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Engstrom Lipscomb & Lack

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On Dana Perlman and Barry Karas [ TLR Note: TLR’s technical team managed to intercept suspicious queries on the platform dealing with Walter Lack of Engstrom Lispcomb & Lack in connection with “Mose + Karas” — FYR. Unlike Walter Lack — both Perlman and Karas are absolutely of no interest to TLR, and neither are their fund raising activities — however, why the secrecy? connection to Walter Lack? Sources – who is Mose? ]

The Center for Responsible Politics’ OpenSecretsblog posted a story on Friday about LGBTs who have bundled “big money” for President Barack Obama’s 2012 re-election campaign. Among them are Los Angeles gay fundraisers Dana Perlman, who sits on the board of the Human Rights Campaign, and Barry Karas, a former HRC board member. (The New York Times has a larger story, mentioning other bundlers such as Hollywood heavyweight Jeffrey Katzenberg.)

Obama bundler Dana Perlman (rt) with Courage Campaign founder Rick Jacobs at a party Jacobs threw for White House Social Secretary Jeremy Bernard (Photo by Karen Ocamb)

The blog previously reported that:

more than 350 bundlers have collectively raised at least $56 million for Obama and the Democratic National Committee – the equivalent of $1 out of every $3 the two organizations have raised. And at least $2.7 million of that sum has come from 12 prominent gay and lesbian advocates, according to research by the Center for Responsive Politics. That’s nearly 5 percent of the money all of Obama’s bundlers have raised.

 

 

Source @:

http://www.bilerico.com/2011/10/perlman_karas_top_lgbt_money_bundlers_for_obama.php

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More on Hanford Nuclear Reservation Litigation Involving Walter Lack / Brian Depew of Engstrom Lipscomb & Lack ; Thomas Girardi of Girardi & Keese and ….. Executive Director of State Bar of California Joseph L. Dunn [ TLR Note: case was initiated during time Dunn was associated with Robinson Calcagnie & Robinson’s Mark Robinson of Cal Judicial Council / UC Irvine Foundation ]

Welcome to Downwinders.com

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February 2012 Update

The mediation tracks established by the Court have ended. Within our client group, some settlements have occurred, but most claims have not been resolved. In recent months, there has been settlement activity in some of the other plaintiff groups. Most of the hypothyroidism cases in those groups have been settled and the trial of hypothyroidism cases previously set in 2012 (Track 1) has been stricken. Like our group, some of the thyroid cancer claims in the other groups have settled, but most remain in the case.

The Court has now established two new trial tracks, one for a group of thyroid cancer claims and another for a group of thyroid nodules claims. The Court has randomly selected 23 plaintiffs from the Everson group and 14 from our Berg/Lumpkin group to participate in the thyroid cancer trial (Track 2). The Court has modified the thyroid nodule trial track (Trial Track 3) to delete plaintiffs from our Berg/Lumpkin and the Jaros groups and substitute 28 clients from the Evenson (25) and Berg (3) groups. In addition, the Court is in the process of setting a fourth trial track that will consist of 50 randomly selected plaintiffs from all non-thyroid categories. Trial Track 2 (thyroid cancer) and Trial Track 3 (thyroid nodule) will reach trial in early 2013. The Trial Track 4 (non-thyroid cancer) will lag those by two months.

The attorneys from the Engstrom Lipscomb & Lack law firm have contacted all Berg/Lumpkin clients selected by the judge to participate in the thyroid cancer trials, and are working with them to collect updated medical records and to update each plaintiff’s discovery responses. Depositions of the Berg/Lumpkin plaintiffs are now being set in January and February. Expert reports for these clients will be due on July 1, 2012. Pre-trial discovery will be complete on November 1, 2012 and any motions to dismiss these claims must be filed by December 15, 2012. The trial date for these cases has not been set, but a date in mid-2013 is expected.

The next Status Conference will be held on April 18, 2012, at 8:30 a.m. PDT, at the U.S. District Court in Spokane.

General Information

The Hanford Downwinders Litigation website is a general information resource for our clients in the In re Berg (CY-96-3151-WFN) and Lumpkin, et al. v. DuPont, et al. (CT-00-5052-WFN) cases. The lawsuits arise from the environmental radiation releases caused by operation of the Hanford Nuclear Facility. Located in south central Washington State, Hanford produced plutonium for U.S. nuclear weapons from 1944 until 1990. All of the Hanford downwinder cases have been consolidated. The consolidated case is known as In re Hanford Nuclear Reservation Litigation (CV-91-3015-WFN).

Thousands of people who were exposed to Hanford’s radiation filed suit in 1990 against former contractors, such as DuPont and GE, which operated Hanford for the U.S. government. DuPont operated Hanford from 1943 to 1946. General Electric ran Hanford from 1946 to 1965.

Summary of Hanford Downwinder Trials During 2005

Judge Wm. Fremming Nielsen presided over the trial that began on April 25, 2005, and went to the jury on May 13. It was a bellwether trial, comprised of 6 plaintiffs with thyroid disease and lasted 3 weeks.

After deliberating more than three days, a 12-member jury returned verdicts for two of the six bellwether plaintiffs in the first Hanford downwinder trial. Gloria Wise was awarded $317,251 and Steve Stanton $227,508 for their thyroid cancers. The jury failed to reach a verdict for the third thyroid cancer plaintiff, Shannon Rhodes. Judge Nielsen declared a mistrial in her case and a retrial was held during November 2005.

The first jury also returned defense verdicts for the three plaintiffs with hypothyroidism. In June 2005, the plaintiffs appealed these three verdicts to the U.S. Court of Appeals for the Ninth Circuit. In August 2005, the defendants appealed the verdict for Mr. Stanton and Ms.Wise.

A different jury sat through a two-week retrial for Ms. Rhodes in November 2005. The 12-member jury deliberated a little more than a day before deciding 11-1 in favor of DuPont and General Electric. In early 2006, Ms. Rhodes’ case joined the others on appeal.

Court of Appeals Issues Important Rulings

On August 14, 2007, the United States Court of Appeals for the Ninth Circuit issued an opinion on the appeals of the bellwether decisions in 2005. Generally, the Court of Appeals affirmed the trial judge’s instructions to the jury regarding the law of the case. This means that the court made important decisions agreeing with the Downwinder Plaintiffs that the government contractor defense did not apply and that principles of strict liability did apply.

The Court of Appeals also agreed with the trial court that the “but for” standard of causation would be applied. This sets a higher standard than the “substantial factor” test that the Downwinder Plaintiffs had proposed.

The court considered questions specific to the individual cases that were on appeal. The Court of Appeals reversed the decisions in three cases that were decided against Downwinder Plaintiffs on the grounds that the jury was improperly instructed about specific issues raised in those cases. These cases have since been settled and will not be retried.

The Court of Appeals affirmed the trial court decision against Shannon Rhodes, rejecting her challenges to certain evidentiary rulings and claims of juror misconduct.

In its amended opinion, the Ninth Circuit panel reconsidered its decision that plaintiffs who had filed individual suits while the class action suit was pending did not have the benefit of the tolling of the statute of limitations while the class action claim was pending. The court elected to follow a decision from the United States Court of Appeals for the Second Circuit and concluded that tolling principles did apply to individuals who filed individual suits while the class action suit was pending. Thus, the court’s earlier comments on this question no longer apply and tolling principles will be available. In its amended opinion, the court denied all the parties’ motions for rehearing and advised that the Ninth Circuit had denied the request for en banc review by a larger panel of judges.

Source @: http://www.downwinders.com/

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How to Contact Us

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        This website is designed to serve as a general information source for our clients in the Hanford Downwinders litigation, In re Hanford Nuclear Reservation Litigation (CY-91-3015-WFN).

     The law firms of Short Cressman & Burgess PLLC, Engstrom Lipscom & Lack, Robinson, Calcagnie & Robinson, and Girardi & Keese, (“The Berg/Lumpkin Plaintiffs Law Firms”), are associated in representing hundreds of plaintiffs for claims arising from exposure to radiation and other hazardous materials released during operation of the Hanford Nuclear Facility in south central Washington State. Our clients are asserting claims against the operators of the Hanford Nuclear Facility, including General Electric Company and E.I. DuPont de Numours Company.

     The lawyers and staff involved in representing our Berg & Lumpkin clients are identified below:


Short Cressman & Burgess PLLC
999 Third Avenue, Suite 3000
Seattle, WA 98104
Telephone: (206) 682-3333
Fax: (206) 340-8856
Toll Free (888) 333-2374
Lead Counsel:
James A. Oliver
Paul J. Dayton 
Paralegal:
Margaret M. Moynan
E-Mail: Margaret M. Moynan

Engstrom, Lipscomb & Lack
16th Floor, 10100 Santa Monica Blvd.
Los Angeles, CA 90067
Telephone: (310) 552-3800
Fax: (310) 552-9434
Lead Counsel:
Walter J. Lack
Brian D. Depew
Elizabeth Crooke
Paralegal:
William Mitchell
E-Mail: Brian D. Depew

Robinson, Calcagnie & Robinson
620 Newport Center, 7th Floor
Newport Beach, CA 92660
Telephone: (949) 720-1288
Fax: (949) 720-1292
Lead Counsel:
Joseph Dunn
Legal Assistant:
Suzanne St. Clair

Girardi & Keese
1126 Wilshire Blvd.
Los Angeles, CA 90017
Telephone: (213) 977-0211
Fax: (213) 481-1554
Lead Counsel:
Thomas V. Girardi
Source @: http://www.downwinders.com/contact.php

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TIMELINE April 2012 : Offers Sent to Hundreds of Plaintiffs in Hanford Nuclear Reservation Litigation [TLR Note: Civil case prosecuted by Walter Lack / Brian Depew of Engstrom Lipscomb & Lack ; Thomas Girardi of Girardi & Keese and ….. Executive Director of State Bar of California Joseph L. Dunn ; Hard to believe no one bothered to remove Dunn’s name if he wasn’t really part of the case for last 8 years ; further complicates events dealing with matters of In Re Girardi / Fogel vs. Farmers / California Bar ]

A law firm representing several nuclear contractors has sent confidential settlement offers to hundreds of plaintiffs exposed to radiation from the Hanford Nuclear Reservation during World War II and the early years of the Cold War who later developed hypothyroidism.

Plaintiffs claim the thyroid disorder is linked to plutonium produced at the site, and the settlement offer could represent a major movement in the long-running Hanford downwinders’ litigation.

“It’s the largest claim category in the Hanford case. If they agree to settle, there will be no trial” for hypothyroid plaintiffs, said attorney Kevin Van Wart of Kirkland & Ellis of Chicago, lead attorney for the contractors in the case filed in 1990.

Some 380 claims from plaintiffs with hypothyroidism have already been settled, most of those represented by lawyers in Spokane and Eugene. Plaintiffs with Los Angeles lawyer Brian Depew are considering the new offer.

However, Depew, of Engstrom, Lipscomb & Lack, said Thursday that many of his clients are unlikely to accept the offer.

“They’ve made offers to my hypothyroid cases with a threshold (of plaintiffs) that need to accept before it’s finalized. It’s unlikely that we’ll meet the threshold. I’ve had people sobbing on the telephone,” Depew said.

Many of his clients are angry that the settlement offers are so low, considering their serious injuries and decades of medical bills for thyroid disease. Some have had repeated surgeries and suffer from a host of medical problems related to their disease, Depew said.

Hauser Lake, Idaho, resident Linda Michael, who is represented by Depew, got one of the settlement offers and contacted a reporter. The March 22 letter is marked “confidential” and gives her 60 days to respond to an offer to pay her $6,100 in exchange for dropping all claims against the nuclear contractors.

The offer from Kirkland & Ellis, approved by the U.S. Department of Energy, totals $524,600 for Depew’s 86 clients, according to Michael’s correspondence.

Please continue @:

http://www.downtoearthnw.com/stories/2012/apr/01/hanford-offers-sent-out/

 

The Leslie Brodie Report’s Search Terms for Period Ending on February, 4 2013 (TLR Note: Notice highly suspicious search for “kathleen lipscomb murder” )

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Raoul Kennedy, Joe Dunn, Robert Adler, Thomas Nolan, Walter Lack — All Christian White Male — Top the Bottom Half of The Leslie Brodie Report “10 Most Corrupt Lawyers in California” for 2012

 

The Leslie Brodie Report, an online news-media outlet for a faith-based group, chose the following as California’s “Ten Most Corrupt Lawyers”

The list, in order of severity:

6. Raoul Kennedy of Skadden Arps

7. Joe Dunn of Voice of OC

8. Robert Adler of Southern California Edison

9. Thomas Nolan of Skadden Arps

10. Walter Lack of Engstrom Lipscomb & Lack.

 

For 1 through 5, please see @:

https://lesliebrodie.wordpress.com/2012/11/29/ron-olson-james-brosnahan-john-k…

A more detailed list,  including Dishonorable Mentions for 2011-2012, will be published soon.

 

Payments to Eligible Class Members Being Mailed in Collusive Litigation Fogel v. Farmers Group Involving Raoul Kennedy / Thomas Nolan / Alec Chang of Skadden Arps and Skadden’s Clients Tom Girardi / Walter Lack of In Re Girardi

Los Angeles Superior Court Judge William Highberger  granted final approval to the Settlement on December 21, 2011. 

Certain appeals were filed, but they are no longer pending, and the Court’s decision is final.  Payments to eligible class members will be mailed during the week ending Friday November 2, 2012.

Source: https://fogelsettlement.com/Home.aspx

BACKGROUND:

Fogel v. Farmers Group Inc.) is primarily based on the case originally advanced by the State of Texas and Governor Rick Perry, along with the Texas Department of Insurance, against Farmers Group, Inc. in approximately 2002.

Within days after the State of Texas filed the case, settlement negotiations commenced, and very shortly thereafter a settlement was announced in the amount of approximately $100 million. Joe K. Longley, an attorney from Austin, Texas (alongside Philip K. Maxwell and Steve McCleery), representing policyholder Jan Lubin, stated that Texas is settling on the “cheap,” and immediately commenced legal proceedings to derail the settlement.

Farmers’ policyholders Gilberto Villanueva and Michael Paladino both had previous class actions pending in the State of Texas prior to the State action being brought. These Intervenors were represented by State Bar of Texas members Alice Oliver-Parrott, David Burrow, David Jones, and R. Martin Weber.

At that time, Mr. Longley publicly stated that Farmers was unfairly enriched in an amount 10 times greater than the settlement amount, and presumably Mr. Longley wanted the State of Texas to settle for an amount close to $1 billion. Longley. along with several other lawyers (Phil Maxwell, Mike Gallagher, and Stephen McCleery), who were later joined by David Burrow, Alice Oliver-Parrot, Mike Gallagher and Dan Downey (collectively “Texas Class Counsel” ), immediately commenced legal proceedings to halt the settlement.

Beginning in December 2002 and continuing thereafter for five months in 2003, the parties engaged in intensive discovery; motion practice; document review; hearing preparation; hearings; and depositions, and extensive lawyer time and effort took place to prepare for, and participate in, the preliminary approval hearing the Texas District Court had set to be heard commencing in May 2003.

In February 2003, it became apparent to the Lubin’s co-counsel that additional legal assistance was needed. Mike Gallagher and Dan Downey were added at that time to act as co-counsel, with Longley & Maxwell, LLP, in representing Jan Lubin.

During those proceedings, particularly during the initial phase, Texas Class Counsel obtained and reviewed thousands of documents, and through masterful lawyering, and while opposed by the endless resources of the Attorney General of the State of Texas managed to derail the settlement. This matter became known as the “Lubin Proceedings,” and is still pending in the Texas courts, 261 Judicial District Court of Travis County.


Governor of Texas, Rick Perry, noted that “Farmers Insurance represent nearly twenty percent of the homeowners’ insurance market in Texas.”  Governor Perry further noted that “the investigations are still ongoing, but the findings reflect that at least on company, Farmers Insurance, has engaged in unfair, discriminatory prices to charge consume excessive and unjustified rates.” In the above photo, Governor Perry is seen before a hunting trip near Merrill, Iowa. (Photo Credit: AP Photo/Dave Weaver)

Recognizing that much of the legal work was already completed by the State of Texas and the Texas Department of Insurance — which gave rise to a presumption of validity and credibility to the allegations against Farmers — Mr. Longley and some of the Texas Class Counsel saw the enourmous opportunity that had been presented to them and sought to file a nationwide class action against Farmers.

As such, in 2003, Longley and a few of the Texas Class Counsel flew to Los Angeles to meet with Messrs. Thomas Girardi (of Girardi & Keese) and Walter Lack (of Engstrom Lipscomb & Lack); one month later, after the appropriate plaintiff had been selected, the case was filed in the Los Angeles Superior Court styled Benjamin Fogel v Farmers Group Inc.

In approximately 2010, a settlement was reached in this pending matter allocating $455 million to be shared by the class, and $90 million in attorneys’ fees. Class counsel (both from Texas and California) advanced a motion for attorneys’ fees supported by declarations and exhibits. The declarations from Texas Class Counsel submitted to this Court are based on work performed in BOTH the Lubin and Fogel matters.

 

GIRARDI AND LACK

Usually, the relationship between Girardi & Keese and Engstrom Lipscomb & Lack is based on a business model whereby Girardi & Keese and Thomas Girardi are responsible for financing the litigation, as well as providing much needed “clout,” very often withing the judicial system of Los Angeles County and the State Bar of California (to wit Thomas Girardi’s friendship with former California Supreme Court Chief Justice George; his friendship with former California State Bar Chief Trial Counsel and former crack addict Mike Nisperos, to whom Girardi serve as a “mentor”; his financing of the political career of the present Executive Director of the State Bar of California, Hon. Senator Joe Dunn; and other questionable “friendships” and relationships, the basis of which are usually political contributions and gifts).

Walter Lack and his firm, who are more methodical, are responsible for the day-to-day management of the litigation through motion practice, discovery, hearings etc. Once serious settlement negotiations commence, Mr. Girardi himself takes over the discussions, and has the final say on whether and under what terms the case should settle.

 

YR’S ETHICS COMPLAINT AGAINST SKADDEN GIRARDI LACK

According to sources familiar with the situation, ethical breaches took place as a result of Skadden Arps’ representation of Girardi & Keese in the matter of In Re Girardi because, at the same time, Girardi & Keese and Skadden Arps were on opposing sides in the case of Fogel v. Farmers Group, Inc.

According to the sources, the parties named in the complaint were Raoul Kennedy, Thomas Nolan, and Richard Zurmoski of Skadden Arps as well as Graham LippSmith and Thomas Girardi of Girardi & Keese.

Fogel v. Farmers, Skadden Arps, Girardi & Keese,

The complaint alleged that in August 2003, Walter Lack (of Engstrom, Lipscomb & Lack) and Thomas Girardi and Graham LippSmith (of Girardi & Keese) filed a class action suit on behalf of plaintiffs Benjamin Fogel against Farmers Group, Inc. in Los Angeles County Superior Court. The suit — which is still pending and is anticipated to settle in September 2011 — was defended by attorneys from Skadden Arps (Raoul Kennedy and Richard Zurmoski).

Despite their respective roles as plaintiffs’ counsel and defendants’ counsel in Fogel v. Farmers, Girardi & Keese and Skadden Arps entered into an agreement by which Skadden Arps and partner Thomas Nolan would represent Girardi & Keese and Thomas Girardi before the Ninth Circuit in the matter of In re Girardi following the Ninth Circuit’s issuance of an order to show cause why Girardi & Keese, Engstrom Lipscomb & Lack, Thomas Girardi, and Walter Lack should not be suspended, disbarred, or otherwise sanctioned as a result of the massive fraud which took place in litigation pursued by them against Dole Food Company.

On July 13, 2010, the Ninth Circuit issued an order suspending Walter Lack for a period of six months and reprimanding Girardi; the order also imposed almost $500,000 in monetary sanctions against the two attorneys.

In Re Girardi

Skadden Arps Thomas Nolan

On July 14 2010, in an attempt to conceal their attorney-client relationship, Skadden Arps and Thomas Nolan filed a motion with the Ninth Circuit asking for their names to be redacted from the published opinion.

 

Skadden Arps and its clients were in a rush to remove their names from the Ninth Circuit’s published decision in hopes of further hiding from the public  the existence of its relationship with Girardi & Keese, see above.  Below is yet another sample of a  letter/objection alluding to the improper relationhip between Skadden Arps and Girardi & Keese.

 

On April 28, 2011, after Zurich Financial Group and Farmers Group, Inc. realized that a complaint had been filed with the State Bar of California alleging ethical violations, attorneys for both Zurich and Farmers approached the Los Angeles County Superior Court judge overseeing the Fogel matter (Judge William Highberger), seeking and obtaining an ex parte order modifying the settlement agreement, with little or no opposition from the plaintiff class. (Thomas Girardi, Walter Lack, as well as several attorneys form the state of Texas)

Additionally, per the ex-parte order, the class was notified that once the court approves the settlement, class members will be prohibiting from alleging in the future that they were not adequately represented by their attorneys due to the prior attorney client relationship between Girardi & Keese and Skadden Arps.

 


A substantial factor leading to the State Bar of California’s ethical and moral collapse allowing Thomas Girardi, Skadden Arps, and others to operate with impunity was provided courtesy of individuals who fall into two categories: minorities and/or close political allies from

Shockingly, and based on the ex parte papers submitted by Zurich and Farmers which were, presumably (and predictably), unopposed by class counsel (because any opposition would expose their own misconduct), the Court issued an order allowing the modification of a notice to the class by which the members would be informed of the attorney-client relationship between Skadden Arps and Girardi & Keese. The order also, shockingly, stated that members of the class would be prohibited in the future from asserting that they were not adequately represented by class counsel due to the Skadden-Girardi relationship.

CRIMINAL CONCPIRACY TO INJURE AND SILENCE YR

In a shocking turn of events, YR was earlier this year served with a search warrant while at home. Six investigators from the Yolo County District Attorney’s office (some of them armed) arrived at on February 23, 2012, searched the premises, and confiscated two computers and documents relating to, among others, Thomas Girardi, Alec Chang of Skadden Arps, including all materials involving Fogel vs. Farmers.

State Bar of California Board of Governors (presumably, State Bar of California Executive Director Joe Dunn of Voice of OC, Alec Chang of Skadden Arps, and others  have presented claims to the Yolo County District Attorney’s Jeff Reisig and Michael Cabral to file criminal charges against YR, for among other things, alleged violations of Business and Professions Code section 6043.5, on the purported basis that the ethics complaint against Raoul Kennedy, Tom Nolan, Thomas Girardi, and Walter Lack were unfounded and constituted criminal conduct.  (See ethics complaint concerning the Fogel v. Farmers Group HERE.

 

Keker & Van Nest’s Jan Little — Spouse of Hastings College of Law’s Rory Little (In Re Girardi Special Prosecutor Accused of Criminal Conduct) Launches New Website As YR Prepares to Picket a Beach in San Francisco

Keker & Van Nest partner Jan Little has launched a new website.

Little, who is married to Rory Little — a professor at UC Hastings College of Law in San Francisco, handled high-stakes criminal and complex civil litigation for more than 25 years, and was previously recognized as one of the “Best Lawyers In America” for bet-the-company litigation, commercial litigation and white collar criminal defense according to Keker & Van Nest.

The address of the new website is http://jannielsenlittlekeker.net/

UC Hastings Prof Rory Little

Rory Little, spouse of Jan Little of Keker & Van Nest.  Professor Little is a Ninth Circuit judicial aspirant and professor of law at U.C. Hastings. He  was appointed special prosecutor in the matter of In Re Girardi by Chief Judge Alex Kozinski.


Judge William Fletcher, a member of the Ninth Circuit panel that adjudicated the matter of In re Girardi, 08-80090, rejected the lenient recommendations of Rory Little. He stated: “with any competent lawyer if you’re omitting part of a document, that is not accidental. That is intentional.” The court adjudicated that the grave misconduct by Walter Lack and Thomas Girardi included “the persistent use of known falsehoods,” and that the “false representations” were made “knowingly, intentionally, and recklessly” during years of litigation.

Peviously, in papers submitted to federal court, a party not associated with TLR/YR accused Ninth Circuit Judicial Aspirant Rory Little of compromising his ethics in exchange for a promise of judgeship. (see above)

Unfortunately, Keker & Van Ness questionable method of operating through a diverse proxy in various matters, including in the matter of In Re Girardi, ipso facto created a scenario by which the interests of Jan and Rory Little are inconsistent with those of The Leslie Brodie Report and YR — who exposed the scheme in the matter of In Re Girardi / Howard Rice.


Tom Girardi of Girardi & Keese. Per the Ninth Circuit, Walter Lack and Thomas Girardi have resorted to employing “the persistent use of known falsehoods” and “false representations” were made “knowingly, intentionally, and recklessly” during years of litigation. Subsequent to those findings, the State Bar of California appointed Howard Rice’s Jerome Falk to serve as special prosecutor against Girardi, Lack, and their respective firms. None mentioned that Girardi and Lack are actually clients of Jerome Falk and Howard Rice. See story here. For additional allegations of misconduct leveled against Girardi, please see here, and here , and here, and here, and here, and here, and here, and here, and here, and here. For the latest on Walter Lack, please see here. (Image: courtesy photo)

As such, consistent with the efforts to obtain publicity for the cause, YR is mulling, reluctantly,  a peaceful assembly to expose the antics of Rory Little/ Keker & Van Nest in front of Hastings College of the Law, in the rotunda known as “The Beach.”

Other alternative methods to expose Little may include the use of leaflets, which will be placed in the SIC folder of each student.

Alec Chang of Skadden Arps and Thomas Girardi of Girardi & Keese Accused of Racketeering

In an almost unprecedented turn of events and somewhat ironically, the man who once stated “our justice systems, our courts, are the best things about this country because in other countries, they settle their problems through violence” is now accused of conspiring with others to operate the justice system as a criminal racketeering enterprise.

Court documents filed with the United States District Court for the District of Columbia reveal that controversial trial attorney Tom Girardi of Los Angeles-based Girardi & Keese is accused of violating the Racketeering Influenced and Corrupt Organizations Act.

Among the claimed misconduct, the civil suit alleges that in exchange for favorable treatment in court cases, Girardi resorted to the use of payoffs, underwriting social events, and the laundering of money to effect the outcome of court cases “with certain judges and attorneys.”


Tom Girardi of Girardi & Keese. Per the Ninth Circuit, Walter Lack and Thomas Girardi have resorted to employing “the persistent use of known falsehoods” and “false representations” were made “knowingly, intentionally, and recklessly” during years of litigation. Subsequent to those findings, the State Bar of California appointed Howard Rice’s Jerome Falk to serve as special prosecutor against Girardi, Lack, and their respective firms. None mentioned that Girardi and Lack are actually clients of Jerome Falk and Howard Rice. See story here. For additional allegations of misconduct leveled against Girardi, please see here, and here , and here, and here, and here, and here, and here, and here, and here, and here. For the latest on Walter Lack, please see here. (Image: courtesy photo)

RICO is a federal law that authorizes a civil cause of action for acts performed as part of an ongoing criminal organization. RICO focuses specifically on racketeering, and it allows for the leaders of a syndicate to be held civilly liable for the crimes that they ordered others to commit or which they assisted in committing.

Tom Layton and Tom Girardi
Girardi (far left) enjoys an authentic dinner, friendship and comradery during an Italian-American Lawyers Association event. The gentleman at the center of the photo is State Bar of California employe Tom Layton who according to sources is part of an ongoing “ambulance chasing” scheme the Girardi Syndicate operates in San Bernardino County vis-a-vis a satellite office located in San Bernardino and managed by Thomas Girardi’s son-in-law, David Lira. (Image:courtesy)

The suit also asserts that other individuals engaged in racketeering activities, including Tom Layton — a former Los Angeles Deputy Sheriff/Senior State Bar of California investigator, and Alec Chang of Skadden Arps.

Girardi is married to Erika Jayne, an American dance/club music performer who is also known as Erika Girardi. He has been feartured regularly on The Leslie Brodie Report. For example, we previously reported about an ethics complaint alleging multiple acts of misconduct filed with the State Bar of California against attorneys from the firms of Skadden, Arps, Slate, Meagher & Flom LLP and Girardi & Keese.

Please continue @:

http://lesliebrodie.blog.co.uk/2012/10/18/federal-court-documents-provide-tom…

Alliance of California Judges Blasts AOC Treatment of Information Requests; Carolyn Kuhl Elected Assistant Presiding Judge; Girardi & Keese / Engstrom Mishandled $100M Earthquake Settlement Suit Says

The Alliance of California Judges yesterday criticized the way the Administrative Office of the Courts handles requests for information, saying the alliance is being discriminated against.

Judicial branch leaders, the alliance said in an email blast, have “now confirmed” that the AOC, and the Judicial Council of California “have implemented a policy treating information requests from the Alliance differently from those of others.”

The email cited a Courthouse News Service story entitled “Battle of Information in Judiciary.” The article dealt with the complaint, previously made by the alliance, that instead of dealing promptly with requests for information, the AOC funnels them to Third District Court of Appeal Justice Harry Hull, who insists that requests be sent to him by “snail” mail, and in responding in the same manner. Please continue@: http://www.metnews.com/articles/2012/alli100512.htm

Los Angeles Superior Court Judge Carolyn Kuhl has been elected assistant presiding judge of the court for 2013 and 2014, court officials said yesterday. Kuhl, a judge since 1995, defeated Judge Dan T. Oki. In keeping with the court’s longstanding practice, vote totals were not disclosed.  Please continue@: http://www.metnews.com/articles/2012/kuhl100412.htm

 Girardi & Keese and two other law firms were hit with a lawsuit Friday for allegedly mishandling a purportedly more than $100 million settlement with State Farm Insurance Co. that resolved claims from the 1994 Northridge earthquake that devastated Los Angeles.


Mr Tom Girardi of Los Angeles-based Girardi & Keese. Per findings adjudicated by the Ninth Circuit, Walter Lack and Thomas Girardi have resorted to employing “the persistent use of known falsehoods” and “false representations” were made “knowingly, intentionally, and recklessly” during years of litigation. Subsequnet to those findings, the State Bar of California appointed Howard Rice’s Jerome Falk to serve as special prosecutor against Girardi, Lack, and their respective firms. None mentioned that Girardi and Lack are actually clients of Jerome Falk and Howard Rice. See story here. For additional allegations of misconduct leveled against Girardi, please see here, and here , and here, and here, and here, and here, and here, and here, and here, and here. For the latest on Walter Lack, please see here. (image and nerrative not part of original story)

In a complaint filed in California state court, the plaintiffs who were clients of Girardi & Keese, Engstrom Lipscomb & Lack and Shernoff Bidart Darras & Arkin in the dispute with State Farm claim — please continue @: <a href="http://www.law360.com/articles/383045/law-firms-mishandled-100m-earthquake-settlement-suit-says.

http://www.law360.com/articles/383045/law-firms-mishandled-100m-earthquake-se…&gt;

 

PG&E Former In-House Counsels Joshua Bar-Lev and CPUC’s Frank Lindh (Father of Al Quaeda’s John Walker Lindh) Hereby Asked to Opine on Howard Rice Concurrent Representation of Girardi & Keese and PG&E While Hinkley/Erin Brockovich Still Pending)

PG&E Former In-House Counsels Joshua Bar-Lev and CPUC’s Frank Lindh (Father of Al Quaeda’s John Walker Lindh) Hereby Asked to Opine on Howard Rice Concurrent Representation of Girardi & Keese and PG&E While Hinkley/Erin Brockovich Matter Still Pending.

 

Howard Rice represantation of Girardi & Keese and Engstrom Liposcomb & Lack in the matter of Copple v. Astrella, please see @:

http://www.leagle.com/xmlResult.aspx?page=3&xmldoc=20061271442FSupp2d829_…

 

Howard Rice representation of PG&E in 2006, please see profile of former Howard Rice partner Ethan Schulman which states:

 

Lynch v. California Public Utilities Commission, 311 B.R. 978 (N.D. Cal. 2004), dismissed as moot (2006, 9th Cir.). Successfully represented Pacific Gas and Electric Company on appeal by former members of California Public Utilities Commission from Bankruptcy Court’s order confirming PG&E’s plan of reorganization.”   @:

http://www.calappellate.org/Member-Directory?action=view_member&memberID=141

 

Erin Brockovich matter — Girardi & Keese and Engstrom Lipscomb & Lack represent plaintiff against PG & E in 2006, please see @:

http://lesliebrodie.posterous.com/2006-pg-e-agrees-to-295-million-settlement-in

Raoul Kennedy of Skadden Arps Slate Meagher & Flom — Member of State Bar of California Judicial Nominees Evaluation — Under Scrutiny In Re Evaluation of Judy Johnson

The Leslie Brodie Report is carefully following a major developing story out of California relating to embattled corporate attorney Raoul Kennedy of Skadden Arps Slate Meagher & Flom.

Specifically, per sources, a red flag has been raised over Kennedy — a member of State Bar of California Judicial Nominees Evaluation — in connection with the highly controversial decision to appoint Judy Johnson as judge with the Contra Costa County Superior Court.

Johnson, 63, of Rodeo, served as the executive director of the State Bar of California from 2000 until her ouster in 2011. 

According to the State Bar of California, the Commission on Judicial Nominees Evaluation (JNE; JNE Commission), is an agency of the State Bar created by statute for the express purpose of evaluating judicial candidates nominated by the Governor. The language of the statute, Government Code section 12011.5, is mandatory. It provides that, prior to exercising his constitutional right to make judicial appointments, the Governor shall submit to JNE the names of all potential appointees or nominees for judicial office for evaluation of their judicial qualifications. The commission operates pursuant to rules and procedures adopted by the Board of Trustees of the State Bar.

In 2011, an ethics complaint was filed against Raoul Kennedy as a result of Skadden Arps’ representation of Girardi & Keese in the matter of In Re Girardi because, at the same time, Girardi & Keese and Skadden Arps were on opposing sides in the case of Fogel v. Farmers Group, Inc.

The complaint alleged that in August 2003, Walter Lack (of Engstrom, Lipscomb & Lack) and Thomas Girardi and Graham LippSmith (of Girardi & Keese) filed a class action suit on behalf of plaintiffs Benjamin Fogel against Farmers Group, Inc. in Los Angeles County Superior Court. The suit — which is still pending and is anticipated to settle in September 2011 — was defended by attorneys from Skadden Arps (Raoul Kennedy and Richard Zurmoski).

Despite their respective roles as plaintiffs’ counsel and defendants’ counsel in Fogel v. Farmers, Girardi & Keese and Skadden Arps entered into an agreement by which Skadden Arps and partner Thomas Nolan would represent Girardi & Keese and Thomas Girardi before the Ninth Circuit in the matter of In re Girardi following the Ninth Circuit’s issuance of an order to show cause why Girardi & Keese, Engstrom Lipscomb & Lack, Thomas Girardi, and Walter Lack should not be suspended, disbarred, or otherwise sanctioned as a result of the massive fraud which took place in litigation pursued by them against Dole Food Company.

On July 13, 2010, the Ninth Circuit issued an order suspending Walter Lack for a period of six months and reprimanding Girardi; the order also imposed almost $500,000 in monetary sanctions against the two attorneys.

In Re Girardi

Skadden Arps Thomas Nolan

On July 14 2010, in an attempt to conceal their attorney-client relationship, Skadden Arps and Thomas Nolan filed a motion with the Ninth Circuit asking for their names to be redacted from the published opinion.

According to sources, including TLR’s legal correspondent — known as State Bar Insider (“SBI”) — the arrangement described above is disfavored and unethical; moreover, for such a reltionship to be authorized, Thomas Girardi was required to notify each member of the class he represents about his status as a client of Skadden Arps, and seek a waiver and obtain approval from his clients.

To date, neither Girardi nor Kennedy were disciplined by the State Bar of California.

 

 

 

Gretchen Nelson of Kreindler & Kreindler Hereby Asked to Opine on Matters Involving Susan Friery /Engstrom Lipscomb & Lack’s Walter Lack/ In Re Girardi

As part of a journalistic inquiry, The Leslie Brodie Report hereby asks Kreindler & Kreindler’s Gretchen Nelson to opine on matters relating to former partner Susan Friery, and in connection with Kreindler & Kreindler 20 year failure to detect the fraud.

Ms Gretchen Nelson, won a State Bar of California Board of Governors seat in August of 2010. She is a former president of the Los Angeles County Bar Association, received the Breakfast Club endorsement for the county Seat 1 position. A partner with Kreindler & Kreindler LLP, she has been a trial lawyer for more than 25 years with experience at small- and medium-sized law firms as well as solo practice. A graduate of Smith College and Georgetown University Law Center, Nelson serves on the board of the Consumer Attorneys Association of Los Angeles and chairs the Los Angeles County Bar Association’s judicial election evaluation committee. (photo and nerrative courtesy of Cal Bar Journal)

Was Kreindler & Kreindler’s failure to detect the fraud part of an scheme? Or, in the alternative, was it a result of mere recklesness?

For background information, background visit @:

http://lesliebrodie.blog.co.uk/2012/02/13/susan-friery-aka-susan-mowbray-biog…

 

Additionaly, The Leslie Brodie Report hereby asks Kreindler & Kreindler’s Gretchen Nelson to opine on matters relating to Walter Lack of Engstrom Lipscomb & Lack.

For background information, , please see @:

http://lesliebrodie.blog.co.uk/2011/11/15/united-states-court-of-appeals-for-…

 

Please observe that, rather than contacting you directly, the query is being delivered publicly, here and now.

Any opinion or observation can be sent to lesliebrodie@gmx.com

Gretchen Nelson of Kreindler & Kreindler Hereby Asked to Opine on Matters Involving Susan Friery /Engstrom Lipscomb & Lack’s Walter Lack/ In Re Girardi

As part of a journalistic inquiry, The Leslie Brodie Report hereby asks Kreindler & Kreindler’s Gretchen Nelson to opine on matters relating to former partner Susan Friery, and in connection with Kreindler & Kreindler 20 year failure to detect the fraud.

Was Kreindler & Kreindler’s failure to detect the fraud part of an scheme? Or, in the alternative, was it a result of mere recklesness?

For background information, background visit @:

http://lesliebrodie.blog.co.uk/2012/02/13/susan-friery-aka-susan-mowbray-biog…

 

Additionaly, The Leslie Brodie Report hereby asks Kreindler & Kreindler’s Gretchen Nelson to opine on matters relating to Walter Lack of Engstrom Lipscomb & Lack.

For background information, , please see @:

http://lesliebrodie.blog.co.uk/2011/11/15/united-states-court-of-appeals-for-…

 

Please observe that, rather than contacting you directly, the query is being delivered publicly, here and now.

Any opinion or observation can be sent to lesliebrodie@gmx.com

PROMINENT TRIAL LAWYER TERANCE MIX ASSAILS TOM GIRARDI OF GIRARDI & KEESE

Following on the heels of a $3.2 million jury verdict for professional malpractice against Girardi & Keese, a declaration of mistrial, as well as absurd remarks by Tom Girardi (“This is the most stupid case in the history of America”), prominent trial lawyer Terance Mix minced no words in accusing Girardi & Keese of profesional negligence, and for failing to accept responsibility for the catastrophic consequences befalling Girardi & Keese’s former client, Richard Salerno.

As a service to the community, TLR shall publish Terance Mix’s comment, below:

“Tom Girardi’s comment reflects not only his ignorance about the actual facts of a case that sat in his office largely ignored for over two years, but from a lawyer unwilling to own up to the failings of his firm and accept responsibility for the catastrophic consequences befalling his client when Girardi & Keese bailed on the case only 42 days before trial.


Mr Terance Mix of Santa Barbara, California. Mix is the former president of the Los Angeles Trial Lawyers Association and spent 12 years on the Board of Governors of California Trial Lawyers Association. He is a legal author and lecturer on trial techniques and strategies, including the trial of drug product cases, which was his specialty for over 30 years. (image: courtesy photo)

What Mr. Girardi fails to acknowledge in his rant about the “most stupid case in the history of America” is that the only independent and impartial witness to the impact between Richard Salerno’s motorcycle and the Volvo, being driven next to one another in the same direction, testified that as he passed the two vehicles, while traveling in the opposite direction, Mr. Salerno appeared to be “talking” to the Volvo driver as he passed them, and never saw Salerno remove his hands from the handlebars at any time before the impact.

This evidence is totally contradictory to Mr. Girardi’s assertion that Mr. Salerno was in a “rage” and “beating on the car with his fists and shouting expletives,” as stated in the Metro News article. Indeed, the evidence produced during the trial overwhelmingly demonstrated that the Volvo driver swerved into the motorcycle, as a means of intimidation, knocking Mr. Salerno to the ground and then driving over him with the left rear tire of the car.


Mr Tom Girardi of Los Angeles-based Girardi & Keese. Per findings adjudicated by the Ninth Circuit, Walter Lack and Thomas Girardi have resorted to employing “the persistent use of known falsehoods” and “false representations” were made “knowingly, intentionally, and recklessly” during years of litigation. Subsequnet to those findings, the State Bar of California appointed Howard Rice’s Jerome Falk to serve as special prosecutor against Girardi, Lack, and their respective firms. None mentioned that Girardi and Lack are actually clients of Jerome Falk and Howard Rice. See story here. For additional allegations of misconduct leveled against Girardi, please see here, and here , and here, and here, and here, and here, and here, and here, and here, and here. For the latest on Walter Lack, please see here.

What Mr. Girardi also failed to mention, as was likewise brought out during the trial, was that the firm’s real reason for wanting out of the lawsuit was simply because they thought it was a lousy case and Mr. Salerno refused to accept a $20,000 offer for a client with a fractured skull, brain damage, multiple other injuries, and medical expenses in excess of $1,000,000. And that the lawyer in his firm that was assigned to the case contrived an allegation that Mr. Salerno intended to lie at the trial, only after the client refused to sign a substitution of attorney form about 50 days before the scheduled trial of the case.

Perhaps if Mr. Girardi had been present throughout the trial, rather than making just a couple of shorts visits, he might have seen how the underlying case could have been developed by his firm during the two years of representation and successfully resolved with the original defendant, thus avoiding last months trial for professional negligence.”

BREAKING NEWS: State Bar of California Refuses to Process Complaint Against Its Own Executive Director — Voice of OC’s Joe Dunn — Bar Alleges Never Received Complaint

Baker Keener & Nahra’s Bob Baker Recognized by Strathmore’s Who’s Who (TLR Note: Walter Lack’s Counsel in Ninth Circuit’s In re Girardi; Unkown if Baker Aware Walter Lack Client of Jerry Falk)

State Bar of California / California Bar Foundation in the Mystery of Bank of America and Southern California Edison BOD Members Richard Tom and Theodore Ting — Part 1: Names Purposefully Omitted

San Francisco — January 12, 2011 — The California Bar Foundation, the statewide philanthropic organization for California’s legal community, today announced the appointment of 19 individuals to its Board of Directors. To more effectively carry out its mission of building a better justice system for all Californians, the Foundation has expanded the size of its Board to provide better representation throughout the state’s legal community and to bolster the nonprofit organization’s resource development efforts. The Board appointments include representatives from a number of the state’s leading law firms, many of whom have been leaders in championing access to justice issues and promoting diversity in the legal profession.

Twelve lawyers began serving their initial terms on the Board on January 1, 2011. They include Frederick Brown, a trial lawyer and partner-in-charge of Gibson, Dunn & Crutcher LLP’s San Francisco office; Debora Buljat, associate general counsel of General Dynamics/NASSCO; Peter H. Carson, a finance partner at Bingham McCutchen LLP, co-chair of the firm’s National Pro Bono Committee, and immediate past co-chair of the California Legal Services Trust Fund Commission; S. Raj Chatterjee, a San Francisco partner with Morrison & Foerster LLP; Nancy L. Fineman, an experienced trial lawyer with Cotchett, Pitre & McCarthy; M. Ray Hartman, III, a San Diego partner with DLA Piper specializing in environmental litigation; Robert D. Infelise, a partner with Cox, Castle & Nicholson LLP who teaches environmental law courses at U.C. Berkeley School of Law; Paul Konovalov, a litigator in Latham & Watkins LLP’s Orange County office; Dianne Baquet Smith, a partner at Sheppard, Mullin, Richter & Hampton LLP and president of the Black Women Lawyers of Angeles Foundation; Mary Ann Todd, a corporate partner at Munger, Tolles & Olson LLP in Los Angeles; Karen E. Walter, a Rutan & Tucker LLP partner and co-chair of the firm’s Unfair Competition/Class Action Defense Group; and S. Nancy Whang, a partner with Manatt, Phelps & Phillips, LLP and former member of the Los Angeles Central Area Planning Commission.

“We are grateful to the new and returning Board members who are dedicating their time, knowledge, contacts, and financial resources to help the California Bar Foundation fulfill its mission of building a better justice system for all Californians,” said Douglas A. Winthrop, incoming Board president. “With their vision, leadership, and commitment, the Foundation will continue its important role as a catalyst for innovative access to justice and legal outreach initiatives and as an important source of scholarship funds for the next generation of California’s lawyers. This well-respected and accomplished group of Board members brings a wide range of professional experience, expertise, and networks that will benefit the Foundation and enable us to effectively carry out our work.”

Continuing Board members appointed to additional two-year terms include Raul Ayala, a deputy federal public defender in Los Angeles; Ronald L. Blanc, a Los Angeles tax attorney who retired from Arnold & Porter LLP; Neel Chatterjee, an intellectual property litigation partner at Orrick, Herrington & Sutcliffe LLP; Los Angeles Superior Court Judge Marguerite D. Downing; David C. Grove, an investment banker with Needham & Company; Dean Hansell, a partner at Dewey & LeBoeuf LLP and a former member of the Los Angeles Police Commission; and Joan Kupersmith Larkin, a Seyfarth Shaw LLP partner specializing in intellectual property matters in Century City.

The Foundation also announced its 2011 officers, who were elected by the Board in late 2010. In addition to Winthrop, the new officers include Vice Presidents Holly J. Fujie and Larkin, Bruce G. Iwasaki as secretary, and Grove as treasurer.

Appointments to the Foundation’s Board of Directors are made by the State Bar of California’s Board of Governors. Information about applying for 2012-2013 terms on the Board of Directors will be posted on the Foundation’s website, www.calbarfoundation.org, in May, and the deadline for applications will be August 12, 2011.

Barack Obama condemned for rewriting online gambling rules – and announcing it at Christmas so no one notices | Mail Online (TLR Note: Similar to Jerome B. Falk in His Role as Prosecutor/Defense Counsel to Walter Lack– Link Included)

MATTER OF IN RE HANFORD NUCLEAR RESERVATION LITIGATION

IN RE HANFORD NUCLEAR RESERVATION LITIGATION

350 F.Supp.2d 871 (2004)

In re HANFORD NUCLEAR RESERVATION LITIGATION.

No. CV-91-3015-WFN.

United States District Court, E.D. Washington.

November 3, 2004.

 

Noreen H. Wynne, Clayton, WA, pro se.
John Strother Moore, Jr., Velikanje, Moore & Shore PS, Yakima, WA, Louise Roselle, Waite, Schneider, Bayless & Chesley Co., Stanley M Chesley, Waite Schneider Bayless & Chesley Co., Cincinnati, OH, William Randolph Squires, III, Summit Law Group PLLC, James Albert Oliver, David Elliot Breskin, Short, Cressman & Burgess PLLC, Steve W. Berman, Hagens Berman LLP, Tom H. Foulds, Tom Foulds Law Office, Seattle, WA, Kevin T. Van Wart, Kirkland & Ellis, Chicago, IL, William D. Vines, III, Butler Vines & Babb, Knoxville, TN, Gary A. Praglin, Girardi & Keese, Walter J. Lack, Elizabeth L. Crooke, Brian D. Depew, Engstrom, Lipscomb & Lack, Los Angeles, CA, Joseph L. Dunn, Robinson, Phillips & Calcagnie, Newport Beach, CA, Nancy Malee Oreskovich, Nancy Oreskovich Law Office, Beverly Hills, CA, Richard C. Eymann, Steven Lawrence Jones, Eymann, Allison, Fennessy, Hunter & Jones PS, Spokane, WA, Scott A. Johnson, Todd M. Johnson, Johnson Law Group LLP, Minnetonka, MN, Carmela M. Destito-Buttice, Walla Walla, WA, Monica Mitchell, Law Offices of Tom H. Foulds, Flintridge, CA, Kendall S. Zylstra, Berger & Montague, Philadelphia, PA, John Bergland, Roy S. Haber PC, Michael D. Axline, University of Oregon Law School, Eugene, OR, John C. Moore, Tim Quenelle, Moore Law Group PC, Lake Oswego, OR, Michael H. Bloom, Bloom & Schuckman PC, Portland, OR, for Plaintiffs.
David Florian Jurca, Helsell Fetterman LLP, John D. Aldock, Shea & Gardner, Washington, DC, Leslie M. Smith, Marchell M. Michael, Kevin T. Van Wart, Michelle Browdy, Joseph Russell, Carrie Groskopf, Timothy A. Duffy, Kirkland & Ellis, Chicago, IL, Robert M. Loewen, Gibson, Dunn & Crutcher, Newport Beach, CA, Donald A. Bright, Thomas H. Reilly, Atlantic Richfield Co., Los Angeles, CA, William Randolph Squires, III, Summit Law Group PLLC, David M. Bernick, U.S. Department Of Justice, Washington, DC, for Defendants.
William M. Krause, Lane, Powell, Spears & Lubersky LLP, Seattle, WA, for Amicus.
Gary Neil Bloom, Harbaugh and Bloom, Duane Michael Swinton, Daniel E. Finney, Witherspoon, Kelley, Davenport & Toole, Spokane, WA, for Intervenors.

 

 

ORDER RE: PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT — ABNORMALLY DANGEROUS ACTIVITY
NIELSEN, Senior District Judge.
This Order relates to: All Cases
At the tenth status conference on October 28, 2004, the Court reserved ruling on Plaintiffs’ Motion for Summary Judgment — Abnormally Dangerous Activity, filed September 9, 2004 (Ct.Rec.1564). Argument was presented by Peter Nordberg for the Plaintiffs and William (Randy) Squires for the Defendants.1
The Court has reviewed the file, all materials submitted on the Motion, considered the oral arguments of counsel, and is fully informed. For the reasons stated below, the Motion is granted.

I. DISCUSSION

The Plaintiffs’ Motion requires the Court to determine whether the chemical separation that occurred in the Hanford plutonium production process is an abnormally dangerous activity. The chemical separation created radioactive I-131 that was released into the air by Defendants

California Court of Appeals Biting Ruling Slams Engstrom Lipscomb & Lack’s Walter Lack and Steven Shuman as Sanctioned Twice Imposed (December 2 , 2011)

SAM LEE v. DEUTSCHE BANK

SAM LEE et al., Plaintiffs and Appellants, v. DEUTSCHE BANK et al., Defendants and Respondents.

B228166

 

— December 02, 2011

 

Engstrom, Lipscomb & Lack, Walter J. Lack, Steven C. Shuman, Gary A. Praglin and Richard P. Kinnan for Plaintiffs and Appellants.Greenberg Traurig, Paul J. Schumacher, Raymond B. Kim and Karin L. Bohmholdt for Defendants and Respondents.

 

On September 22, 2010, the trial court issued an order imposing sanctions of $10,000 upon the attorneys for the plaintiffs herein.1  By their appeal in this matter, the attorneys seek reversal of that order.   This case arose from the claims of multiple plaintiffs against two brokerage defendants, Deutsche Bank Securities, Inc. and Themis Asset Strategies, LLC (Themis).2

The immediate issue that led to the award of sanctions was the trial court’s earlier order, on November 2, 2009, granting the motion of DBSI to compel arbitration pursuant to agreements that DBSI had with all of the plaintiffs, except HBI Financial, Inc., a Washington corporation (HBI).   The repeated objections by plaintiffs to such order, advanced by the attorneys, ultimately led the trial court, as we describe below, to issue the sanction order of September 22, 2010 that is now before us.

Our review of this record supports the conclusion that the trial court’s order was supported by substantial evidence and was well within its discretion.   We will therefore affirm that order.   In addition, we have before us the motion of DBSI for an award of sanctions against the attorneys for the filing of a frivolous appeal.   As the contentions advanced by the attorneys in this appeal were no better than the repeated arguments and motions made in the trial court and which it found to be sanctionable, we will grant DBSI’s motion for sanctions on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On April 14, 2009, the plaintiffs, represented by the attorneys, filed their original complaint 3 against DBSI. Some of their claims also involved the Themis defendants and some did not.   The complaint alleged multiple counts involving claims for broker malpractice and breach of fiduciary duty all arising out of accounts the various plaintiffs had with DBSI. As already noted, all of the plaintiffs, except HBI, were parties to agreements that contained provisions requiring arbitration of disputes before the National Arbitration Association or the New York Stock Exchange.4  With respect to those plaintiffs who also had agreements with the Themis defendants, they were also subject to arbitration clauses requiring arbitration of any disputes before JAMS.

On August 26, 2009, DBSI moved (1) to compel arbitration as to all of the plaintiffs except HBI and (2) to stay any court action with respect to the claims of HBI. Plaintiffs vigorously opposed DBSI’s motion and argued that (1) the motion shall be denied pursuant to Code of Civil Procedure section 1281.2, subdivision (c) because the plaintiff HBI had its own claims that had to be resolved by the court, not an arbitrator;  (2) it would be inefficient and unfair to proceed with multiple arbitrations (i.e., the JAMS arbitration for the claims against the Themis defendants and the FINRA arbitration for the claims against DBSI);  and (3) it would be unfair to stay the court trial of HBI’s claim pending completion of the arbitration of the claims of the other plaintiffs.

After extensive oral argument, the trial court, on November 2, 2009, granted DBSI’s motion to both compel arbitration as to all plaintiffs, except HBI, and to stay any further court action with respect to the claims of HBI. The trial court rejected plaintiffs’ arguments with respect to Code of Civil Procedure section 1281, subdivision (c) and instead found section 1281.4 to be controlling.5  Indeed, the trial court made it clear that any unfairness that may result to plaintiff HBI, by virtue of the delay of a trial of its claims, was one of its own making.   During oral argument, the court stated, “You [HBI] had an option to file a separate action, and you chose not to, for whatever reason ․ the law is that I should uphold arbitration agreements.   And the fact that you chose to lump yourself, HBI, in with these others who had arbitration agreements puts the court in the awkward position of staying HBI’s rights.” 6

One exception to the stay order was that the Themis defendants were permitted to file a motion to compel arbitration under their agreements.   Instead of doing so, however, they entered into a stipulation with the plaintiffs, including HBI, to arbitrate with FINRA.   Thus, by this stipulation, HBI agreed to arbitrate its claims against the Themis defendants (even though it was under no contractual obligation to do so) and to do so with FINRA rather than JAMS. The trial court approved this stipulation on December 28, 2009.   Thereafter, plaintiffs attempted to combine the Themis arbitration with DBSI arbitration;  there, they also included allegations against DBSI that alleged the existence of a joint venture between the Themis defendants and DBSI as to HBI and all of the remaining plaintiffs and sought joint and several liability as to all of the claims, even though the stipulation that was submitted to the court had made no mention that any such action would be taken.   It appears that plaintiffs misrepresented the court’s order to FINRA by asserting that the court’s order of November 2, 2009, had required combined arbitrations, which the trial court’s order clearly did not.   DBSI, believing that plaintiffs were seeking to avoid compliance with the trial court’s order of November 2, 2009, filed an ex parte application for an order compelling plaintiffs to obey that order.   In its moving papers, DBSI argued that plaintiffs’ effort was an attempt to (1) violate the stay order as to HBI, (2) secure arbitration between all of the parties in a single arbitration that had not been ordered, (3) obtain resolution of facts in one arbitration that would impact another, and/or (4) impose back-door “joint venture” allegations that would have the effect of violating the court’s order no matter who was joined in the arbitration.

DBSI brought this application to the trial court on February 9, 2010.   Plaintiffs, at the same time brought a motion for “Partial Relief from Stay,” purportedly to obtain leave to proceed with their claims against the Themis defendants only in arbitration.

The trial court held another lengthy hearing on February 22, 2010, the bulk of which again was devoted to the attorneys arguing the unfairness of not permitting HBI to immediately proceed with its claims.   The trial court reiterated its belief that HBI’s problem was one of its own making in having made the strategic decision to join in the same complaint with arbitrating plaintiffs.   Indeed, the trial court expressed its frustration that the issue even had come before it again:

“[DBSI’s Counsel]:  But the stipulation [between the Themis defendants and plaintiffs] was entered into by [Themis] and [counsel for plaintiffs].   And they deliberately in my estimation or recklessly represented to you that we just want to go off [to] FINRA and arbitrate before FINRA.   They take your order, and they absolutely misrepresent that order to the arbitrators.

“The Court:  And I agree.   I don’t have anyway of saying that it was deliberate or reckless or otherwise.   But the November 2nd order was clear, and, frankly, I don’t know [why] we’re here.

“[Plaintiffs’ Counsel]:  Your Honor, one reason why I’m here ․ is to request that you deny our petition [for relief from stay] without prejudice so that we can file a motion to consolidate [the arbitrations]․

“The Court:  Whoa, whoa, whoa, whoa.   The order was November.   The time to file a motion for reconsideration would have been 10 days later.   I’m not going to go back to my November 2nd Order on ․ February the 22nd and reopen, for lack of a better term, that can of worms.

“[Plaintiffs’ Counsel]:  Your Honor, the case was stayed as of November until [the Themis defendants] decided what to do․  We couldn’t have known that this moment would be the result․

“The Court:  How could you not have known that?   You knew of the existence of various parties.   There had been an agreement reached between counsel.   You knew of the effect of that agreement.   And now you’re coming in and you’re Monday morning quarterbacking, in effect.   You’re coming back and you’re saying I should have known about that, maybe I did know about that, but now I’m saying I didn’t know about that.   And it really bothers me.”

As the trial court saw it, what the plaintiffs (including HBI) were attempting to do was to combine the Themis defendants’ arbitration (as established by the December 2009 stipulation) with the arbitration between DBSI and the plaintiffs that had been ordered on November 2, 2009, over three months earlier.   This record reflects that it was the trial court’s clear intention not to combine these two arbitrations nor to permit HBI to “bootstrap” its claims against DBSI (which had been specifically stayed by the November 2nd, order) to the stipulated arbitration proceeding against the Themis defendants.   Nonetheless, the trial court denied DBSI’s motion for an order issuing a contempt citation.   It contented itself with a denial of HBI’s motion for relief from stay and the issuance of an order directing compliance with the November 2nd order.

In its formal order, dated March 22, 2010, the trial court explained the findings and rationale for its ruling.   We set forth verbatim the relevant findings and conclusions of the court as they provide a valuable predicate to the court’s later ruling on the plaintiffs’ subsequent motion to “clarify” this order (the two footnotes included in the following quotation are part of the trial court’s order):

“After considering DBSI’s Application and Plaintiffs’ Petition, and hearing the oral argument of counsel, the Court granted DBSI’s Application (except as to the request for holding Plaintiffs and/or their counsel in contempt, which was denied), and denied Plaintiffs’ Petition, on the following grounds:

“1.  The Court finds that two main issues were presented to the Court by DBSI’s Application and Plaintiffs’ Petition:  (a) whether Plaintiffs violated the Court’s November 2, 2009 Order (‘November Order’) by (i) asserting claims being brought by HBI Financial Inc. (‘HBI’) in FINRA Arbitration Case No. 09–07182 (the ‘FINRA Arbitration’), that were stayed by the Court in its November Order, and (ii) asserting claims made by Plaintiffs against Themis and Clark in the FINRA Arbitration, and (b) whether arbitration of Plaintiffs’ claims, including those of HBI, should be allowed to proceed against Defendants Themis and Clark in the same arbitration proceeding as the claims against DBSI.

“2.  First, the Court finds that Plaintiff HBI improperly asserted claims against DBSI in Claimants’ First Amended Statement of Claim (‘FASOC’) submitted in the FINRA Arbitration.7  The November Order stayed all claims by HBI against DBSI. Notwithstanding, HBI made allegations against DBSI, both on the face of the FASOC and by claiming the existence of a so-called ‘joint venture’ involving DBSI and Themis.   Plaintiff HBI also seeks an award against DBSI and the other respondents ‘jointly and severally.’   Accordingly, the Court finds that Plaintiff HBI violated the stay imposed against it by the Court’s November Order by including such allegations in the FASOC.

“3. Second, the Court finds that it would be inappropriate to allow Plaintiffs’ claims, including those of HBI, against Themis and Clark to be arbitrated in the same proceeding as the claims against DBSI. Although the Court may in its discretion, pursuant to California Code of Civil Procedure § 1281.3, consolidate separate arbitration proceedings, the Court did not intend for the parties to participate in a single arbitration proceeding by its November Order.   Furthermore, and contrary to Plaintiffs’ representations to FINRA in the FASOC, the Court did not intend for Plaintiffs to prosecute their claims in a single arbitration proceeding when it signed the order on December 28, 2009 granting the Stipulation to Compel Arbitration Against Themis Asset Strategies, LLC and Derek Clark and Stay Order (the ‘December Order’).8  Finally, to the extent that Plaintiffs previously sought, or now seek, to move for such consolidation, the Court finds that Plaintiffs have failed to meet their burden of proof under Section 1281.3 of showing that the disputes arise from the same transactions or series of related transactions, and/or that there are common issues of law or fact creating the possibility of conflicting rulings by more than one arbitrator or panel of arbitrators, and therefore, any such request for consolidation is denied.   Accordingly, the Court finds that Plaintiffs violated the November Order by improperly including claims against Themis and Clark in the FINRA Arbitration and/or including Themis and Clark as parties in that arbitration.

“4. With respect to the issue of contempt raised in DBSI’s Application, the Court declines to hold Plaintiffs and/or their counsel in contempt of court at this time because the Court does not find that Plaintiffs and/or their counsel ‘knowingly’ violated the November Order.”

The form of this order had been submitted to plaintiffs prior to March 22, 2010 when it was signed and filed.   They filed vigorous objections thereto.   Contemporaneously with the issuance of the above quoted order, the trial court also issued a minute order stating that it “reads and considers defendants’ Summary of Responses filed herein on March 5, 2010 and Proposed Order, plaintiffs’ Objections filed herein on March 5, 2010, and defendants [‘] Responses filed herein March 9, 2010.[¶]  Plaintiffs’ objections are overruled.”

On March 24, 2010, HBI sought writ relief in this court from the trial court’s order of March 22, 2010 without making any claim that such order was in any way “unclear.”   HBI requested that:  “Either or both that the Appellate Court issue an order directing the trial court to vacate its order denying plaintiff HBI Financial, Inc. the right to participate in FINRA arbitration, and mandating the trial court to issue an order permitting HBI to pursue it [sic] claims against Themis and Clark in FINRA arbitration, or, that the order staying the action of HBI Financial, Inc. as to co-defendants Deutsche Bank Securities, Inc. and its brokers be vacated.”

While the aforesaid writ application was pending before this court, the plaintiffs, on April 22, 2010, filed their “Motion to Clarify the Court’s March 22, 2010 Order.”   Plaintiffs claimed that (1) the order was confusing in that it was not clear whether they were permitted to allege a joint venture in the arbitration as to plaintiffs other than HBI and (2) the formal order of March 22, 2010 did not accurately reflect what had taken place at the February 22 ex parte hearing.

DBSI opposed the motion arguing that this motion was simply one for reconsideration which required compliance with Code of Civil Procedure section 1008 and plaintiffs had failed to do so.   When this motion came on for hearing on July 9, 2010, the trial court repeatedly expressed its frustration as to why plaintiffs were continuing their efforts to avoid the impact of the original order of November 2, 2009 and the ruling on March 22, 2010 enforcing that order:

“I thought this issue had been put to rest.   We, again, have a motion to clarify what I think is a very clear order.   I’ve provided you with a tentative.   I don’t know what to say.   Honestly, I don’t know what to say.   You’re either trying to have a 1008 motion under the guise of a motion for clarification, which would be improper or you’re just straining everyone’s patience.   I don’t know which․  [¶]․  It’s somewhat interesting to the court, because really we go back even before March, way before March.   Without going through extensively the file to give you all of the dates, it seems to me this issue has come before the court at least three times.   Is that correct?   [DBSI’s Counsel]:  That’s correct Your Honor.  [The Court]:  And, frankly, I never thought it was unclear․  [¶]․  I’m really getting a bit frustrated here because plaintiffs filed the action, plaintiffs framed the pleadings, plaintiffs pursued their rights.   There are arbitration agreements, granted, differing arbitration agreements.   The court dealt with that.   I don’t think we need to revisit this anymore, so [the motion to clarify is] denied.” 10

On June 4, 2010, DBSI prepared and served a motion for an award of sanctions in the sum of $20,445.   It did so, it asserts, because of the very substantial expense it had been put to in defending against and responding to the plaintiffs’ repeated motions and related legal activity following the trial court’s original order compelling arbitration on November 2, 2009.   DBSI, however, did not file the sanctions motion until after the court’s July 9, 2010 order denying the clarification motion.   DBSI did so because the motion sought sanctions pursuant to Code of Civil Procedure sections 1008 and 128.7, and section 128.7 contains a “safe harbor” provision, requiring service of a sanctions motion 21 days in advance of its filing to provide the offending party and counsel an opportunity to withdraw the motion or other pleading that is the subject of the sanction motion.  (Code Civ. Proc., § 128.7.) Thus, when plaintiffs pursued the matter in court following July 9, they were aware that DBSI was seeking sanctions.

At the hearing on DBSI’s sanction motion, which was held on September 3, 2010, plaintiffs claimed to still be confused and that sanctions were inappropriate because they had brought the clarification motion in good faith.   The trial court was not impressed.   It noted that:  “Well, it’s not that you came in just once.   It’s that you came in twice.   And in the second instance, it was really a 1008.   It was a motion for reconsideration, which was not timely.   We had had a discussion at the earlier hearing about what the court intended.   It was very clear what the court intended.   The record was clear.   The minute order was clear, and, yet, you came in again and did the same thing all over again.”

The trial court granted the motion under both sections 1008, subdivision (d), and 128.7, but reduced the amount sought by more than half—to $10,000.   The court found that the motion seeking clarification was frivolous, brought for an improper purpose, brought to delay the arbitration, and had been brought before the court three times already.   The court, having previously given plaintiffs and their counsel the benefit of the doubt was obviously no longer of the same mind.   In announcing the ruling, the court made its views quite clear.

“[THE COURT]:  “Well, I think plaintiffs have been told over and over again that the conduct was not warranted, was not justified.   And I do think that $10,000 is an adequate deterrent.  [¶] And, Mr. Shuman [one of plaintiffs’ counsel], I disagree with you.   It’s not as if you came in here once saying we don’t understand.   You came in here three times.   The first time was in February, when the motion was heard.   And if at that time the order was unclear, you should have so indicated.   There was a second opportunity when the court, again, looked at the proposed order.   You submitted objections.   Those objections were overruled.   You then came in yet then another time.   It’s just over and over and over, and it’s clear to me that what you’re really trying to do is just simply delay the arbitration and that will not be allowed․  [¶] ․ It’s plain English.   All right.

“MR. SHUMAN:  I’m not arguing – I’m arguing what our good faith belief was, Your Honor.

“THE COURT:  Well, I’m afraid that, you know, any reading of Webster’s dictionary would tell you what it meant.   So I think the sanctions are entirely appropriate, and, frankly, the more you argue, the more I’m inclined to up the sanctions, but I’ll leave them as indicated.   The motion for sanctions is granted. $10,000 in sanctions.”

The sanction order was imposed upon the attorneys only and in favor of DBSI. The attorneys have filed a timely appeal.

CONTENTIONS

The attorneys argue that the award of sanctions against them was an abuse of discretion and therefore should be reversed.   In support of that claim they argue the same “clarification” issues repeatedly raised and argued before the trial court and in two writ petitions in this court.11

DISCUSSION

1. Standard of Review

In this case, the trial court, in imposing the sanctions that are the subject of this appeal, relied upon Code of Civil Procedure section 128.7, subdivision (b) and (c) and 1008, subdivision (d).12  It was the violation of section 1008 by plaintiffs and their counsels’ repeated filing of motions that served as the basis for the trial court’s sanction order.   While the violations of section 1008 prompted the sanction award, the award itself was required to be in accordance with section 128.7.

“Section 128.7, subdivision (c) authorizes the imposition of sanctions upon a finding of a violation of subdivision (b) as follows:  ‘If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.   In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.’   “ (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 422 (Kojababian ), italics in original.)

Under the explicit language of section 128.7, subdivision (c), the trial court retains the discretion, upon the finding of a violation of subdivision (b), to determine whether a sanction is warranted in the first instance;  and, if so, the type and amount of sanctions warranted.   Thus, the trial court only exercises its discretion whether to impose a sanction, when there has been a violation of section 128.7, subdivision (b).  “ ‘ “ ‘ “ ‘To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice.’  “ ‘ “ ‘ (Sabek, Inc. v. Engelhard Corp. (1998) 65 Cal.App.4th 992, 1001.)  Section 128.7, subdivision (c) does not require the imposition of monetary sanctions upon the finding of a violation of section 128.7, subdivision (b);  rather, it gives the trial court discretion to impose sanctions based on such a finding.”   (Kojababian, supra, 174 Cal.App.4th at p. 422.)

In other words, it is the violation of section 128.7, subdivision (b), in this case by the repeated violations of the provisions of section 1008 that triggers the trial court’s exercise of its discretion as to whether to impose sanctions.   Absent a showing of arbitrariness, we will presume the correctness of the trial court’s decision to award sanctions.  (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)

2. The Violations of the Requirements of Section 1008 Are

Clearly Established By This Record

Code of Civil Procedure section 1008 requires any motion for reconsideration to be brought within ten days of notice of entry of the order and based upon “new or different facts, circumstances, or law” than those before the court at the time of the original order at issue.  (Code Civ. Proc., § 1008.)  Section 1008, subdivision (d) provides, “[a] violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7.”  Section 1008 is jurisdictional;  it was amended in 1992 to require new and different facts, circumstances, or law so that parties would not have the ability to drain resources with the same motion “over and over.”   (Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th 1148, 1157.)

It is clear from this record that plaintiffs made no real effort to meet the requirements of section 1008.   Indeed, plaintiffs steadfastly maintained that, because they did not “invoke” or cite section 1008, they were not bound by its requirements.   They have instead argued that they were simply seeking “clarification.”   Of course, as the trial court properly recognized, “the name of the motion is not controlling.   The requirements for a motion for reconsideration ‘apply to any motion that asks the judge to decide the same matter previously ruled on.’  “ (R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 373.)

Irrespective of its name, the plaintiffs’ clarification motion sought reconsideration of many prior rulings.   For example, although plaintiffs have claimed otherwise, their motion effectively sought reconsideration of the trial court’s original order of November 2, 2009 compelling arbitration and staying the action.   In that regard, each of the repeated motions, including the one for clarification sought to obtain a backdoor ruling permitting the so-called “joint venture” allegations that would effectively draw issues into the FINRA arbitration that had been ordered either (1) stayed (as to HBI), or (2) not to be joined in this arbitration (as to the Themis defendants).   Plaintiffs had already sought reconsideration from the trial court in one form or another at least three times before the clarification motion had been brought by way of (1) objections to the November 2009 proposed order compelling arbitration, (2) the February 22, 2010, motion for partial relief from stay and opposition to ex parte application for compliance and contempt, and (3) the objections to the proposed order on those proceedings.   In addition, plaintiffs had already sought review of those orders both in this court and in the Supreme Court.

Although this history itself is sufficient to support the trial court’s conclusion that plaintiffs were doing everything they could to undermine the original and subsequent orders on the topic, we need not rely on that history in order to find that the “clarification” motion was an improper reconsideration motion.   It is only necessary to look at the proposed orders and objections that arose after the February 22, 2010, hearing.   As plaintiffs concede, they submitted a brief on March 5, 2010, objecting to the order on the very same grounds they would later present again in their motion for clarification.   And, as plaintiffs also concede, the trial court expressly considered and overruled those objections on March 22, 2010.   Thus, there was no new fact, no new circumstance, no new law even asserted with respect to the clarification motion;  instead, it was admittedly exactly the same argument as had been presented before.  (See McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265–1266 [holding that there was no “new” evidence even where a party claimed it was precluded from presenting its interpretation of the law, where the law and the interpretation had been presented in the briefs];  In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1168–1169 [even where party submitted new facts and motion for reconsideration only a week after initial ruling, trial court did not abuse its discretion in awarding sanctions where no credible explanation was offered for the failure to present the facts earlier].)

Leaving aside the fact that plaintiffs were unable to satisfy the “new evidence” standard, they made no effort to come within the ten-day deadline imposed by section 1008, subdivision (a).   The cases relied upon by plaintiffs are not helpful to their position.   For example, their reliance on Tutor–Saliba–Perini Joint Venture v. Superior Court (1991) 233 Cal.App.3d 736 does not support their argument that the trial court’s award of sanctions was an abuse of discretion.   Most significantly, the decision in Tutor–Saliba–Perini was superseded by the amendment to section 1008 enacted in 1992.   When that decision was issued in 1991, section 1008 did not contain the jurisdictional requirement that motions for reconsideration be based upon new facts, circumstances, or law.   Those requirements were added by the Legislature in 1992, after Tutor–Saliba–Perini was decided.  (Stats.1978, ch. 631, § 2.)

In re Marriage of Flaherty (1982) 31 Cal.3d 637, also cited by the attorneys, did not involve a trial court’s imposition of sanctions after a series of improper reconsideration motions pursuant to Code of Civil Procedure sections 1008 and 128.7.   Instead, it involved the Supreme Court review of a Court of Appeal order imposing sanctions for a frivolous appeal.   The Supreme Court set the appropriate standard for imposition of sanctions for a frivolous appeal, determined that a legal argument advanced was not frivolous, and set the minimum due process standards for imposition of appellate sanctions in that regard.  (I In re Marriage of Flaherty, supra, at pp. 647–650.)   Nothing about that case has any bearing on seriatim reconsideration motions to a trial court and whether a trial court abused its discretion in granting sanctions against the moving party.

Finally, the attorneys’ reliance on Code of Civil Procedure section 473(d) and cases decided under it is misplaced.   It is well-settled that “clerical mistakes in ․ judgment or orders” do not include orders that are the “deliberate result of judicial reasoning and determination,” and those that “cannot reasonably be attributed to exercise of judicial consideration or discretion,” which plainly are the supposed “errors” complained of here.   (Estate of Sloan (1963) 222 Cal.App.2d 283, 292 [trust decree concerning taxes];  Wilson v. Wilson (1952) 109 Cal.App.2d 673 [asserted error in divorce decree which granted plaintiff right to use real property].)

The inclusion of the language with which plaintiffs now take issue was no “clerical mistake.”   Instead, it was the result of many hearings and reasoned consideration by the trial court, including:  (1) the court’s February 22, 2010, ruling, (2) a proposed order that produced objections on that very topic, (3) response to those objections, on that very topic, (4) an express ruling considering and overruling those objections.   As such, section 473(d) is inapplicable.  (See also Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1196–1197 [claim that trial court failed to consider relevant law is no basis for seeking reconsideration];  Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 [attorneys’ failure to request oral argument did not warrant reconsideration under 1008 or section 473’s provisions for excuse or neglect].)

3. The Sanction Award Was Reasonable

The reason for the trial courts’ broad discretion in deciding to award sanctions under section 1008 was aptly stated in Darling, Hall & Rae v. Kritt:  “Section 1008 is designed to conserve the court’s resources by constraining litigants who would attempt to bring the same motion over and over.”  (Darling, Hall & Rae v. Kritt, supra, 75 Cal.App.4th at p. 1157.)   Here, the trial court went even further, awarding sanctions not only because the attorneys had violated the mandate of section 1008, but also because they had violated section 128.7.13

In essence, plaintiffs’ argument, unsupported by any declaration, is “we acted in good faith because we were so certain that the trial court was wrong.”   But believing that the trial court was “wrong” in its ruling is no grounds for ignoring every mandate of section 10DP1⌑Given all the circumstances, the trial court was well within its discretion in finding that the attorney had brought a frivolous motion for clarification “for an improper purpose.”   As the trial court expressly recognized, the amount it intended to impose was modest.   It saw repeated motions on the same topic, months and months apart, and a series of writ petitions attacking the very orders plaintiffs later would brand as “unclear.”   There was no—and could be no—reason for the motion for clarification other than to try to persuade the trial court, once again, to change its mind.   The sanctions award was modest and proper.   It was not an abuse of discretion.

4. The Motion for Sanctions on Appeal

DBSI filed and served a timely motion for additional sanctions against the attorneys for filing and prosecuting a frivolous appeal.   We previously ordered that such motion would be heard, considered and ruled upon contemporaneously with the merits of the appeal.   The attorneys have filed a written response to such motion and have had the opportunity to argue against the motion at oral argument.

The applicable rule of law governing sanctions on appeal is found in Code of Civil Procedure section 907, which states:  “When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.”   Our Supreme Court interpreted this to include both a subjective standard and an objective standard in In re Marriage of Flaherty, supra, 31 Cal.3d at p. 649.   To summarize, the rule established by our Supreme Court is that “an appeal should be held to be frivolous only when it is prosecuted for an improper motive – to harass the respondent or delay the effect of an adverse judgment – or when it indisputably has no merit – when any reasonable attorney would agree that the appeal is totally and completely without merit.  [Citation.]”  (Id. at p. 650.)   Although a finding of either standard is enough to warrant sanctions, “[t]he two standards are often used together, with one providing evidence of the other.   Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay.”  (Id. at p. 649.)

“An appeal that is simply without merit is not by definition frivolous and should not incur sanctions ․ [t]he punishment should be used most sparingly to deter only the most egregious conduct.”  (In re Marriage of Flaherty, supra, 31 Cal.3d at pp. 650–651.)  “An unsuccessful appeal should not be penalized as frivolous if it ‘ “ ‘presents a unique issue which is not “indisputably” without merit’ ․, involves facts which are ‘not amendable to easy analysis in terms of existing law’ ․, or makes a reasoned ‘argument for the extension, modification, or reversal of existing law’․   “ ‘ [Citation.]”  (Westphal v. Wal–Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1081 (Westphal ).)

On March 24, 2010, the attorneys sought writ relief in this court from the trial court’s order of March 22, 2010 which enforced the November 2, 2009 order.   We rejected that petition with a jacket denial (No. B223252).  The attorneys’ petition for review of that denial was also denied by our Supreme Court.   While the writ was pending before this court, a motion to “clarify” the March 22, 2010 order was filed on April 22, 2010.   After that motion was denied by the trial court, the attorneys again sought writ relief before this court.   We again denied the requested relief by a jacket denial (No. B226165) on September 1, 2010.   Now, in their two-and-a-half page opposition in which they cite no legal authority, the attorneys assert the same arguments that were repeatedly raised in the two prior writ petitions filed in this court, which we previously denied.   As a result, we find that the appeal before us today does not present any unique issues.   Additionally, the attorneys neither allege any facts not amendable to an easy analysis in terms of existing law nor make a reasoned argument for the extension, modification, or reversal of existing law.   Under Westphal, the appeal is not one that is merely unmeritorious, but rises to the level of frivolous.   Therefore, we find that any reasonable attorney would agree that the appeal, which asserts the same meritless arguments which were previously put forth in writs denied by this court, is totally and completely without merit.   The total lack of merit of the appeal is also evidence that the attorneys brought it solely for delay or harassment of the respondents.

Based on the foregoing, we will grant DBSI’s motion for sanctions for a frivolous appeal against appellants’ attorneys.  (See e.g., Cohen v. General Motors Corp. (1992) 2 Cal.App.4th 893, 897 [“we believe the burden of paying the sanctions most properly belongs exclusively to appellant’s counsel”].)   The issue as to the amount of such sanctions, however, should be determined by the trial court upon remand.  (See e.g., Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 461.)

DISPOSITION

The order imposing sanctions of $10,000 upon the attorneys is affirmed.   DBSI’s motion for sanctions upon appeal is granted;  the amount of which is to be determined by the trial court on remand.   DBSI shall recover its costs on appeal.

 

We Concur:

FOOTNOTES

1.  FN1.  The attorney appellants in this matter are Walter J. Lack, Esq., Steven C. Shuman, Esq., Gary A. Praglin, Esq., and the law firm of Engstrom, Lipscomb and Lack, a professional corporation (hereinafter, the attorneys).   The order that is the subject of this appeal imposed the $10,000 sanctions jointly and severally.

2.  FN2.  Deutsche Bank Securities, Inc. (erroneously sued herein as Deutsche Bank Alex Brown), and certain of its officers or employees that were also joined in this action as defendants, Christopher Frank, John Paul Javellana, Ken Ro and Bruce Treitman are herein collectively referred to as DBSI. The sanction order which is the subject of this appeal was issued in favor of DBSI. The interests of the other defendants in this case, Themis and Derek C. Clark (collectively, the Themis defendants) are not involved in this appeal.

3.  FN3. The plaintiffs filed their first amended complaint on May 13, 2009.   That is the operative pleading in this matter.

4.  FN4.  The arbitration functions of these two organizations was ultimately merged into an entity known as the Financial Industry Regulatory Authority (FINRA) and it was that new organization which the trial court later determined to be the proper venue for arbitration of disputes arising under DSBI’s agreements with the plaintiffs other than HBI.

5.  FN5.  Code of Civil Procedure section 1281.4 provides in relevant part:  “ ․ [¶] ․ If an application has been made to a court of competent jurisdiction, whether in this State or not, for an order to arbitrate a controversy which is an issue involved in an action or proceeding pending before a court of this State and such application is undetermined, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined and, if arbitration of such controversy is ordered, until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.”

6.  FN6.  As DSBI correctly notes, the record does not provide any reason why the plaintiffs chose to include HBI in the same action with other than the tactical one of using HBI’s joinder as an argument to avoid an order compelling arbitration of the other plaintiffs’ claims.

7.  FN7.  “In their Petition, Plaintiffs argued that DBSI lacks standing to object to the inclusion of HBI in the arbitration.   The Court rejects Plaintiffs’ argument.   The FASOC clearly indicates that HBI is proceeding against DBSI as well as Themis and Clark.”

8.  FN8.  “In Claimants’ FASOC, Plaintiffs asserted that ‘[the December Order] authorizes Claimants to proceed against [Themis] in this FINRA Arbitration’ and that ‘[the December Order] orders arbitration between Claimants and THEMIS/CLARK in this FINRA proceeding.’ (italics added.)   The Court finds that these statements misstate the Court’s intent and prior orders.   By signing the December Order, the Court only approved Plaintiffs, on the one hand, and Themis and Clark, on the other hand, to proceed by way of arbitration before FINRA.   The Court did not intend for those proceedings to be consolidated with Plaintiffs’ claims against DBSI, and the Court would not have signed the December Order had it known that Plaintiffs would attempt to do so.”

9.  FN9.  At the request of DBSI, we take judicial notice of our files in No. B223252 as well as those of the Supreme Court to which a petition for review in this matter was submitted.

10.  FN10.  Plaintiffs sought writ relief from this court with respect to the denial of their clarification motion (No. B226165).  We denied the requested relief by a jacket denial on September 1, 2010.

11.  FN11.  We will not engage arguments that go beyond the straightforward issues presented to us.   That is, did the trial court properly exercise its discretion and was there substantial evidence in the record to support its decision.

12.  FN12.  Code of Civil Procedure section 128.7, subdivision (b) and (c), provide, in relevant part:  “(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:  [¶] (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.  [¶] (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.  [¶] (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.  [¶] (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. [¶] (c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.   In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.  [¶] (1) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b).  Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.   If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.   Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees․ [¶] ․ “Code of Civil Procedure section 1008, subdivision (d) provides, in relevant part:  “A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7․ “

13.  FN13.  We have found no published decision in which a court has addressed whether, in imposing sanctions under section 1008, the trial court must make the same substantive determinations as to frivolousness, delay, and harassment that are required by section 128.7.   We believe the answer to that question—which has not been raised by plaintiffs –is “No.” Section 1008(d) provides:  “A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7.”   In our view, the “as allowed by Section 128.7” language refers to the procedural safe-harbor provisions, notice, and opportunity to be heard aspects of section 128.7, which are not contained in the sanctions subdivision of section 1008 itself.   Conversely, section 1008 makes clear from a substantive standpoint that a mere “violation” of section 1008’s requirements can give rise to sanctions.   Had the Legislature intended for all aspects of section 128.7, including its substantive provisions, to be incorporated, the Legislature would not even need to reference section 128.7 in section 1008.

CROSKEY, J.

KLEIN, P. J.ALDRICH, J.

AMENDED CLASS ACTION COMPLAINT — Horizon Anti-Trust — Of Interest Walter Lack (of In Re Girardi), Eric George (Son of Ronald George)

IN RE HAWAIIAN & GUAMANIAN CABOTAGE ANTITRUST — Of Interest are Thomas Girardi and Walter Lack (of In Re Girardi), Eric George (Son of Ronald George), Joe Cotchett, Gilmur Murray (of Judy Johnson’s CCPF)

IN RE HAWAIIAN & GUAMANIAN CABOTAGE ANTITRUST

647 F.Supp.2d 1250 (2009)

In re HAWAIIAN & GUAMANIAN CABOTAGE ANTITRUST LITIGATION.
This Document Relates to: All Cases.
No. 08-md-1972 TSZ.
United States District Court, W.D. Washington, at Seattle.

August 18, 2009.

Allen Steyer, Simon R. Goodfellow, Steyer Lowenthal Boodrookas Alvarez & Smith LLP, Laurence D. King, Linda M. Fong, Kaplan Fox & Kilsheimer LLP, Bruce L. Simon, Clifford H. Pearson, Daniel Warshaw, Esther L. Kilsura, Pearson Simon Warshaw & Penny LLP, Guido Saveri, Richard Alexander Saveri, Saveri & Saveri Inc., Joseph M. Alioto, Alioto Law Firm, Christopher L. Lebsock, Jon T. King, Michael Lehmann, Arthur N. Bailey, Hausfeld LLP, Craig C. Corbitt, Francis Onofrei Scarpulla, Patrick Bradford Clayton, Zelle Hofmann Voelbel Moason & Gette LLP, Joseph Marid Patane, Law Office of Joseph M. Patane, Lauren Clare Russell, Mario Nunzio Alioto, Trump Alioto Trump & Prescott LLP, San Francisco, CA, Dennis Stewart, Jennifer Anne Kagan, Sarah Pickeral Weber, Hullett Harper Stewart LLP, Christopher M. Burke, Scott & Scott LLP, Bonny E. Sweeney, David W. Mitchell, Thomas J. O’Reardon, II, Coughlin Stoia Geller Rudman & Robbins, San Diego, CA, Jay S. Cohen, Jonathan M. Jagher, William G. Caldes, Spector Roseman Kodroff & Willis PC, Anthony J. Bolognese, Bolognese & Associates LLC, Merrill G. Davidoff, Ruthane Gordon, Berger & Montague, PC, Philadelphia, PA, John McCarthy, Somers Point, NJ, John Murdock, Murdock & Goldenberg Schneider & Groh LPA, Cincinnati, OH, Marc Howard Edelson, Edelson & Associates LLC, Doylestown, PA, Philip A. Steinberg, Bala Cynwyd, PA, Kevin Bruce Love, Michael E. Criden, Hanz Criden & Love PA, South Miami, FL, Robert J. Kaplan, Kaplan Fox & Kilsheimer LLP, Seth R. Gassman, Cohen Milstein Hausfeld & Toll PLLC, Hollis Lee Salzman, Labaton Sucharow LLP, New York, NY, Glenn J. Stanford, Tam & Stanford, John S. Edmonds, Joy S. Omonaka, Ronald J. Verga, Edmonds & Verga, Honolulu, HI, J. Paul Sizemore, Jennifer Lenze, Thomas V. Girardi, Girardi & Keese, Edward Woords, Drier Stien Kahabrowne Woods George, Walter J. Jack, Engstrom Lipscombe & Lack, Brian S. Kabateck, Richard L. Kellner, Kabateck Brown Kellner LLP, Peter George Safirstien, Jeff S. Westerman, Milberg, Los Angeles, CA, Steve W. Berman, Anthony D. Shapiro, Ronnie S. Spiegel, Hagens Berman Sobol, Emillia L. Sweeney, Carney Badley Spellman, Seattle, WA, Christina L. Beatty-Walters, N. Robert Stoll, Stoll Stoll Berne Lokting Shlacter, Portland, OR, Ara Ray Jabagchourian, Joseph W. Cotchett, Nanci E. Nishimura, Steven Williams, Stuart G. Gross, Cotchett Pitre Simon and McCarthy, Burlingame, CA, Eric M. George, Michael A. Bowse, Drier Stien Kahan Growne Woods George LLP, Beverly Hills, CA, Norman E. Siegel, Stueve Siegle Hanson LLP, Kansas City, MO, Paul Novak, Milberg LLP, Detroit, MI, John Charles Evans, Specter Specter Evans & Manogue PC, Pittsburgh, PA, Derek G. Howard, Gilmur Roderick Murray, Murray & Howard LLP, Larkspur, CA, Benjamin Doyle Brown, Michael D. Hausfeld, Cohen Milstein Hausfeld & Toll, Washington, DC, William Timothy Needham, Jansen Malloy Needham Morrison & Reinholsten LLP, Eureka, CA, Douglas A. Millen, Robert J. Wozniak, Sreven A. Kanner, Willian H. London, Freed Kanner London & Millen LLC, Bannockburn, IL, Harry Shulman, The Mills Law Firm, San Rafael, CA, Edward L. Birk, Michael B. Bittner, Marks Gray PA, Jacksonville, FL, Michael I. Fistel, Jr., Holzer, Holzer & Fistel, Lie, Atlanta, CA, Daniel C. Hedlund, Gustafson Gluek PLLC, Elizabeth R. Odette, Richard A. Lockridge, W. Joseph Bruckner, Lockridge Grindal Nauen, Minneapolis, MN, Alex C. Turan, Montura Law Group, Walnut Creek, CA, Donald Chidi Amamgbo, Amamgbo & Associates, Oakland, CA, Reginald Terrell, The Terrell Law Group, Richmond, CA, for Robert H. Steinberg, Acutron, Inc., 50th State Distributors, Inc., Versa Dock Hawaii LLC, Taste of Nature Inc., Next Transportation, LLC, Rhythm of Life Cosmetics Inc., Curtis Brunk, Winkler Woods LLC, Joshua Wagner, E & M International Transport Inc., Laura Cutler, SJ Venture Group LLC, Alpha Freight & Transport International, Inc., Jay Inouye, Brian Foster, Scott Jackson, Ruthanne Jackson.
Michael Cosman, pro se.
Eric Chase Roberson, McGuire Woods, LLP, Jacksonville, FL, for Alpha Freight & Transport International, Inc., Horizon Lines, LLC, Horizon Logistics, LLC, Crowley Maritime Corporation.
George A Nicoud, III, Joel Steven Sanders, Rachel S. Brass, Rebecca Justice Lazarus, Darin M. Sands, Gibson Dunn & Crutcher, San Francisco, CA, Amy B. Manning, Angelo M. Russo, Richard J. Rappaport, Tammy L. Adkins, Mcguire Woods, Chicago, IL, Craig D. Bachman, Lane Powell, Portland, OR, Darrel Christopher Menthe, Mcguire Woods LLP, Los Angeles, CA, Larry Steven Gangnes, Milo Petranovich, James B. Stoetzer, Lane Powell PC, Seattle, WA, James W McCready, III, Seipp Flick & Kissane, Miami, FL, Cristine M. Russell, Rogers Towers, PA, James M. Riley, Rogers Towers, PA, Scott David Richburg, Foley & Lardner, LLP, Jacksonville, FL, Timothy Joseph Armstrong, Coral Gables, FL, for Matson Navitgation Co Inc., Alexander & Baldwin Inc., Horizon Lines, LLC, Horizon Lines Holding Co., Crowley Maritime Corporation, Sea Star Lines, LLC, Trailer Bridge, Inc., Crowley Liner Services, Inc.
Brent Snyder, John Terzaken, III, Michael L. Whitlock, U.S. Dept of Justice, Anittrust Division, National Criminal Enforcement Section, Washington, DC, for John Terzaken.

THOMAS S. ZILLY, District Judge.

THIS MATTER comes before the Court on defendants’ joint motion, docket no. 86, to dismiss the Consolidated Class Action Complaint, docket no. 69 (the “Consolidated Complaint”), pursuant to Rule 12(b)(6). The Court has reviewed all papers filed in support of and in opposition to the motion and has considered the oral arguments of counsel presented on July 29, 2009.

Continue @:
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Sempra/El Paso Antitrust Litigation — of interest are: DLA Piper’s Jeffrey Shohet (DLA Piper — Abode of CaliforniaALL),Walter Lack (of In Re Girardi) and Nancy Fineman (of Cal Bar Foundation)

Toyota Unintended Acceleration Lawsuit (TLR Note: Ronald George, Eric George, Walter Lack, and In Re Girardi’s Thomas Girardi Connection)

This well-publicized case concerns unintended acceleration of Toyota motor vehicles experienced by consumers throughout the country and worldwide. The complaint alleges that Toyota manufactured and sold tens of millions of cars that used a defective electronic throttle control system. Rather than being safe, these systems resulted in Toyota receiving tens of thousands of complaints from consumers about sudden unintended acceleration that caused property damage, injury and, in some cases, death.

Status
On May 13, 2011, the Honorable James V. Selna denied Toyota’s motion to dismiss, finding that the plaintiffs have standing to allege economic harm over sudden acceleration defects in Toyota cars based on a diminution in value theory.  Judge Selna held that the plaintiffs had alleged sufficient facts to establish overpayment and/or loss in value of the vehicles.  To view a copy of the Court’s  May 13, 2011 order, click here.

To learn more about the case and view the most recent Complaint, click here.

IN RE HAWAIIAN & GUAMANIAN CABOTAGE ANTITRUST — Of Interest Are Eric George (Son of Ronald George) Walter Lack, Thomas Girardi, Joe Cotchett, Gilmur Murray

IN RE HAWAIIAN &amp; GUAMANIAN CABOTAGE ANTITRUST

647 F.Supp.2d 1250 (2009)

In re HAWAIIAN &amp; GUAMANIAN CABOTAGE ANTITRUST LITIGATION.
This Document Relates to: All Cases.
No. 08-md-1972 TSZ.
United States District Court, W.D. Washington, at Seattle.

August 18, 2009.

Allen Steyer, Simon R. Goodfellow, Steyer Lowenthal Boodrookas Alvarez &amp; Smith LLP, Laurence D. King, Linda M. Fong, Kaplan Fox &amp; Kilsheimer LLP, Bruce L. Simon, Clifford H. Pearson, Daniel Warshaw, Esther L. Kilsura, Pearson Simon Warshaw &amp; Penny LLP, Guido Saveri, Richard Alexander Saveri, Saveri &amp; Saveri Inc., Joseph M. Alioto, Alioto Law Firm, Christopher L. Lebsock, Jon T. King, Michael Lehmann, Arthur N. Bailey, Hausfeld LLP, Craig C. Corbitt, Francis Onofrei Scarpulla, Patrick Bradford Clayton, Zelle Hofmann Voelbel Moason &amp; Gette LLP, Joseph Marid Patane, Law Office of Joseph M. Patane, Lauren Clare Russell, Mario Nunzio Alioto, Trump Alioto Trump &amp; Prescott LLP, San Francisco, CA, Dennis Stewart, Jennifer Anne Kagan, Sarah Pickeral Weber, Hullett Harper Stewart LLP, Christopher M. Burke, Scott &amp; Scott LLP, Bonny E. Sweeney, David W. Mitchell, Thomas J. O’Reardon, II, Coughlin Stoia Geller Rudman &amp; Robbins, San Diego, CA, Jay S. Cohen, Jonathan M. Jagher, William G. Caldes, Spector Roseman Kodroff &amp; Willis PC, Anthony J. Bolognese, Bolognese &amp; Associates LLC, Merrill G. Davidoff, Ruthane Gordon, Berger &amp; Montague, PC, Philadelphia, PA, John McCarthy, Somers Point, NJ, John Murdock, Murdock &amp; Goldenberg Schneider &amp; Groh LPA, Cincinnati, OH, Marc Howard Edelson, Edelson &amp; Associates LLC, Doylestown, PA, Philip A. Steinberg, Bala Cynwyd, PA, Kevin Bruce Love, Michael E. Criden, Hanz Criden &amp; Love PA, South Miami, FL, Robert J. Kaplan, Kaplan Fox &amp; Kilsheimer LLP, Seth R. Gassman, Cohen Milstein Hausfeld &amp; Toll PLLC, Hollis Lee Salzman, Labaton Sucharow LLP, New York, NY, Glenn J. Stanford, Tam &amp; Stanford, John S. Edmonds, Joy S. Omonaka, Ronald J. Verga, Edmonds &amp; Verga, Honolulu, HI, J. Paul Sizemore, Jennifer Lenze, Thomas V. Girardi, Girardi &amp; Keese, Edward Woords, Drier Stien Kahabrowne Woods George, Walter J. Jack, Engstrom Lipscombe &amp; Lack, Brian S. Kabateck, Richard L. Kellner, Kabateck Brown Kellner LLP, Peter George Safirstien, Jeff S. Westerman, Milberg, Los Angeles, CA, Steve W. Berman, Anthony D. Shapiro, Ronnie S. Spiegel, Hagens Berman Sobol, Emillia L. Sweeney, Carney Badley Spellman, Seattle, WA, Christina L. Beatty-Walters, N. Robert Stoll, Stoll Stoll Berne Lokting Shlacter, Portland, OR, Ara Ray Jabagchourian, Joseph W. Cotchett, Nanci E. Nishimura, Steven Williams, Stuart G. Gross, Cotchett Pitre Simon and McCarthy, Burlingame, CA, Eric M. George, Michael A. Bowse, Drier Stien Kahan Growne Woods George LLP, Beverly Hills, CA, Norman E. Siegel, Stueve Siegle Hanson LLP, Kansas City, MO, Paul Novak, Milberg LLP, Detroit, MI, John Charles Evans, Specter Specter Evans &amp; Manogue PC, Pittsburgh, PA, Derek G. Howard, Gilmur Roderick Murray, Murray &amp; Howard LLP, Larkspur, CA, Benjamin Doyle Brown, Michael D. Hausfeld, Cohen Milstein Hausfeld &amp; Toll, Washington, DC, William Timothy Needham, Jansen Malloy Needham Morrison &amp; Reinholsten LLP, Eureka, CA, Douglas A. Millen, Robert J. Wozniak, Sreven A. Kanner, Willian H. London, Freed Kanner London &amp; Millen LLC, Bannockburn, IL, Harry Shulman, The Mills Law Firm, San Rafael, CA, Edward L. Birk, Michael B. Bittner, Marks Gray PA, Jacksonville, FL, Michael I. Fistel, Jr., Holzer, Holzer &amp; Fistel, Lie, Atlanta, CA, Daniel C. Hedlund, Gustafson Gluek PLLC, Elizabeth R. Odette, Richard A. Lockridge, W. Joseph Bruckner, Lockridge Grindal Nauen, Minneapolis, MN, Alex C. Turan, Montura Law Group, Walnut Creek, CA, Donald Chidi Amamgbo, Amamgbo &amp; Associates, Oakland, CA, Reginald Terrell, The Terrell Law Group, Richmond, CA, for Robert H. Steinberg, Acutron, Inc., 50th State Distributors, Inc., Versa Dock Hawaii LLC, Taste of Nature Inc., Next Transportation, LLC, Rhythm of Life Cosmetics Inc., Curtis Brunk, Winkler Woods LLC, Joshua Wagner, E &amp; M International Transport Inc., Laura Cutler, SJ Venture Group LLC, Alpha Freight &amp; Transport International, Inc., Jay Inouye, Brian Foster, Scott Jackson, Ruthanne Jackson.
Michael Cosman, pro se.
Eric Chase Roberson, McGuire Woods, LLP, Jacksonville, FL, for Alpha Freight &amp; Transport International, Inc., Horizon Lines, LLC, Horizon Logistics, LLC, Crowley Maritime Corporation.
George A Nicoud, III, Joel Steven Sanders, Rachel S. Brass, Rebecca Justice Lazarus, Darin M. Sands, Gibson Dunn &amp; Crutcher, San Francisco, CA, Amy B. Manning, Angelo M. Russo, Richard J. Rappaport, Tammy L. Adkins, Mcguire Woods, Chicago, IL, Craig D. Bachman, Lane Powell, Portland, OR, Darrel Christopher Menthe, Mcguire Woods LLP, Los Angeles, CA, Larry Steven Gangnes, Milo Petranovich, James B. Stoetzer, Lane Powell PC, Seattle, WA, James W McCready, III, Seipp Flick &amp; Kissane, Miami, FL, Cristine M. Russell, Rogers Towers, PA, James M. Riley, Rogers Towers, PA, Scott David Richburg, Foley &amp; Lardner, LLP, Jacksonville, FL, Timothy Joseph Armstrong, Coral Gables, FL, for Matson Navitgation Co Inc., Alexander &amp; Baldwin Inc., Horizon Lines, LLC, Horizon Lines Holding Co., Crowley Maritime Corporation, Sea Star Lines, LLC, Trailer Bridge, Inc., Crowley Liner Services, Inc.
Brent Snyder, John Terzaken, III, Michael L. Whitlock, U.S. Dept of Justice, Anittrust Division, National Criminal Enforcement Section, Washington, DC, for John Terzaken.

THOMAS S. ZILLY, District Judge.

THIS MATTER comes before the Court on defendants’ joint motion, docket no. 86, to dismiss the Consolidated Class Action Complaint, docket no. 69 (the “Consolidated Complaint”), pursuant to Rule 12(b)(6). The Court has reviewed all papers filed in support of and in opposition to the motion and has considered the oral arguments of counsel presented on July 29, 2009.

Continue @:
http://www.leagle.com/xmlResult.aspx?xmldoc=20091897647cefsupp2d1250_11815.xml

AMENDED CLASS ACTION COMPLAINT — Horizon Anti-Trust — Eric George, Walter Lack, Joe Cotchett

Arnold & Porter’s Prospective Partner Jerome Falk Assailed for Alleged Misconduct Subsequent to Ruling by Ninth Circuit judges Marsha Berzon, N. Rabdy Smith and William Fletcher

Letter from Jerome Falk to Complainant, please see Here. Complainant relpy, below:

Dear Mr. Falk:

Thank you for replying to my letter of November 13th, 2011 This will serve as a reply.

In your letter dated December 7, 2011, you attempt again to defraud and mislead in your attempt to avoid responsibility for your repugnant and deceitful actions taken in connection with your actions as a special prosecutor on behalf of the State Bar of California against two of your and your firm’s clients — Girardi & Keese and Engstrom Lipscomb & Lack (and by operation of law, Thomas Girardi and Walter Lack), as part of a scheme to exploit your authority for financial gain.

By analogy, rather than acknowledging that you were caught with your hand in the cookie jar, you seek to bamboozle the unwary by stating that it wasn’t actually your hand in the cookie jar but, rather, only your fingers, and in any event it wasn’t a jar but, rather, a plastic container which you contend doesn’t qualify as a jar. Therefore, you devote an entire paragraph proclaiming, “Your allegations are false.” You conclude by placing me on “notice” that my allegations are “false.”

The contents of your communication are unethical in the extreme, as well as entirely frivolous factually, legally, and by operation of law, to wit:

You claim, “In fact, I wasn’t aware of it” (referring to the fact that you and your firm had represented Girardi & Keese and ELL). While you acknowledge your firm (Howard Rice) did represent Girardi & Keese and ELL from 2006 to 2008 , you assert that you were not aware of this representation. Simply put, your assertion is false; it is simply implausible that for two entire years you were unaware that your firm represented such celebrity/famous/notorious attorneys such as Thomas Girardi, Walter Lack, and Pierce O’Donnell.

This is particularly true since you are a member of Howard Rice’s “attorney liability” group, which consists of between 7-9 attorneys (including your colleagues Sean SeLegue, Pamela Phillips, and Steve Mayer), and the subject matter of the litigation was a suit advanced against Girardi & Keese, ELL, and O’Donnell for legal malpractice in connection with alleged attorney misconduct in the litigation involving El Paso Natural Gas/Sempra Energy, a series of cases which received significant publicity.

I am also hard-pressed to believe that you were unaware of the estimated $250,000 retainer Girardi & Keese and ELL paid to your firm (money which paid your and your colleagues’ salaries), and that no one ever discussed this matter with you for purposes of addressing legal strategy or legal issues in person or during meetings.

Most importantly, in your letter to Robert Baker you acknowledge that you had interviewed Walter Lack. Again, you ask me to believe that Walter Lack did not mention the fact that Howard Rice represented him and his firm only one year prior to your meeting.

The fact that Walter Lack did not speak up during the interview with you is just too convenient, and is further circumstantial evidence that you and he both knew of the prior representation, and chose to nevertheless further continue with the conspiracy to obstruct justice for financial gain, to the detriment of the public and the proper administration of justice.


Mr. Jerome Falk of Howard Rice, an appellate specialist with a mercurial personality. In 2008, during an interview with a legal publication, Mr. Falk stated while describing some opposing counsel, “I would do anything to squash them. So those cases don’t settle. You just want to rip their throats out.” After visiting Vietnam, Mr. Falk joined East meets West, an organization dedicated to improving the lives of children in Vietnam. (Photo:courtesy of Vietnam, East meets West)

Your claim that Ethan Schulman took the file with him when he left Howard Rice is also suspect, as I am confident that records of transactions were and remain on Howard Rice’s computer system, including the computerized conflict check system.

Moreover, the fact that Mr. Schulman has left the firm is immaterial. Courts have held that even where the attorneys in a firm who had been primarily responsible for the representation of a client had left the law firm, there was a rebuttable presumption that they had shared client confidences with lawyers remaining with the law firm. See generally Elan Transdermal Ltd. v. Cygnus Therapeutic Systems (N.D. Cal. 1992) 809 F.Supp. 1383.

Similarly, your alleged present recollection is immaterial. See generally Civil Service Com. v. Superior Court (1984) 163 Cal.App.3d 70, 79), particularly given the rule that creates a presumption that lawyers in the same firm will confer on their cases and exchange confidences.

Even if I were to accept that you and your firm did not represent Walter Lack and Thomas Girardi, and only represented the firms of Girardi & Keese and ELL (which I do not), your absurd argument still fails.

The findings of grave misconduct by the Ninth Circuit in the matter of In Re Girardi, as well as the sanctions imposed, were directed not just at Walter Lack and Thomas Girardi , but also at their law firms — your and your firm’s clients, Girardi & Keese and ELL. In fact, both Girardi & Keese and ELL were considered to have been “respondents” and were represented by counsel Robert Baker, Diane Karpman, and your MGA and Gennetech confederate — Thomas Nolan of Skadden Arps.

Since you concede that Girardi & Keese and ELL were clients of your firm, and the Ninth Circuit made findings against Girardi & Keese and ELL, it was improper for you to accept the appointment at issue. This is especially true given fiduciary duties you owe Girardi & Keese and ELL — including the duties of loyalty and confidentiality — as well as the requirement that you obtain a waiver from a client in instances in which you may take a position adverse to them.

This last prong is a bit unusual when applied to the present facts, as it differs from the usual scenario wherein an attorney has a financial incentive to be adverse to a former client. Here, and as the facts clearly provide, you had a financial incentive to not prosecute, as well as an additional incentive to not prosecute since such would have exposed you to professional discipline.

Lastly, even though plaintiff Robert Copple only named the firms and not the partners as defendants, Thomas Girardi and Walter Lack are still considered to have been your and Howard Rice’s clients by operation of law. For example If anyone would ask Howard Rice to disclose communications with Girardi & Keese regarding the suit and the representation, Howard Rice would certainly assert the attorney-client privilege.

Likewise, if Howard Rice were asked to disclose communications between itself and Thomas Girardi relating to the litigation, Howard Rice would, again, assert the attorney-client privilege with respect to Thomas Girardi; similarly, both Girardi & Keese and Thomas Girardi would do the same. As such, it is disingenuous for you to attempt to argue that these individuals were not clients of you and your firm.

Thank you for your time. Please do not hesitate to contact me if you have any questions.

ABC’s Cynthia McFadden Loses Credibility in Expose of “Erin Brockovich Still Fighting for Neighbors Over Contaminated Drinking Water

Media_httpaabcnewscom_rckqc

In the movie, the victims in the celebrated lawsuit won big. In reality, many are wondering where the money went — and they’re mad at their lawyers. See Salon article @: http://www.salon.com/2000/04/14/sharp/

Thomas Girardi of Girardi & Keese was found recently to have engaged in grave misconduct by a federal court.. Some of the findings included that Girardi have resorted to employing “the persistent use of known falsehoods” and that “false representations” were made “knowingly, intentionally, and recklessly” during years of litigation. Girardi is highly unethical and efforts are underway to seek his disbarment. See
http://lesliebrodie.blog.co.uk/2011/11/15/united-states-court-of-appeals-for-…

See ABC’s coverage @:
http://abcnews.go.com/US/erin-brockovich-fighting-neighbors-toxic-drinking-wa…

Jerome B. Falk of Howard Rice — State Bar of California Special Prosecutor in Ninth Circuit Matter of In Re Girardi (adjudicated by N. Randy Smith, Marsha Berzon, William Fletcher) Lashes Out – Claims Girardi & Keese Client of Howard Rice – Not His


Source

In the interest of ethical journalism, and as public service to the community, The Leslie Brodie Report publishes* communication from Howard Rice’s Jerome Falk to Complainant, below: (end hair-splitting, see above)

I received your November 13 email concerning my participation in the State Bar’s investigation of Walter J. Lack, Thomas V. Girardi and other attorneys. It is filled with disparaging characterizations, all of which seem to stem from your allegations that I or my firm have represented Mr. Lack and Mr. Girardi.

Your allegations are false.

I have never represented either person, or their firms. Neither has Douglas Winthrop. Nor has my firm ever represented Mr. Lack or Mr. Girardi.

From 2006-2008, my firm represented several law firms, including Engstrom, Lipscomb & Lack and Girardi & Keese, in a litigation matter. The public records of that litigation show that neither Mr. Winthrop nor I had nothing to do with that representation; in fact, I was unaware of it. The public records also show that my firm represented the law firms, but did not represent Mr. Girardi or Mr. Lack. The attorney responsible for that representation had left Howard Rice and taken the files with him before I was asked to serve as Special Deputy Trial Counsel in the State Bar matter.

You are on notice that your allegations are false. The falsity of those allegations can be determined from the public records of the litigation in question.

Jerome B. Falk, Jr.

————————————————————————————————————–
Letter from Jerome Falk to Walter Lack, Below:

Howard Rice Nemerovski Canady Falk & Rabkin’s Jerome Falk (allegedly) Offers Explanation as to Allegation of Misconduct in Matter of In Re Girardi (TLR Note: Split Hairs — Oy Vey)

More Merger Madness: Arnold & Porter Ties up With Howard Rice

    • Leslie Brodie has his facts wrong. I have never represented Thomas Girardi, Walter Lack or their firms. As for my law firm, it has never represented Mr. Girardi or Walter Lack. I therefore did not fail to disclose to the State Bar anything that should have been disclosed.

      Jerome B. Falk, Jr.

  • Pierce O’Donnell — State Bar of California 60 Days Scandal #2 — Part 1

    In this, and future articles, TLR will offer extensive coverage of the troubling circumstances surrounding Mr. Pierce Henry O’Donnell.

    O’Donnell is an attorney and former named-partner in O’Donnell & Shaeffer. He is purportedly both well-known and well-respected, and is a current partner at O’Donnell & Associates.


    Mr Pierce O’Donnell (Image: source)

    Unfortunately, O’Donnell also suffers from a mental illness which allegedly contributed to his inability to comply with laws and regulations pertaining to political contributions – specifically, manic-depressive disorder.

    He has been involved in multiple court proceedings, described briefly below:

    1. Criminal proceedings in the Los Angeles County Superior Court relating to unlawful contributions to James Hahn. O’Donnell was convicted of these crimes, and sentenced to probation.

    2. Criminal proceedings in federal court. These proceedings are ongoing and relate to alleged unlawful contributions to John Edwards.


    Mr Tom O’Brien,  former U.S. Attorney for the Central District of California, advanced the original criminal charges against O’Donnell.   Previously, TLR made mention of O’Brien’s stellar career and unparalleled contribution to the community.

    3. State Bar of California Court proceedings relating to his attempt to mislead a Nevada state court.

    4. State Bar of California alternative proceedings relating to his mental illness (O’Donnell failed to comply with the conditions of the program and his participation was terminated).

    5. State Bar of California Court proceedings relating to his conviction of crimes involving moral turpitude in the Los Angeles County Superior Court.

    6. Ongoing criminal proceedings in federal court advanced by the U.S. government.

    Events surrounding O’Donnell repeat a familiar pattern, as well as fall squarely within TLR’s originally-stated purpose, which is to expose corruption in connection with the “60 Days Suspension Scandal,” wherein an attorney with a prior criminal history engaged in a pogrom in a San Francisco synagogue, yet was only suspended for 60 days due to his political connections within the Democratic party, courtesy of Judy Johnson, JoAnn Remke, and former-crack-addict Mike Nisperos – for whom Thomas Girardi served as “mentor.”

    O’Donnell’s participation (alongside Thomas Girardi , Walter Lack, and James Brosnahan) in the El Paso Natural Gas and Sempra Energy litigation is a source of grave concern, particularly due to his purported mental illness which may have affected the outcome of litigation involving millions of Californians.

    In this, Part 1, we will cover O’Donnell , who – while suffering from mental illness – unlawfully participated in a scheme to raise money for James Hahn, as well as related State Bar of California Court proceedings.

    JAMES HAHN:

    In 2000, O’Donnell promised to raise $50,000 in political contributions for then-Los Angeles Mayor James Hahn.
    O’Donnell made several attempts to raise the money by engaging in a mass mailing effort to friends/colleagues, making personal appeals to potential donors, and arranging a luncheon for individuals to meet personally with Hahn. However, despite these efforts, he was unable to raise the promised $50,000.

    As such, O’Donnell told his assistant that he would reimburse staff members at his law firm for contributions to the Hahn campaign. Subsequently, from May 22, 2000 through March 1, 2001, O’Donnell advised others that he would reimburse them for their political contributions to Hahn’s campaign.

    As a result, 26 individuals contributed a total of $25,500 to Hahn’s campaign, each of them with the understanding that O’Donnell would reimburse them for their contributions. 23 of the 26 donors were employees or spouses of employees at O’Donnell’s firm.

    On May 20, 2004, the Los Angeles City Attorney’s Office filed 26 misdemeanor charges of Government Code section 84301 (using a false name in making political contributions) against O’Donnell.

    On February 2, 2006, as part of a plea agreement, O’Donnell was convicted of five misdemeanor counts of Government Code section 84301, and the remaining counts dismissed; he was sentenced to probation.


    STATE BAR COURT PROCEEDINGS RE JAMES HAHN

    Due to his alleged mental illness, O’Donnell sought to participate in the State Bar Court’s Alternative Discipline Program (“ADP”), alleging a nexus between his mental illness and his misconduct. See below.

    Pierce ODonell State Bar Court

    At the August 2, 2010 hearing, which O’Donnell attended with counsel, a State Bar Court judge found that O’Donnell was not in compliance with the conditions of the court’s ADP, and his participation in that program was terminated. See below.

    ADP PO

    Subsequently, after his termination from the ADP, proceedings took place in which it was determined that O’Donnell had engaged in crimes involving moral turpitude. See below.

    Pierce O'Donnell Moral Turpitude

    On 2/23/2011, and Despite O’Donnell’s conviction of crimes involving moral turpitude, and his inability to complete the ADP, O’Donnell was suspended from the State Bar for a period of only 60 days.

    To be continued.

    Meet Ninth Circuit Judge Kim Wardlaw (Wife of Bill Wardlaw — the Very Able Treasurer of Dianne Feinstein’s Campaign)

    Barack Obama pardons Thanksgiving turkey

    Voice of OC’s Henry Weinstein — Professor at UC Irvine School of Law — Subject of Ethics Complaint

    Utter and complete indifference to the law of the land, and despite the clear mandate by the U.S. Department of Treasury’s Internal Revenue Service (IRS) has led to a complaint being filed against Henry Weinstein — a UC Irvine School of Law professor and member of Voice of OC’s Board of Directlors. Also names were Joe Dunn, John Cruz, and Jess Araujo.

    The ethics complaint — filed with the State Bar of California — alleges Orange County’s Nonprofit Investigative News Agency (DBA “Voice of OC) failed to comply with a September 1, 2011 request for production of IRS Form 990, Form 990 Schedule A, and Form 1023.


    Professor Henry Weinstein, a former prize-winning legal affairs reporter with the Los Angeles Times, is now a professor at UCI law school teaching legal writing and developing clinical programs. As a journalist, Weinstein was known for his work on death penalty cases – freeing one man after 24 years in prison – as well as investigations into consumer fraud and white-collar crime. (photo:courtesy of literaryorange.org ; nerrative from Voice of OC)

    Specifically, the request to produce Voice of OC’s tax returns has been ignored, despite the clear mandate by the U.S. Department of Treasury and Internal Revenue Service to fully comply with such requests within 30 days. As such, the failure of respondents (who all serve on Voice of OC’s Board of Directlors) to comply with the law, as well as the utter and complete indifference to the law of the land, mandates that discipline be imposed.

    The fact that Senator Dunn is the Executive Director of the State Bar of California should only serve as a factor for enhanced discipline, as his conduct should be beyond reproach and he should fully comply with all laws and regulations. This is particularly true because those documents were sought as part of an inquiry into circumstances involving a charity known as CaliforniaALL, in the context of events surrounding Voice of OC.

    The State Bar of California, which controls and operates the California Bar Foundation, quietly transferred $780,000 to CaliforniaALL, a charitable entity created by former BOG member Ruthe Catolico Ashley. CaliforniaALL never acknowledged receipt of the approximate $780,000 from the Cal Bar Foundation in any of its publications, although it did acknowledge the transfer on its IRS tax returns.

    Likewise, the Foundation never acknowledged this transfer to CaliforniaALL — the largest grant it ever bestowed — via publications issued by its newsroom, the California Bar Journal, or similar publications; it did, however, recognize the transfer on its IRS returns, and in a 2 by 2 inch blurb in its annual report.

    During its brief existence, CaliforniaALL obtained additional funding of close to $1.5 million from utility companies such as Verizon Wireless, Sempra, PG&E, and others. (My suspicion, thus far unconfirmed, is that Girardi, Dunn, and Brosnahan became closer with each other while involved in proceedings relating to a class action against Sempra, as well as proceedings involving Enron and El Paso.)

    As the purpose of CaliforniaALL was to transfer those funds forward, it did so by awarding approximately $300,000 in grants to the UCI Foundation, where Senator Dunn serves as trustee and chair of the Audit Committee.

    In September 2009, Ruthe Ashley abruptly exited CaliforniaALL. That month, Senator Dunn publicly launched his online publication, ” Voice of OC.” Public sources have stated that the Voice of OC was financed by various foundations, unions, and the like.

    Events surrounding the State Bar of California, California Bar Foundation, CPUC, Geoffrey Brown, CaliforniaALL, Voice of OC, and UCI Foundation, as well as the fact that those who were involved (directly or indirectly, such as by arranging to funnel money ) with CaliforniaALL (i.e. Morrison & Foerster’s Susan Mac Cormac and Girardi & Keese’s Howard Miller in his capacity as BOD member of Cal Bar Foundation, as well as BOG members who voted to endorse CaliforniaALL and consider it to have been a partner of the State Bar of California) were also involved with the creation of Voice of OC (Morrison &Foerster’s James Brosnahan and Girardi & Keese’s Thomas Girardi ) created the appearance of suspicious activities that funds were misappropriated by Voice of OC, vis-a-vis CaliforniaALL.

    The appearance of suspicious activities is heightened given the proximity in time of various events. As noted above, Ruthe Catolico Ashley abruptly left CaliforniaALL in the same month Senator Dunn (aided by Brosnahan and Girardi) launched “Voice of OC,” as though her mission had been completed. Moreover, the recent abrupt departure of Thomas Girardi and James Brosnahan from “Voice of OC” (as though they were fleeing the scene with guilty consciences) and CaliforniaALL’s pre-selection of the UCI Foundation as a recipient of funds only reinforces this belief.

    This is heightened by Mr. Thomas Girardi’s utter lack of credibility (per findings by the Ninth Circuit in the matter of In Re Girardi), as well as the scheme to appoint as special prosecutor on behalf of the State Bar an attorney from a law firm of which Girardi & Keese is a client. (Jerome falk of Howard Rice)

    As such, the State Bar of California was urged to investigate this matter to determine whether any of the attorneys from Voice of OC who ignored the request to produce said tax returns violated California Rules of Professional Conduct and/or the State Bar Act.

    Fogel v. Farmers Group Sellement Update — Zurich Financial Group: Claim of Collusion “Outrageous” ; Walter Lack: “A Little Disappointed”

    Los Angeles, CA — A $455 million settlement in a long-running insurance class action was approved Wednesday, but the judge overseeing the case tentatively cut the requested attorney fees by 25 percent – and at least one objector to the settlement indicated an appeal could be on the way.

    Los Angeles County Superior Court Judge William F. Highberger ruled that the settlement provided a “substantial benefit” to the 12.5 million class members who are current or former members of insurance exchanges connected with Farmers Group Inc.

    The judge drew charts on his courtroom’s dry erase board to show the risks attached to further litigating the case, stating there was “a real possibility of an all-or-nothing outcome.”

    Highberger set a Dec. 20th hearing to determine whether plaintiffs’ lawyers in the case — led by the law firms of Girardi Keese and Engstrom, Lipscomb & Lack — were entitled to more than the $67.9 million in fees he awarded them. The proposed settlement, first announced in October 2010, called for plaintiffs’ lawyers to net $90 million in fees. Any unclaimed money will go back to the exchanges, uner the terms of the deal.

    The underlying lawsuit alleges Farmers unlawfully tacked on unnecessary and unfair management fees to the cost of various types of insurance policies. Fogel v. Farmers Group Inc., BC300142 (L.A. Super. Ct., filed Aug. 1, 2003).

    Jerry Flanagan of Consumer Watchdog, who represents a class member who has objected to the settlement, said his group “will certainly be considering” an appeal of Highberger’s decision.

    Consumer Watchdog has expressed concern that simply returning the money to the exchanges rewards Farmers for its alleged bad behavior. Flanagan argued in court Wednesday that the money should go back to the exchanges, but with more restrictive conditions.

    “The defendants won’t agree to that,” Highberger responded.

    Flanagan said prior to the settlement agreement plaintiffs’ lawyers had argued that Farmers controlled the exchanges. Now, in arguing the exchanges should get the unclaimed money, they “seem to be arguing that what they wrote… was wrong,” he said.

    So far, 2.5 million claims have been made as part of the settlement — a participation rate of more than 20 percent — with $150.3 million claimed at this point, Highberger said, calling it “an extraordinary take rate.”

    One member of the class who waived his claim in the settlement was Highberger’s research attorney, whom the judge said refused the 8 cents offered to him as part of the deal.

    The judge approved the settlement over the objections of several parties, including the state of Montana and the Center for Class Action Fairness, a Washington, D.C.-based advocacy group led by attorney Ted Frank.

    Ralph C. Ferrara of Dewey & LeBoeuf LLP, who represents Farmers Group, blasted as “outrageous” any insinuation that the attorneys in the case had colluded in a scheme to pad their own pockets.

    Speaking after the hearing, Walter J. Lack of Engstrom, Lipscomb & Lack said he was “a little disappointed” with Highberger’s view on the attorney’s fees, saying his firm had been awarded “far higher” fees in similar cases.

    Highberger rejected an earlier suggestion by Consumer Watchdog that any unclaimed money go to California’s cash-strapped court system, ruling it would be a conflict of interest. He also dismissed suggestions that the money go to charity.

    Contact the author at ciaran_mcevoy@dailyjournal.com

    Article from Consumer Watchdog. Originally published by Los Angeles Daily Journal.
    http://www.consumerwatchdog.org/story/455-million-farmers-group-settlement-ok…

    Leslie Brodie’s article syndicated — UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT………

    Ming Chin — California Supreme Court Associate Justice — Abruptly Quits Controversial Entity Amid Probe by California Commission on Judicial Performance

    Supreme Court of California Associate Justice Ming W. Chin abruptly quit his position with the Center for Asian Americans United for Self Empowerment. The resignation took place amidst an ongoing investigation by the California Commission on Judicial Performance.


    Hon. Ming W. Chin

    A formal ethics complaint filed with the California Commission on Judicial Performance alleged that Chin’s involvement with CAUSE is prohibitive due to CAUSE’s invidious discrimination against those who are non Asian-American. The complaint further alleged that the associate justice must be disciplined due to CAUSE involvement in the political-process, conduct that Chin is otherwise prohibited in engaging in pursuant to Canon 5.

    In Addition, Justice Chin’s clandestine nature and undisclosed involvement was particularly troubling based on facts as they relate to Mr. James Hsu — CAUSE’s treasurer as well as a board member of a (now defunct) sham charitable entity known as CaliforniaALL — as matters relating to sham charity CaliforniaALL would soon be considered by the California Supreme Court.

    According to the complaint, records were sought pertaining to CaliforniaALL from the California Bar Foundation as well as from the State Bar of California to no avail. As such, and based on the blatant refusal to produce these records, a petition for relief will shortly be filed with the California Supreme Court seeking an order to compel the State Bar and its Foundation to make these public records available.

    The complaint further alleges that without the “fortuitous discovery ” by the Petitioner, he would not have known that Justice Chin and Hsu are involved with CAUSE as to seek the recusal of Justice Chin in matters relating to CaliforniaALL.

    Similarly, the complaint alludes to a State Bar of California petition in the matter of Sander vs. State Bar of California which is currently pending before the California Supreme Court. In that case, the State Bar seeks review of a decision that established a common law right of access to data concerning minorities which the State Bar possesses.

    Hence, the complaint alleged, there is an impression that Justice Chin may exercise his power in such a way which would benefit minorities, much like his involvement with CAUSE conclusively establishes that he stands united with APIA and otherwise wishes self-improvement for APIA more so than he does for the population as a whole.

    Subsequent to the filing of the complaint, CAUSE quickly removed Justice Chin’s name from its rolls for 2011 and 2010, retroactively. See CAUSE 2010 roll. In contrast, see TLR’s own records, which clearly show that Justice Chin was a member of CAUSE’s Advisory Council in 2010.

    CAUSE’s legal counsel, Mr. Victor King, has confirmed the resignation, which went into effect shortly after the complaint was filed. See below.

    CAUSE'S VICTOR KING RE JUSTICE MING CHIN

    This latest development comes in the aftermath of revelations of numerous scandals involving the California Supreme Court and the State Bar of California. Most notable among these is the forced departure of Executive Director Judy Johnson and her secret control of CCPF ; the bribery of Judge Patrice McElroy; the “friendship” between Ronald George and Thomas Girardi; Judge Lucy Armendariz/Antonio Villaraigosa Connection; as well as State Bar cover-up of Howard Rice’s Jerome Falk deceitful actions as special prosecutor on behalf of the State Bar against two of his and his firm’s clients (Thomas Girardi and Walter Lack) as part of a scheme to exploit his authority as special prosecutor for financial gain.

    State Bar of Texas to be notified over alleged conflict of interest concerns raised about Bandera County attorney John Payne

    John Payne’s dual roles as private litigator and Bandera County attorney have raised a new conflict of interest complaint. Sheriff’s investigators complained to District Attorney Bruce Curry over Payne’s actions in a sex assault case involving a juvenile suspect whose father Payne represents in private practice in a child custody dispute. Curry concluded that an ethics complaint to the state bar may be appropriate, but not criminal charges. Related story: http://lesliebrodie.blog.co.uk/2011/11/15/united-states-court-of-appeals-for-…

    Steve Cooley, Pierce O’Donnell, Tom Girardi, Walter Lack, Astrella & Rice — Just One More Thing — Part 1 (From LA Weekly)

    PROSECUTORS GATHERED ENOUGH evidence of political money laundering to get no-contest pleas this month from Casden Properties vice president John Archibald and 14 subcontractors. They in effect established that the real estate executive orchestrated a scheme to get plumbers, electricians, drywall companies and others to front for him while he illegally enriched the campaigns of City Attorney Rocky Delgadillo, City Council Members Wendy Greuel and Jack Weiss, and unsuccessful mayoral candidate Kathleen Connell.

    What District Attorney Steve Cooley’s prosecutors failed to establish is why. Why would 87-year-old Nevada construction-company owner William Isaac, who will have to pay a fine of $10,900, agree to participate in a scheme that allowed Archibald to funnel money to L.A. political campaigns under Isaac’s name? What did Isaac get for it? What did Archibald get for it? What about the other subcontractors?

    The no-contest pleas, together with the agreement to drop felony conspiracy charges and forgo any quest for prison time, leave the motive question unanswered. After a year of pay-to-play investigations in City Hall, prosecutors have yet to prove any links between campaign fund-raising and lucrative city contracts.

    A similar prosecution is continuing in the case of Los Angeles attorney Pierce O’Donnell, whom Cooley’s office has accused of laundering campaign donations to Mayor James K. Hahn. Getting someone else to donate to a candidate and then repaying that person is a clever, and illegal, way to get around the $1,000-per-donor limit on campaign contributions that city law puts in place to keep the election playing field even and to block any rich person or company from virtually running the town through secret donations and string-pulling.

    Evidence in court files of O’Donnell breaking campaign-donation limits by reimbursing employees, friends and acquaintances for their donations to Hahn’s 2001 mayoral campaign is compelling. But why? For what?

    As in the Archibald case, the District Attorney’s Office can proceed against O’Donnell and others on money-laundering charges without ever establishing that contributors got anything in return from Hahn or his campaign.

    But sources familiar with the prosecution and with corresponding probes by the city Ethics Commission and the state Fair Political Practices Commission (FPPC) say the investigation is focusing on the city’s role as plaintiff in a 2001 lawsuit against Southern California Gas, El Paso Natural Gas and other energy companies. Plaintiffs said the suppliers schemed to artificially drive up natural-gas prices here by canceling pipeline projects and carving out exclusive competition-free territories.

    As city attorney, Hahn asked the City Council to file suit in March 2001, in the midst of his campaign for mayor. The legal work was referred out, and city records show the outside law firm getting the contract was Engstrom, Lipscomb & Lack. But the firm entered into a fee-sharing arrangement with four other firms — Astrella & Rice, of Denver; Baker, Burton & Lundy of Hermosa Beach; Girardi & Keese of L.A. And O’Donnell’s firm, O’Donnell & Shaeffer.

    The firms were to take the antitrust case on a contingency-fee basis, and bear the costs by splitting them among them.

    The probe, according to sources, is seeking to establish a connection between two meetings — a conference between O’Donnell and Hahn, before the city joined the suit and the O’Donnell firm got its chunk of the city business, and a fund-raising appearance later that year that Hahn made at the firm. Was O’Donnell trying to meet a fund-raising commitment in exchange for a piece of the gas litigation?

    So far, sources said, no link has been firmly established. No pay-to-play.

    Simple political money laundering is another matter though, and made national news earlier this year when Newsweek reported that John Edwards was returning $44,000 in contributions that O’Donnell employees and associates sent in because of the L.A. prosecution. The donations to Edwards came from some of the very same people that Cooley’s office and the Ethics Commission charged in the laundering plot. Now the Federal Elections Commission has opened a probe as well.

    Court records show that the investigation here began in early 2003. In July of that year, the FPPC interviewed a former temp from O’Donnell’s office who said she was asked to give money on the day of a Hahn visit. She said she and others were promised that they would be reimbursed. She refused, but she said most gave.

    Hilda Escobar, a secretary at the O’Donnell firm who has been charged by the District Attorney’s Office and the Ethics Commission, said in a May 12, 2004, interview with prosecutors that she was asked to make a contribution, that O’Donnell’s secretary, Dolores Valdez, told her she would be reimbursed, and that in fact she got her $1,000 contribution reimbursed by a check signed by O’Donnell. Her donation check bounced, she said, because she had not yet covered her bank account with the reimbursement check.

    “I was told that it wasn’t going to be submitted right away,” Escobar told prosecutors.

    Firm administrator Else Latinovic, interviewed the same day, said Valdez asked her for a Hahn contribution.

    “Well, she came into my office and asked me if I would contribute,” Latinovic said. “And that I would be reimbursed for the contribution.”

    UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WILL BE ASKED TO DISBAR TOM GIRARDI, WALTER LACK, HOWARD RICE’S JEROME FALK FOR SCHEME TO CIRCUMVENT NINTH CIRCUIT ORDER IN MATTER OF “IN RE GIRARDI”

    Contending that Howard Rice’s Jerome Falk, acting as Special Prosecutor on behalf of the State Bar of California, repeatedly sought to subvert justice by failing to disclose that those he was suppose to prosecute (Thomas Girardi of Girardi & Keese and Walter Lack of Engstrom Lipscomb & Lack) were actually his and his firm’s clients, sources familiar with the situation claim plans are underway to seek the disbarment of Girardi, Lack and Falk.

    In a letter to Jerome Falk and the Board of Governors of the State Bar of California, complainant minced no words in accusing Falk (as well as Girardi and Lack) of egregious misconduct.

    As a service to the community, we shall publish* the communication, below:

    Dear Mr. Falk:

    This will serve as a formal meet and confer attempt regarding various matters, primarily relating to your repugnant and continuous deceitful actions taken in connection with your willingness to serve as a special prosecutor on behalf of the State Bar of California against two of your and your firm’s clients (Thomas Girardi and Walter Lack) as part of a scheme to exploit your authority as special prosecutor for financial gain.

    In addition, this letter will serve to explore potential misconduct in connection with misrepresentations made to an official tribunal (i.e. the RAD Committee of the State Bar of California Board of Governors (“BOG”)) that appointed a special master in proceedings I initiated against you.


    Mr. Jerome Falk of Howard Rice (Image:courtesy photo)

    To illustrate my point, State Bar of California Board of Governors member William Gailey is a man of high honor with a prior distinguished career as a homicide detective with the Los Angeles Police Department. Presently, he operates his own investigation firm (Gailey Associates, Inc.), which as I understand is one of the best in the country and offers a wide array of services, including industrial espionage and the like.

    Assume, hypothetically speaking only, that Mr. X is an industrialist and a client of Gailey Associates in connection with various business-related transactions. Assume also that Mr. X, while a client of Gailey Associates, was charged by the federal government for participating in a conspiracy to kidnap and murder Mr. Y, the owner of a competing business located in Los Angeles. Mr. X is tried and convicted and sentenced to serve a 30 year sentence in a federal correctional facility. However, after one year he is mysteriously pardoned by the U.S. president.

    Public and media pressure prompt the Los Angeles District Attorney to file an information against Mr. X for violations of State Penal Code provisions, including PC 182 and 187 in connection with the crimes Mr. X committed against Mr. Y. A shortage of qualified detectives prompts the DA to seek volunteer detectives, and Mr. Gailey is deputized, issued a badge, and appointed the role of lead detective in amassing the case against Mr. X on behalf of the People.

    Mr. Gailey shortly thereafter announces the closure of the investigation, and declares that, as far as he is concerned, Mr. X is innocent. As a second hypothetical, assume that with these facts in mind, Mr. Gailey is instead an attorney in private practice who is deputized to act as special prosecutor to try Mr. X, and likewise Mr. Gailey declares Mr. X to be innocent.

    If you don’t see anything wrong with the above two hypothetical examples, please delete this email; otherwise, keep reading because the above hypo is very similar to the scenario that ensued when you agreed to act as special prosecutor against your clients (Thomas Girardi and Walter Lack) on behalf of the People of the State of California to examine the grave and previously adjudicated attorney misconduct Messrs. Girardi and Lack committed against the Ninth Circuit in the litigation against the Dole Food Company.

    The misconduct on the part of Girardi and Lack was investigated by a special master (Senior Judge Hon. Wallace Tashima) appointed by the Ninth Circuit, and his recommendations were adopted by a panel of three Ninth Circuit judges after a full opportunity was afforded to Girardi and Lack to present defenses and bargain with a special prosecutor (Rory Little); these findings were memorialized in the published decision of In Re Girardi. Some of the findings included that Lack and Girardi have resorted to employing “the persistent use of known falsehoods” and that “false representations” were made “knowingly, intentionally, and recklessly” during years of litigation.

    UC Hastings Prof Rory Little
    Rory Little, Ninth Circuit judicial aspirant and professor of law at U.C. Hastings. Professor Little was appointed special prosecutor in the matter of In Re Girardi by Chief Judge Alex Kozinski. Prior to entering academia, Professor Little served as a federal prosecutor for the Organized Crime and Racketeering Strike Force, prosecuting cases of labor racketeering, money-laundering, narcotics and other organized criminal activity. (image:courtesy photo)

    As you surely recall, the Ninth Circuit also ordered Girardi and Lack to report the findings to the State Bar of California. Because Howard Miller of Girardi &amp; Keese served as President of the State Bar, the Bar disqualified itself and you were appointed as Special Prosecutor by the State Bar to further look into this matter on behalf of the People.

    Despite ample opportunities, you (nor Lack, Girardi, or members of your firm whom I contacted on several occasions in search of information) mentioned that Thomas Girardi and Walter Lack were your and your firm’s clients.

    Shortly thereafter, when you had issued the decision to “exonerate” Thomas Girardi and Walter Lack (as memorialized in a “Dear Bob” letter you sent Mr. Robert Baker of Baker Keener &amp; Nahara), I immediately protested by filing both an ethics complaint with the State Bar of California, and asking the BOG to inquire into the matter. Named in the complaint were yourself, Douglas Wintrhrop, Howard Miller, and James Towery.

    At that time, I was unaware that Girardi and Lack were your clients, and the ethics complaint alleged you were biased because of your and your firm’s ongoing business relationship with Skadden Arps and partner Tom Nolan, who served as Girardi’s defense counsel in the matter of In Re Girardi. Also, I argued that since the State Bar of California had disqualified itself, you and your firm should also have been disqualified as the managing partner of your firm (Douglas Wintrhrop) is an officer of the State Bar of California, and was appointed to the position by the BOG headed by Howard Miller of Girardi &amp; Keese.

    Mr. Robert Hawley immediately appointed himself the point of contact, and only several months ago informed me that the complaint was assigned to RAD, which in turn appointed a special master who examined the complaint and found no ethical violations; RAD voted to accept this conclusion.

    Mr Tom Girardi of Girardi & KeeseState Bar of California's Robert Hawley
    Mr. Thomas Girardi of Girardi & Keese and State Bar of California
    Deputy Executive Director, Mr. Robert A. Hawley.

    Subsequently, and fortuitously, I very recently discovered that Lack and Girardi were clients of your firm. I inquired with Mr. Hawley whether this fact was known to the RAD and Special Master investigating my complaint. The inquiry to Mr. Hawley was ignored, ipso facto terminating his role as point of contact.

    Mr. Hawley’s lack of response lends credence to my belief that since you knew of the complaint and never informed the Special Master or RAD, you are also liable for defrauding and misrepresenting events to a tribunal. If you have facts to the contrary, please forward them to me ASAP.

    Note that subsequent to the discovery of the attorney-client relationship between you and Lack/Girardi, I again wrote SeLegue and Philips seeking additional clarification, and no response was forthcoming. It had occurred to me that, given that Girardi and Lack are clients of your firm, any insinuation of misconduct I may previously have alleged on the part of SeLegue and Philips were improper; as such, these insinuations are hereby withdrawn as I now understand that SeLegue and Philips were acting in the best interest of their clients — Thomas Girardi and Walter Lack.

    Nevertheless, the serious nature of the offenses and the harm caused by your corrupt activities (as well as the corrupt activities of Thomas Girardi and Walter Lack, primarily as a result of their failure to speak up and reject your appointment) leaves me no choice but to, again, seek discipline against you, Walter Lack, and Thomas Girardi. Additional factors surrounding Thomas Girardi and Girardi &amp; Keese have also become relevant, including the recent malpractice suits filed by Gutierez and Demeter Energy; the secretive attorney-client relationship between Girardi &amp; Keese and Skadden Arps in the Fogel vs. Farmers matter, the identity and nature of the firms defending MGA in the litigation against Mattel; Alec Chang’s membership on RAD; the overall corruption within the State Bar of California manifested in its unwillingness to prosecute Thomas Girardi and Walter Lack; Girardi’s unsettling friendship with Ronald George and “mentoring” of former crack-addict Mike Nisperos. These factors, coupled with my impression that the firms of Girardi &amp; Keese, Skadden Arps, and Howard Rice have somehow exempted themselves from complying with the rules, make clear that I must press ahead to ensure that you, Walter Lack, and Thomas Girardi are held fully accountable and otherwise prevented from practicing before any federal or state court.

    As such, in the near future the federal district court, appellate court, and U.S. Supreme Court will be asked to investigate your misconduct (and that of Thomas Girardi and Walter Lack), and to otherwise permanently remove your names from the roll of members allowed to practice before each of those courts.

    Particularly, I plan to ask the Ninth Circuit to appoint a Special Master to investigate the matter, and to reopen the matter of In Re Girardi to examine whether Walter Lack and Thomas Girardi fully complied with the order in the matter of In Re Girardi and to report their misconduct to the State Bar of California. It is my position that the order to report their misconduct to the State Bar of California included an implied covenant that any State Bar of California proceedings would be conducted in good faith and in conformity with all rules and duties and principles consistent with the fair administration of justice. By not speaking up when you were appointed, Messrs. Girardi and Lack further aggravated matters and, arguably, violated the order handed down by the Ninth Circuit.


    Mr. Walter Lack of Engstrom Lipscomb & Lack. In the matter of In Re Girardi, the Ninth Circuit adjudicated: “with respect to Respondents Lack and Traina, we conclude that the mitigating factors can affect only the length of the suspension we impose. Although Lack’s involvement in the enforcement proceedings was more long-standing than Traina’s, each was specifically responsible for the falsehoods presented to this court. Consequently, each is suspended from the practice of law in this court for six months, effective on the filing date of this order. Fed. R.App. P. 46(c). Respondents Lack and Traina may each file a petition for reinstatement after the period of suspension pursuant to Ninth Circuit Rule 46-2(h). Each shall file the petition using this docket number and include evidence that he is in good standing, with no discipline pending, in all courts and bars to which he is admitted.” (Image:courtesy photo)

    Similarly, when Walter Lack sought to reinstate himself via a motion advanced to Ninth Circuit Commissioner Shaw, he relied heavily on the fact that the State Bar of California decided not to discipline him. In aggravation and while exponentially compounding his lack of credibility, Mr. Lack conveniently failed to mention that he and you (who represented the State Bar of California) have an attorney-client relationship, and that your decision to not prosecute him was the fruit of an unlawful and highly unethical scheme.

    In addition, please note that I plan to file a writ with the California Supreme Court seeking to invalidate your decision, and asking the Court to order the State Bar of California to commence proceedings consistent with the State Bar Act and the Rules of Professional Conduct against you, Walter Lack, Thomas Girardi, and your respective firms, and to otherwise take action on the original complaint I submitted to the Intake Office which was never processed.

    The writ will be filed prior to the end of this year so as to allow the Court to also address separate matters, and to otherwise maintain jurisdiction over Douglas Winthrop (also of Howard Rice) and Holly Fujie in their capacities as President and Vice President of the California Bar Foundation, and in connection with the overall circumstances, particularly the hush-hush and unlawful transfer of $780,000 from the Foundation to sham charity CaliforniaALL.

    Hence, at your earliest convenience I ask that you provide information, as well as, if you wish, any memorandum containing legal authority explaining why your actions did not constitute professional misconduct.

    Below is a synopsis of the various acts of misconduct I intend to allege. If you believe I am wrong, legally or factually, please so advise as soon as possible:

    Your first act of misconduct took place once the State Bar initially contacted you. Rather than rejecting the appointment, you intentionally, deliberately, and with aforethought accepted the assignment, knowing full well that you were unable to take a position adverse to your clients Walter Lack and Thomas Girardi, and also knowing full well that you would exonerate both of them regardless of the weight of the evidence. In doing so, you hoped to maintain your attorney-client relationship with Walter Lack and Thomas Girardi in order to obtain a future stream of business from them, as well as from Thomas Girardi’s defense lawyer — your confederate, Thomas Nolan of Skadden Arps. By doing so, you have completely breached the duties expected of a prosecutor. Moreover, while temporarily holding public office, you placed your financial interests, as well as the financial interest of your firm, before those of the People, causing injury to the federal judiciary, the Dole Food Company, the State Bar of California, the People of the State of California, the fair administration of justice, myself, and frankly, even your own clients Thomas Girardi and Walter Lack.

    Your second act of misconduct involved the hampering of an investigation, and misleading a tribunal (i.e. the BOG/RAD and the appointed Special Master) by not fully disclosing the attorney-client relationship.

    Thirdly, and in aggravation, even to this date, and after members of your firm were informed of the recent discovery and you had ample opportunity to admit you mistakes, you still have not taken any action to remedy the situation. Instead, you appear to hope that by ignoring the problem, it will somehow disappear. It shall not.

    Thank you for your consideration. Please do not hesitate to contact me if you need any further information or clarification of the above-described facts.

    *Links and photos inserted by The Leslie Brodie Report.

    Los Angeles Superior Court Judge William Highberger Postpones Hearing on Class Counsel $90 Million Request for Attorneys’ Fee ; Tentatively Approves Settlement — Fogel v. Farmers Group BC300142

    Amid allegations of breached ethics rules, conflicts of interest, as well as myriad of objections, a Los Angeles Superior Court judge postponed yesterday the scheduled ruling on whether or not to award $90 million in attorneys’ fee in the case of Benjamin Fogel v Farmers Group.

    Judge William F. Highberger has ordered further hearing scheduled for December 20, 2011.


    Hon. William F. Highberger, who presides over the case of Benjamin Fogel v Farmers Group. Judge Highberger is part of the Los Angeles Superior Court Complex Civil Litigation Program in the CCW Courthouse.

    Previously, the judge was aksed to reject the settlement or, in the alternative, to award no attorneys’ fees and shift the proposed $90 million attorneys’ fee award to the pool available to the class. The request was made in connection with an ongoing controversy surrounding the concurrent legal representation by Farmers Group, Inc.’s legal counsel (Law Offices of Skadden Arps) of Thomas Girardi and Girardi & Keese in the Ninth Circuit matter of In Re Girardi throughout the entire time the Fogel v. Farmers Group, Inc. matter was being litigated.

    According to an ethics complaint submitted to the State Bar of California, despite their respective roles as plaintiffs’ counsel and defendants’ counsel in Fogel v. Farmers, Girardi & Keese and Skadden Arps entered into a wholly separate agreement by which Skadden Arps represented Girardi & Keese and Thomas Girardi before the Ninth Circuit in the matter of In re Girardi ( Ninth Circuit case number 08-80090) following that court’s issuance of an order to show cause why Girardi & Keese, Engstrom Lipscomb & Lack, Thomas Girardi, and Walter Lack should not be suspended, disbarred, or otherwise sanctioned as a result of the massive fraud which took place in litigation pursued by them against Dole Food Company.

    Separately, and somewhat preposterously, Mr Jerry Flanagan (advocating on behalf of Harvey Rosenfield’s Consumer Watchdog) has urged the court to order unclaimed funds in the settlement to help offset a $350 million in the court own budget shortfall.

    Fogel vs. Farmers Group Settlement — In Letter to Judge William Highberger Objector Assails Engstrom Lipscomb & Lack’s Walter Lack Re Alleged Collision Between Skadden Arps and Girardi & Keese; Howard Rice’s Jerry Falk

    Amid allegations of breached ethics rules and conflicts of interest, Los Angeles Superior Court Hon. William F. Highberger was recently asked to consider additional matters relating to the approval of the settlement in the case of Benjamin Fogel v Farmers Group.

    As a service to the community, we shall publish* the communication, below:


    Hon. William F. Highberger, who presides over the case of Benjamin Fogel v Farmers Group.  Judge Highberger is part of the Los Angeles Superior Court Complex Civil Litigation Program in the CCW Courthouse.

    Dear Honorable Judge Highberger:

    This will serve to further address the grave and dire circumstances surrounding the proposed settlement in Fogel v. Farmers Group, Inc. It will also serve to address matters contained in a troubling order entered by this Court on an ex parte basis on April 28, 2011, and to lodge with the Court concerns regarding the credibility of Thomas Girardi and Walter Lack in hopes that this Court will reject the settlement or, in the alternative, that the Court will award no attorneys’ fees and will shift the proposed $90 million attorneys’ fee award to the pool available to the class.

    As the Court is aware, the undersigned have previously lodged an equitable objection (“objection”) informing the Court of ethical violations and fraud perpetuated on this Court stemming from collusion between the law offices of Girardi & Keese and Skadden Arps based on the fact that while the Fogel matter was pending before this Court, Skadden Arps and Girardi & Keese entered into a wholly separate agreement by which Skadden Arps agreed to represent Girardi & Keese in the matter of In Re Girardi (9th Circuit Court of Appeals Case No.08-80090).

    Neither the Ninth Circuit nor this Court (or for that matter, the class of plaintiffs which Girardi allegedly represents) were timely informed of the concurrent representation. In fact, Skadden Arps (on behalf of itself, its client Farmers, and its client Girardi & Keese and Thomas Girardi) actively and by omission took action to conceal the matter, by among other things, seeking an order from the Ninth Circuit seeking to remove its name from the Ninth Circuit’s published decision of In Re Girardi. The Ninth Circuit denied this request.

    A review of class counsel’s omnibus brief and accompanying documents and exhibits filed in the instant matter necessitates this communication in order to ask the Court to further address the following issues:

    As this Court is surely aware, the current matter before this court (styled as Fogel v. Farmers Group Inc.) is primarily based on the case originally advanced by the State of Texas and Governor Rick Perry, along with the Texas Department of Insurance, against Farmers Group, Inc. in approximately 2002.

    Within days after the State of Texas filed the case, settlement negotiations commenced, and very shortly thereafter a settlement was announced in the amount of approximately $100 million. Joe K. Longley, an attorney from Austin, Texas (alongside Philip K. Maxwell and Steve McCleery), representing policyholder Jan Lubin, stated that Texas is settling on the “cheap,” and immediately commenced legal proceedings to derail the settlement.

    Farmers’ policyholders Gilberto Villanueva and Michael Paladino both had previous class actions pending in the State of Texas prior to the State action being brought. These Intervenors were represented by State Bar of Texas members Alice Oliver-Parrott, David Burrow, David Jones, and R. Martin Weber.

    At that time, Mr. Longley publicly stated that Farmers was unfairly enriched in an amount 10 times greater than the settlement amount, and presumably Mr. Longley wanted the State of Texas to settle for an amount close to $1 billion. Longley. along with several other lawyers (Phil Maxwell, Mike Gallagher, and Stephen McCleery), who were later joined by David Burrow, Alice Oliver-Parrot, Mike Gallagher and Dan Downey (collectively “Texas Class Counsel” ), immediately commenced legal proceedings to halt the settlement.

    Beginning in December 2002 and continuing thereafter for five months in 2003, the parties engaged in intensive discovery; motion practice; document review; hearing preparation; hearings; and depositions, and extensive lawyer time and effort took place to prepare for, and participate in, the preliminary approval hearing the Texas District Court had set to be heard commencing in May 2003.

    In February 2003, it became apparent to the Lubin’s co-counsel that additional legal assistance was needed. Mike Gallagher and Dan Downey were added at that time to act as co-counsel, with Longley & Maxwell, LLP, in representing Jan Lubin.

    During those proceedings, particularly during the initial phase, Texas Class Counsel obtained and reviewed thousands of documents, and through masterful lawyering, and while opposed by the endless resources of the Attorney General of the State of Texas managed to derail the settlement. This matter became known as the “Lubin Proceedings,” and is still pending in the Texas courts, 261 Judicial District Court of Travis County.


    Governor of Texas, Rick Perry, noted that “Farmers Insurance represent nearly twenty percent of the homeowners’ insurance market in Texas.”  Governor Perry further noted that “the investigations are still ongoing, but the findings reflect that at least on company, Farmers Insurance, has engaged in unfair, discriminatory prices to charge consume excessive and unjustified rates.” In the above photo, Governor Perry is seen before a hunting trip near Merrill, Iowa. (Photo Credit: AP Photo/Dave Weaver)

    Recognizing that much of the legal work was already completed by the State of Texas and the Texas Department of Insurance — which gave rise to a presumption of validity and credibility to the allegations against Farmers — Mr. Longley and some of the Texas Class Counsel saw the enourmous opportunity that had been presented to them and sought to file a nationwide class action against Farmers.

    As such, in 2003, Longley and a few of the Texas Class Counsel flew to Los Angeles to meet with Messrs. Thomas Girardi (of Girardi & Keese) and Walter Lack (of Engstrom Lipscomb & Lack); one month later, after the appropriate plaintiff had been selected, the current case was filed in the Los Angeles Superior Court styled Benjamin Fogel v Farmers Group Inc. (Incidentally, the allegations set forth in Joe Longley’s declaration that they flew to Los Angeles to meet with Girardi and Lack only after reviewing “choice of law” and “venue” provisions because Farmers is headquartered in Los Angeles should be viewed by this Court with extreme skepticism as this suit could have been filed in Eureka, California, Nashville, Tennessee or any other court in the country.)

    In approximately 2010, a settlement was reached in this pending matter allocating $455 million to be shared by the class, and $90 million in attorneys’ fees. Class counsel (both from Texas and California) advanced a motion for attorneys’ fees supported by declarations and exhibits. The declarations from Texas Class Counsel submitted to this Court are based on work performed in BOTH the Lubin and Fogel matters.

    First, the undersigned respectfully asks this Court to consider whether it is fair to ask the Fogel class to finance the Lubin proceedings. Also, the fact that the Lubin matter is still pending and is specifically exempted from the current settlement will allow Texas Class Counsel to again collect fees if there is a future resolution of the litigation in Texas. As such, it is up to this Court to ensure that there will be no double recovery for the Texas Class counsel, and that the Fogel Class does not pay the attorneys’ fees for the Lubin proceedings.

    Second, this Court is under a duty to independently examine the fairness of the settlement, including issues of collusion between class counsel and defendants (and their counsel) to ensure that collusion has not taken place by which defendants offer to settle for a lesser amount while offering incentive to class counsel vis-a-vis a large and disproportionate attorneys’ fee award. Hence, this Court is respectfully asked to inquire of Mr. Longley during the fairness hearing how he can support a settlement worth only $455 million for a NATIONWIDE class composed of 12.5 million Americans, when he has previously stated in his opposition to the Texas settlement that the settlement for ONLY the State of Texas should be closer to the $1 billion, the sum he contended was allegedly unfairly and unlawfully collected by Farmers.

    A third issue relates to the declarations submitted in support of the request for attorney’s fees. In comparing declarations submitted by Texas Class Counsel (who, as stated above, did most of the fundamental work in the initial phase of Lubin and Villanueva), the declaration submitted by Thomas Girardi on behalf of Girardi & Keese — in which he states that his firm spent 6662 hours on the case — appears to be highly excessive, highly implausible, and highly suspicious. This is further magnified when considering that Walter Lack and his law firm submitted a declaration stating that close to 4000 hours were devoted to the case by Engstrom Lipscomb & Lack.

    Nisperos - Copy
    A substantial factor leading to the State Bar of California’s ethical and moral collapse allowing Thomas Girardi and others to operate with impunity was provided courtesy of individuals who fall into two categories: minorities and/or close political allies from the Democratic party.  Shown above is former California State Bar of California chief prosecutor and former crack-addict Mike Nisperos, to whom Girardi serve as a “mentor.”  Nisperos spent 28 days at an in-patient psychiatric facility in Oakland after he, delusional, had open fire at an imaginary intruder (See Nisperos vs. Buck 720 F. Supp. 1424, 1427.) Subsequent to his employment with the California Bar, Nisperos was arrested and criminally prosecuted for an attempt to board an airplane carrying a dangerous weapon. (image: courtesy photo)

    Usually, the relationship between Girardi & Keese and Engstrom Lipscomb & Lack is based on a business model whereby Girardi & Keese and Thomas Girardi are responsible for financing the litigation, as well as providing much needed “clout,” very often withing the judicial system of Los Angeles County and the State Bar of California (to wit Thomas Girardi’s friendship with former California Supreme Court Chief Justice George; his friendship with former California State Bar Chief Trial Counsel and former crack addict Mike Nisperos, to whom Girardi serve as a “mentor”; his financing of the political career of the present Executive Director of the State Bar of California, Hon. Senator Joe Dunn; and other questionable “friendships” and relationships, the basis of which are usually political contributions and gifts).

    Walter Lack and his firm, who are more methodical, are responsible for the day-to-day management of the litigation through motion practice, discovery, hearings etc. Once serious settlement negotiations commence, Mr. Girardi himself takes over the discussions, and has the final say on whether and under what terms the case should settle.

    Hence, if Walter Lack and his firm already worked close to 4000 hours on this case, it is difficult to imagine why Girardi & Keese would also need to have spent 6662 hours on the matter.

    In comparison, Joe Longley stated that he worked on BOTH cases only 2740 hours; Philip Maxwell stated that he devoted 2677 hours to both cases. (While this Court treats Longley and Maxwell as two separate law firms, for the majority of the time both presented themselves as one law firm, that of Longley & Maxwell.)

    Thomas Girardi of Girardi & Keese
    From left,  Messrs. Raoul Kennedy and Thomas Nolan of Skadden Arps and Thomas Girardi and Graham LippSmith of Girardi & Keese. While Skadden Arps was representing defendant Farmers Group and Girardi & Keese representing the class of plaintiffs in Fogel vs. Farmers; the two firms entered into a seperate agreement by which Skadden Arps would represent Girardi & Keese in the matter of In Re Girardi (Photo:courtesy)

    As such, the undersigned respectfully requests that this Court scrutinize the declaration submitted by Thomas Girardi by seeking a complete and detailed breakdown of all hours spent.

    Additionally, conspicuously lacking is any declaration from Graham LippSmith of Girardi & Keese, even though he allegedly performed most of the work on behalf of Girardi & Keese. This Court should order Graham LippSmith to also submit a sworn affidavit, along with his timesheets, in support of the purported 6662 hours billed by Girardi & Keese.

    Fourth, subsequent to submitting the Objection, and only after reading the omnibus brief submitted by class counsel, the undersigned learned that Zurich Financial Services and Farmers Group, Inc. (represented by Dewey & Lebuef and Skadden Arps) had approached the Court on an ex parte basis in approximately April 2011 in connection with the unsettling attorney-client relationship between Skadden Arps and Girardi & Keese.

    It is quite a strange legal phenomenon when defendants move ex parte for an order pertaining to the future relationship between plaintiffs’ counsel and his clients. Indeed, it is almost as though Skadden Arps is still serving as defense counsel for Girardi & Keese, notwithstanding its own concerns that defendants and counsel may be held liable for interfering with the plaintiff class’s contractual relationship with Girardi & Keese or other related collusion.

    It is alleged in the omnibus brief that defendants approached the Court ex parte asking it to analyze a “blog entry” alluding to an ethics complaint filed against Girardi & Keese and Skadden Arps with the State Bar of California. Setting aside the absurdity of Zurich Financial Group, Farmers Group, Inc., Dewey & Lebuef, and Skadden Arps (the largest law firm in the world) approaching the Court ex parte asking it to analyze a “blog entry,” as opposed to their own declarations and admissions, the undersigned will concede that, indeed, an ethics complaint was advanced by the undersigned based on the facts subsequently described in the objection filed in this matter.

    This Court should be aware that requests by the undersigned to Skadden Arps, Dewey & Lebeuf, Girardi & Keese, ELL, and Texas Class Counsel for a copy of the ex parte papers went unanswered. In addition, the undersigned asked the same parties to post a copy of the complete sets of the ex parte papers on the official settlement website, a request which was also ignored.

    Additionally, the undersigned communicated with other credible objectors who were also unaware (at least as of August 16 and 17, 2011) of the fact that defendants had moved ex parte to supplement the notice and restrict any future action on the part of the class, and were otherwise clueless about Paragraph 17 or the fact that Girardi & Keese was a client of Skadden Arps.

    As such, this Court must order the parties to post said ex parte application and related papers on the official settlement website so as to provide the class and objectors an opportunity to form objection in an educated fashion by, among other things, requesting a postponement of the upcoming fairness hearing.

    Shockingly, and based on the ex parte papers submitted by Zurich and Farmers which were, presumably (and predictably), unopposed by class counsel (because any opposition would expose their own misconduct), the Court issued an order allowing the modification of a notice to the class by which the members would be informed of the attorney-client relationship between Skadden Arps and Girardi & Keese. The order also, shockingly, stated that members of the class would be prohibited in the future from asserting that they were not adequately represented by class counsel due to the Skadden-Girardi relationship.

    Upon reviewing this Court order, it is requested that the Court address inaccuracies in both the order and the notice, along with other issues, to wit;

    A. This Court order and the Notice in Paragraph 17 state that the class was represented by “5 other law firms, which have not had any connections to the Farmers Group’s attorneys.” This statement is in contradiction to verbiage, also in Paragraph 17, which states, “The Court has appointed the following lawyers to represent the class as ‘class counsel’: Thomas Girardi and Graham LippSmith of Girardi & Keese, Walter Lack of ELL, Phillip Maxwell of the Law Offices of Phillip Maxwell and Joe K. Longley of Law offices of Joe K. Longley.”

    As this Court only appointed ELL, Longley and Maxwell, the order and the notice are not accurate when it states that 5 other law firms represented the class as, in actuality, only 3 other law firms reviewed the settlement.

    B. This Court must take into account that the support of Walter Lack and ELL for the settlement (as part of the “5 other law firms”), and their indifference to the attorney-client relationship between Girardi & Keese and Skadden Arps, is suspect as Walter Lack and his firm were part and parcel of the matter of In Re Girardi.

    Walter Lack knew all along about the concurrent representation between Skadden Arps and Girardi & Keese, and was part of the scheme to mislead this Court and the Fogel class by not disclosing the relationship.

    Thomas Girardi of Girardi & KeeseLack Walter - Copy
    Thomas Girardi and Walter Lack who participated in the scheme to defraud the judiciary and injure Dole Food Company in order to enrich themselves financially. (photo:courtesy)

    In fact, it was Walter Lack himself, despite repeated warnings even from within his own firm and from a federal district court judge, who executed the plan to defraud the federal judiciary with a fraudulent translation of a foreign judgment which resulted in the proceedings of In re Girardi. While the resultant proceedings were titled “In Re Girardi,” respondents in those proceedings were Girardi & Keese, Thomas Girardi, Engstrom Lipscomb & Lack, Paul Triana, Sean Topp, and Walter Lack.

    As such, it is highly disingenuous of this Court to authorize a notice to 12.5 million Americans which contains assertions that 5 (or more accuretly, 3) other law firms support the settlement given that one of those law firms (ELL) was part and parcel of the Ninth Circuit proceedings of In Re Girardi.

    The Court should keep in mind that Walter Lack for many years chose to hide the collusion between Girardi & Keese and Skadden Arps not only from the class, but also from this Court, and that he is the same person who was found by the Ninth Circuit to have resorted to employing “the persistent use of known falsehoods” and that “false representations” were made “knowingly, intentionally, and recklessly” during years of litigation. Similarly, Walter Lack remained quiet when the State Bar of California appointed Jerome Falk of Howard Rice to serve as special persecutor to examine his misconduct before the Ninth Circuit. Despite the fact that Thomas Girardi stipulated to the prosecutor that he was “reckless,” and Walter Lack stipulated that his misconduct was “intentional,” Jerome Falk (on behalf of the People of the State of California) “exonerated” both of these attorneys, stating that he did not believe the misconduct was “intentional.”

    Despite Walter Lack’s (and Thomas Girardi’s) habit of remaining quiet, it was the undersigned who only very recently discovered that, indeed, Walter Lack and Thomas Girardi were actually clients of Jerome Falk and Howard Rice. (See generally Ninth Circuit matter of Copple vs. Astrella ) With this background, Mr. Falk’s refusal to prosecute Lack and Girardi suddenly makes sense.

    Fifth, the omnibus brief is highly offensive, incomplete, misleading, legally unsound, and clearly designed to speed up the collection of $90 million in attorneys’ fees. It is shocking that Girardi & Keese, on behalf of the class, is advancing legal arguments supporting the contention that there were no ethical violations on the part of Skadden Arps and Farmers. This is viewed as an additional fact in support of the collusion between Girardi & Keese and Skadden Arps; it also calls into question the ability of Girardi & Keese and Benjamin Fogel to adequately represent the class.

    In addition, the undersigned take umbrage over the attitude displayed in the omnibus brief concerning the “conflict of interest.” The Court should note that both the undersigned and, presumably, others utilize the term “conflict of interest” in a generalized fashion (and not just as a term of art involving a legal “conflict of interest” with a client), to otherwise denote violations and breaches of ethics rules.

    For example, in this case, a true conflict of interest on the part of Girardi & Keese would have arisen had Girardi & Keese, while representing Mr. Fogel and the class, filed a separate action against Mr. Fogel concerning a different matter on behalf of another client. Even if no “true” conflict exists, this does not negate the fact that Girardi & Keese and Skadden Arps violated other rules of ethics. And, even if no rules of ethics were violated, that does negate the argument that the Court, while independently fulfilling its duty to examine collusion, must take into account the attorney-client relationship between Girardi & Keese and Skadden Arps in the matter of In Re Girardi to support a finding of collusion which was detrimental to the Fogel class and, as such, reject the settlement.

    Thank you for your consideration. Please do not hesitate to contact me if the Court needs any further information or clarification of the above-described facts.

    *Links and photos inserted by The Leslie Brodie Report.

    2004 — Sempra Energy Fails in Last Attempt to Dismiss $24 Billion Class Action Lawsuit; Case Proceeding to Jury Trial Following Appellate Court’s Denial of Sempra Writ | Business Wire

    December 27, 2004 09:30 AM Eastern Time 

    Sempra Energy Fails in Last Attempt to Dismiss $24 Billion Class Action Lawsuit; Case Proceeding to Jury Trial Following Appellate Court’s Denial of Sempra Writ

    SAN DIEGO–(BUSINESS WIRE)–Dec. 27, 2004–A final attempt by Sempra Energy (NYSE:SRE) to stop a major $24 billion antitrust class action lawsuit from going to trial has failed, following the denial of a writ of mandate last week by the California Court of Appeal, Fourth Appellate District, it was announced by plaintiffs’ attorneys today. As a result, Sempra will now face a jury next year relating to charges of conspiracy and market manipulation that precipitated California’s energy crisis in 2000 and 2001. The civil action seeks treble damages of approximately $24 billion.

    The emergency appeal was filed October 15, 2004 by Sempra in response to the denial by San Diego Superior Court Judge J. Richard Haden of the company’s attempts to obtain summary judgment and to escape all liability. The trial judge rejected Sempra’s argument that there was insufficient evidence of a conspiracy to proceed to trial. Sempra, a Fortune 500 company, has unsuccessfully pursued various avenues to halt the legal action which, in the words of its own counsel, was “life threatening” with the potential to “put San Diego’s largest company out of business.” Sempra’s net worth was $3.8 billion at December 31, 2003.

    “put San Diego’s largest company out of business.”

    The lawsuit claims that Sempra and two owned companies, Southern California Gas Company (SoCalGas) and San Diego Gas & Electric (SDG&E), conspired with El Paso Natural Gas Corp (EPNG) to prevent competition for cheaper and more plentiful Canadian natural gas and to protect their respective market dominance over the supply and transportation of natural gas both into and within California, reaping enormous profits at the expense of California consumers and businesses.

    Economists have estimated that plaintiffs in the case have suffered $9 billion in damages due to these excessive energy costs in 2000 and 2001. This amount, under California antitrust law, is automatically trebled after credits for payments by other defendants.

    “Sempra has now burned the last of its available bridges in a desperate ploy to make this case disappear and hide its outrageous conduct,” stated Thomas V. Girardi, of Girardi & Keese in Los Angeles, one of the lead plaintiffs’ counsel. “The company’s delaying tactics over the past four years have only served to bolster the case we are eager to bring before a San Diego jury — reflecting a conscious, cartel-like arrangement in which these Sempra entities colluded to both restrict the supply of natural gas and gouge the people of California through unnecessarily higher prices.”

    The evidence against Sempra presented by the plaintiffs includes details of a clandestine meeting at a Phoenix, Arizona Embassy Suites hotel involving 11 senior executives from SoCalGas, SDG&E and El Paso in September 1996. Plaintiffs will offer evidence that, without any legal counsel present, the executives unlawfully agreed they would cooperate rather than compete with each other in supplying and delivering natural gas — resulting in an artificially constrained supply of natural gas and escalating prices to Californians of gas and ultimately electricity produced from natural gas.

    The trial date, anticipated for next summer, is expected to be set early next month. El Paso, the largest natural gas pipeline company in the U.S., previously settled the antitrust conspiracy charges against it in December 2003, agreeing to pay $1.7 billion for the benefit of 13 million Californians.

    Plaintiffs in the class action include the People of the State of California; the City and County of Los Angeles; San Bernardino County; the cities of Long Beach, Burbank, Glendale, Culver City, Vernon and Upland; Continental Forge Company; and numerous other companies and individuals. The case also includes a class of more than 13 million California consumers who paid excessive gas and electric bills.

    Plaintiffs’ counsels, in addition to Girardi, include lead counsel Pierce O’Donnell of O’Donnell & Shaeffer LLP in Los Angeles; Walter Lack of Engstrom, Lipscomb & Lack; Lance Astrella of Astrella & Rice P.C.; Brad Baker of Baker, Burton & Lundy, P.C.; M. Brian McMahon; Michael J. Ponce; Douglas A. Stacey; J. Tynan Kelly; Maxwell Blecher of Blecher & Collins, P.C.; Los Angeles City Attorney Rockard Delgadillo; Long Beach City Attorney Robert F. Shannon; and Los Angeles County Counsel Lloyd W. Pellman.

    Fogel vs. Farmers Group Settlement — In Letter to Judge William Highberger Objector Assails Engstrom Lipscomb & Lack’s Walter Lack Re Alleged Collision Between Skadden Arps and Girardi & Keese; Howard Rice’s Jerry Falk

    Amid allegations of breached ethics rules and conflicts of interest, Los Angeles Superior Court Hon. William F. Highberger was recently asked to consider additional matters relating to the approval of the settlement in the case of Benjamin Fogel v Farmers Group.

    As a service to the community, we shall publish* the communication, below:


    Hon. William F. Highberger, who presides over the case of Benjamin Fogel v Farmers Group.  Judge Highberger is part of the Los Angeles Superior Court Complex Civil Litigation Program in the CCW Courthouse.

    Dear Honorable Judge Highberger:

    This will serve to further address the grave and dire circumstances surrounding the proposed settlement in Fogel v. Farmers Group, Inc. It will also serve to address matters contained in a troubling order entered by this Court on an ex parte basis on April 28, 2011, and to lodge with the Court concerns regarding the credibility of Thomas Girardi and Walter Lack in hopes that this Court will reject the settlement or, in the alternative, that the Court will award no attorneys’ fees and will shift the proposed $90 million attorneys’ fee award to the pool available to the class.

    As the Court is aware, the undersigned have previously lodged an equitable objection (“objection”) informing the Court of ethical violations and fraud perpetuated on this Court stemming from collusion between the law offices of Girardi & Keese and Skadden Arps based on the fact that while the Fogel matter was pending before this Court, Skadden Arps and Girardi & Keese entered into a wholly separate agreement by which Skadden Arps agreed to represent Girardi & Keese in the matter of In Re Girardi (9th Circuit Court of Appeals Case No.08-80090).

    Neither the Ninth Circuit nor this Court (or for that matter, the class of plaintiffs which Girardi allegedly represents) were timely informed of the concurrent representation. In fact, Skadden Arps (on behalf of itself, its client Farmers, and its client Girardi & Keese and Thomas Girardi) actively and by omission took action to conceal the matter, by among other things, seeking an order from the Ninth Circuit seeking to remove its name from the Ninth Circuit’s published decision of In Re Girardi. The Ninth Circuit denied this request.

    A review of class counsel’s omnibus brief and accompanying documents and exhibits filed in the instant matter necessitates this communication in order to ask the Court to further address the following issues:

    As this Court is surely aware, the current matter before this court (styled as Fogel v. Farmers Group Inc.) is primarily based on the case originally advanced by the State of Texas and Governor Rick Perry, along with the Texas Department of Insurance, against Farmers Group, Inc. in approximately 2002.

    Within days after the State of Texas filed the case, settlement negotiations commenced, and very shortly thereafter a settlement was announced in the amount of approximately $100 million. Joe K. Longley, an attorney from Austin, Texas (alongside Philip K. Maxwell and Steve McCleery), representing policyholder Jan Lubin, stated that Texas is settling on the “cheap,” and immediately commenced legal proceedings to derail the settlement.

    Farmers’ policyholders Gilberto Villanueva and Michael Paladino both had previous class actions pending in the State of Texas prior to the State action being brought. These Intervenors were represented by State Bar of Texas members Alice Oliver-Parrott, David Burrow, David Jones, and R. Martin Weber.

    At that time, Mr. Longley publicly stated that Farmers was unfairly enriched in an amount 10 times greater than the settlement amount, and presumably Mr. Longley wanted the State of Texas to settle for an amount close to $1 billion. Longley. along with several other lawyers (Phil Maxwell, Mike Gallagher, and Stephen McCleery), who were later joined by David Burrow, Alice Oliver-Parrot, Mike Gallagher and Dan Downey (collectively “Texas Class Counsel” ), immediately commenced legal proceedings to halt the settlement.

    Beginning in December 2002 and continuing thereafter for five months in 2003, the parties engaged in intensive discovery; motion practice; document review; hearing preparation; hearings; and depositions, and extensive lawyer time and effort took place to prepare for, and participate in, the preliminary approval hearing the Texas District Court had set to be heard commencing in May 2003.

    In February 2003, it became apparent to the Lubin’s co-counsel that additional legal assistance was needed. Mike Gallagher and Dan Downey were added at that time to act as co-counsel, with Longley & Maxwell, LLP, in representing Jan Lubin.

    During those proceedings, particularly during the initial phase, Texas Class Counsel obtained and reviewed thousands of documents, and through masterful lawyering, and while opposed by the endless resources of the Attorney General of the State of Texas managed to derail the settlement. This matter became known as the “Lubin Proceedings,” and is still pending in the Texas courts, 261 Judicial District Court of Travis County.


    Governor of Texas, Rick Perry, noted that “Farmers Insurance represent nearly twenty percent of the homeowners’ insurance market in Texas.”  Governor Perry further noted that “the investigations are still ongoing, but the findings reflect that at least on company, Farmers Insurance, has engaged in unfair, discriminatory prices to charge consume excessive and unjustified rates.” In the above photo, Governor Perry is seen before a hunting trip near Merrill, Iowa. (Photo Credit: AP Photo/Dave Weaver)

    Recognizing that much of the legal work was already completed by the State of Texas and the Texas Department of Insurance — which gave rise to a presumption of validity and credibility to the allegations against Farmers — Mr. Longley and some of the Texas Class Counsel saw the enourmous opportunity that had been presented to them and sought to file a nationwide class action against Farmers.

    As such, in 2003, Longley and a few of the Texas Class Counsel flew to Los Angeles to meet with Messrs. Thomas Girardi (of Girardi & Keese) and Walter Lack (of Engstrom Lipscomb & Lack); one month later, after the appropriate plaintiff had been selected, the current case was filed in the Los Angeles Superior Court styled Benjamin Fogel v Farmers Group Inc. (Incidentally, the allegations set forth in Joe Longley’s declaration that they flew to Los Angeles to meet with Girardi and Lack only after reviewing “choice of law” and “venue” provisions because Farmers is headquartered in Los Angeles should be viewed by this Court with extreme skepticism as this suit could have been filed in Eureka, California, Nashville, Tennessee or any other court in the country.)

    In approximately 2010, a settlement was reached in this pending matter allocating $455 million to be shared by the class, and $90 million in attorneys’ fees. Class counsel (both from Texas and California) advanced a motion for attorneys’ fees supported by declarations and exhibits. The declarations from Texas Class Counsel submitted to this Court are based on work performed in BOTH the Lubin and Fogel matters.

    First, the undersigned respectfully asks this Court to consider whether it is fair to ask the Fogel class to finance the Lubin proceedings. Also, the fact that the Lubin matter is still pending and is specifically exempted from the current settlement will allow Texas Class Counsel to again collect fees if there is a future resolution of the litigation in Texas. As such, it is up to this Court to ensure that there will be no double recovery for the Texas Class counsel, and that the Fogel Class does not pay the attorneys’ fees for the Lubin proceedings.

    Second, this Court is under a duty to independently examine the fairness of the settlement, including issues of collusion between class counsel and defendants (and their counsel) to ensure that collusion has not taken place by which defendants offer to settle for a lesser amount while offering incentive to class counsel vis-a-vis a large and disproportionate attorneys’ fee award. Hence, this Court is respectfully asked to inquire of Mr. Longley during the fairness hearing how he can support a settlement worth only $455 million for a NATIONWIDE class composed of 12.5 million Americans, when he has previously stated in his opposition to the Texas settlement that the settlement for ONLY the State of Texas should be closer to the $1 billion, the sum he contended was allegedly unfairly and unlawfully collected by Farmers.

    A third issue relates to the declarations submitted in support of the request for attorney’s fees. In comparing declarations submitted by Texas Class Counsel (who, as stated above, did most of the fundamental work in the initial phase of Lubin and Villanueva), the declaration submitted by Thomas Girardi on behalf of Girardi & Keese — in which he states that his firm spent 6662 hours on the case — appears to be highly excessive, highly implausible, and highly suspicious. This is further magnified when considering that Walter Lack and his law firm submitted a declaration stating that close to 4000 hours were devoted to the case by Engstrom Lipscomb & Lack.

    Usually, the relationship between Girardi & Keese and Engstrom Lipscomb & Lack is based on a business model whereby Girardi & Keese and Thomas Girardi are responsible for financing the litigation, as well as providing much needed “clout,” very often withing the judicial system of Los Angeles County and the State Bar of California (to wit Thomas Girardi’s friendship with former California Supreme Court Chief Justice George; his friendship with former California State Bar Chief Trial Counsel and former crack addict Mike Nisperos, to whom Girardi serve as a “mentor”; his financing of the political career of the present Executive Director of the State Bar of California, Hon. Senator Joe Dunn; and other questionable “friendships” and relationships, the basis of which are usually political contributions and gifts).

    Walter Lack and his firm, who are more methodical, are responsible for the day-to-day management of the litigation through motion practice, discovery, hearings etc. Once serious settlement negotiations commence, Mr. Girardi himself takes over the discussions, and has the final say on whether and under what terms the case should settle.

    Hence, if Walter Lack and his firm already worked close to 4000 hours on this case, it is difficult to imagine why Girardi & Keese would also need to have spent 6662 hours on the matter.

    In comparison, Joe Longley stated that he worked on BOTH cases only 2740 hours; Philip Maxwell stated that he devoted 2677 hours to both cases. (While this Court treats Longley and Maxwell as two separate law firms, for the majority of the time both presented themselves as one law firm, that of Longley & Maxwell.)

    Thomas Girardi of Girardi & Keese
    From left,  Messrs. Raoul Kennedy and Thomas Nolan of Skadden Arps and Thomas Girardi and Graham LippSmith of Girardi & Keese. While Skadden Arps was representing defendant Farmers Group and Girardi & Keese representing the class of plaintiffs in Fogel vs. Farmers; the two firms entered into a seperate agreement by which Skadden Arps would represent Girardi & Keese in the matter of In Re Girardi (Photo:courtesy)

    As such, the undersigned respectfully requests that this Court scrutinize the declaration submitted by Thomas Girardi by seeking a complete and detailed breakdown of all hours spent.

    Additionally, conspicuously lacking is any declaration from Graham LippSmith of Girardi & Keese, even though he allegedly performed most of the work on behalf of Girardi & Keese. This Court should order Graham LippSmith to also submit a sworn affidavit, along with his timesheets, in support of the purported 6662 hours billed by Girardi & Keese.

    Fourth, subsequent to submitting the Objection, and only after reading the omnibus brief submitted by class counsel, the undersigned learned that Zurich Financial Services and Farmers Group, Inc. (represented by Dewey & Lebuef and Skadden Arps) had approached the Court on an ex parte basis in approximately April 2011 in connection with the unsettling attorney-client relationship between Skadden Arps and Girardi & Keese.

    It is quite a strange legal phenomenon when defendants move ex parte for an order pertaining to the future relationship between plaintiffs’ counsel and his clients. Indeed, it is almost as though Skadden Arps is still serving as defense counsel for Girardi & Keese, notwithstanding its own concerns that defendants and counsel may be held liable for interfering with the plaintiff class’s contractual relationship with Girardi & Keese or other related collusion.

    It is alleged in the omnibus brief that defendants approached the Court ex parte asking it to analyze a “blog entry” alluding to an ethics complaint filed against Girardi & Keese and Skadden Arps with the State Bar of California. Setting aside the absurdity of Zurich Financial Group, Farmers Group, Inc., Dewey & Lebuef, and Skadden Arps (the largest law firm in the world) approaching the Court ex parte asking it to analyze a “blog entry,” as opposed to their own declarations and admissions, the undersigned will concede that, indeed, an ethics complaint was advanced by the undersigned based on the facts subsequently described in the objection filed in this matter.

    This Court should be aware that requests by the undersigned to Skadden Arps, Dewey & Lebeuf, Girardi & Keese, ELL, and Texas Class Counsel for a copy of the ex parte papers went unanswered. In addition, the undersigned asked the same parties to post a copy of the complete sets of the ex parte papers on the official settlement website, a request which was also ignored.

    Additionally, the undersigned communicated with other credible objectors who were also unaware (at least as of August 16 and 17, 2011) of the fact that defendants had moved ex parte to supplement the notice and restrict any future action on the part of the class, and were otherwise clueless about Paragraph 17 or the fact that Girardi & Keese was a client of Skadden Arps.

    As such, this Court must order the parties to post said ex parte application and related papers on the official settlement website so as to provide the class and objectors an opportunity to form objection in an educated fashion by, among other things, requesting a postponement of the upcoming fairness hearing.

    Shockingly, and based on the ex parte papers submitted by Zurich and Farmers which were, presumably (and predictably), unopposed by class counsel (because any opposition would expose their own misconduct), the Court issued an order allowing the modification of a notice to the class by which the members would be informed of the attorney-client relationship between Skadden Arps and Girardi & Keese. The order also, shockingly, stated that members of the class would be prohibited in the future from asserting that they were not adequately represented by class counsel due to the Skadden-Girardi relationship.

    Upon reviewing this Court order, it is requested that the Court address inaccuracies in both the order and the notice, along with other issues, to wit;

    A. This Court order and the Notice in Paragraph 17 state that the class was represented by “5 other law firms, which have not had any connections to the Farmers Group’s attorneys.” This statement is in contradiction to verbiage, also in Paragraph 17, which states, “The Court has appointed the following lawyers to represent the class as ‘class counsel’: Thomas Girardi and Graham LippSmith of Girardi & Keese, Walter Lack of ELL, Phillip Maxwell of the Law Offices of Phillip Maxwell and Joe K. Longley of Law offices of Joe K. Longley.”

    As this Court only appointed ELL, Longley and Maxwell, the order and the notice are not accurate when it states that 5 other law firms represented the class as, in actuality, only 3 other law firms reviewed the settlement.

    B. This Court must take into account that the support of Walter Lack and ELL for the settlement (as part of the “5 other law firms”), and their indifference to the attorney-client relationship between Girardi & Keese and Skadden Arps, is suspect as Walter Lack and his firm were part and parcel of the matter of In Re Girardi.

    Walter Lack knew all along about the concurrent representation between Skadden Arps and Girardi & Keese, and was part of the scheme to mislead this Court and the Fogel class by not disclosing the relationship.

    Thomas Girardi of Girardi & KeeseLack Walter - Copy
    Thomas Girardi and Walter Lack who participated in the scheme to defraud the judiciary and injure Dole Food Company in order to enrich themselves financially. (photo:courtesy)

    In fact, it was Walter Lack himself, despite repeated warnings even from within his own firm and from a federal district court judge, who executed the plan to defraud the federal judiciary with a fraudulent translation of a foreign judgment which resulted in the proceedings of In re Girardi. While the resultant proceedings were titled “In Re Girardi,” respondents in those proceedings were Girardi & Keese, Thomas Girardi, Engstrom Lipscomb & Lack, Paul Triana, Sean Topp, and Walter Lack.

    As such, it is highly disingenuous of this Court to authorize a notice to 12.5 million Americans which contains assertions that 5 (or more accuretly, 3) other law firms support the settlement given that one of those law firms (ELL) was part and parcel of the Ninth Circuit proceedings of In Re Girardi.

    The Court should keep in mind that Walter Lack for many years chose to hide the collusion between Girardi & Keese and Skadden Arps not only from the class, but also from this Court, and that he is the same person who was found by the Ninth Circuit to have resorted to employing “the persistent use of known falsehoods” and that “false representations” were made “knowingly, intentionally, and recklessly” during years of litigation. Similarly, Walter Lack remained quiet when the State Bar of California appointed Jerome Falk of Howard Rice to serve as special persecutor to examine his misconduct before the Ninth Circuit. Despite the fact that Thomas Girardi stipulated to the prosecutor that he was “reckless,” and Walter Lack stipulated that his misconduct was “intentional,” Jerome Falk (on behalf of the People of the State of California) “exonerated” both of these attorneys, stating that he did not believe the misconduct was “intentional.”

    Despite Walter Lack’s (and Thomas Girardi’s) habit of remaining quiet, it was the undersigned who only very recently discovered that, indeed, Walter Lack and Thomas Girardi were actually clients of Jerome Falk and Howard Rice. (See generally Ninth Circuit matter of Copple vs. Astrella ) With this background, Mr. Falk’s refusal to prosecute Lack and Girardi suddenly makes sense.

    Fifth, the omnibus brief is highly offensive, incomplete, misleading, legally unsound, and clearly designed to speed up the collection of $90 million in attorneys’ fees. It is shocking that Girardi & Keese, on behalf of the class, is advancing legal arguments supporting the contention that there were no ethical violations on the part of Skadden Arps and Farmers. This is viewed as an additional fact in support of the collusion between Girardi & Keese and Skadden Arps; it also calls into question the ability of Girardi & Keese and Benjamin Fogel to adequately represent the class.

    In addition, the undersigned take umbrage over the attitude displayed in the omnibus brief concerning the “conflict of interest.” The Court should note that both the undersigned and, presumably, others utilize the term “conflict of interest” in a generalized fashion (and not just as a term of art involving a legal “conflict of interest” with a client), to otherwise denote violations and breaches of ethics rules.

    For example, in this case, a true conflict of interest on the part of Girardi & Keese would have arisen had Girardi & Keese, while representing Mr. Fogel and the class, filed a separate action against Mr. Fogel concerning a different matter on behalf of another client. Even if no “true” conflict exists, this does not negate the fact that Girardi & Keese and Skadden Arps violated other rules of ethics. And, even if no rules of ethics were violated, that does negate the argument that the Court, while independently fulfilling its duty to examine collusion, must take into account the attorney-client relationship between Girardi & Keese and Skadden Arps in the matter of In Re Girardi to support a finding of collusion which was detrimental to the Fogel class and, as such, reject the settlement.

    Thank you for your consideration. Please do not hesitate to contact me if the Court needs any further information or clarification of the above-described facts.

    *Links and photos inserted by The Leslie Brodie Report.

    Fogel vs. Farmers Group Settlement — In Letter to Judge William Highberger Objector Assails Engstrom Lipscomb & Lack’s Walter Lack Re Alleged Collision Between Skadden Arps and Girardi & Keese; Howard Rice’s Jerry Falk

    Amid allegations of breached ethics rules and conflicts of interest, Los Angeles Superior Court Hon William Highberger was recently asked to consider additional matters relating to the approval of the settlement.

    As a service to the community, we shall publish the communication, below:

    Dear Honorable Judge Highberger:

    This will serve to further address the grave and dire circumstances surrounding the proposed settlement in Fogel v. Farmers Group, Inc. It will also serve to address matters contained in a troubling order entered by this Court on an ex parte basis on April 28, 2011, and to lodge with the Court concerns regarding the credibility of Thomas Girardi and Walter Lack in hopes that this Court will reject the settlement or, in the alternative, that the Court will award no attorneys’ fees and will shift the proposed $90 million attorneys’ fee award to the pool available to the class.

    As the Court is aware, the undersigned have previously lodged an equitable objection (“objection”) informing the Court of ethical violations and fraud perpetuated on this Court stemming from collusion between the law offices of Girardi & Keese and Skadden Arps based on the fact that while the Fogel matter was pending before this Court, Skadden Arps and Girardi & Keese entered into a wholly separate agreement by which Skadden Arps agreed to represent Girardi & Keese in the matter of In Re Girardi (9th Circuit Court of Appeals Case No.08-80090).

    Neither the Ninth Circuit nor this Court (or for that matter, the class of plaintiffs which Girardi allegedly represents) were timely informed of the concurrent representation. In fact, Skadden Arps (on behalf of itself, its client Farmers, and its client Girardi & Keese and Thomas Girardi) actively and by omission took action to conceal the matter, by among other things, seeking an order from the Ninth Circuit seeking to remove its name from the Ninth Circuit’s published decision of In Re Girardi. The Ninth Circuit denied this request.

    A review of class counsel’s omnibus brief and accompanying documents and exhibits filed in the instant matter necessitates this communication in order to ask the Court to further address the following issues:

    As this Court is surely aware, the current matter before this court (styled as Fogel v. Farmers Group Inc.) is primarily based on the case originally advanced by the State of Texas and Governor Rick Perry, along with the Texas Department of Insurance, against Farmers Group, Inc. in approximately 2002.

    Within days after the State of Texas filed the case, settlement negotiations commenced, and very shortly thereafter a settlement was announced in the amount of approximately $100 million. Joe K. Longley, an attorney from Austin, Texas (alongside Philip K. Maxwell and Steve McCleery), representing policyholder Jan Lubin, stated that Texas is settling on the “cheap,” and immediately commenced legal proceedings to derail the settlement.

    Farmers’ policyholders Gilberto Villanueva and Michael Paladino both had previous class actions pending in the State of Texas prior to the State action being brought. These Intervenors were represented by State Bar of Texas members Alice Oliver-Parrott, David Burrow, David Jones, and R. Martin Weber.

    At that time, Mr. Longley publicly stated that Farmers was unfairly enriched in an amount 10 times greater than the settlement amount, and presumably Mr. Longley wanted the State of Texas to settle for an amount close to $1 billion. Longley. along with several other lawyers (Phil Maxwell, Mike Gallagher, and Stephen McCleery), who were later joined by David Burrow, Alice Oliver-Parrot, Mike Gallagher and Dan Downey (collectively “Texas Class Counsel” ), immediately commenced legal proceedings to halt the settlement.

    Beginning in December 2002 and continuing thereafter for five months in 2003, the parties engaged in intensive discovery; motion practice; document review; hearing preparation; hearings; and depositions, and extensive lawyer time and effort took place to prepare for, and participate in, the preliminary approval hearing the Texas District Court had set to be heard commencing in May 2003.

    In February 2003, it became apparent to the Lubin’s co-counsel that additional legal assistance was needed. Mike Gallagher and Dan Downey were added at that time to act as co-counsel, with Longley & Maxwell, LLP, in representing Jan Lubin.

    During those proceedings, particularly during the initial phase, Texas Class Counsel obtained and reviewed thousands of documents, and through masterful lawyering, and while opposed by the endless resources of the Attorney General of the State of Texas managed to derail the settlement. This matter became known as the “Lubin Proceedings,” and is still pending in the Texas courts, 261 Judicial District Court of Travis County.

    Recognizing that much of the legal work was already completed by the State of Texas and the Texas Department of Insurance — which gave rise to a presumption of validity and credibility to the allegations against Farmers — Mr. Longley and some of the Texas Class Counsel saw the enourmous opportunity that had been presented to them and sought to file a nationwide class action against Farmers.

    As such, in 2003, Longley and a few of the Texas Class Counsel flew to Los Angeles to meet with Messrs. Thomas Girardi (of Girardi & Keese) and Walter Lack (of Engstrom Lipscomb & Lack); one month later, after the appropriate plaintiff had been selected, the current case was filed in the Los Angeles Superior Court styled Benjamin Fogel v Farmers Group Inc. (Incidentally, the allegations set forth in Joe Longley’s declaration that they flew to Los Angeles to meet with Girardi and Lack only after reviewing “choice of law” and “venue” provisions because Farmers is headquartered in Los Angeles should be viewed by this Court with extreme skepticism as this suit could have been filed in Eureka, California, Nashville, Tennessee or any other court in the country.)

    In approximately 2010, a settlement was reached in this pending matter allocating $455 million to be shared by the class, and $90 million in attorneys’ fees. Class counsel (both from Texas and California) advanced a motion for attorneys’ fees supported by declarations and exhibits. The declarations from Texas Class Counsel submitted to this Court are based on work performed in BOTH the Lubin and Fogel matters.

    First, the undersigned respectfully asks this Court to consider whether it is fair to ask the Fogel class to finance the Lubin proceedings. Also, the fact that the Lubin matter is still pending and is specifically exempted from the current settlement will allow Texas Class Counsel to again collect fees if there is a future resolution of the litigation in Texas. As such, it is up to this Court to ensure that there will be no double recovery for the Texas Class counsel, and that the Fogel Class does not pay the attorneys’ fees for the Lubin proceedings.

    Second, this Court is under a duty to independently examine the fairness of the settlement, including issues of collusion between class counsel and defendants (and their counsel) to ensure that collusion has not taken place by which defendants offer to settle for a lesser amount while offering incentive to class counsel vis-a-vis a large and disproportionate attorneys’ fee award. Hence, this Court is respectfully asked to inquire of Mr. Longley during the fairness hearing how he can support a settlement worth only $455 million for a NATIONWIDE class composed of 12.5 million Americans, when he has previously stated in his opposition to the Texas settlement that the settlement for ONLY the State of Texas should be closer to the $1 billion, the sum he contended was allegedly unfairly and unlawfully collected by Farmers.

    A third issue relates to the declarations submitted in support of the request for attorney’s fees. In comparing declarations submitted by Texas Class Counsel (who, as stated above, did most of the fundamental work in the initial phase of Lubin and Villanueva), the declaration submitted by Thomas Girardi on behalf of Girardi & Keese — in which he states that his firm spent 6662 hours on the case — appears to be highly excessive, highly implausible, and highly suspicious. This is further magnified when considering that Walter Lack and his law firm submitted a declaration stating that close to 4000 hours were devoted to the case by Engstrom Lipscomb & Lack.

    Usually, the relationship between Girardi & Keese and Engstrom Lipscomb & Lack is based on a business model whereby Girardi & Keese and Thomas Girardi are responsible for financing the litigation, as well as providing much needed “clout,” very often withing the judicial system of Los Angeles County and the State Bar of California (to wit Thomas Girardi’s friendship with former California Supreme Court Chief Justice George; his friendship with former California State Bar Chief Trial Counsel and former crack addict Mike Nisperos, to whom Girardi serve as a “mentor”; his financing of the political career of the present Executive Director of the State Bar of California, Hon. Senator Joe Dunn; and other questionable “friendships” and relationships, the basis of which are usually political contributions and gifts).

    Walter Lack and his firm, who are more methodical, are responsible for the day-to-day management of the litigation through motion practice, discovery, hearings etc. Once serious settlement negotiations commence, Mr. Girardi himself takes over the discussions, and has the final say on whether and under what terms the case should settle.

    Hence, if Walter Lack and his firm already worked close to 4000 hours on this case, it is difficult to imagine why Girardi & Keese would also need to have spent 6662 hours on the matter.

    In comparison, Joe Longley stated that he worked on BOTH cases only 2740 hours; Philip Maxwell stated that he devoted 2677 hours to both cases. (While this Court treats Longley and Maxwell as two separate law firms, for the majority of the time both presented themselves as one law firm, that of Longley & Maxwell.)

    As such, the undersigned respectfully requests that this Court scrutinize the declaration submitted by Thomas Girardi by seeking a complete and detailed breakdown of all hours spent.

    Additionally, conspicuously lacking is any declaration from Graham LippSmith of Girardi & Keese, even though he allegedly performed most of the work on behalf of Girardi & Keese. This Court should order Graham LippSmith to also submit a sworn affidavit, along with his timesheets, in support of the purported 6662 hours billed by Girardi & Keese.

    Fourth, subsequent to submitting the Objection, and only after reading the omnibus brief submitted by class counsel, the undersigned learned that Zurich Financial Services and Farmers Group, Inc. (represented by Dewey & Lebuef and Skadden Arps) had approached the Court on an ex parte basis in approximately April 2011 in connection with the unsettling attorney-client relationship between Skadden Arps and Girardi & Keese.

    It is quite a strange legal phenomenon when defendants move ex parte for an order pertaining to the future relationship between plaintiffs’ counsel and his clients. Indeed, it is almost as though Skadden Arps is still serving as defense counsel for Girardi & Keese, notwithstanding its own concerns that defendants and counsel may be held liable for interfering with the plaintiff class’s contractual relationship with Girardi & Keese or other related collusion.

    It is alleged in the omnibus brief that defendants approached the Court ex parte asking it to analyze a “blog entry” alluding to an ethics complaint filed against Girardi & Keese and Skadden Arps with the State Bar of California. Setting aside the absurdity of Zurich Financial Group, Farmers Group, Inc., Dewey & Lebuef, and Skadden Arps (the largest law firm in the world) approaching the Court ex parte asking it to analyze a “blog entry,” as opposed to their own declarations and admissions, the undersigned will concede that, indeed, an ethics complaint was advanced by the undersigned based on the facts subsequently described in the objection filed in this matter.

    This Court should be aware that requests by the undersigned to Skadden Arps, Dewey & Lebeuf, Girardi & Keese, ELL, and Texas Class Counsel for a copy of the ex parte papers went unanswered. In addition, the undersigned asked the same parties to post a copy of the complete sets of the ex parte papers on the official settlement website, a request which was also ignored.

    Additionally, the undersigned communicated with other credible objectors who were also unaware (at least as of August 16 and 17, 2011) of the fact that defendants had moved ex parte to supplement the notice and restrict any future action on the part of the class, and were otherwise clueless about Paragraph 17 or the fact that Girardi & Keese was a client of Skadden Arps.

    As such, this Court must order the parties to post said ex parte application and related papers on the official settlement website so as to provide the class and objectors an opportunity to form objection in an educated fashion by, among other things, requesting a postponement of the upcoming fairness hearing.

    Shockingly, and based on the ex parte papers submitted by Zurich and Farmers which were, presumably (and predictably), unopposed by class counsel (because any opposition would expose their own misconduct), the Court issued an order allowing the modification of a notice to the class by which the members would be informed of the attorney-client relationship between Skadden Arps and Girardi & Keese. The order also, shockingly, stated that members of the class would be prohibited in the future from asserting that they were not adequately represented by class counsel due to the Skadden-Girardi relationship.

    Upon reviewing this Court order, it is requested that the Court address inaccuracies in both the order and the notice, along with other issues, to wit;

    A. This Court order and the Notice in Paragraph 17 state that the class was represented by “5 other law firms, which have not had any connections to the Farmers Group’s attorneys.” This statement is in contradiction to verbiage, also in Paragraph 17, which states, “The Court has appointed the following lawyers to represent the class as ‘class counsel’: Thomas Girardi and Graham LippSmith of Girardi & Keese, Walter Lack of ELL, Phillip Maxwell of the Law Offices of Phillip Maxwell and Joe K. Longley of Law offices of Joe K. Longley.”

    As this Court only appointed ELL, Longley and Maxwell, the order and the notice are not accurate when it states that 5 other law firms represented the class as, in actuality, only 3 other law firms reviewed the settlement.

    B. This Court must take into account that the support of Walter Lack and ELL for the settlement (as part of the “5 other law firms”), and their indifference to the attorney-client relationship between Girardi & Keese and Skadden Arps, is suspect as Walter Lack and his firm were part and parcel of the matter of In Re Girardi.

    Walter Lack knew all along about the concurrent representation between Skadden Arps and Girardi & Keese, and was part of the scheme to mislead this Court and the Fogel class by not disclosing the relationship.

    In fact, it was Walter Lack himself, despite repeated warnings even from within his own firm and from a federal district court judge, who executed the plan to defraud the federal judiciary with a fraudulent translation of a foreign judgment which resulted in the proceedings of In re Girardi. While the resultant proceedings were titled “In Re Girardi,” respondents in those proceedings were Girardi & Keese, Thomas Girardi, Engstrom Lipscomb & Lack, Paul Triana, Sean Topp, and Walter Lack.

    As such, it is highly disingenuous of this Court to authorize a notice to 12.5 million Americans which contains assertions that 5 (or more accuretly, 3) other law firms support the settlement given that one of those law firms (ELL) was part and parcel of the Ninth Circuit proceedings of In Re Girardi.

    The Court should keep in mind that Walter Lack for many years chose to hide the collusion between Girardi & Keese and Skadden Arps not only from the class, but also from this Court, and that he is the same person who was found by the Ninth Circuit to have resorted to employing “the persistent use of known falsehoods” and that “false representations” were made “knowingly, intentionally, and recklessly” during years of litigation. Similarly, Walter Lack remained quiet when the State Bar of California appointed Jerome Falk of Howard Rice to serve as special persecutor to examine his misconduct before the Ninth Circuit. Despite the fact that Thomas Girardi stipulated to the prosecutor that he was “reckless,” and Walter Lack stipulated that his misconduct was “intentional,” Jerome Falk (on behalf of the People of the State of California) “exonerated” both of these attorneys, stating that he did not believe the misconduct was “intentional.”

    Despite Walter Lack’s (and Thomas Girardi’s) habit of remaining quiet, it was the undersigned who only very recently discovered that, indeed, Walter Lack and Thomas Girardi were actually clients of Jerome Falk and Howard Rice. (See generally Ninth Circuit matter of Copple vs. Astrella ) With this background, Mr. Falk’s refusal to prosecute Lack and Girardi suddenly makes sense.

    Fifth, the omnibus brief is highly offensive, incomplete, misleading, legally unsound, and clearly designed to speed up the collection of $90 million in attorneys’ fees. It is shocking that Girardi & Keese, on behalf of the class, is advancing legal arguments supporting the contention that there were no ethical violations on the part of Skadden Arps and Farmers. This is viewed as an additional fact in support of the collusion between Girardi & Keese and Skadden Arps; it also calls into question the ability of Girardi & Keese and Benjamin Fogel to adequately represent the class.

    In addition, the undersigned take umbrage over the attitude displayed in the omnibus brief concerning the “conflict of interest.” The Court should note that both the undersigned and, presumably, others utilize the term “conflict of interest” in a generalized fashion (and not just as a term of art involving a legal “conflict of interest” with a client), to otherwise denote violations and breaches of ethics rules.

    For example, in this case, a true conflict of interest on the part of Girardi & Keese would have arisen had Girardi & Keese, while representing Mr. Fogel and the class, filed a separate action against Mr. Fogel concerning a different matter on behalf of another client. Even if no “true” conflict exists, this does not negate the fact that Girardi & Keese and Skadden Arps violated other rules of ethics. And, even if no rules of ethics were violated, that does negate the argument that the Court, while independently fulfilling its duty to examine collusion, must take into account the attorney-client relationship between Girardi & Keese and Skadden Arps in the matter of In Re Girardi to support a finding of collusion which was detrimental to the Fogel class and, as such, reject the settlement.

    Thank you for your consideration. Please do not hesitate to contact me if the Court needs any further information or clarification of the above-described facts.

    Amid Controversy Zurich Financial Services and Farmers Group, Inc. Asked to Post Complete Set of Legal Documents on Fogel v. Farmers Official Settlement Website

    Amid allegations of breached ethics rules and conflicts of interest, Swiss insurance group Zurich Financial Services AG ( ZURN) and its U.S. subsidiary Farmers Group, Inc. were recently asked to post a complete set of the ex parte motions submitted to the Los Angeles County Superior Court on the official Fogel v. Farmers settlement website.

    The request was made in connection with an ongoing controversy surrounding the concurrent legal representation by Farmers Group, Inc.’s legal counsel (Law Offices of Skadden Arps) of Thomas Girardi and Girardi & Keese in the Ninth Circuit matter of In Re Girardi throughout the entire time the Fogel v. Farmers Group, Inc. matter was being litigated.

    According to an ethics complaint submitted to the State Bar of California, despite their respective roles as plaintiffs’ counsel and defendants’ counsel in Fogel v. Farmers, Girardi & Keese and Skadden Arps entered into a wholly separate agreement by which Skadden Arps represented Girardi & Keese and Thomas Girardi before the Ninth Circuit in the matter of In re Girardi ( Ninth Circuit case number 08-80090) following that court’s issuance of an order to show cause why Girardi & Keese, Engstrom Lipscomb & Lack, Thomas Girardi, and Walter Lack should not be suspended, disbarred, or otherwise sanctioned as a result of the massive fraud which took place in litigation pursued by them against Dole Food Company.

    The Ninth Circuit issued a decision heavily sanctioning both Walter Lack and Thomas Girardi (and their respective firms) almost $500,000; the court also reprimanded Mr. Girardi and suspended Mr. Lack from practicing before the court for a period of 6 months.

    In order to conceal the relationship from class members in the Fogel class action (approximately 12.5 million Americans) , the day after the Ninth Circuit issued its published decision, Skadden Arps (on its behalf as well as on behalf of its clients, Girardi & Keese and Thomas Girardi) officially asked the court to remove its name from the decision. The court rejected the unusual request, noting that redaction was not merited.

    Additionally, on April 28, 2011, after Zurich Financial Group and Farmers Group, Inc. realized that a complaint had been filed with the State Bar of California alleging ethical violations, attorneys for both Zurich and Farmers approached the Los Angeles County Superior Court judge overseeing the Fogel matter (Judge William Highberger), seeking and obtaining an ex parte order modifying the settlement agreement, with little or no opposition from the plaintiff class. (Thomas Girardi, Walter Lack, as well as several attorneys form the state of Texas)

    Additionally, per the ex-parte order, the class was notified that once the court approves the settlement, class members will be prohibiting from alleging in the future that they were not adequately represented by their attorneys due to the prior attorney client relationship between Girardi & Keese and Skadden Arps.

    According to sources familiar with the situation, the request to post a complete set of the ex parte motion on the official Fogel settlement website was made to provide class members notice of all relevant events. “It is only fair that the class and objectors be afforded an opportunity to review those documents in order to formulate replies and state their positions in an educated manner at the upcoming fairness hearing,” the source stated.

    The settlement of Fogel v. Farmers Group, a nationwide class action lawsuit pending in Los Angeles County Superior Court, will resolve all claims dating back to 1999, in a complaint originally filed in August 2003.

    According to Farmers Group, Inc., ” under the terms of the settlement a sum of $455 million will be made available to up to 13 million policyholders who may qualify for distributions under the settlement, with any residual amount going to the Exchanges owned by their respective policyholder subscribers. While the allocation plan for payments to class members has not yet been determined, and while actual individual payments may vary considerably, this averages out to a mere estimated $35 per class member or policyholder subscriber. Zurich also will pay attorneys’ fees to class counsel of up to $90 million.

    As part of the settlement, plaintiffs have agreed to dismiss the case and drop all claims against FGI and its parent, Zurich. All terms of the proposed settlement are subject to execution of a formal settlement agreement and court approval.

    Robert Woudstra, Farmers Group Chief Executive, stated that his company settled rather than prolonging the uncertainty and cost of a legal battle that has already lasted seven years. Farmers Insurance Group of Companies is the nation’s third-largest insurer of both personal lines passenger automobile and homeowners insurance, and also provides a wide range of other insurance and financial services products.”

    *Farmers is a trade name and may refer to Farmers Group, Inc. or the Farmers Exchanges, as the case may be. Farmers Group, Inc., a management and holding company, along with its subsidiaries, is wholly owned by the Zurich Financial Services Group. The Farmers Exchanges are three reciprocal insurers (Farmers Insurance Exchange, Fire Insurance Exchange and Truck Insurance Exchange), including their subsidiaries and affiliates, owned by their policyholders, and managed by Farmers Group, Inc. and its subsidiaries.

    For more information about Farmers, visit its website at www.farmers.com.

    For more information about the Fogel settlements, including links to the official settlement web-site, please visit: http://tinyurl.com/fogelvfarmersgroup

     

    Austin, Texas-Based Joe Longley Informed of Skepticism Over Objection Submitted by David Wenholz in Fogel vs Farmers Group BC300142

    Austin, TX-based consumer attorney Joe K. Longley has been informed of “recently-developed mild skepticism” relating to an objection submitted by Austin, TX-based David Wenholz of the Wenholz Law Firm, The Leslie Brodie Report has learned from confidential sources. (See objection Here.)

    David Wenholz Joe Longley
    Mr Joe K. Longley of Austin, Texas is one of attorneys representing Benjamin Fogel in the class action against Farmers Group, Inc. Coincidentally, Longley and objector Wenholz are both active members of the Insurance Law Institute in Austin, Texas.

    As a service to the community, we shall publish the communication, below:

    Dear Mr. Longley:

    I am writing to express my recently-developed mild skepticism relating to an objection submitted by David Wenholz of the Wenholz Law Firm.

    By way of a background, earlier this year I submitted a complaint to the State Bar of California against the State Bar’s chief prosecutor, attorneys from the law offices of Howard Rice (one acting as special prosecutor), and the president of the State Bar of California (Howard Miller of Girardi & Keese) due to a decision that was made not to advance disciplinary charges against Walter Lack and Tom Girardi for misconduct they committed while prosecuting a case against Dole Food Company in federal court.

    While reviewing the federal court file, I noticed that Skadden Arps represented Girardi & Keese and Mr. Girardi, along with the peculiar attempt to seek the removal of counsel’s name from the published decision. Hence, in approximatley April of this year, I advanced an ethics complaint against Girardi & Keese and Skadden Arps due to what I believe to be misconduct relating to these matters — specifically, violations of various ethics rules and breaches of duties owed to the clients, the court, and the fair administration of justice in the cause of Fogel v. Farmers Group, Inc.

    In addition, I recently learned that both Zurich and Farmers, and shortly after I filed the complaint, sought and obtained ex-parte an order modifying the settlement agreement, with little or no opposition from the class of plaintiffs. I also informed the Los Angeles County Superior Court of my discoveries and concerns in approximately mid-August of this year.

    In reply to the objections submitted to the Los Angeles Superior Court, Girardi & Keese filed various declarations, exhibits, and an omnibus brief. One of the objections submitted was from David Wenholz, a class member and a plaintiffs’ attorney from Austin, Texas.

    Is it my position that Wenholz committed misconduct by submitting the objection? Absolutely not. Did you or anyone else commit misconduct because Wenholz submitted an objection? Absolutely not. Do I possess any proof that Wenholz’s motives in submitting the objection are not what they appear to be on the surface? Absolutely not.

    Am I, subjectively, entertaining thoughts regarding the motive behind the objection due to various convenient circumstances? The answer to this particular question is “yes.”

    It seems reasonable that there would be a concern on the part of plaintiffs’ counsel, defense counsel, ZFS, and FGI that somewhere down the line a class member will allege that he or she was not adequately represented due to the attorney-client relationship between Girardi & Keese and Skadden Arps, and/or that Skadden/FGI/ZFS interfered with the contract between the class and Girardi & Keese. Hence, it was beneficial for class counsel, defense counsel, FGI and ZFS to obtain modification of the settlement, as was done ex parte in April of this year.

    In addition, it is beneficial for defense counsel, class counsel, FGI, and ZFS to be able to show that the class was notified of the amendment (i.e. “Paragraph 17”) and, indeed, lo and behold, a class member with knowledge of “Paragraph 17” even submitted an objection to that effect, making the entire matter seem legitimate on its face. Hence, in any future proceedings naming either class counsel, defense counsel, FGI or ZFS as defendants based on allegations of collusion, defendant(s) would march into court, and produce the objection advanced by Wenholz to demonstrate that, indeed, the class was properly notified, and acquiesced to a waiver per “Paragraph 17.” Indeed, a class member (Wenholz) even filed an objection to that effect, specifically quoting Paragraph 17.

    Hence, my mild skepticism of the objection filed by Wenholz, because although on its face it appears to be a sharply-worded objection, it can also be perceived as nothing more than a dormant Trojan horse awaiting to be unleashed when and if a claim will be asserted.

    In addition, of course, such an objection would also allow Judge Highberger to rule on the matter in the present proceedings, and otherwise be satisfied that the class was on notice.

    Thank you for your time and attention to this matter.

    In Fogel v Farmers Girardi & Keese’s Tom Girardi Claims “Ten of Thousands” Hours for Both “Fogel” and “Lubin” Matters. Meet Joe K. Longley and Mike Gallagher

    In declarations submitted to the Los Angeles Superior Court in the matter of Fogel v. Farmers Group, Inc. (Judge William Highberger presiding), a group of plaintiffs’ attorneys led by Girardi & Keese’s Thomas Girardi alleges that “tens of thousands” of hours were spent prosecuting that action, as well as the “Lubin Proceedings,” another case filed against Farmers but venued in Texas.


    Mr Joe K. Longley of Austin, Texas is a famed consumer attorney. Known as the “The Number-One Enemy of Fine Print” due to years of effective representation on behalf of aggrieved consumers, Longley was born in Mississippi, but raised in Fort Worth, Texas. Longley attended law school at the University of Texas. Early in his career, Longley sponsored the “Deceptive Trade Practice Act, ” which protects the rights of Texas consumers. Longley is one of attorneys representing Benjamin Fogel in the class action against Farmers, and has stated that he worked 2,740 hours on the matter. (Credit: FHH)

    Philip Maxwell, an attorney from Texas, wrote:

    Maxwell Dec

    In a declaration submiited to the Los Angeles Superior Court, Maxwell wrote:

    Philip Maxwell

    In a separate declaration Thomas Girardi alleged:

    Girardi Tens of Tousnads

    Mr Girardi further alleged his firm spent a whopping 6662 hours, see below:

    Girardi Dec Attorney fees

    Walter Lack and Daniel Whalen of the Los Angeles-based Engstrom Liscomb & Lack wrote 659 and alleged 3254 hours were spent, respectively. See below:

    Walter Lack Declaration Attorney fees

    Mr Joe Longley stated:

    Joe Longley Dec

    Also submitting a declaration was Houston, TX based mass-tort plaintiff attorney– Mike Gallagher.


    Mr Mike Gallagher of Houston, Texas. Gallagher began his legal career as an insurance defense lawyer at Fulbright & Jaworski. Later, and for the most of his legal career, he handled general products litigation, such as oil field explosions, aviation, and rollovers. Texas Governor, Rick Perry, recently called Mike Gallagher “an honorable man” and even most of his opponents would admit a grudging respect for this adversary(Photo: credit)

    Mr Gallagher stated:

    Mike Gallagher

    David Burrow, a former judicial officer, stated he worked on both cases 1185, see below:

    David Burrow

     

    Benjamin Fogel

    Mr Benjamin Fogel of Los Angeles, California. Mr. Fogel is the lead class plaintiff in Fogel v Farmers Group, Inc. He was retained as lead plaintiff only subsequent to a visit by Joe Longley — a Texas based attorney seeking to file a nationwide class-action against Farmers Group, Inc. — with Thomas Girardi and Walter Lack. In a declaration submitted to the court, Mr. Fogel alleges he spent 100 hours as a class representative.

    Below is a short summary of hours claimed by plaintiffs’ counsels:

    Girardi & Keese — allegedly 6662 hours

    ELL’s Walter Lack — 659.3 hours

    ELL’s Daniel Whalen — allegedly 3252 hours

    Philip Maxwell — 2677 hours ( Please note number of hours is for both Fogel v Farmers and Lubin in Texas)

    Joe Longley — 2740

    Mike Gallagher — 3061

    David Burrow — 1185 (Both cases)

    Stephen Mccleery — 2107

    Martin Weber — 770

    Alice Oliver-Parrot 481 on both cases.

    David Jones — 1925

    Dan Downey — 2939 on both cases.

    Benjamin Fogel — class representative — 100 hours.

    United States Supreme Court Asked to Review Alleged Corruption Within California Supreme Court

    Lending significant support to calls for an examination of corruption in the California Supreme Court, a sharply-worded brief was filed with the United States Supreme Court, urging it to grant review.

    In that brief, Marina Del Ray-based legal scholar Dan Dydzak minced no words in accusing former Chief Justice Ronald George and attorneys from the San Francisco-based law firm of Howard Rice of egregious misconduct.

    Specifically, it is alleged that Howard Rice was instrumental in using the State Bar of California/State Bar Court as a vehicle to punish Dydzak for his role in exposing alleged corruption and improprieties at brokerage house Charles Schwab, an established client of Howard Rice.


    Mr. Jerome Falk of Howard Rice, an appellate specialist with a mercurial personality. In 2008, during an interview with a legal publication, Mr. Falk stated while describing some opposing counsel, “I would do anything to squash them. So those cases don’t settle. You just want to rip their throats out.” After visiting Vietnam, Mr. Falk joined East meets West, an organization dedicated to improving the lives of children in Vietnam. (Photo:courtesy of Vietnam, East meets West)

    Dydzak alleges improprieties on the part of State Bar Court Judge Donald Miles, a former partner at Howard Rice, as well as Sean SeLegue, a current Howard Rice partner, and a cover-up by the California Supreme Court due to the close relationship between Ronald George and Howard Rice.

    Allegations of egregious misconduct, ethical violations, and appearances of impropriety have become commonplace against embattled Howard Rice.

    Recently, California’s First District Court of Appeal ruled that the failure of Howard Rice partner Sean SeLegue to disclose at the time of an arbitration (in which he served as arbitrator) that he generally defended attorneys and law firms in cases involving professional responsibility, along with the fact that he was actively representing a firm in a case before the California Supreme Court in a dispute over legal fees, created sufficient doubt as to SeLegue’s impartiality in his role as an arbitrator.

    Earlier this year, Howard Rice Partner Jerome Falk was accused of wrongdoing as a result of his decision to exonerate a friend of Ronald George – Thomas Girardi of Girardi & Keese – along with Walter Lack of Engstrom Lipscomb & Lack for misconduct the two committed while litigating a case against Dole Food Company before the Ninth Circuit Court of Appeals.

    During the Ninth Circuit proceedings, and after the case against Dole was dismissed, Chief Judge Alex Kozinski issued an order to show cause why attorneys Walter Lack, Paul Triana, and Sean Topp of Engstrom Lipscomb & Lack, as well as Thomas Girardi and Howard Miller of Girardi & Keese, should not be disbarred or suspended from practicing before the Ninth Circuit.

    Subsequently, in late 2010, a Ninth Circuit panel consisting of Justices William Fletcher , Marsha Berzon, and Randy Smith found that Lack and Girardi had committed grave misconduct which included “the persistent use of known falsehoods,” and that the “false representations” were made “knowingly, intentionally, and recklessly” during years of litigation.

    Despite the Ninth Circuit’s determination, in his capacity as special prosecutor, and after reviewing the Ninth Circuit file, Howard Rice partner Jerome Falk chose to not file any disciplinary accusations against Thomas Girardi and Walter Lack, stating that he believed Lack’s misconduct was not intentional.

    Recently, a shocking discovery was made concerning the fact that Thomas Girardi and Walter Lack were actually clients of Jerome Falk and Howard Rice.

    Separately, partner Douglas Winthrop, as reported earlier, is under extreme scrutiny in matters relating to the now-defunct charity CaliforniaALL.

    Sources: Inquiry Launched into Los Angeles Superior Court Judge William Highberger’s Impartiality in Matter of Fogel v Farmers Group

    An inquiry has been launched into the impartiality of the judge presiding over the matter of Fogel v. Farmers, The Leslie Brodie Report has learned.

    This inquiry was launched following a review of Consumer Dogwatch legal team’s motion to disqualify Judge William Highberger (See http://goo.gl/FGSNB ) , as well as unsubstantiated allegations concerning Judge Highberger, Carolyn Kuhl-Highberger, and Thomas Girardi of Girardi & Keese.

    According to sources familiar with the situation, the inquiry will examine the possibility of tacit involvement by Judge Highberger in the circumstances surrounding concurrent representation by the law offices of Girardi & Keese and Skadden Arps.

    Specifically, despite their respective roles as counsel for plaintiffs and defendants in Fogel v. Farmers, Girardi & Keese and Skadden Arps entered into a separate agreement by which Skadden Arps and partner Thomas Nolan represented Girardi & Keese and Thomas Girardi before the Ninth Circuit in the matter of In re Girardi following the Ninth Circuit’s issuance of an order to show cause why Girardi & Keese, Engstrom Lipscomb & Lack, Thomas Girardi, and Walter Lack should not be suspended, disbarred, or otherwise sanctioned as a result of the massive fraud which took place in litigation pursued by them against Dole Food Company.

    While both cases were pending, and over a period of 4-5 years, neither the Ninth Circuit nor the Los Angeles County Superior Court (nor, for that matter, the class of plaintiffs which Girardi allegedly represents) were ever informed of the concurrent representation.  See http://tinyurl.com/fogelvfarmersobjection

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    • Yet Another Unlicensed Contractor Debacle 2017/07/10
      This story is late in publishing because the AOC (ahem, the judicial council) spent months drawing out our requests for information on a simple inquiry they should have been able to deliver on the same day it was received because what scant information they did provide was readily available to them. But they dragged out […]
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    • Another Clifford Ham boondoggle in San Diego 2017/04/19
      More false promises of tunnels reaching out from jails to courthouses. Don’t say we didn’t tell you so because we’ve stated many times that ALL tunnel promises are false promises made to win local support of the projects and penciled out upon approval. What we find most disturbing is that Clifford Ham has a track […]
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    • Writing our obit is a bit premature… 2017/04/06
      Welcome to 2017! Yeah, we know, a bit of time has passed since we’ve been hyperactive here. We’ve been a bit busy frying other fish.  If you consider yourself a progressive, you’ve already read and possibly even recognized our work elsewhere. We will be continuing those projects and check in here as not to neglect […]
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    • Welcome to the first business day of our reinvigorated 10 year run! 2017/01/02
      Thanks to the sheer incompetence of Judicial Council staff leadership, we’re going to be spending the next ten years nipping at their heels. Last week, the San Francisco trial court ruled that the Jacobs entities maintained their contractors license and that the 22.7 million that the Judicial Council should have been able to recover is […]
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    • Working for the Judicial Council and a pattern of racketeering activity 2016/10/31
      The Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization. The RICO Act focuses specifically on racketeering, and it allows […]
      Judicial Council Watcher

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