• Recent Results (July 2011)

    Posted July 15, 2011 By in Recent Results With | No Comments Recent Results (July 2011)

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

    CONSTRUCTION AND FACILITIES LITIGATION

    1. Bergman Dacey Goldsmith settled four lawsuits pending in four different counties between a subcontractor and a general contractor on four park projects. Three months into the litigation, Bergman Dacey Goldsmith recommended mediation before an experienced public works construction mediator agreed to by both parties. While the subcontractor was seeking in excess of $500,000.00, Bergman Dacey Goldsmith narrowed down the four lawsuits to two key issues: (1) the enforceability of an “offset clause”; and (2) the enforceability of a “consequential damages clause.” Bergman Dacey Goldsmith successfully convinced all involved that both clauses were enforceable. As a result, the matters settled very favorably for approximately 12% of the alleged damages.

    2. Representing a telecommunications subcontractor on two separate major university projects against the general contractors and their payment bond sureties, Bergman and Dacey, Inc. recently recovered over $4,000,000.00 for its client. Each projects’ plans and specifications were so deficient that the general contractor and subcontractor could not adhere to the subcontracts’ change order provisions and maintain the schedule. Based on advice from Bergman Dacey Goldsmith, the subcontractor proceeded “under protest” and documented each change as best as possible under the circumstances. When the general contractor refused to pay at the end of each job, litigation commenced. The theory of recovery was: amendment of the subcontracts based on the circumstances and conduct of the parties. While the general contractor argued that oral modifications of the subcontracts were prohibited, Bergman Dacey Goldsmith established that the general contractor’s conduct and directions, memorialized in writing by the subcontractor, and the damage documentation supported “constructive change orders” entitling the subcontractor to recovery. After six mediation sessions, Bergman and Dacey, Inc.’s client received the $4,000,000.00 settlement.

    3. Bergman Dacey Goldsmith represented a school district client in contract litigation filed by a construction management firm. There were countervailing claims of breach of contract valued together at millions of dollars. The construction management firm sought recovery of unpaid general conditions costs and other sums, including prejudgment interest. The school district sought recovery from the construction management firm of sums paid under the contract and for damages for failure to perform. Using in part a settlement from the construction management firm’s insurance carrier, this matter was settled prior to trial at a fraction of the school district’s potential exposure, resulting in substantial savings to the school district.

    4. Bergman Dacey Goldsmith represented a public entity client as a defendant in a multi-party litigation matter. This matter involved a multi-million dollar construction project. After months of intense negotiations with the plaintiffs, the matter was settled for a small fraction of the amount of exposure that the client would have had if the matter proceeded to trial.

    BUSINESS LITIGATION

    Bergman Dacey Goldsmith was retained by a City to defend it against allegations of wrongdoing pursuant to the provisions of the Federal Telecommunications Act of 1996, and more specifically, allegations that it improperly denied a national wireless carrier the right to erect a 60-foot monopalm wireless transmission tower on private property within City limits. In conjunction with retaining a renowned wireless expert to opine on the City’s chances of prevailing, Bergman Dacey Goldsmith negotiated a compromise whereby several aesthetic aspects of the transmission tower were improved over the originally proposed model. Bergman Dacey Goldsmith negotiated the City’s dismissal from the federal action without the City paying the wireless carrier any money to vastly improve the quality and appearance of this wireless facility.

    REAL ESTATE/ ENVIRONMENTAL

    Bergman Dacey Goldsmith represented a Fortune 100 client in the sale of a commercial real estate site that had environmental issues. Bergman Dacey Goldsmith worked with the client to successfully sell the property and remove all environmental issues. During escrow for the sale of the property, a disgruntled adjacent landowner filed a lis pendens against our client’s property. Bergman Dacey Goldsmith was quickly able to have the lis pendens removed so that the sale of the property was able to close without delay.

    LABOR AND EMPLOYMENT LITIGATION

    1. In a superior court case addressing issues having the potential to impact several of our client’s other teacher dismissal proceedings, Bergman Dacey Goldsmith successfully defended a large school district against a petition for writ of mandate (Code of Civil Procedure section 1085) seeking to compel the school district to pay attorneys’ fees under Education Code section 44944(e), Government Code section 800, and Code of Civil Procedure section 1021.5 after the school district voluntarily dismissed an administrative proceeding against a teacher prior to the hearing. The teacher argued that the Accusation and Statement of Charges against him were false, and that the school district’s dismissal of the underlying proceeding demonstrated that it was liable to the teacher for his attorneys’ fees under multiple statutes. Bergman Dacey Goldsmith drafted a persuasive opposition on not only the writ petition’s substantive points, but also to counter the teacher’s submissions of evidence and request to have school district employees appear in person to testify at the writ hearing. The trial court sided with Bergman Dacey Goldsmith’s position on all issues, ordered that the school district employees need not testify, and denied the teacher’s petition following a hearing on the writ. Bergman Dacey Goldsmith thereby obtained a favorable result for our client on the merits, while at the same time ensuring that its employees were not inconvenienced by having to prepare for and attend the hearing or be cross-examined.

    2. Bergman Dacey Goldsmith defended a large manufacturing company in an employment lawsuit brought by one of its employees, who sued the company after he failed to return to work following the expiration of a leave of absence. The employee was still technically employed by the company. After Bergman Dacey Goldsmith had responded to written discovery and successfully defended its client’s deposition, the employee’s attorney approached Bergman Dacey Goldsmith with a settlement demand. After several proposals were exchanged, Bergman Dacey Goldsmith was able to settle the case for less than half of the employee’s initial demand; the settlement terms included the employee’s voluntary resignation from the company.

    3. Bergman Dacey Goldsmith represented an international currency exchange service company in an action brought by a former employee alleging various forms of discrimination and harassment, in addition to a wrongful termination claim. After evaluating the pertinent facts of the case, and having crafted meticulous discovery responses to the former employee’s counsel, Bergman Dacey Goldsmith negotiated a stay of depositions so that the parties could attend mediation before incurring additional litigation fees and costs. During the mediation, Bergman Dacey Goldsmith’s navigation of the applicable law, coupled with the skill of an outstanding mediator, resulted in a resolution of the matter for a mere fraction of the fees and costs that would have been incurred had this matter proceeded to trial.

    4. Bergman Dacey Goldsmith represented a privately-owned transportation services company in an action brought by a former employee alleging various wage and hour claims, in addition to allegations of whistleblower retaliation and wrongful termination. After evaluating the pertinent facts of the case, and having received nine separate sets of comprehensive discovery requests from the former employee’s counsel, Bergman Dacey Goldsmith negotiated an effective discovery stay so that the parties could attend mediation before incurring significant litigation fees and costs. The early mediation resulted in a resolution acceptable to all parties for a fraction of the cost of litigation.

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