Hon. James J. McBride (Ret.)

• Cartwright Act case alleging a conspiracy by competitors to fix prices and exclude plaintiff­‐designed DRAM chips out of the memory market. Defense presented evidence demonstrating that it was design flaws, higher manufacturing costs and other drawbacks associated with the memory chips along with plaintiff’s business practices that prevented RDRAM from gaining wide acceptance in the market.
• Plaintiff was a medical group corporation started by a doctor who claimed to have developed a proprietary staffing model that permitted a long term care facility to manage difficult post-­surgical cases, e.g. liver transplant, at a level equal to that offered by a critical care facility but at a far lower cost. He claimed that after a period of initial success, the competitor and dominant physician’s group in the area conspired with one or more hospitals to force him out of business. Plaintiff hired defendant law firm to prosecute anti-­‐trust claims on behalf of the company. A lawyer on the case lost a box of documents. Ultimately the case was dismissed for failure to prosecute. Plaintiffs claimed that loss of the documents was malpractice that caused the dismissal. The underlying anti­‐trust claims had to be heard during the malpractice suit.
• Anti-­‐trust case between competing excursion boat companies. Plaintiff has maintained a consistent one-­third share of the market for years and claimed that Defendant maintained control of a two-­thirds share of the market by means of anti-­competitive acts. Plaintiff brought anti­‐trust suit under the Cartwright Act and Unfair Practices Act. Plaintiff alleged that Defendant engaged in predatory pricing and controlled the market by means of secret illegal tying agreements with and under the table rebates paid to tour operators who purchases tickets for the boats in bulk.

• Mediated a dispute between internet advertising company and company that provided advertising space on its sites as well as technology for real-time bidding for placement of ads on sites that were accessed or clicked. Defendant became suspicious at the tremendous volume of traffic that was generated and claimed much of that traffic (clicks) was fraudulent. Defendant refused to pay several hundred thousand dollars in revenue. The parties cross-complained.
• Plaintiff agreed to price protect $30 million of DRAM computer memory components that defendant purchased for redistribution. Under the deal, defendant agreed to stock huge quantities of plaintiff’s hard-to-sell computer memory products in exchange for a commitment to keep lowering prices on the product as the market fell. As the bottom fell out of the DRAM market, defendant claimed that plaintiff did not honor this agreement and refused to adjust prices to meet market conditions. Plaintiff sued defendant for millions that plaintiff claimed was owed to it for unpaid invoices. Defendant then cross-complained for breach of the price protection agreement.
• Former partner in a law firm sued for breach of partnership dissolution agreement and sought to recover his share of an $88 million fee awarded on a contingency case following dissolution of the partnership.
• City sued a supplier of computer technology for participation in a scheme with corrupt city employees. City alleged that defendants submitted falsified claims for payment of computer equipment and services and paid kickbacks to city employees. Defendants cross-complained for breach of written contract and for breach of the implied covenant of good faith and fair dealing alleging that the City had barred them from doing business with the City unlawfully and without due process.

• Class action lawsuit on behalf of patients who received treatment at a hospital. Plaintiffs claimed that certain insurance carriers whose insureds received emergency medical care at the hospital reimbursed the city only for what the carrier determined was the “usual and customary” value of the services provided rather than for the actual cost of services provided as determined by the Department of Public Health. The class members were those insureds who had collection efforts made against them by the City. Class members alleged that the failure to pay the full value for emergency services was in violation of the Knox Keene Act.
• Class action brought by employees of a major technology company. Plaintiffs were retail store employees who provided technical customer service. The lawsuit was for claimed schedule and regulations that did not permit them to take meal and rest breaks. Class certification was denied.
• Class action on behalf of salesmen/technician employees of a large copier company. Class members alleged that they were improperly classified as management employees and thus had been deprived of overtime pay and meal and rest breaks.
• Class action brought on behalf of over 1,000 former and/or retired municipal railway employees. In 1984, the city settled an hourly wage dispute with transit operators. The settlement, reached in August, called for retroactive raises back to March of that same year. When it came time to pay, the city attorney claimed that because the fiscal year had closed on June 30, the retroactive increase for the period of March through June could not be paid as wages.
  An agreement was reached with the union to pay the full amount to a trust fund maintained for the benefit of the railway employees. The money then sat there until 2010 when the trust was dissolved. The board of the trust then paid the money out to certain employees but excluded certain of the former and/or retired railway employees who had worked during the three month period at issue. The trust instrument gave the board wide discretion to spend funds.
  Class members, all former or retired railway employees who had worked during the three month period at issue, claimed that the money was clearly intended to be paid as wages and sued board members for breach of fiduciary duty.
  

• Physician/professor of radiology claimed that he was denied promotion because of his sexual orientation.
• Long-­‐time employee (46 years) claimed he was fired without just cause because of his age and claimed violation of the Fair Employment and Housing Act (FEHA) for age discrimination and breach of an oral contract.
• Plaintiff sued employer for wrongful discharge claiming that employer discriminated against her and failed to accommodate her disability.

• Mediated a lawsuit to enforce contract to make a will. Defendant, a disabled, elderly, wealthy widower. Plaintiffs, distant relatives of widower. Plaintiffs claimed defendant promised he would leave his considerable estate to them if they moved to California and cared for him for the remainder of his life. Defendant cross complained for elder abuse and breach of fiduciary duty.
• Mediated a complicated and bitter dispute among family members concerning real estate investments. Elderly mother sued her son’s estate and his widow for an accounting of family real estate portfolio worth $18 million on his death. Mother won a $4.5 million judgment at trial and thereafter widow/executor took various steps in probate to avoid the judgment. I mediated the dispute at that stage.

• Mediated a malpractice claim by real estate developer against trial counsel. Developer purchased land for $25 million that surrounded an existing residential gated community. Developer claimed access to his parcels through existing community but restricted homeowner’s longstanding access to his parcels. Developer lost at trial and was assessed damages for slander of title and punitive damages. He sued his lawyers claiming they had negligently failed to assert the defense that he had blocked access on advice of counsel which defense would have defeated both slander of title and punitive damages. Developer claimed as damages both the damages assessed against him at trial as well as tens of millions in lost value to his planned development.
• Plaintiff was a medical group corporation started by a doctor who claimed to have developed a proprietary staffing model that permitted a long term care facility to manage difficult post-surgical cases, e.g. liver transplant, at a level equal to that offered by a critical care facility but at a far lower cost. He claimed that after a period of initial success, the competitor and dominant physician’s group in the area conspired with one or more hospitals to force him out of business. Plaintiff hired defendant law firm to prosecute anti-trust claims on behalf of the company. A lawyer on the case lost a box of documents. Ultimately the case was dismissed for failure to prosecute. Plaintiffs claimed that loss of the documents was malpractice that caused the dismissal. The underlying anti-trust claims had to be heard during the malpractice suit.

• Plaintiff, an 18 year old healthy male, went to the emergency room with signs that were not promptly diagnosed as those of a stroke. He was admitted for observation but the attending physician delayed in getting him specialized stroke care. As a result, he became paralyzed and lost his ability to communicate. Medical malpractice claim was brought against the attending physician.
• Case involved wrongful death/medical malpractice. Patient died following cosmetic surgery. Complaint alleged negligence by surgeon and anesthesiologist. Surgeon settled out of the dispute. The case against the anesthesiologist was based on the inadequacy of his post- operative orders to the attending nurse and the fact that he left for home before the patient stabilized. The anesthesiologist was also aware that the nurse had “prior difficulties” managing a post‐operative patient, who also died.
• Plaintiff, a 46 year old physical therapist, underwent a partial knee replacement at a hospital. For management of post-­operative pain, defendant anesthesiologist administered a femoral nerve block. Plaintiff claims that the nerve block was administered without her informed consent (battery) and negligently and that she has suffered permanent nerve damage resulting in constant pain and weakness in her upper thigh. She sought wage loss, medical care and substantial pain and suffering, the battery claim being exempt from limits established by the Medical Injury Compensation Reform Act (MICRA).

• Mediated several serious personal injury claims including workplace injuries and injuries caused by unlicensed security guards.
• Municipal Railway employee negligently operated a city owned truck and killed a very young girl and injured her mother, best friend and friend’s grandmother.
• A group of residents sued manufacturers of a nematicide (nematode killer) that was injected into the ground as a gas. Plaintiffs claimed that ground water was contaminated by the nematicide and caused cancer (one case) resulting in wrongful death, sarcoidosis, and property damage. Very complex issues of medical causation were involved.

• Motorcyclist sued motorcycle manufacturer and manufacturer of after-­‐ market seat for damages claiming that he developed permanent erectile dysfunction resulting from priapism he claimed to have suffered because he rode the motorcycle.
• Product liability trial in which operator of a construction site elevator sought damages for severe injuries he claimed were caused by faulty design of elevator safety mechanism.

• Employee of a garbage disposal company holding exclusive contract with the City and County for waste compost and recycling collection claimed that the company had submitted false certifications of certain landfill reduction goals which triggered incentive payments and false certification of recycled material that triggered redemption value payments from the State.

• Case was a partition action for a building owned by dozens of co-tenants. The Court supervised the sale of all interests. Building sold for over $30 million dollars.
• Mediated several tenant vs. landlord cases including claims of violation of habitability standards brought under the San Francisco Rent Stabilization Ordinance and California Civil Code.
• Mediated two consolidated actions arising from the purchase of commercial building in San Francisco. A sophisticated real estate developer purchased a commercial building from a sophisticated landlord. Seller/landlord disclosed to buyer only a single tenant who operated a fitness center on the premises, but in fact that tenant had sublet a portion of his space to a martial arts instructor and a physical therapist. Landlord/seller agreed to pay tenant $150,000 to buy out his lease. Buyer discovered sub tenants’ claims to possession during escrow, and seller/landlord denied knowledge of the two sub-tenancies.
• Buyer sued seller for breach of the sales agreement and indemnity. Subtenants sued master tenant, buyer and seller for wrongful eviction. Master tenant sued seller for breach of buy-out agreement. Seller cross-complained against all. Several insurers were involved, each of whom had provided a defense with a reservation of rights, adding to the difficulty of the negotiations.
• Resolved a case in which parties held title to a single family dwelling as joint tenants with a written contract concerning their respective rights to occupy the property and obligations to pay mortgage, taxes, insurance, etc.

• Handled multiple cases concerning the rights of TIC owners in small (2-3 unit) residential properties owned as TIC.
• Handled a partition action involving the sale of approximately 100 fractional tenancy in common interests in a large mixed commercial residential building, with sale ending at $26 million.
• Handled a homeowners' association case involving the re-designation of common use areas.
• Resolved a mediation regarding parking in a TIC agreement.
• Handled a case in which a landlord prohibited tenants from owning pets and tried to evict a disabled tenant who had a service dog.

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• Cartwright Act case alleging a conspiracy by competitors to fix prices and exclude plaintiff-­‐designed DRAM chips out of the memory market. Defense presented evidence demonstrating that it was design flaws, higher manufacturing costs and other drawbacks associated with the memory chips along with plaintiff’s business practices that prevented RDRAM from gaining wide acceptance in the market.
• Plaintiffs were several cell phone and wireless service providers who install equipment in the public right of way on utility poles. Defendant City and County enacted an ordinance (and a variety regulations to carry it out) that required plaintiffs to obtain permits for their wireless equipment installations. Among other things, a permit was conditioned on the City’s approval of the size and aesthetics of a proposed installation. Plaintiffs brought an action seeking a declaration that the ordinance and regulations were preempted by both State and Federal law.

• Class action brought by employees of a major technology company. Plaintiffs were retail store employees who provided technical customer service. The lawsuit was for claimed schedule and regulations that did not permit them to take meal and rest breaks. Class certification was denied.
• Class action on behalf of salesmen/technician employees of a large copier company. Class members alleged that they were improperly classified as management employees and thus had been deprived of overtime pay and meal and rest breaks.
• Class action brought on behalf of over 1,000 former and/or retired municipal railway employees. In 1984, the city settled an hourly wage dispute with transit operators. The settlement, reached in August, called for retroactive raises back to March of that same year. When it came time to pay, the city attorney claimed that because the fiscal year had closed on June 30, the retroactive increase for the period of March through June could not be paid as wages.
  An agreement was reached with the union to pay the full amount to a trust fund maintained for the benefit of the railway employees. The money then sat there until 2010 when the trust was dissolved. The board of the trust then paid the money out to certain employees but excluded certain of the former and/or retired railway employees who had worked during the three month period at issue. The trust instrument gave the board wide discretion to spend funds.
  Class members, all former or retired railway employees who had worked during the three month period at issue, claimed that the money was clearly intended to be paid as wages and sued board members for breach of fiduciary duty.
• Several other wage & hour cases involving single employees or small groups of employees who asserted violations of labor code such as failure to pay overtime and failure to permit meal and rest breaks.