Cases
Representative Matters: Construction: Power Plant: Represented Mitsui & Co. (U.S.A.)
its prime contractor, Taihei Electric Ltd. (Japan), in federal district court litigation arising from the construction of a 900 MW oil-fired power plant in Puerto Rico. Contactor claims for defective owner-furnished drawings
equipment,
owner-caused delays were successfully resolved prior to trial.
Transit System: Represented DaimlerChrysler's subsidiary, Adtranz, in contesting the award of a $150 million contract for a people mover system at San Francisco International Airport. The superior court issued a writ of m
ate setting aside an award to a competitor for failure to comply with bidding requirements. In a second competition, the client submitted the lowest compliant bid
was awarded the contract.
Water System: Obtained a decision from the California Court of Appeal awarding the client a $10 million dollar contract to computerize the Bay Area's principal metropolitan water system. Transdyn/Cresci v. City (1999) 72 Cal.App.4th 746. Represented client in subsequent action arising from the design
installation of SCADA system at over seventy water treatment, pumping
distribution sites. After a five month trial, the jury returned a unanimous verdict in favor of the client on all claims.
Tunnel Construction: Represented Obayashi Corporation (Japan)
joint venture partner Dillingham Construction Co. (U.S.A.) in preparing
negotiating $12 million settlement following termination for convenience of contract to construct eight mile segment of tunnel for Super Collider. Assisted client in resolving complex contract accounting issues, including allocation of home office overhead to joint venture following termination for convenience.
Treatment Plants: Represented Dyn Construction Co. in multiple cases against public agency owners of major wastewater treatment plants in San Mateo County, CA. Client recovered approximately $15 million on claims for differing site conditions, defective owner-furnished drawings
equipment,
owner-caused delays
disruptions, plus attorney's fees
costs.
Research Hospital: Advised Perkins & Will in negotiating architectural services agreement to design UCLA's new research hospital
teaching facility. Represented client in subsequent litigation involving claims arising from the design
construction of this billion dollar project.
Tunnel Design: Represented Parsons Brinckerhoff in successfully defending the award of a $60 million tunnel design contract for San Francisco's new Central Subway. The client's proposal was shown to comply with all the requirements of the RFP
received the highest evaluation score. The client was therefore entitled to award pursuant to the Brooks Act, 40 U.S.C. 1101 et seq.
Nuclear Power Station: Represented ITT Cannon in litigation filed by Arizona Public Service involving electrical equipment for the Palo Verde Nuclear Power Station, the nation's largest nuclear generating facility. Litigation successfully resolved after client's equipment was shown to meet NRC requirements for use in nuclear containment vessels.
Government Contracts: Transit System: Represented car builder, Rohr Industries, Inc., in case arising from the design, construction
initial operation of the first new rapid transit system in the U.S. in half a century. The owner alleged defects in the overall system design
the Automatic Train Control system supplied by others,
in the six hundred transit vehicles supplied by Rohr. Claims involving Rohr were resolved in favor of the car builder prior to trial.
Transit Vehicles: Special counsel to Pullman-St
ard in litigation with NYCTA in the Southern District of New York involving seven hundred
fifty R-46 subway cars supplied by Pullman-St
ard,
the trucks (undercarriages) for the subway cars supplied by Rockwell International. Jury found against Rockwell on NYCTA's claim after five-week trial. District court directed a verdict in favor of Pullman-St
ard on its cross-complaint against Rockwell for indemnity.
Termination for Default: Represented McDonnell Douglas/General Dynamics as part of a team of attorneys in litigation against the Navy arising from the default termination of a multibillion-dollar contract for development
initial production of the A-12 Avenger. Assisted client in defending termination for default based on government waiver of delivery schedule for prototype aircraft. Negotiated settlements of termination for convenience claims with major subcontractors following default termination of prime contract.
Default Termination Converted to Convenience Termination: Represented supplier of innovative Aircraft Rescue
Fire Fighting (ARFF) vehicles in contesting default termination of client's contract by San Francisco International Airport. Client recovered more than the original contract price in settlement
the Airport's default termination was converted to termination for convenience.
Frivolous
Harassing False Claim Allegations: Obtained a published opinion from the Court of Appeal finding the Department of Airports for the City of Los Angeles (LAWA) pursued a frivolous
harassing claim against the client under California's False Claims Act (CFCA). After the jury unanimously rejected LAWA's CFCA claim, the trial court found the claim had been a junk claim all along
awarded the client legal fees incurred to defend a claim LAWA knew it didn't have the evidence to support. John Russo Industrial Sheetmetal, Inc. v. City of Los Angeles Dept. of Airports (2018) 29 Cal. App. 5th 378.
Mobile Radios: Represented General Electric in California court action
administrative protest filed by competitor. Successfully defended award to client of a $60 million contract for CHP radio equipment. The General Services Board held Caltrans (1) did not act arbitrarily in evaluating competing proposals,
(2) properly awarded GE the contract because its equipment most fully satisfied the state's requirements.
Strategic Defense Initiative: On behalf of BEI Systron Donner challenged long-st
ing Ninth Circuit precedent supporting federal question jurisdiction in disputes between prime contractors
subcontractors arising under government contracts involving national defense matters. While the Ninth Circuit declined this opportunity to limit federal question jurisdiction, the case was settled on rem
. In a subsequent decision, the Second Circuit cited Systron Donner's Ninth Circuit arguments in holding that federal question jurisdiction cannot be invoked solely because a dispute involves a subcontract under a defense prime contract. Compare New SD, Inc. v. Rockwell, 79 F.3d 953 (9th Cir. 1996), with Woodward Governor Co. v. Curtiss-Wright Flight Sys., 164 F.3d 123 (2nd Cir. 1999).
Nuclear Submarines: Represented Westinghouse's Marine Division in preparing
negotiating $100 million settlement proposal arising from Navy's termination for convenience of contract for the Main Propulsion System for Seawolf class submarines. Assisted client in resolving complex termination
accounting issues, including allocation of various indirect cost pools to terminated work.
Emergency Radio System: Represented General Electric
L. M. Ericsson in obtaining a temporary restraining order barring the City
County of San Francisco from making a sole source award of a $40 million contract for radio equipment to a competitor. As a result of this action, the city entered into an agreement to competitively bid the contract so that the client
others could submit proposals to the city.
Military Rations: Represented Oregon Freeze Dry in obtaining TRO to prevent the Department of Defense from improperly awarding a multi-year contract for military rations. In order to obtain relief it was necessary to demonstrate to the district court that an unduly restrictive specification precluded the client from bidding. As a result of this action, the DOD agreed to rebid the contract
revise the specification to allow the client to competitively bid its product.
Avionics: Represented client in protesting Army's proposed sole source award of an $18 million contract for sophisticated electronic equipment for military helicopters. One day after the filing of a GAO protest, the Army withdrew its notice of proposed sole source award
agreed to notify the client prior to taking any further action related to this procurement.
Credit Card System: Represented major commercial bank in claims before Armed Services Board of Contract Appeals arising from implementation of Army-wide credit card system for the Army Central Mess Fund. Government terminated contract for convenience with knowledge that Bank intended recovery of pilot program costs in pricing for Army-wide contract. Client was awarded development costs incurred under pilot program.
International Arbitration
Dispute Resolution: Comm
Control System: Represented Hughes Ground Systems Group in ICC arbitration of $200 million claim against NATO arising from the implementation of a Comm
Control Information System for the Northern European Comm
. Assisted client in demonstrating that NATO customers changed system functional requirements on multiple occasions, necessitating major changes to system design. Case involved development
testing of software with more than one million lines of code. The matter was resolved in favor of the client in the largest NATO claim settlement to date.
Bridge Construction: Represented international engineering firm in ICC arbitration
parallel federal court action involving the design
construction of a five kilometer long precast segmental concrete bridge over the Jamuna River in Bangladesh. Matter was resolved in favor of the client in a combined mediation of the ICC arbitration
district court action.
NFL Stadium: Represented major international equipment supplier in the successful mediation of warranty dispute arising under the laws of a foreign jurisdiction.
Winery: Represented European vintner in London Court of International Arbitration in matter involving ownership
control of major Napa Valley winery.
Public Private Partnerships/Government Franchises
Concessions: Public-Private Partnership: Represented Airis Holdings LLP in negotiating long-term ground lease
Public Private Partnership (PPP) agreement to develop
operate a 400,000 square foot air-cargo terminal at San Francisco International Airport. Represented client in subsequent breach of contract action resulting in a unanimous jury verdict against the Airport on claims for breach of the implied covenant of good faith
fair dealing. Obtained a 2010 decision from the Court of Appeal setting aside a judgment notwithst
ing the verdict
reinstating the jury verdict in favor of the client.
Government Franchises: Represented exclusive franchisee of the City of Monterey, California, in case of first impression establishing that the Resource Conservation
Recovery Act (RCRA), 42 U.S.C. 6961, applies to military bases
other federal enclaves. Ninth Circuit prohibited the Army from seeking competitive bids for recycling
disposal services at Fort Ord because such services were provided by client under an exclusive franchise agreement with the City of Monterey. Parola v. Weinberger, 848 F.2d 956 (9th Cir. 1988).
Concession Contract: Represented Cable & Wireless PLC in obtaining permanent injunction preventing displacement of client as the designated supplier of telecommunications services to the City
County of San Francisco. This action established that concession agreements
other revenue-generating contracts with the city must be awarded on a competitive basis, in a manner similar to contracts using public funds to purchase goods
services for the city.
Concession Lease: Represented Delstar/CalStar Corporations in disputes involving multiple concession leases at San Francisco International Airport. Successfully defended client in unlawful detainer action initiated by airport to terminate leases
obtain possession of concession spaces. Case settled with multimillion-dollar reduction in rents due airport under client's concession agreements.
Park Concession: Represented Yosemite National Park's principal concessionaire in bidding
negotiating concession agreements. Advised client on recovery of capital investments made under concession agreements.
Information Technology: Mission Computer: Represented General Motors' Delco Division in claims against McDonnell Douglas
the Air Force arising from client's development of the mission computer for the C-17 Globemaster. Assisted client in demonstrating that Air Force customers significantly changed basic requirements for the mission computer. As a result, the client's fixed price development agreement was converted to a cost-plus contract.
Mainframe Computers: Represented manufacturer of IBM-compatible mainframe computers in preparing
negotiating OEM agreements, technology purchase
licensing agreements,
in litigation to enforce exclusive rights agreement.
Microprocessors: Represented Hughes Radar Systems Group in claims against Intel Corp. involving the Intel 960 RISC processor
programming software used to develop avionics for the F-22 Raptor. Case settled after complaint was filed in federal district court seeking recovery of client's added development costs.
Communications Satellites: Represented Hughes Space & Communications Group in reviewing multiple change orders arising under the INTELSAT VI program for the design, assembly
launch of six broadb
commercial communications satellites.
SCADA Systems: Represented multiple clients providing SCADA systems to public agencies to monitor
control water
power distribution, vehicle traffic, subways
similar operations. Advised clients with respect to bidding
award of public contracts,
represented clients in bid protests
claims litigation.
Database System: Reached a favorable settlement on behalf of Sybase, Inc., a supplier of database management systems, in a GAO protest concerning the Air Force's award of a task order under an I-CASE Contract.
Other Representative Matters: Technology Acquisition: Represented General Electric in licensing (1) the Kalina Cycle technology - a thermodynamic cycle that improves the efficiency of converting heat to power for generation of electricity- from Exergy, Inc.,
(2) emissions control technology for power plants from Catalytica Energy Systems.
Technology Acquisition: Represented EMI's Systron Donner Corporation in the acquisition of all rights in solid state accelerometers for use in military guidance systems
stability control systems for automotive applications.
Technology Licensing: Represented well-known designer of IBM
Apple compatible PCs in licensing system designs to major offshore manufacturers.
