• Recent Results (January 2013)

    Posted January 22, 2013 By in Recent Results With | No Comments

    The results mentioned are representative and do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

    CONSTRUCTION AND PUBLIC WORKS LITIGATION

    1. Bergman Dacey Goldsmith recently assisted two separate public entity clients avoid writ proceedings in connection with hotly contested bid protests on projects totaling more than $75 million. On the first project, the second low bidder protested the low bid, contending that the low bidder failed to comply with the good faith outreach requirements set forth in the bid documents. On the second project, the low bidder’s bid was deemed non-responsive and rejected, so the notice of award was issued to the second low bidder. Each project had a bid protest procedure in its bid documents that Bergman Dacey Goldsmith had drafted. After both protests went through the bid protest procedure, both protesting bidders dropped their protests. One recognized the purported factual underpinnings of its protest were not accurate. In the second protest, the protesting bidder’s counsel was convinced by Bergman Dacey Goldsmith that they were relying on an erroneous legal basis.

    2. Bergman Dacey Goldsmith recently resolved a dispute between a homeowner and general contractor on a multi-million dollar residential remodel in Beverly Hills. Bergman Dacey Goldsmith’s client had fired the contractor for failure to timely perform and then contacted Bergman Dacey Goldsmith for options. Bergman Dacey Goldsmith helped the homeowner secure a completion contractor and the remodeling project re-started. The original contractor recorded a Mechanic’s Lien and sued the homeowner, contending it was owed over six figures for non-payment. Bergman Dacey Goldsmith was able to get the suit dismissed and the Mechanic’s Lien removed after mediating the case and convincing the original contractor it was simply better to walk away from the case as its downside risk was much greater than the homeowner’s downside risk.

    EMPLOYMENT AND LABOR LAW AND LITIGATION

    1. Bergman Dacey Goldsmith represented a large national manufacturer of aerospace parts (“Corporation”) in a substantial California Labor Commission matter in which non-employees asserted various wage and hour violations, claiming that the Corporation was a joint employer. The nonemployees alleged that they were not paid wages or vacation time owed, and that the Corporation impermissibly withheld compensation and misclassified certain employees. At the Labor Commission hearing, Bergman Dacey Goldsmith presented evidence and argument demonstrating that the employees were not employees of the Corporation, although the Corporation bought and sold products made by the non-employees, and that there was no misclassification of any non-employee. The Labor Commissioner agreed and issued a well-reasoned 15-page Order that the Corporation prevailed on all grounds; the Labor Commissioner dismissed all Labor Code charges. The non-employees, recognizing the strength of Bergman Dacey Goldsmith’s representation of the Corporation, did not seek to appeal the determinations and have not filed a civil complaint.

    2. Bergman Dacey Goldsmith represented a southern California city (“City”) in a substantial Public Employment Relations Board (“PERB”) matter in which multiple unions asserted that the City engaged in unfair practices when the City was forced to reduce its workforce for budgetary reasons. Asserting conduct and evidence extending back a decade, the unions argued that the City unilaterally changed its rules and practices set forth in its Civil Service Rules (“CSRs”) and Memoranda of Understanding (“MOUs”) when it laid off multiple employees without reassigning them. At the PERB hearing, Bergman Dacey Goldsmith presented evidence and argument demonstrating that the CSRs and MOUs should be interpreted in the City’s favor, that the City engaged in consistent practices over a decade, and that the complaining employees did not prove that there were available, budgeted, open positions for which they were qualified. The PERB Administrative Law Judge agreed with the City and found that the City prevailed on all grounds and dismissed all PERB Charges. The unions did not seek to appeal the determinations to the PERB Board, so the decision is final.

    3. Bergman Dacey Goldsmith represented several locations of a popular fast food restaurant in a lawsuit filed by a former employee who alleged close to a dozen causes of action, including wrongful termination, failure to pay overtime wages, failure to pay minimum wages, failure to pay wages upon employment ending, common counts, reasonable value of labor performed, intentional infliction of emotional distress, and violations of various sections of the California Labor Code. Bergman Dacey Goldsmith conducted thorough discovery and established that plaintiff lacked key evidence to support many of her claims. Bergman Dacey Goldsmith thereafter, through extensive and difficult negotiations, was able to resolve the remaining claims, substantially limiting its client’s liability and resolving the matter within the client’s limited insurance policy.

    BUSINESS LITIGATION

    1. Bergman Dacey Goldsmith was retained by a large manufacturing company to substitute in as counsel in a pending unfair competition action in San Diego County against a competitor that was selling alleged non-plumbing-code-compliant products for use and installation in our client’s equipment. Bergman Dacey Goldsmith immediately undertook an aggressive discovery plan to obtain the evidence that it needed to obtain the relief that was necessary and meaningful. After all of the evidence and law was heralded, Bergman Dacey Goldsmith filed a motion for preliminary injunction to enjoin the competitor from, among other things, selling its product on the basis that the sales of those products violated California’s unfair competition law. Following extensive briefing and a hearing of the motion, the Court agreed and issued a Minute Order in which it ruled that the sales, distribution, and installation of the competitor’s product was non-compliant with California law and should be enjoined in California.

    2. Bergman Dacey Goldsmith was retained by a global transportation provider company based in Massachusetts to represent it locally in the Central District of California in a trade secret/unfair competition action in which the client was a counter-defendant. Following the counter-claimant’s filing of a motion for preliminary injunction, Bergman Dacey Goldsmith took the lead in preparing and filing opposition papers in only one week following the filing of the motion. The opposition papers brought to light several defects with counter-claimant’s action requiring the counter-claimant to seek relief from the Court for leave to amend its counter-claim. That relief was granted and further briefing was solicited by the Court relating to the impact of the amendment on counter-claimant’s motion. Working with the client’s Massachusetts-based counsel, Bergman Dacey Goldsmith heralded the facts and the law and presented further opposition papers to the Court as to why counter-claimant’s motion should be denied. On the Friday before the scheduled hearing for the preliminary injunction, the Court issued an order denying the requested injunctive relief and vacating the hearing date, in favor of Bergman Dacey Goldsmith’s client.

    DISABILITY RIGHTS LITIGATION

    Bergman Dacey Goldsmith represented a large public school district facing federal and state class action claims of alleged statutory violations of the Americans With Disabilities Act and California’s parallel statutes, including claims that the class was comprised of thousands of similarly-situated individuals. Bergman Dacey Goldsmith first focused on targeted investigation and legal analysis to successfully defeat class certification efforts by the plaintiffs. Following this procedural win, Bergman Dacey Goldsmith used that momentum to achieve a resolution of the matter that not only protected the public fisc from significant exposure, but also effectuated procedural changes that will help safeguard the public entity from similar future claims. In the end, Bergman Dacey Goldsmith’s efforts protected the client from what could have been significant exposure measuring in millions of dollars in damage claims.

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