. cialties include: lending customs, practices, policies, Professional staff of five with advanced degrees and in all types of lending (real estate, business/commer- training in real estate, finance, urban planning, and cial, construction, consumer/credit card), banking accounting. See display ad on page 55. operations/administration, trusts and investments, economic analysis and valuations/damages assessment, insurance claims, coverages and bad faith, real

Los Angeles Lawyer November 2018 57 REAL ESTATE APPRAISAL experts available on short notice to serve asbestos, assessment, property damage/contamination and lead-based paint, and other specialty areas requiring remediation, sewage, gasoline and oil issues and COASTLINE REALTY ADVISORS expert witness services. age determination, petroleum releases, chemicals/ 3020 Old Ranch Parkway, Suite 300, Seal Beach, CA products, risk assessment, indoor air quality/health 90740, (562) 598-2402, fax (562) 598-9097, e-mail: SERVICE STATIONS effects, toxic tort evaluation, chemistry, site assess- [email protected]. Website: www ment, regulatory issues, environmental toxicology, .coastlinerealtyadvisors.com. Contact Michael V. THE REYNOLDS GROUP environmental issues, and wetland/ecological. Ser- Sanders, MAI, SRA. Real estate valuation and dam- P.O. Box 1996, Tustin, CA 92781-1996, (714) vices nationwide. Thirty-plus years of industrial and age analysis expert in residential and commercial/ 730-5397, fax (714)730-6476, e-mail: edreynolds government experience in pollution under NPDES, industrial property. MAI and SRA designations from @reynolds-group.com. Website: www.reynolds CERCLA, RCRA, SDWA, and CWA. Former federal the Appraisal Institute, also membership in IRWA and -group.com. Contact Ed Reynolds, RCE, Princi- and state regulator, professor, consultant, industrial FEWA; numerous articles and publications. Valuation pal. An environmental consulting, and contracting research. Seventy-five plus publications. expertise includes construction defect, geotechnical, firm. Expertise: environmental contamination, water intrusion, easement/title, environmental, view, assessment, remediation, reasonable value of con- TRAFFIC ENGINEERING proximate nuisance, natural disasters, estate/casualty struction, standard of care, and related financial mat- loss, marriage dissolution, appraisal review, and stan- ters. Degrees in Civil Engineering: USC (BS), Univer- WILLIAM KUNZMAN, PE dard of care. sity of Houston (MS), (MBA) Harvard. California 1111 Town and Country #34, Orange, CA 92868, Registered Civil Engineer, Licensed A, B, HAZ Cali- (714) 904-2821, e-mail: [email protected]. REAL ESTATE TITLE CONSULTING fornia Contractor. 30 years’ experience. Adjunct Website: www.traffic-engineer.com. Contact Faculty Member USC Viterbi School of Engineering William Kunzman, PE. Traffic expert witness since E. ROBERT MILLER & ASSOCIATES Department of Civil and Environmental Engineering. 1979, both defense and plaintiff. Auto, pedestrian, PROPERTY MANAGEMENT EXPERTS bicycle, and motorcycle accidents. Largest plaintiff 330 Primrose Road, Suite 606, Burlingame, CA SURGERY verdicts: 1) $12,200,000 in pedestrian accident case 94010, (650) 373-0705, fax (650) 373-0709, e-mail: against Caltrans, 2) $10,300,000 in case against Los [email protected]. Website: www.erobertmiller CIMENT CONSULTANTS, LLC Angeles Unified School District. Largest settlement: .com. Contact E. Robert Miller. Specialties: expert 14010 Majestic Court, Lake Oswego, OR 97035, $2,000,000 solo vehicle accident case against Cal- witness in property management issues for all types (971) 235-1628, fax (503) 598-8746, e-mail: trans. Best defense verdicts: 1) $0 while defending of commercial and residential real estate. Experience [email protected]. Website: www Caltrans and opposition sought $16,000,000. 2) $0 in arbitration, litigation, lease terms, personal injury, .cimentconsultantsllc.com. Contact Gary Ciment, defending City of Long Beach and opposition sought property damage, security, industry standards of PhD. Medical reports, expert review of medical $15,000,000. Before becoming expert witness, care, and due diligence. Retained as an expert wit- records and radiographs. Specializing in neurological employed by Los Angeles County Road Department, ness consultant in more than 1,000 lawsuits. issues involving the brain, spinal cord, brachial Riverside County Road Department, City of Irvine, plexus, as well as surgical issues as they relate to and Federal Highway Administration. Knowledge of RIGHTS OF PUBLICITY DAMAGES anatomy. governmental agency procedures, design, geomet- rics, signs, traffic controls, maintenance, and pedes- IPMETRICS LLC MRK MEDICAL CONSULTANTS trian protection barriers. Hundreds of cases. Under- 6555 Coyle Avenue, Suite 235, Carmichael, 9320 Chesapeake Drive, Suite 110, San Diego, CA graduate work—UCLA, graduate work—Yale CA 95608, (800) 403-1647. Website: www 92123, (858) 538-1533, e-mail: [email protected]. University. Website: www.ipmetrics.com. Contact Daryl .mrkmedconsultants.com. Contact Edward Martin, managing principal. Since 2000, IPMetrics Younger, III, MD., Medical Director. Board certi- TRAFFIC ENGINEERING/ROADWAY LLC has specialized in intellectual property consulting fied in orthopedic surgery. With over 30 consultant encompassing valuation, infringement damages specialists, MRK provides expert witness services DESIGN throughout California. Our consultants are dedicated assessment, and monetization services. Contact us MOMENTUM ENGINEERING CORP. for projects related to patent, trademark, and copy- to maintaining the highest standards of objective 2862 Columbia Street, Torrance, CA 90503, right infringement damages and contract disputes, as review and analysis of personal injury cases. MRK (310) 618-8017, fax (310) 618-8194, e-mail: ram well as rights of publicity and trade secret issues. coordinates the scheduling and report process and @momentum-eng.com Website: www.momentum- Services include assisting counsel in the preparation has physicians available to help you determine your eng.com Contact Reza Marshall. Expert witness of damages cases, including initial discovery expert witness needs. on traffic engineering and highway design including requests, drafting of declarations, participation in tort liability, traffic signals, traffic signs and pavement arbitration/mediation, reporting on economic dam- SURVEY RESEARCH markings, signal and stop warrant investigation, ages, rebutting opposing experts, and preparing speed survey, traffic impact study, construction zone counsel for opposing expert depositions. DR. MICHAEL A. KAMINS - DRUCKER SCHOOL OF MANAGEMENT, temporary traffic control, bicycle/pedestrian facilities, SAFETY CLAREMONT UNIVERSITY geometric alignment, sight distance, traffic barriers, 6401 Warner Drive, Los Angeles CA 90048, (323) pavement edge drop-off, drainage, access manage- KGA, INC. 868-9507, (909) 607-2471, fax (323) 931-0258, ment and expert testimony. 1409 Glenneyre Street, Suite A, Laguna Beach, CA e-mail: [email protected]. Services offered 92651, (949) 497-6000, fax (949) 494-4893, e-mail: include expert survey research/questionnaire design WASTEWATER on Lanham Act issues of confusion, secondary [email protected]. Website: www.kgainc.com. JOHN SHAW CONSULTING, LLC Contact Kurt Grosz. Construction and environmen- meaning, and dilution. I have knowledge of con- Tel: (530) 550-1576, e-mail: [email protected]. tal consultants since 1991. Licensed engineers and sumer behavior, marketing strategy, and marketing Website: www.shaweng.com. Contact John contractors. ICC building, plumbing, mechanical, research. I have worked on false advertising cases Shaw, PE. Water/wastewater/sewer industry— concrete, and accessibility inspectors. Certified pro- and misappropriation of celebrity identity inclusive of unique combination of operations and engineering fessional estimators. Trial experts, arbitrators, and cases involving President Trump (Trump University), background. Sanitary engineering including water insurance�appraisers/umpires. Jay-Z, the rock group Boston, Taylor Swift, and The Doors as well as Samsung vs. Apple. Rate for depo- (potable) and wastewater (industrial and domestic) SCS ENGINEERS sition, trial and consultation at $695/hr. and a 10 treatment, conveyance, hydraulics, storage, reuse, 3900 Kilroy Airport Way, Suite 100, Long Beach, hour retainer. master planning, operations, maintenance, and CA 90806, (562) 426-9544, fax (562) 427-0805, expert witness and forensic (mode of failure and e-mail: [email protected]. Website: www TOXICOLOGY standard of care analysis, engineering analysis, .scsengineers.com. Contact Julio Nuno, VP. SCS product suitability and construction defect issues). provides expert witness services related to environ- PRINCETON-SOMERSET GROUP, INC. Wastewater treatment plants, disposal/reuse facili- mental studies and engineering, water resources, 4 Carroll Drive, Hillsborough, NJ 08844, (800) 597- ties, sewage lift station design, sewer collection sys- solid waste and air quality and industrial hygiene and 8836, (908) 369-6890, fax (908) 369-6881. Web- tems, and sludge treatment. Water treatment plants, safety services. We are a 46-year old consulting firm site: www.PrincetonSomerset.com. Contact Dr. pipelines, and swimming pools. with 68 offices across the US and nearly 800 Dennis Stainken. Expert witness, toxicology, employees. Our Long Beach office has more than 30 health issues, chemical exposure, mold issues, professional engineers, scientists, and subject matter worker exposure, contamination issues, causation

58 Los Angeles Lawyer November 2018 closing argument BY ADAM SIEGLER

Attend LACBA’s Third Armed Forces Ball and Help a Vet

VETERANS DAY IS ALMOST HERE AGAIN. I always appreciate it The project works because of the tremendous support from when people say, “Thank you for your service,” because I know the legal community, which provides the legal staff for all the it is meant in a good spirit. But there are many veterans in Los clinics. Participating firms include Gibson Dunn, Greenberg Angeles who need more than “thank you”—they need legal help. Traurig, Foley & Mansfield, Proskauer, Sheppard Mullin, Morgan Los Angeles is home to one of the largest populations of Lewis, and Arnold & Porter, and the corporate law departments homeless and at-risk veterans in the country. They are caught in of such leading companies as Activision Blizzard, A&E, Farmers a downward spiral, often starting with psychological issues, Insurance, and AECOM. including post-traumatic stress disorder, for which they sometimes Urgent Need self-medicate with drugs or alcohol. Some start off with a less- than-honorable discharge, which can reduce their benefits and The data from the clinics shows how urgent the need is: Each opportunities. Inevitably, they wind up with legal problems: veteran served has, on average, four outstanding tickets or con- driving under the influence and traffic offenses; warrants and victions on their record; 75 percent have incomes below the misdemeanors; and family law issues. These problems frequently federal poverty line; 39 percent are homeless and another 11 result in homelessness and joblessness. Without legal assistance, percent report they are at risk of homelessness; and 42 percent it is almost impossible to overcome these obstacles. are disabled as a result of their military service. The need is great, but thanks to the staff and volunteers, the Veterans Legal Services Project results are great, too. The project has generated thousands of The LACBA Veterans Legal Services Project is helping. The hours and hundreds of thousands of dollars in free legal services, project was created in 2014, and its mission is to help veterans which help hundreds of veterans. More than 80 percent of the overcome legal obstacles to employment and self-sufficiency. As project’s clients successfully clear legal barriers to employment, one of the four key initiatives of LACBA’s Counsel for Justice, and the project links former clients to community partners spe- the project is overseen by the LACBA Armed Forces Committee, cializing in job placement. which had been tasked by former LACBA President Alan Running legal clinics also takes money. Wells Fargo Bank has Steinbrecher to determine what could be done to assist the many been a generous supporter of the project throughout the years veterans in need of legal services. Project Director Andrew and has enabled steady growth in the services provided. In addi- Culberson and Managing Project Attorney Tara Hunter, together tion, Ronald Bae, a former Navy JAG officer now at Aequitas with committee Vice Chair Michael Owens and numerous vol- Legal Group, was instrumental in obtaining a substantial cy pres unteers from the legal community, have achieved superb results award for the project. for hundreds of veterans. Veterans Ball The project holds regular legal clinics for veterans at the iconic Patriotic Hall in downtown Los Angeles, focusing on three The costs are ongoing, and the project is seeking to raise additional key areas: clearing tickets and warrants, expunging misdemeanors, funds though the Armed Forces Ball. LACBA’s Armed Forces and reinstating driver’s licenses. While these legal matters may Committee will host its Third Armed Forces Ball on March 2, sound minor, they can prevent a veteran from passing a back- 2019, at the Millennium Biltmore Hotel in downtown Los ground check for employment or driving to work. Angeles. This is a unique “full dress uniform” and black-tie event that will feature a color guard and a live band, as well as Expanded Services compelling speakers and deserving honorees who have done so The project has continued to expand, partnering with the Levitt much to help our veterans. Each firm that purchases a table will & Quinn Family Law Center in 2016 to offer family law clinics be asked to host a veteran and guest. This means that deserving for veterans. That same year the project began a partnership veterans will literally have a “seat at the table.” with the Proskauer law firm to offer pro bono estate planning With your help, by the time Veterans Day comes around again services. In 2017, the project teamed up with Wells Fargo Bank in 2019, there will be fewer veterans on the street and more to hold financial literacy workshops. In 2018, the project made resources to keep veterans in their own residences with the two significant additions: 1) pro bono placements for veterans employment, support, and dignity they deserve. n seeking discharge upgrades and 2) on-site consultations held in veterans’ centers in West Los Angeles and San Pedro, greatly Adam Siegler is a litigator and pro bono coordinator at Greenberg Traurig, increasing access to services for veterans in those areas. For 2019, LLP in Los Angeles. He was the staff judge advocate for the U.S. Army’s 335th the project will add more off-site locations and implement a new Signal Command, was awarded the Legion of Merit, Bronze Star, Meritorious service for small business development under the leadership of Service, and Iraq Campaign medals, and retired as a colonel. He currently Bill Markley, a retired Navy officer and former general counsel. serves as the chair of LACBA’s Armed Forces Committee.

60 Los Angeles Lawyer November 2018