volume xiii no. 3 summer 2006 report4th 1215 (2006), the court held that a plaintiff can state a...

ASSOCIATION OF BUSINESS TRIAL LAWYERSSAN DIEGO

REPORTVolume XIII No. 3 Summer 2006

A LunchtimeConversation withMagistrate JudgeWilliam McCurine, Jr.By Alan M. Mansfield, Editor, ABTL Report

As part of the brownbag lunch series sponsoredby the San Diego ABTL, onJune 15, 2006, U.S.Magistrate Judge WilliamMcCurine, Jr. of theSouthern District ofCalifornia took time out ofhis busy schedule to sharewith ABTL membersnumerous valuable insightsabout how to make the mosteffective use of the federalmagistrate judge process.

Magistrate Judge McCurine has been a mem-ber of the federal bench since 2000, having spentover 20 years as a civil litigator before joiningthe bench. He maintains an average civil case

Stevenson v. CB RichardEllis: The CaliforniaCourt of AppealExpands the Tort ofInterference withProspective EconomicAdvantageBy Robert G. Knaier, Esq. and Kenneth M. Fitzgerald, Esq. of

Latham & Watkins LLP

Businesses and theircounsel would be well-advised to pay close atten-tion to a recent decisionfrom the California Court ofAppeal. In Stevenson RealEstate Services, Inc. v. CBRichard Ellis Real EstateServices, Inc., 138 Cal. App.4th 1215 (2006), the courtheld that a plaintiff canstate a claim for interfer-ence with prospective eco-nomic advantage by allegingthat a business competitorviolated written standardsof a trade association. Indoing so, the Stevensoncourt arguably exceeded thebounds of the rule set forthin Korea Supply Co. v.Lockheed Martin Corp., 29Cal. 4th 1134 (2003), inwhich the Court held that toprevail on a claim of inter-ference with prospective

InsidePresident’s Column Maureen F. Hallahan p. 2

How to Negotiate Allocation of Responsibility Issues UnderD&O Policies Gary Osborne and Dominic S. Nesbitt p. 3

Client Confidentiality and the Threat of Illegal Conduct:An Impossible Combination Wendy Patrick Mazzarella p. 4

Using Technology to Effectively Tell Your Story DuringMediation Steven H. Kruis and Monty A. McIntyre p. 5

Articles of Interest from Current ABTL Newsletter p. 17

(See “Conversation” on page 6)

(See “Stevenson v. CB Richard Ellis” on page 8)

William McCurine, Jr.

Robert G. Knaier

Kenneth M. Fitzgerald

I hope most of you willtake some time this summer to be with yourfamilies and friends, enjoy the longer days andthe warm summer nights, and remember whatsummer vacation used to mean when we were

children. Thanks to theauthors of the articles inthis issue, you also havesome interesting, education-al and thought provokingreading material for thesummer. Then, you will beready for an exciting fallwith ABTL.

As you prepare your fallschedules, be sure to savethe date for the ABTL din-

ner program on September 18, 2006, featuringJohn Hueston, the lead prosecutor in the trial ofEnron’s former executives. As you know, Enron,the giant global energy trading business, col-lapsed in late 2001 after investigators startedprobing the company’s accounting maneuvers.The collapse resulted in the bankruptcy ofEnron, leaving 20,000 employees out of work.Enron’s workers and retirees lost billions inretirement savings that had been invested incompany stock. Following a nationwide search,Mr. Hueston, from the U.S. Attorney’s office inOrange County, California, was selected as thelead prosecutor in the fraud and conspiracy trialof Enron’s former executives Kenneth Lay andJeffrey Skilling. The goal of his nationwide teamwas to win convictions of Mr. Lay and Mr.Skilling. Mr. Hueston received widespreadacclaim for his skillful and relentless crossexamination of Mr. Lay. Those who observed Mr.Hueston in action marveled at his “cool underpressure” presence in the courtroom in responseto often contentious and combative testimony.Mr. Hueston is considered a top talent by hisprosecutorial peers. After winning convictions inthe Enron Case, Mr. Hueston will soon be backin California. ABTL is very fortunate to haveMr. Hueston, a truly outstanding trial lawyer, as

2

Maureen F. Hallahan

President’s ColumnBy Maureen F. Hallahan

the speaker for our dinner program onSeptember 18, 2006. We will be back at theWyndham Hotel for this exceptional program.

On September 9, 2006, ABTL will present anall-day seminar entitled, “Masters of the Art,Building to the Close,” at the Wyndham Hotel.In this seminar, prominent San Diego lawyersand judges will present a case from openingstatements to closing arguments. A jury of SanDiego community members will be impaneled tohear and decide the case. Adding to the enjoy-ment of this seminar, MSI will provide realtimejury reaction to the lawyers and the witnessesthroughout the day, providing an opportunity tocompare what you think is effective and whoyou think is credible with reactions of the layjury. This seminar will offer something to attor-neys at every level of practice, and will be par-ticularly good for younger lawyers who have notyet had significant trial experience. The SanDiego judges presenting at the seminar areJudge Sammartino, Judge Sabraw, JudgeEinhorn, Judge Prager, Judge McCurine andJustice Irion. The lawyer presenters are CraigMcClellan, Robert Steiner, Ed Gergosian, RegVitek, Virginia Nelson, Scott Metzger, ReginaPetty, Mark Hamer and David Noonan. I alsohave been given the opportunity to be a presen-ter at the seminar. In addition, Judges Hadenand Zvetina will discuss the role of mediation inthis process. Many thanks to Judge Haden forinitiating this all-day seminar years ago and forleading it ever since. Sign up now and encouragethose you know to sign up.

To complete the fall schedule, don’t forget theABTL Annual Seminar, being held at the GrandWailea Resort in Maui, Hawaii. This programwill feature some of ABTL’s most talented litiga-tors exploring “what to do when things gowrong.” The panelists will confront the unfore-seen, the unpredictable and the unpleasantcalamities of trial including jury misconduct,witness deceit, technology malfunctions, con-flicts and everything in between. You will learnwhat to do to avoid, avert and roll with the

(See “President’s Column” on page 16)

3

It is the classic “goodnews/bad news” scenario. The “good news” is

that the D&O insurer forthe corporate directors youare defending has acknowl-edged that coverage is inplace. The “bad news” is thatthe insurer is refusing topay more than a small “allo-cated” share of the directors’defense and settlementcosts.

“Allocation” in the insur-ance world refers to the per-centage of defense and set-

tlement costs an insurer pays when a lawsuit

How to Negotiate Allocation of Responsibility IssuesUnder D&O PoliciesBy Gary Osborne, Esq. and Dominic S. Nesbitt, Esq., Osborne & Nesbitt LLP

filed against its insured involves a mix of cov-ered and uncovered claims or parties. Insurerswill frequently try to negoti-ate an allocation agreementat the front end of a claim.

“Caution” should be theinsured’s watchword. Anyagreement reached with theinsurer on allocation canhave a substantial impacton how much the insurerultimately pays to resolvethat claim, and how much isdeemed uninsured (andthus is the responsibility ofthe client). A typical strategy for the insurer is

(See “Responsibility Allocation” on page 11)

Dominic S. NesbittGary Osborne

4 (See “Impossible Combination” on page 13)

Attorneys have anobligation to explain the law to their clients.

This explanation mayinclude impressions or con-clusions with which theclient strongly disagrees.Consequently, lawyers oftenwitness client threats andoutbursts, even rage. Therules permitting disclosureof client confidential infor-mation require the lawyermake a judgment callwhether a client’s state-ments or comments are

made out of anger, or if they pose a real threatthat either fraudulent or criminal conduct maytake place. Unless the lawyer has a significantor longstanding relationship with the client, thisjudgment call may be difficult.

The attorney-client privilege is the oldestprivilege protecting confidential communica-tions under common law. Upjohn Co. v. UnitedStates (1981) 449 U.S. 383, 389 [citing J.Wigmore, Evidence § 2290 (McNaughton rev.1961)]. “Its purpose is to encourage full andfrank communication between attorneys andtheir clients and thereby promote broader pub-lic interests in the observance of law and admin-istration of justice. The privilege recognizes thatsound legal advice or advocacy serves publicends and that such advice or advocacy dependsupon the lawyer’s being fully informed by theclient.” Id.

Client confidentiality is a hallmark of thisrelationship. However, there are exceptions tothe general rule that information impartedwithin the context of such a relationship mustalways be kept confidential. Various legal andethical rules explain the circumstances underwhich attorneys may reveal confidential infor-mation imparted to them by their clients whenthey threaten to engage in illegal conduct.

Client Confidentiality and the Threat of IllegalConduct: An Impossible Combination?By Wendy Patrick Mazzarella, Esq., Deputy District Attorney, San Diego County

I.

CALIFORNIA RULES EXCEPTIONS TOCLIENT CONFIDENTIALITY

A. California Business and ProfessionsCode 6068(e)(1)

The conduct of California lawyers is governedin part by California Business and ProfessionsCode Section 6068, which enumerates the dutiesof an attorney. Bus. & Prof. Code Section6068(e)(1) states that one of these duties is “[t]omaintain inviolate the confidence, and at everyperil to himself or herself to preserve thesecrets, of his or her client.” Bus. & Prof. CodeSection 6068(e)(2), however, states that“[n]otwithstanding paragraph (1), an attorneymay, but is not required to, reveal confidentialinformation relating to the representation of aclient to the extent that the attorney reasonablybelieves the disclosure is necessary to prevent acriminal act that the attorney reasonablybelieves is likely to result in death of, or sub-stantial bodily harm to, an individual.”

B. California Rule of ProfessionalConduct 3-100

The above exception is further developed inCalifornia Rule of Professional Conduct 3-100,Confidential Information of a Client, whichstates that:

(A) A member shall not reveal infor-mation protected from disclosure byBusiness and Professions Code section6068, subdivision (e)(1) without theinformed consent of the client, or asprovided in paragraph (B) of this rule;

(B) A member may, but is not requiredto, reveal confidential informationrelating to the representation of aclient to the extent that the memberreasonably believes the disclosure isnecessary to prevent a criminal act

Wendy Patrick Mazzarella

5

Using Technology to Effectively Tell Your StoryDuring MediationBy Steven H. Kruis, Esq. and Monty A. McIntyre, Esq.

During a recent busi-ness litigation mediation, Mr. Kruis was the

mediator and Mr. McIntyrerepresented one of the par-ties. During the initial jointsession, Mr. McIntyre effec-tively used demonstrativeevidence to present his sideof the case, and the partieswere able to settle duringthe mediation.

After the mediation, theauthors discussed the effec-tiveness of Mr. McIntyre’s

demonstrative evidence presentation and itsuse in mediation generally, and how often suchan evidentiary presentationis made during the course ofa mediation. In our collec-tive experience as advocatesand mediators, demonstra-tive evidence is presentedfar too seldom in mediation.This article discusses thebenefits of effectively pre-senting demonstrative evi-dence during a mediationsession.Steven H. Kruis Monty A. McIntyre

(See “Technology” on page 15)

6

ConversationContinued from page 1

load of approximately 300 cases. Even thoughthese comprise probably 30 percent of his case-load, he devotes close to 70 percent of his work-load on civil matters.

As the assigned magistrate judge, MagistrateJudge McCurine is responsible for handlingEarly Neutral Evaluation, Case Managementand Mandatory Settlement Conferences, settingpre-trial schedules and hearing and resolvingdiscovery matters. If all parties stipulate (whichtakes place about 10% of the time), he also pre-sides over all pre-trial and trial proceedings,although he stressed parties cannot stipulatefor him to only address certain pre-trial mattersor motions.

He urged counsel to consider stipulating tothe use of magistrate judges for all purposes,since (1) they may be able to select him oranother available magistrate judge, and (2) par-ties may be able to get their case to trial by adate certain, without a time clock and in a muchfaster period than if trial was before theassigned federal district court judge, due to theCourt’s significant criminal case load. In fact,the Southern District of California is now thesecond busiest court in the United States, mak-ing the magistrate judge assignment for all pur-poses an alternative counsel should seriouslydiscuss with their clients early on in the litiga-tion.

Early Neutral Evaluation Conferences are anintegral part of our local federal court system, asat least 30 percent of all cases settle at the firstENE. Magistrate Judge McCurine holds thisconference 40 to 60 days after the first appear-ance by a defendant. Most of these conferencesare set for a morning or afternoon, but if theparties agree he will set aside an entire day tofor an ENE Conference. He requires counsel toappear in person, and requires the participationof a representative who has authority to settlethe case – in his words, the person who wouldmake a recommendation to a Board of Directorswhether to accept a settlement. If the case isparticularly complex or unlikely to settle at thefirst conference and the representatives arefrom out of town he may let them participate byphone. However, he believes the most effective

ENE Conferences take place when all partici-pants are present in person and he can directlydiscuss with them both monetary and non-mon-etary settlement options and, if requested by aparty, provide his own valuation of the case. Inaddition, the ENE allows him to assess if coun-sel understand the factual and legal issuesraised by the case, since if they do not he maydirect them to address a particular legal or fac-tual issue.

These conferences also allow the magistratejudge to analyze the case and determine if thereshould be follow-up conferences or if there arethreshold issues or discovery that should be theinitial focus of the parties, since focusing on aparticular issue may help advance the resolu-tion of the case. Thus, if counsel for a partybelieves there is certain discovery or a motionthat is critical, Magistrate Judge McCurine mayorder the parties to exchange that informationor brief that motion immediately and deferother discovery or motions.

He could not stress enough the need for coun-sel to prepare a detailed ENE ConferenceStatement that provides a candid case assess-ment (since he carefully reviews these state-ments), to understand their case early on, bringthe key documents and be fully prepared to dis-cus both the strengths and weaknesses of thecase during that conference. These briefs (aswell as briefs for the Mandatory SettlementConference) should not simply be a restatementof a summary judgment motion, but rathershould discuss the key issues, obstacles to set-tlement and what the party is willing to do tosettle the case.

If a party presents exhibits for review, theyshould each be separately tabbed at the bottomof the document (not just page inserts) soMagistrate Judge McCurine can readily locatethe reference. If the document is multiple pages,counsel also need to provide a specific pagenumber reference, since he will not presumethat what he may be able to locate is what coun-sel want him to reference.

If the case does not settle during the ENEconference, Magistrate Judge McCurine sets aCase Management Conference and requires theparties to submit in advance a Joint CaseManagement Conference Statement and a JointDiscovery Plan. This Statement should include

(See “Conversation” on page 7)

7

ConversationContinued from page 6

an estimate of the number of depositions orother discovery that may be necessary so that hecan assess the discovery needs for the case. Thisdoes not mean the parties need to reach agree-ment on all discovery and pre-trial dates; ratherhe wants one document that includes what theparties do and do not agree upon so he canassess the respective positions of the parties.Based on those statements and that conference,he will set a pre-trial schedule and a mandatorysettlement conference.

One of Magistrate Judge McCurine primarycase management responsibilities is addressingdiscovery disputes. With the exception of every 9weeks when he is the assigned magistrate judgeon criminal matters (and thus is “on call” 24/7for that week), or on Tuesday and Thursdaymornings or afternoons when he is handling hiscriminal docket, he is available to address par-ties’ pretrial and discovery concerns. However,before doing so he requires counsel first make a

substantive attempt to resolve their disputes bytelephone – not merely exchange letters. If theycannot reach agreement, counsel are to contactone of his two clerks (even numbers are oneclerk and odd numbers are the other) and pro-vide a neutral statement of the dispute (e.g. theparties have a dispute about the timing of a dep-osition). The court will then set up a telephoneconference with Magistrate Judge McCurine totry and resolve the dispute. Over 60 percent ofthese disputes are resolved during that tele-phone call without the need for briefing or hear-ing. If there is an outstanding issue he will askfor letter briefs with advance agreement onlength and timing (“I don’t want a 20 pageopus”), and may set an on the record hearing.Absent unusual circumstances, this will not be aformal 28-day motion — seven days from begin-ning to end should be enough to resolve theissue. The overriding goal is to ensure discoveryis neither expensive nor time consuming, butrather is managed so it will be more efficient forboth clients and counsel. ▲

8 (See “Stevenson v. CB Richard Ellis” on page 9)

Stevenson v. CB Richard EllisContinued from page 1

economic advantage, a plaintiff must plead andprove that the defendant interfered with a legit-imate economic expectation through independ-ently “unlawful” means. Id. at 1159. This rulerecognizes the virtues of ordinary marketbehavior – permitting interference by lawful,competitive means – while also acknowledgingthat unlawful behavior clearly exceeds thebounds of legitimate competition. Stevenson,however, permits liability even where a defen-dant’s conduct is not independently unlawful.Until the California Supreme Court againaddresses the issue, market actors in Californiaface the possibility of incurring tort liability forengaging in lawful – albeit aggressive – compet-itive behavior.

A. The Evolution of California’s StandardCalifornia courts have long held that inten-

tionally interfering with the “prospective eco-nomic advantage” of another – even of a busi-ness competitor – can bring liability in tort. SeeDella Penna v. Toyota Motor Sales, U.S.A., Inc.,11 Cal. 4th 376, 381-91 (1995) (discussing thehistorical lineage of interference with contractand interference with prospective economicadvantage). Over thirty years ago, theCalifornia Supreme Court established that tostate a claim for interference with prospectiveeconomic advantage, a plaintiff must, at a mini-mum, plead “(1) an economic relationshipbetween [the plaintiff] and [a third party] con-taining the probability of future economic bene-fit to the [plaintiff], (2) knowledge by the defen-dant of the existence of the relationship, (3)intentional acts on the part of the defendantdesigned to disrupt the relationship, (4) actualdisruption of the relationship, [and] (5) damagesto the plaintiff proximately caused by the acts ofthe defendant.” Buckaloo v. Johnson, 14 Cal. 3d815, 827 (1975).

However, if every interference with a competi-tor’s prospective economic advantage were atort, then competition itself would be actionable.Thus, through decades of careful refinement,the courts have attempted to safeguard legiti-mate economic expectancies from unjustifiedinterference – while at the same time preventthe spectre of tort liability from chilling compet-

itive market behavior. Indeed, in Della Penna,the Court recognized that “[o]urs is a competi-tive economy in which business entities vie foreconomic advantage … [S]uccess goes to himwho is able to induce potential customers not todeal with a competitor.” 11 Cal. 4th at 389 (quot-ing Buckaloo, 14 Cal. 3d at 828). The Court thusrefused to permit liability where a plaintiffpleads merely that the defendant interferedwith the plaintiff ’s prospective business rela-tions with another. Rather, the Court held that aplaintiff seeking to impose liability “has the bur-den of pleading and proving that the defendant’sinterference was wrongful by some measurebeyond the fact of the interference itself.” Id. at393 (quotation marks and citation omitted). Inits concluding words, the Della Penna Courtindicated the sort of “wrongful” conduct thatwould satisfy the plaintiff ’s burden: the plaintiffmust plead and prove that the defendant“engaged in conduct that was wrongful by somelegal measure other than the fact of interferenceitself.” Id. (emphasis added).

In Korea Supply, the Court further clarifiedthis “wrongfulness” requirement, explaining:

The tort of intentional interferencewith prospective economic advantageis not intended to punish individualsor commercial entities for their choiceof commercial relationships or theirpursuit of commercial objectives,unless their interference amounts toindependently actionable conduct. Weconclude, therefore, that an act isindependently wrongful if it is unlaw-ful, that is, if it is proscribed by someconstitutional, statutory, regulatory,common law, or other determinablelegal standard.

29 Cal. 4th at 1159 (citing Della Penna, 11 Cal.4th at 408 (Mosk, J. concurring)) (internal cita-tions omitted). Thus, the California SupremeCourt has been clear that a plaintiff seeking toimpose liability for interference with prospec-tive economic advantage must plead that thedefendant engaged in independently unlawfulconduct designed to disrupt the plaintiff ’s rela-tionship with another. As one court presciently

9


explained, “[r]equiring proof that [a] competi-tor’s wrongful conduct is independently action-able will provide a clearer guide to competitorsin the conduct of their business affairs.Detached from the concepts of actionable orunlawful, the term ‘wrongful’ provides littleassistance in guiding future activities.” SanFrancisco Design Ctr. Assocs. v. Portman Cos., 41Cal. App. 4th 29, 43 (1995).

B. An Unwarranted Expansion ofLiability?

Despite the California Supreme Court’s hold-ing that liability for interference with prospec-tive economic advantage requires a showingthat a defendant engaged in independentlyunlawful conduct, the California Court ofAppeal recently endorsed a more permissivestandard of liability. In Stevenson, plaintiff realestate brokers alleged they had begun assistinga client in procuring a commercial lease, only tohave the defendants – also real estate brokers –

interfere in that relationship and ultimatelysecure the lease for the client. 138 Cal. App. 4that 1218. Plaintiffs brought a claim for interfer-ence with prospective economic advantage,alleging, inter alia, that the defendants’ conductwas “wrongful” insofar as it “violated the Rulesof Professional Conduct . . . of the AmericanIndustrial Real Estate Association.” Id. at 1218-19. Defendants prevailed on a motion for judg-ment on the pleadings, arguing that “a violationof the Association’s Rules would not suffice toconstitute wrongful conduct.” Id. at 1221.

The Stevenson court reversed. The Courtacknowledged that “the crucial issue [was]whether a trade association’s written rules aresufficient to constitute a ‘determinable legalstandard’ as required by Korea Supply.” Id. at1222. The court answered that question in theaffirmative, holding that “in certain circum-stances, a violation of well-defined, established


10


rules or standards of a trade, association or pro-fession may constitute the type of wrongful con-duct that will support a cause of action forintentional interference with prospective eco-nomic advantage.” Id. at 1223. The “certain cir-cumstances” to which the court referred arethose in which “the rules or standards providefor, or give rise to, a sanction or means ofenforcement for a violation of the particular ruleor standard that allegedly makes the defen-dant’s conduct wrongful.” Id. According toStevenson, this requirement satisfies KoreaSupply’s demand that “wrongful” conduct must“amount to ‘independently actionable conduct.’”Id. (quoting Korea Supply, 29 Cal. 4th at 1159).

The Stevenson court justified its decision inpart by arguing that it is consistent with thelanguage of Korea Supply. As noted above,under Korea Supply “an act is independentlywrongful if it is unlawful, that is, if it is pro-scribed by some constitutional, statutory, regu-latory, common law, or other determinable legalstandard.” 29 Cal. 4th at 1159. The Stevensoncourt noted that “[t]he specified sources – consti-tution, statute, regulation and common law –account for virtually all sources of legal restric-tions imposed on a party’s conduct.” 138 Cal.App. 4th at 1223. The Court thus concluded thatKorea Supply’s reference to “[o]ther deter-minable legal standard[s] necessarily refers tosome other source of limitations upon behaviorby which conduct could be assessed” – anddetermined that written trade rules are justsuch an “other source of limitations.” Id.

C. The Soundness of StevensonOn its face, Stevenson appears to be in consid-

erable tension with the language of Della Pennaand Korea Supply. In Della Penna, the Courtheld that a plaintiff must plead and prove thata defendant “engaged in conduct that waswrongful by some legal measure other than thefact of interference itself.” 11 Cal. 4th at 393(emphasis added). In Korea Supply, the Courtfurther clarified that “an act is independentlywrongful if it is unlawful.” 29 Cal. 4th at 1159(emphasis added). In contrast, the Stevensoncourt held that where a defendant’s violation ofwritten trade association rules or standards

might subject that defendant to “internal reme-dies available within the association, such as aright of arbitration between the aggrieved mem-bers,” that defendant’s conduct satisfies thestandard set forth in Della Penna and KoreaSupply. 138 Cal. App. 4th at 1223-24 (emphasisadded).

However, conduct potentially giving rise to“internal remedies” of a trade association seemsa far cry from “unlawful” conduct. Thus, it isarguably the case that despite the language ofDella Penna and Korea Supply, the Stevensoncourt held that a plaintiff may state a claim forinterference with prospective economic advan-tage even where a defendant did not engage in“unlawful” conduct.

The Stevenson court also suggested that itsdecision is consistent with “the prevailing rulein other states.” Id. at 1223. Although the Courtcorrectly noted that “[s]everal states … permit acause of action based upon a violation of estab-lished industry, trade or professional rules orstandards” (id. at 1222), it is not clear that thisfact alone provides sufficient justification forpermitting liability absent Korea Supply’srequirement of “unlawful” conduct. Further,although the Stevenson court noted that DellaPenna relied on out-of-state authority thatendorsed imposition of liability upon violation oftrade rules, (id. at 1223), that fact does notestablish that Della Penna – or any otherCalifornia authority – is consistent with thatproposition.

Indeed, a close reading of the non-Californiacase law referred to in Stevenson reveals animportant difference between that case law andthe rule ultimately crafted by the CaliforniaSupreme Court. Specifically, the case lawreferred to in Stevenson generally permits liabil-ity upon a showing that a defendant engaged inconduct “wrongful by reason of a statute orother regulation, or a recognized rule of commonlaw, or perhaps an established standard of atrade or profession.” Top Service Body Shop, Inc.v. Allstate Ins. Co., 582 P.2d 1365, 1371 (Or.1978); see also Anderson Devel. Co. v. Tobias, etal., 116 P.3d 323, 331 (Utah 2005) (“[A] plaintiffmust show that the defendant’s means of inter-


11


ference were contrary to statutory, regulatory, orcommon law or violated an established standardof a trade or profession.”). Thus, the case law onwhich Stevenson relied posits violation of tradestandards as an alternative to unlawful con-duct. Korea Supply, however, clearly held thatwrongful conduct is only such conduct as vio-lates a “determinable legal standard.” 29 Cal.4th at 1159.

D. Practical ConsiderationsDespite Stevenson’s apparent inconsistency

with California precedent and questionablereliance on non-California authority, it is a deci-sion that participants in any competitive mar-ketplace cannot afford to ignore. Prior toStevenson, California business competitors werefree – at least in the eyes of tort law – to use anylawful means to vie for customers and clientsnot already contractually bound. But in thepost-Stevenson world, such competitors mustpay particular attention to whether the estab-lished rules or standards of their trade associa-tions provide for “internal remedies,” andwhether their conduct could be perceived as vio-lating those rules or standards. Thus, in evalu-ating how aggressively to compete for business,every member of a trade association wishing toavoid tort liability would do well to either (1)scrupulously hew to the rules of the association,or (2) consider withdrawing from the associationaltogether, since nothing in Stevenson suggeststhat liability might follow from a violation oftrade rules by which a defendant has not agreedto be bound. Until the California Supreme Courtrevisits the issue, competitors that do otherwisemay find themselves determining through cost-ly litigation whether their conduct ran afoul ofStevenson. ▲

Responsibility AllocationContinued from page 3

to negotiate an agreement that assigns to it onlya limited percentage of the defense and settle-ment costs calculated so that its allocated sharenever, or barely, exceeds the policy’s self-insuredretention.

For example, assume a D&O insurer negoti-ates a 50% allocation under a policy with a self-insured retention of $100,000. If the insuredincurs defense and settlement costs totaling$250,000, the insurer’s allocated share of losswould be only $25,000 (i.e., $250,000 X 50% =$125,000 minus the $100,000 self-insured reten-tion = $25,000).

The purpose of this article is to summarizethe basic law in California governing allocationunder a D&O policy to assist litigators whennegotiating allocation agreements with aclient’s D&O insurer.

1. The “Reasonably Related Test”The leading precedent in California on the

allocation of defense expenses under a D&O pol-icy is Safeway Stores, Inc. v. National Union FireIns. Co., 64 F.3d 1282 (1995) (applyingCalifornia law). In this case, Safeway Stores andits directors and officers were named as defen-dants in several shareholder lawsuits arisingout of a leveraged buy-out. The trial court hadallocated 75% of the defense expenses to theinsured directors, with the remaining 25% allo-cable to Safeway, whose corporate liability wasnot covered by the D&O policy.

The Ninth Circuit Court of Appeals reversedthe trial court’s allocation, holding that thedefense fees should have been allocated 100% tothe directors (and thus to the insurer). The courtadopted the “reasonably related” test for alloca-tion of defense expenses under a D&O policy,under which “[d]efense costs are … covered by aD&O policy if they are reasonably related to thedefense of the insured directors and officers,even though they may also have been useful indefense of the uninsured corporation.” Id. at1289. While this test is criticized by insurers asoffering a “free ride” to uncovered parties,Safeway Stores is the leading case in Californiaon the issue of allocation of defense costs underD&O policies, and is a key tool in negotiatingallocation agreements with insurers.

Although Safeway Stores involved allocationbetween covered and uncovered parties, there isa strong argument that the “reasonably relatedtest” discussed in that decision should alsoapply to allocation between covered and uncov-

(See “Responsibility Allocation” on page 12)

12 (See “Responsibility Allocation” on page 13)


ered claims. While no California case has yetsquarely addressed this issue, it is notable thatone of the two cases cited by the Ninth Circuitin Safeway Stores as authority for the reason-ably related test involved an allocation betweenclaims, not parties. See, Continental Cas. Co. v.Bd. of Education of Charles County, 489 A.2d536, 545 (Md. 1985) (allocation between tort andcontract counts). Furthermore, the “reasonablyrelated” test mirrors other apportionment rulesthat are applied by California courts in analo-gous contexts such as attorney fee awards. See,Reynolds Metals Co. v. Alperson, 25 Cal.3d 124,129-130 (1979) (attorney fees need not be appor-tioned when incurred for representation of anissue common to both a cause of action for whichfees are proper and one in which they are notallowed).

2. Defense-Cost AuditAnother effective tool in allocating defense

costs is a “defense-cost audit.” Even where the“reasonably related” test has been brought to aninsurer’s attention, the insurer may still try toinsist upon some arbitrary allocation on the pre-sumptive ground that certain defense fees andcosts must surely relate to uninsured partiesand claims. A defense-cost audit involves thelisting of all defense invoice entries (fees andcosts) on an Excel spreadsheet, with a notationfrom defense counsel next to each entry indicat-ing whether the fee or expense is “reasonablyrelated” to the defense of the insured defendantsagainst covered claims. Such audits will fre-quently reveal a far higher insured allocationpercentage than the arbitrary allocation pro-posed by the insurer, and leave the insurer withlittle room to maneuver in its effort to reduce itscoverage obligations.

3. Defense and ProsecutionA final point about defense expenses relates

to the situation where the insured defendantshave filed a cross-claim. Does the insurer haveto pay the fees and costs of prosecuting thecross-claim? The general rule is that a liabilityinsurer is not obligated to prosecute a cross-complaint on behalf of its insured. James 3Corp. v. Truck Ins. Exch., 91 Cal.App.4th 1093,

1104-1105 (2001). However, to the extent anyfees and costs associated with the prosecutionare reasonably related to the defense, there is astrong argument they should be borne by theinsurer pursuant to the “reasonably related”test enunciated in Safeway Stores. See also,State of California v. Pacific Indem. Co., 63Cal.App.4th 1535, 1548 (1998) (CGL insurerthat breached its duty to defend was responsiblefor those fees incurred by the insured on itscross-complaint that the insured proved were“related” to the defense).

4. “The Larger Settlement Rule”In both Safeway Stores and another decision

that applied Washington law (Nordstrom, Inc. v.Chubb & Sons, Inc., 54 F.3d 1424 (1995)), theNinth Circuit Court of Appeals addressed howto allocate a settlement under a D&O policy. Ineach case, the court applied the “LargerSettlement Rule” to a settlement involving bothinsured directors and uninsured defendants.

Pursuant to the “Larger Settlement Rule,” aD&O insurer must pay the entire settlementunless it can demonstrate that: (1) uninsureddefendants were potentially liable for a claimfor which the insured directors and officerslacked any responsibility; or (2) the settlementwas higher by virtue of the uninsured defen-dants’ potential liability.

Application of this rule in Safeway Storesmeant that no allocation was permissible sinceneither of the uninsured defendants faced anyliability that was independent of the liabilityfaced by the insured directors. Likewise, inNordstrom, the entire settlement was coveredsince the uninsured defendant did not incur anyliability that was not concurrent with that of theinsured directors and officers.

As noted above, Safeway Stores andNordstrom addressed settlement allocation inthe context of a claim involving insured anduninsured parties, and not covered and uncov-ered claims. Where both covered and uncoveredclaims are alleged against an insured, it is unre-solved what allocation rule would be applied bythe California courts. There would seem to be noanalytical reason, however, why the “LargerSettlement Rule” should not apply to this situa-

13

tion as well. Unless the uncovered claimsincrease the value of the settlement or allegeentirely different damages, no allocation shouldoccur.

5. Allocation ClausesSome D&O policies now contain a provision

that purports to address how loss is allocatedwhen uncovered parties or claims are intermin-gled in the claim. For example, the policy mayrequire that the insured and insurer use their“best efforts” to determine a fair and proper allo-cation of defense and settlement costs. However,Safeway Stores almost entirely undermined theefficacy of such “best efforts” provisions by hold-ing they merely require an allocation analysisbe undertaken — not necessarily an actual allo-cation. Safeway Stores, 64 F.3d at 1289.

Other insurance policy provisions mandateallocation based upon a “relative liability expo-sure” analysis, or may provide for arbitration orother alternative dispute resolution mecha-nisms to handle allocation disputes while theinsurer “advances” what it deems to be anappropriate amount of allocated loss. NoCalifornia court has yet undertaken to allocatea loss pursuant to such a provision, although afederal trial court recently held an express allo-cation provision was enforceable. CommercialCapital Bankcorp, Inc. v. St. Paul Mercury Ins.Co., 419 F.Supp.2d 1173 (C.D. Cal. 2006).

The point is that as with any insurance issue,the policy must be thoroughly reviewed to deter-mine whether it contains any provisions thatmight impact upon an allocation analysis.

6. SubrogationAn insurer is not necessarily without rights

against uninsured parties who benefit fromeither the “reasonably related” test or the“Larger Settlement Rule.” Neither of these testsprecludes the insurer from pursuing subroga-tion or equitable indemnity rights against aparty who contributed to the loss and who inci-dentally benefitted from the defense or settle-ment of a claim. See, Raychem Corp. v. FederalIns. Co., 853 F.Supp. 1170, 1183 (N.D. Cal. 1994).

ConclusionD&O insurers frequently try to allocate


that the member reasonably believesis likely to result in death of, or sub-stantial bodily harm to, an individual.

Note, however, that if the lawyer chooses notto do so, even though the lawyer would not be inviolation of Rule 3-100, he or she might exposethemselves to civil liability. For an analogoussituation in the field of psychotherapy, seeTarasoff v. Regents of the University ofCalifornia, (1976) 17 Cal.3d 425.

Subdivision (C) specifies what actions anattorney shall take, if reasonable, to prevent theclient from committing a criminal act asdescribed in (B). Subdivision (D) states thatwhen revealing information per (B), “the mem-ber’s disclosure must be no more than is neces-sary to prevent the criminal act, given the infor-mation known to the member at the time of thedisclosure.” Subdivision (E) provides that if anattorney decides not to reveal information thatwould have been permitted under (B), there isno violation of this rule.

C. ABA Model Rule of ProfessionalConduct 1.6

ABA Model Rule of Professional Conduct 1.6is similar to California Rule 3-100 in terms ofpermitting (but not mandating) the lawyerreveal client information. It provides in perti-nent part:

(a) A lawyer shall not reveal informa-tion relating to the representation of aclient unless the client gives informedconsent, the disclosure is impliedlyauthorized in order to carry out therepresentation or the disclosure ispermitted by paragraph (b).

(b) A lawyer may reveal information

Impossible CombinationContinued from page 4

(See “Impossible Combination” on page 14)

defense and settlement costs to minimize, oreven avoid, liability on a claim. Insureds shouldreject such efforts on the ground that no alloca-tion is permissible unless the defense or settle-ment costs are increased by the presence ofuncovered claims or parties. ▲

14


relating to the representation of aclient to the extent the lawyer reason-ably believes necessary:

(1) to prevent reasonably certaindeath or substantial bodily harm;

(2) to prevent the client from commit-ting a crime or fraud that is reason-ably certain to result in substantialinjury to the financial interests orproperty of another and in further-ance of which the client has used or isusing the lawyer’s services;

(3) to prevent, mitigate or rectify sub-stantial injury to the financial inter-ests or property of another that is rea-sonably certain to result or has result-ed from the client’s commission of acrime or fraud in furtherance of whichthe client has used the lawyer’s servic-es.

Rule 1.6, however, goes beyond CRPC 3-100in permitting an attorney to reveal client infor-mation in order to prevent the client from caus-ing financial or property damage when theclient’s action was undertaken in furtherance ofthe client’s past or current use of the lawyer’sservices. Rule 1.6 also includes “prevent, miti-gate or rectify” language in subsection (b)(3)relating to potential financial or property dam-age of another that is reasonably certain toresult or has resulted from the client’s actions,again “in furtherance of which of which theclient has used the lawyer’s services.”

C. California Evidence Code Sections 950et seq.

The client is the holder of the attorney-clientprivilege per California Evidence Code Section953, and subject to Section 954, has a privilegeto refuse to disclose attorney-client confidentialcommunications. However, Section 956.5 statesthat:

“[t]here is no privilege under this arti-cle if the lawyer reasonably believesthat disclosure of any confidentialcommunication relating to represen-

tation of a client is necessary to pre-vent a criminal act that the lawyerreasonably believes is likely to resultin death of, or substantial bodily harmto, an individual.”

The attorney-client privilege could also belost under Evidence Code Section, 956, whichstates that: “There is no privilege under thisarticle if the services of the lawyer were soughtor obtained to enable or aid anyone to commit orplan to commit a crime or a fraud.”

II.

THE ATTORNEY’S PERCEPTIONWhat if your client does not explicitly tell you

she intended to harm anyone or commit fraudu-lent conduct? In some types of cases, a state-ment such as “don’t worry, that witness won’tshow up for trial” might reasonably be taken asan indication that the defendant knows that thewitness had a change of heart and would recanthis or her testimony. If your client added thatyou need not worry about a witness becausethat witness will not be showing up to testify attrial, it might indicate only that your clientproperly convinced the witness not to testify.But in a case where the star witness was astranger to your client, such statements couldtake on new meaning, depending upon all of thecircumstances. A lawyer must be careful andprobing when presented with such statements.

The permissible exceptions to the attorney-client privilege have prompted spirited debateregarding what, if any, warnings or disclosuresshould be given to a client at the beginning ofthe representation. Should the lawyer tell theclient at the inception of the representation thatshould the client reveal the intent to commitcertain criminal or fraudulent acts, the lawyercan reveal the clients’ statement to others,including law enforcement or regulatory author-ities? Such warnings could suppress the client’swillingness to be forthcoming with informationand could chill open dialogue about the case. Italso could give a competitive advantage tolawyers who choose not to provide such disclo-sures or warnings, and perhaps even agree inadvance not to exercise that option. If a lawyer

(See “Impossible Combination” on page 15)

15

TechnologyContinued from page 14

A. When To Use Demonstrative EvidenceThe joint session, usually at the beginning of

the mediation and attended by all parties andcounsel, is an ideal setting for counsel to use tech-nology to tell the story of their case or defense forthe benefit of the decision-makers on the otherside of the case. In mediation, the chances of set-tling a case will increase with the amount of infor-mation exchanged by the parties.

In far too many mediations counsel squanderan important opportunity by not presentingdemonstrative evidence during the mediation inthe form of videotaped deposition clips of criticalwitness testimony, excerpts of significant docu-ments, charts, photographs, videos and diagrams.Demonstrative evidence makes a powerful impacton the decision makers during mediation, just asit does on jurors and judges during trial. A pictureis truly worth a thousand words. Software such asPowerPoint, Trial Director and Summation allowtrial lawyers to effectively present demonstrativeevidence to tell their story.

The trial lawyer who uses demonstrative evi-dence avoids being another “talking head.” Theylet the actual evidence tell the story, with amuch greater impact on the listeners. Such pre-sentations allow the other parties to understandthe theme of the case, and more fully appreciatethe strengths of the adversary’s case as well asthe risks of trying the case. In addition, theother side will understand that counsel knowshow to present the most convincing case to thetrier of fact, and is prepared to do so at trial.

B. Why Don’t Counsel Use DemonstrativeEvidence?

Considering these benefits, why isn’t demon-strative evidence used more often in media-tions? One reason is that counsel often don’tthink about using this tool early enough.Demonstrative evidence will likely be used dur-ing trial in any event. So it makes good sense toprepare the demonstrative evidence earlyenough to use it during the mediation, as coun-sel can preliminarily judge its impact. Not onlymay such evidence help settle the case (hopeful-ly for a better amount), but if the case does go totrial, counsel will be much further along in their

trial preparation than they would be otherwise.Trial lawyers often claim they want to “hold

back” critical information during mediation,believing they need the element of surprise inthe event the case goes to trial. However, moretimes than not the information they have but donot want to disclose at the mediation is alreadyknown, or at least suspected, by the other side.This is something we’ve both experienced manytimes as mediators and advocates.

Even if a critical fact is known only by you, con-sider whether a tactical advantage is really lostshould the other side learn about it. Rarely isopposing counsel able to change a critical uncon-trovertable fact after the mediation and beforetrial. And if they to do so or have a good explana-tion, that is something you should be prepared to

(See “Technology” on page 16)


were to promise clients in advance that he orshe will never elect to reveal the client’s confi-dences, even when permitted, this may not vio-late the California Rules of ProfessionalConduct. But a lawyer would be well advised toconsider potential civil liability before makingsuch a commitment.

III. CONCLUSIONAll attorneys owe a duty of loyalty to their

clients. They should work diligently on theircases and engage in zealous advocacy. Theymust protect their client’s rights and keep theircommunications in the utmost confidence. Butwhen a client engages in or threatens to engagein ongoing illegal activity, a sometimes seeming-ly impossible conflict arises, and the lawyer’sobligations are different. Awareness of the rulesand principles cited above will permit attorneysfaced with this dilemma to evaluate theiroptions in light of applicable ethical and civilliability concerns. ▲

Wendy Patrick Mazzarella is a San Diego County DeputyDistrict Attorney assigned to the Family ProtectionDivision. Ms. Mazzarella has her own ethics column in theSan Diego Daily Transcript, is a regular columnist for LawEnforcement Quarterly, and sits on the editorial board ofSan Diego Lawyer Magazine. She is a Chair of the SanDiego County Bar Association Ethics Committee and lec-tures on ethics on a regular basis both locally, and aroundthe United States.

16

address or rebut. Finally, such a response orexplanation may be material to how both clientand counsel perceive the case from both a litiga-tion and mediation standpoint. In our view, theadvantages of disclosing the critical facts in acompelling demonstrative evidence presentationfar outweigh any potential disadvantages.

C. ConclusionThe mediation session is the only opportuni-

ty, other than trial or deposition, for lawyers tospeak directly to the decision-makers on theother side of the table. An effective presentationin the joint session can help impress the otherside with the merits of your case. Failure to com-pellingly tell your story greatly hinders yourchances for a fair settlement, in part becausethe other side will not be able to assess theirrisk as accurately as they could with all the rel-evant information presented in an organizedand compelling fashion. Finally, since mostcases ultimately settle anyway, it makes senseto tell your story using the most effectivemethod possible when the critical decision mak-ers are present in the same room. To get the bestout of a mediation and obtain the best resultsfrom their clients, good trial counsel will usedemonstrative evidence to persuasively telltheir story during the mediation. ▲

Steven H. Kruis, Esq. is a mediator with Markus KruisMediation. He mediates disputes involving real property,employment, personal injury, business/commercial, andprobate matters. He began mediating disputes in 1993,while a partner with Higgs, Fletcher & Mack LLP. He waswith the firm for over 13 years, and served as the Firm’sManaging Partner between 1994-1997.

Monty A. McIntyre is a shareholder at Seltzer CaplanMcMahon Vitek. He was the 2002 President of the SanDiego County Bar Association and is currently a memberof the Executive Council of the National Conference of BarPresidents. Mr. McIntyre is a civil trial lawyer handlingbusiness, insurance bad faith, tort (catastrophic personalinjury and wrongful death), land use and real propertycases, and he also serves as a private mediator. Mr.McIntyre is a member of the American Board of TrialAdvocates (“ABOTA”). He has received two OutstandingTrial Lawyer Awards from the Consumer Attorneys of SanDiego, has been a speaker at numerous continuing educa-tion courses, and has published a considerable number ofarticles on civil litigation and mediation issues.

punches. The program concludes with war sto-ries and lessons from ABTL’s Masters ofDisaster. This program is approved for 11.25hours of MCLE credit and runs from October 18,2006 to October 22, 2006. The keynote speakeris the Honorable Carol A. Corrigan, AssociateJustice of the Supreme Court of California. Thehotel is offering great rates ($255 for ocean-viewrooms) during the seminar and for a few daysprior to and following the seminar. Sign up nowbecause the rooms and reservations are goingfast.

We hope you enjoy this issue of the ABTLReport, and I will see you in September. ▲

TechnologyContinued from page 15

President’s ColumnContinued from page 2

The views and opinions expressed in thisnewsletter are solely those of the authors.While these materials are intended to provideaccurate and authoritative information inregard to the subject matter covered, they aredesigned for educational and informationalpurposes only. Nothing contained herein is tobe construed as the rendering of legal advicefor specific cases, and readers are responsi-ble for obtaining such advice from their ownlegal counsel. Use of these materials doesnot create an attorney-client relationshipbetween the user and the author.Editor: Alan M. Mansfield (858) 348-1005

Editorial Board:Erik Bliss, John T. Brooks, Robert

Gralewski,and Shannon Petersen.

©2006 Association of Business Trial Lawyers-San Diego.All rights reserved.

P.O. Box 16946San Diego, CA 92176-6946

17

Orange County

Q&A with the Hon. Thierry Patrick Colaw by James L. Poth and Brian Recor

Marking and Damages for Patent Infringement by J. Scot Kennedy

The Dark Side of Mediated Agreements by William J. Caplan

Evaluation of Alter Ego Liability for LLC, LLP or Limited Partnerships byJaime C. Holmes

Recent Seventh Circuit Decision Signals Expansion of Federal ComputerFraud Liability In Employment Context by Jesse E.M. Randolph

For access to these and other articles, please visit www.ABTL.org/report

Articles of Interest from Current ABTL Newsletter

18

ABTL San Diego’sAnnual

Mini-Seminar“Masters of the Art:

Building to the Close”Date: September 9, 2006 • Time: 8:30 a.m.

Location: The Wyndam Emerald

Watch as ABTL’s experts build to the close in a mock trialof an intriguing controversy of patent infringement andtrade secret misappropriation. ABTL’s Masters of the Artwill demonstrate techniques in jury selection, openingstatements and witness examinations that lead to a win-ning closing argument.

Numerous outstanding attorneys will be participating inthis program, including Craig McClellan, Regina Petty,Dave Noonan, Reg Vitek, Scott Metzger, and MarkMazzarella. Our distinguished jurists will include JudgesSammartino, Prager, Haden, Irion, McCurine, Einhorn, andSabraw.

MCLE: 7.5 hours.

Information packets will soon be mailed out to members, and

registration information will be available at www.abtl.org.

19

A Business and Real Estate Litigation Boutique RepresentingClients In, Among Other Matters, Controversies

Involving Governmental Entities

MAZZARELLA CALDARELLI LLP550 WEST “C” STREET, SUITE 700

PH 619-238-4900 San Diego, CA 92101 FAX 619-238-4959

WHO SAYS YOU CAN’TFIGHT CITY HALL?

WHO SAYS YOU CAN’TFIGHT CITY HALL?

OFFICERSMaureen F. Hallahan, President • Hon. Jan M. Adler, Vice President • Robin A. Wofford, Treasurer

Ed Gergosian, Secretary • Thomas E. Egler, Program Chair • Susan W. Christison, Executive DirectorPAST PRESIDENTS

Mark C. Mazzarella 1992-1994 • Michael Duckor 1994-1996 • Peter H. Benzian 1997 • Hon. Ronald L. Styn 1998Claudette G. Wilson 1999 • Meryl L. Young 2000 • Alan Schulman 2001 • Howard E. Susman 2002 • Hon. J.

Richard Haden 2003 • Frederick W. Kosmo, Jr. 2004 • Charles V. Berwanger 2005BOARD OF GOVERNORS

Hon. Jan M. Adler • Katherine A. Bacal • Brian L. Behmer • Fred Berretta • Charles V. BerwangerTheresa M. Brehl • John T. Brooks • William J. Caldarelli • Mary C. Dollarhide • Thomas E. Egler

Hon. John S. Einhorn • Hon. Irma Gonzalez • Maureen F. Hallahan • Patricia P. Hollenbeck • Hon. Joan K. IrionMarisa Janine-Page • Charles G. LaBella • Dan Lamb • Craig R. McClellan • Hon. William McCurine, Jr.

Monty A. McIntyre • Hon. M. Margaret McKeown • Hon. Thomas Nugent • Jeffrey R. Patterson • Anna RoppoHon. Dana M. Sabraw • Hon. Janis Sammartino • Daniel S. Silverman • Dennis Stewart • J. William VanDeWeghe, Jr.

Edward D. Vogel • Kent Walker • Hon. Howard Wiener (Ret.) • Kristine L. Wilkes • Mark C. ZebrowskiEMERITUS BOARD MEMBERS

William S. Boggs • Hon. Peter W. Bowie • Luke R. Corbett • Charles H. Dick • Hon. Irma E. GonzalezHon. Judith L. Haller • Hon. William J. Howatt, Jr. • Hon. J. Lawrence Irving (Ret.) • Hon. Ronald L. Johnson (Ret.)

Hon. Arthur W. Jones (Ret.) • Michael L. Kirby • Michael L. Lipman • Hon. Jeffrey T. Miller • Abby B. SilvermanRobert G. Steiner • William F. Sullivan • Reg A. Vitek • Michael J. Weaver • Shirli F. Weiss

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volume xiii no. 3 summer 2006 report4th 1215 (2006), the court held that a plaintiff can state a...

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