Jan Adler - Judicate West

Introduction

Judge Jan Adler draws upon more than 40 years of legal experience to help resolve complex disputes. He served as a Federal Magistrate Judge for over 15 years and as Presiding Magistrate Judge the last two years. During that time, he presided over approximately 2,000 civil matters as a settlement judge, handling all types of civil litigation matters. Prior to his bench appointment, Judge Adler spent 25 years as a trial lawyer litigating complex civil matters, including securities class action, derivative, antitrust, and consumer fraud cases.

By tapping into his extensive litigation and judicial background, Jan Adler brings the requisite knowledge and experience to tackle any legal dispute, deploying a unique repertoire of resolution strategies and tactics to help all parties achieve satisfaction. Since his retirement in 2018, Judge Adler has developed a reputation as a private Mediator who is patient, hard-working, intelligent, and compassionate.

Practice Areas

Hobbies & Interests

In his spare time, Judge Adler enjoys traveling and hiking, listening to music, following NCAA and professional sports, reading, and community service, including serving as a Director of Jewish Family Services of San Diego.

Testimonials

"Very hard working Intelligent mediator. He is exceedingly patient with all parties and the various nuances and fact patterns of their case. He settled a very difficult case for me for over ten million dollars working through the evening and into the next morning on his own personal time. I would not hesitate to use him as a private mediator"
- Attorney who settled cases before Judge Adler

"Judge Adler went into extra innings for us finishing up around 8 pm, PST while he was mediating out of Boulder, Colorado. It was a very difficult case with extensive coverage issues and very emotional injuries suffered by two minor children. He handled it like the pro he is and did a fantastic job for all involved"
- Attorney on a PI Sexual Assault Matter

"Judge Adler is an outstanding mediator who not only understands the human frailties and often heightened emotions of litigation, but uses his calm and assuring demeanor to facilitate meaningful and productive dialogue in assisting the parties to get to a deal. He is smart, kind, and decisive in his approach."
- San Diego Litigation Attorney

"Judge Adler is thoughtful and thorough – he takes the time to fully study and understand complex and new areas of law and he is well qualified to mediate a wide range of civil cases. He is kind and compassionate and ensures that every litigant has a voice at the table, but never hesitates to deliver difficult messages about the risks and weaknesses in a party’s case. Judge Adler is a superb mediator."
- Attorney who settled multiple cases before Judge Adler

"He was very good at conveying the realities to the client."
- Attorney on a Business Partnership Dissolution

"We really appreciated the collaborative approach."
- Attorney on an Antitrust: Commercial matter

"We had an emotionally driven, and legally complex case. Going into the settlement conference I gave us a 10% chance of resolution. Judge Adler through his persistence and persuasiveness was able to settle the impossible case."
- Attorney on a Complex Dispute

Links and Articles

Experience Summary

Legal Career

Neutral, Judicate West (Current)
United States Magistrate Judge, Southern District of California (2003-2018); Presiding Magistrate Judge (2017-2018)
Attorney, handling complex civil litigation with an emphasis on securities class action, derivative litigation, antitrust, and consumer fraud cases, Milberg Weiss Bershad Hynes & Lerach, LLP (1982-2003); Partner (1987-2003) Associate (1982-1986)
Attorney, handling civil litigation including personal injury, business, insurance law, and workers’ compensation, Jennings, Strouss & Salmon (1978-1982)

Education & Professional Affiliations

J.D., Duke University School of Law (1978)
A.B., Cornell University (1975)
Ninth Circuit Director, Federal Magistrate Judges Association (2014-2018)
Member, Ninth Circuit Magistrate Judges Executive Board (2010-2016); Vice-Chair (2014-2016)
Member, Ninth Circuit Committee on Alternative Dispute Resolution (2008-2014)
Member, Ninth Circuit Pacific Islands Committee (2011-2018)
Member, Ninth Circuit Committee on Magistrate Judge Education (2008-2011)
Member, Board of Governors, Association of Business Trial Lawyers (ABTL) of San Diego (2000-2007); Secretary (2004-2005); Vice President (2006); President (2007)
Master, William B. Enright Inn of Court, San Diego, CA (2003-Present)
Judge Pro Tempore, San Diego County Superior Court (2000-2003)
Member, Board of Directors, San Diego Volunteer Lawyer Program (1995-2006)

Achievements & Awards

Speaker, “A History of Mediation, Its Development in the United States, Its Use in the Federal Courts, Practical Tips and Tools for Effective Mediation, and the Benefits of Mediation,” presented at the Sorbonne Winter School Conference on Alternative Dispute Resolution, Mediation, and Negotiation Management, Paris, France (November 2018)
Panelist, “The Written and Unwritten Rules of Civility,” Association of Business Trial Lawyers Nuts & Bolts Program, San Diego, California (November 2018)
Instructor, Pacific Judicial Council 2018 Advanced Mediation Seminar, Saipan, Commonwealth of the Northern Marianas Islands (March 2018)
Panelist, “The Early Neutral Evaluation Conference in the Southern District of California,” Thirteenth Annual Judith N. Keep Federal Civil Practice Seminar, San Diego, CA (Sep. 2017)
Moderator, “Effective Settlement Tools and Practices,” Twelfth Annual Judith N. Keep Federal Civil Practice Seminar, San Diego, CA (September 2016)
Panelist, “Significant Issues in Settlement,” Ninth Annual Judith N. Keep Federal Civil Practice Seminar, San Diego, CA (September 2013)
Speaker, First International Seminar on Mediation and Arbitration, Centro Universitario de Brasilia, Brasilia, Brazil (May 2013)
Moderator, “Class Action Case Management,” Ninth Annual Judith N. Keep Federal Civil Practice Seminar, San Diego, California (September 2013)
Presenter, American Arbitration Association Mediation Training Program for San Diego Superior Court Mediators, San Diego, California (January 2011)
Panelist, "From the Bench: Effective (and Ineffective) Advocacy in Class Action Litigation,” Consumer Attorneys of San Diego Third Annual Class Action Symposium, San Diego, California (October 2010)
Moderator, “Settlement Panel–Rules of the Road in ENEs,” Fifth Annual Judith N. Keep Federal Civil Practice Seminar, San Diego, California (September 2009)
Panelist, “Judges Panel–What Works and What Doesn’t” and “Settlement Pitfalls and Objectors,” Consumer Attorneys of San Diego Second Annual Class Action Symposium, San Diego, California (October 2009)
Moderator, “Succeeding In Mediation: Tips From The Bench,” Third Annual Judith N. Keep Federal Civil Practice Seminar, San Diego, California (September 2007)
Panelist, “When Things Go Wrong: You Could Have Settled But You Didn’t,” Association of Business Trial Lawyers Annual Seminar, Grand Wailea Resort, Maui, Hawaii (October 2006)
Co-Chair of program on “Confidentiality and Settlement Secrecy Issues,” Ninth Circuit Chief District Judges Conference, Sacramento, California (February 2003)
Recipient, Wiley W. Manuel Award for Pro Bono Legal Services (1997, 2000)
Co-Author with United States Magistrate Judge Anthony J. Battaglia, “The Federalization of Class Action Cases,” published in Report of the ABTL of San Diego (May 2005)
Co-Author with Melvyn I. Weiss and William S. Lerach, “Obtaining Adequate Monetary Relief for Shareholders of Bankrupt Public Companies: The Nearly Impossible Dream,” presented at Practicing Law Institute seminar entitled “Complex Litigation in the Context of the Bankruptcy Laws” (Spring 1984)

Legal Experience

Business/Contractual
Class Actions
Corporate Governance
Employment
Intellectual Property
Personal Injury including Products Liability
Securities

Representative Case Information

Recent Representative Cases

Business/Commercial

Antitrust

Antitrust class action involving alleged price-fixing conspiracy among three major U.S. brands selling packaged seafood. Mediation involved claims of the direct purchaser class against a defendant that was granted conditional leniency by the Department of Justice.
Plaintiff Class, investors in Government Sponsored Entity (“GSE") bonds, alleged defendants engaged in an overarching conspiracy to inflate the prices of GSE bonds in the secondary market once the bonds were “free-to-trade” (“FTT) following the conclusion of the primary distribution phase. The Defendant had earlier self-reported apparent price-fixing discussions among GSE bond dealers relating to the initial secondary market FTT pricing of certain GSE bonds. Defendant was eligible for the civil litigation benefits under the Antitrust Criminal Penalty Enforcement and Reform Act, and contended the alleged conspiracy was limited to a discrete number of bonds and the initial FTT price offered for those bonds immediately after the primary distribution phase.

Consumer Class Action

Plaintiff alleged Defendants violated California's Automatic Renewal Law ("ARL"), the Consumer Legal Remedies Act ("CLRA") and The Unfair Competition Law ("UCL"). Plaintiff alleged Defendants, among other things, failed to provide clear and conspicuous disclosure of the automatic renewal offer terms pertaining to magazine subscriptions and other merchandise. Defendants contended they complied with all requirements of the ARL, that they qualified for the "good faith" defense under the ARL, and that there was therefore no viable claim under the CLRA or the UCL.
Virtual mediation involving a Plaintiff, on behalf of a class of California purchasers and lessees of Defendant's vehicles at issue, sued Defendant under the Song-Beverly Act for breach of the warranty covering paint repairs due to non-impact discoloration, fading, cracking, chipping, or flaking. Defendant contended the named Plaintiff's vehicle was involved in a collision and that he accordingly did not qualify under the warranty for paint repairs.
Class action filed on behalf of hundreds of individuals enrolled in two programs that provide people living with HIV and AIDS with access to adequate healthcare. Plaintiff alleged failure to facilitate enrollment in the programs, to adequately secure the private, personal medical information of Plaintiff and the class members.
Class action asserting claims for violation of the Telephone Consumer Protection Act ("TCPA"). Plainitff alleged Defendant real estate company was vicariously liable for autodialed calls made to Plaintff and class members by agents working with one of Defendant's "teams." Defendant contended the agents were independent contractors and that it could not be held vicariously liable for their alleged violations of the TCPA. Defendant also contended Plaintff would be unsuccessful in getting the proposed class certified.

Contractual

Dispute between shareholders of Subchapter S corporation in which Plaintiff sued Defendants for breaching their fiduciary duties. Plaintiff sought dissolution of the corporation, sale of its sole asset, and damages. Negotiation centered around, among other issues, how the proceeds from the sale of the building should be split between the shareholders.
Plaintiff was engaged by Defendant to revamp its Enterprise Resource Planning (“ERP”) software systems. Plaintiff claimed Defendant failed to make all payments due under the parties’ time and materials contract. Defendant contended Plaintiff failed to complete the design and development phases of the project on time and within approved budgets, and that after paying Plaintiff substantial sums, Defendant was not close to having the customized and functional ERP system Plaintiff had promised it could deliver.
Plaintiff performed work on behalf of Defendant to design and build a concept for a new home internet countertop device. There was no formal contract between the parties, but Plaintiff contended the parties worked together throughout the project with the understanding that Plaintiff would be paid for its work designing prototypes of the device and that Defendant would ultimately award Plaintiff with a long-term electronic manufacturing services (“EMS”) contract to manufacture the device. After Plaintiff completed its work on four prototypes of the device, Defendant did not award Plaintiff the EMS contract. Plaintiff asserted claims for quantum meruit and conversion, claiming Defendant failed to compensate it fully for the work it performed on the prototypes and wrongfully retained Plaintiff’s intellectual property developed while working on the project. Defendant contended it paid all invoices submitted by Plaintiff, that Plaintiff waived any claim for additional amounts due, and that the conversion claim was meritless.
Plaintiff alleged Defendant breached agreement to supply proprietary components used to develop a medical device. Defendants contended no such agreement ever came into existence and that Plaintiff was not entitled to its alleged lost profits.
Partnership dispute in which Plaintiff limited partner contended Defendant general partner charged costs associated with an adjacent property disproportionately to property owned by the partnership; that Defendant general partner secretly obtained loans to purchase the interest of another partner in violation of the partnership agreement and increased its partnership interest without increasing Plaintiff's interest; that the general partner made improper tax-free distributions to itself; and that the general partner failed to account for parking rental revenue due to the partnership. Defendant general partner contended Plaintiff's claims were barred by the statute of limitations; that Plaintiff's claims were, with one exception, derivative claims as to which Plaintiff made no demand upon the general partner to take remedial action and that Plaintiff did not plead demand futility with adequate particularity; and that the business judgment rule barred the claim for misallocation of costs from the adjacent property.
Plaintiff, the wife of a deceased partner in a business, who held a 50% interest in a Subchapter S corporation along with Defendant, contended corporation had failed to make required purchase of her husband's interest upon his death. The parties disputed the valuation of the deceased dentist's interest in the corporation.
Lawsuit arising from Defendant's termination of Plaintiff's access to an electronic health records ("EHR") system maintained by Defendant through a direct data "bridge" that permitted caregivers to view real-time patient data. Plaintiff alleged claims for breach of contract, breach of the implied covenant of good faith and fair dealing and promissory estoppel and sought injunctive relief to restore its access to the EHR via the data bridge. Defendant contended Plaintiff breached the contract by providing its proprietary information to Defendant's biggest competitor with whom Plaintiff had entered into a strategic partnership to use the competitor's EHR platform.
Partnership dissolution case in which parties had been equal partners in a restaurant business. Defendant contended he did not receive any proceeds from operation of business and was entitled to reimbursement for monies he invested in business. Plaintiff contended she was entitled to offsets for amounts expended for rent and other items to keep business afloat and to prevent foreclosure after Defendant caused restaurant to close. Case settled with Plaintiff agreeing to pay agreed upon amount to Defendant in exchange for Defendant relinquishing his partnership interest.
Partnership accounting/dissolution case arising out of contract with Pacific Gas & Electric for drone services project to inspect power lines. Plaintiffs/Cross-Defendants sued Defendant/Cross-Complainant to stop his alleged interference with and disruption of the project. Defendant/Cross-Complainant contended Plaintiffs/Cross-Defendants breached their fiduciary duties and conspired to deny him his rightful share of the proceeds from the contract.
Pre-litigation mediation involving parties to a distribution agreement. Distributor contended other party to the agreement failed to pay it amounts due for testing and evaluating one of the products encompassed by the agreement. Distributor also claimed it was entitled to a refund of the portion of the deposit it had made that was not used to purchase product under the agreement.
Virtual mediation involving investors who claimed respondent company defaulted on secured loan agreements and believed they were entitled to immediate transfer of personal property assets covered by UCC-1. Respondent contended investors were aware of risks in investing in the company and that the pandemic destroyed its business.
Virtual mediation involving a dispute between parties to Tradename License Agreements concerning obligations owed by Licensor to Licensee. Licensee contended Licensor was in breach of the provision concerning a "Licensee Cooperative" to maximize buying power in procuring products and services used and sold in the businesses of the Licensees utilizing the Tradename, and that Licensor breached provision granting Licensee exclusive right to use the tradename within a designated "Protective Area." Licensor contended that the Licensee was seeking to impose obligations on Licensor, not encompassed within the relevant provisions of the Tradename License Agreements.
Lawsuit involving claims asserted by owners of several partnerships (consisting of real estate and other businesses) against one another. Case resolved, with the transfer of ownership interests and dissolution of partnerships.
Buyer of a business alleged seller made material misrepresentations concerning financial condition of the business in violation of seller's representations and warranties in asset purchase agreement and seller disclosure documents. Buyer alleged the seller inflated Seller Discretionary Earnings ("SDE"), thereby causing the buyer to pay more for the business than it was worth. Seller denied that it had breached any of the representations and warranties in the pertinent documents and that the buyer conducted due diligence and thereafter confirmed its satisfaction with its inspection of the company's books and records. Seller also contended that buyer was seeking to mitigate business losses incurred after the sale that were its own fault.
Parties entered into two written contracts pursuant to which one party was to provide event planning, management, and production services for two large in-person conferences during 2020. When the COVID-19 pandemic happened and state and local shutdown orders were promulgated, the hosting party canceled both conferences, relying on the force majeure clause in the contracts, and sought a pro-rata refund of any unearned management fees. The event planning company contended the force majeure clause was inapplicable, as the conferences could have been held virtually and it had submitted a proposal to manage virtual conferences; in addition, the conferences were, in fact, held virtually. The hosting party contended it had contracted with the event planner for in-person conferences which were made impossible by the pandemic, and noted that it had handled the production and management of the virtual conferences in-house.
Contractual dispute arising out of lease agreement for repair, rebuilding, and operation of freight service over a railroad line. Lessor contended lessee breached the lease by failing to make the required lease payment. Lessee contended any alleged default was excused by, among other things, the force majeure provision in the lease agreement in light of the COVID-19 pandemic.
Pre-litigation dispute concerning termination of a dentist from his contracts with a Federally Qualified Healthcare Center ("FQHC") that primarily serves beneficiaries of the Medicaid program. The dentist contended he was wrongfully terminated for cause and that he was owed payments for work he performed prior to the termination as well as net profits he would have made during the notice period for a termination without cause. The FQHC contended the dentist was properly terminated for cause due to, inter alia, excessive patient visits and services provided, lack of documentation and improper recordkeeping, and lack of medical necessity in services provided.
Plaintiff alleged Defendants negligently performed their financial advisory and consulting responsibilities by failing to discover that Plaintiff's CFO had implemented a number of fraudulent schemes to defraud the company and embezzle its funds. Defendants contended they were not hired to provide audit services and had no duty to uncover the wrongdoing committed by the CFO. Defendants also contended it was not reasonably foreseeable that the CFO--who was their main source of financial information about the company--was engaging in wrongful conduct.

Fraud/Misrepresentation

Plaintiff sued his former attorney for breach of fiduciary duty and fraud emanating from attorney's failure to promptly pay client funds entrusted to him and misrepresentations about status of the funds in violation of California Rule of Professional Conduct 4-100(B)(1)-(4).
Plaintiffs, parents of three children who attended the Defendant school, asserted claims under the Consumer Legal Remedies Act and the Unfair Competition Law, as well as for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, negligence, and intentional infliction of emotional distress. Plaintiffs alleged Defendants made material misrepresentations and omissions of material facts about the school, and that they would not have enrolled their children in the school if they had known of these misrepresentations and omissions. Plaintiffs sought the return of monies they had paid for tuition and related fees, incidental damages and attorneys' fees. Defendant denied making any misrepresentations and omissions and contended most of Plaintiffs' claims were time-barred and, in any event, that Plaintiffs had not suffered any damages.
Parties entered into contract pursuant to which Plaintiff sold bottled water to Defendant. Under the California Beverage Container Recycling and Litter Reduction Act ("the Act"), a "distributor" (defined in the Act as any person who engages in the sale or transfer of beverages in beverage containers to a dealer, including any manufacturer who engages in these sales or transfers) is required to pay the Department of Resources Recycling and Recovery ("CalRecycle") the applicable California Redemption Value ("CRV") fees for every beverage container sold, less 1.5% for the distributor’s administrative costs. Plaintiff brought suit to require Defendant to pay the CRV fees, contending Defendant was a distributor under the Act. Defendant contended it was not a distributor, but rather a dealer since it offered the bottled water for sale to consumers, and that Plaintiff was required to pay the CRV fees to CalRecycle as the distributor under the Act.

Securities

Securities fraud/elder abuse case in which elderly Plaintiff alleged she was advised to invest in two note offerings. The money she invested was, in turn, invested in what turned out to be a fraudulent Ponzi scheme.

Employment

Breach of Contract

Virtual mediation of Plaintiff's employment agreement provided for an annual salary plus an incentive compensation bonus under a Stock Appreciation Rights ("SAR") plan. The bonus was to be calculated based on the company's equity value as of the date of exercise of Plaintiff's vested SARs. The defendant company's Board of Directors determined Plaintiff's vested SARs were valueless under the formula specified in the SAR plan, as the company was underwater as of the exercise date. Plaintiff contended the Defendant's major asset had a fair market value far in excess of the amount calculated by the Board and that its valuation improperly treated capital contributions by the company's parent entities as liabilities. Defendants contended they acted in good faith in determining the value of the SARs in view of a contemporaneous offer to purchase the company's major asset and the financial condition of the company.

Discrimination

Plaintiff alleged claims for disability discrimination, failure to engage in the interactive process, failure to accommodate a disability, wrongful termination, retaliation, and the intentional infliction of emotional distress. Defendant contended it accommodated Plaintiff's disability and terminated his employment for a legitimate, non-discriminatory reason, i.e., job abandonment.
Pro se plaintiff alleged claims for failure to provide reasonable accommodations, failure to engage in the interactive process, and retaliation. Defendant contended the university provided reasonable accommodations, that Plaintiff rebuffed efforts to engage in the interactive process, and that Plaintiff’s claims were time-barred.
Plaintiff alleged claims for disability discrimination in violation of the California Fair Employment Housing Act ("FEHA"); discrimination for taking leave in violation of the California Family Rights Act; age discrimination in violation of FEHA; and retaliation and wrongful termination in violation of public policy.
Plaintiff, a current employee of Defendant on a medical leave of absence, alleged several claims, including failure to accommodate by not reassigning him to an alternate position and failure to engage in the interactive process. Defendant contended its HR personnel interacted regularly with Plaintiff throughout his leave.
Virtual mediation where a plaintiff alleged he was subjected to a hostile work environment and that he was demoted and ultimately forced into retirement based on a pattern of discrimination against him based on his age. Defendant contended they did not terminate Plaintiff's employment and that he had voluntarily resigned, he was not performing his job satisfactorily at the time he was allegedly subjected to any adverse employment action, and that Plaintiff could not prove any discriminatory animus based on his age.
Former bank employee claimed he was subjected to harassment, retaliation and discrimination after reporting illegal business practices and that he was demoted to an inferior job position immediately after returning from a leave of absence, resulting in his wrongful termination when he refused to accept the inferior job position. Defendants contended Plaintiff never brought any illegal business practices to their attention, that he had multilple performance issues his supervisor worked with him to rectify, that the bank wanted him to stay on as an employee when he returned from his leave of absence, and that he abandoned his job despite being offered the same salary and potential bonuses in the new position.

ERISA

ERISA claim brought by Plaintiff Trust Fund for collection of fringe benefit contributions from Defendant employer which was signatory to collective bargaining agreement. Trust Fund contended employer was liable for subcontractor's delinquent fringe benefit payments based on agency principles. Defendant contended language of collective bargaining agreement barred collection of delinquent contributions from employer because union failed to provide written notice to employer that subcontractor had failed to make fringe benefit contributions.

Labor Code

Pre-litigation dispute settled in which Plaintiffs claimed they had been misclassified as independent contractors rather than employees as required by governing California case law. Plaintiffs claimed violations of numerous Labor Code provisions and Wage Orders, including failure to pay minimum wages and overtime, failure to provide meal periods and rest breaks, failure to provide itemized wage statements, failure to reimburse, unlawful wage deductions and failure to pay wages when due. Plaintiffs also claimed breach of Consulting Agreements they entered into with Defendant company.

PAGA

Plaintiff contended she was misclassified under the Dynamex ABC test and was entitled to all of her rights as an employee under the Labor Code. She alleged she was entitled to waiting time penalties, as well as penalties for inaccurate wage statements and attorneys' fees. Plaintiff also contended she was wrongfully terminated in violation of public policy. Defendant contended that the Plaintiff and similarly situated employees were properly classified as independent contractors and that Plaintiff’s job was terminated because the short-term work she was hired to do was completed.
Plaintiff alleged Defendant failed to pay overtime wages at the correct regular hourly rate due to failure to include sign-on bonuses. Plaintiff also alleged derivative claims under the Labor Code for inaccurate wage statements and failure to pay all overtime wages due upon separation from employment.
Plaintiffs were allowed access to Defendant’s premises to collect discarded betting tickets. Plaintiffs also sifted through trash bags to separate out recyclable materials, and contended they were recognized by Defendant as the “Recycle Crew” and were issued shirts and badges indicating they were employees of Defendant. Plaintiffs maintained they were accordingly entitled under the Dynamex ABC test to be classified as employees and to receive the benefits of employment. Defendant contended there was no contract between it and Plaintiffs and that it did not control and direct Plaintiffs in their work, that Plaintiffs were engaged in an independent business, and that they were working for their own interests. Plaintiffs also alleged they were wrongfully discharged and retaliated against for filing the lawsuit. Plaintiffs asserted individual claims as well as a PAGA claim on behalf of the other members of the “Recycle Crew.”
PAGA case in which Plaintiff asserted claims for, inter alia, failure to provide itemized wage statements, failure to pay minimum, regular, overtime, and double time wages, failure to properly pay or accrue paid time off ("PTO"), failure to make payments within the required time, failure to maintain accurate wage records, failure to properly provide weekend differentials, and requiring employees to agree, in writing, to authorize Defendant to obtain a Consumer Report.
Plaintiff employee sued defendant company alleging individual claims for Labor Code violations and PAGA claims on behalf of aggrieved employees. Plaintiff claimed wage statements issued by Defendant were deficient in failing to properly list company name and address; that the company failed to provide necessary tools for employees and failed to reimburse them for the cost of providing their own tools; and that company failed to pay employees double minimum wage. Defendant contended that the alleged wage statement violations were hyper-technical and therefore not likely to lead to significant penalties under PAGA.
Plaintiffs, commissioned employees of Defendant auto dealerships, alleged Defendants’ commission pay plan was unlawful under Vaquero v. Stoneledge Furniture, LLC, 9 Cal.App.5th 98 (2017), because it failed to separately compensate sales associates for rest periods. Plaintiffs also alleged Defendants failed to compensate them for “non-productive” time.
Global settlement of two PAGA cases achieved in which claims were asserted for failure to pay minimum wages, failure to provide required meal and rest periods, failure to reimburse employees for required expenses, failure to provide accurate itemized wage statements, and failure to provide wages when due.
Virtual mediation regarding alleged PAGA and class action claims on behalf of 72 non-exempt piece-rate truck drivers. Plaintiff alleged Defendant failed to: pay all wages owed, provide all lawful meal and rest periods, timely pay all wages owed upon separation, issue accurate and itemized wage statements, reimburse for all necessary business expenses incurred, and comply with California's Unfair Competition Laws. Defendant contended Plaintiffs' meal and rest break claims were preempted pursuant to an order of the Federal Motor Carrier Safety Administration, that it provided all required meal and rest breaks in any event, that it paid for nonproductive time, and that virtually all of Plaintiffs' claims for reimbursement of business expenses was barred by the statute of limitations.
Virtual mediation involving Plaintiffs, who are delivery drivers for Defendant, alleged they were misclassified as independent contractors and asserted individual and PAGA claims for violation of the California Labor Code for failure to reimburse business expenses, failure to pay for all hours worked, unlawful deductions, inaccurate wage statements, failure to pay required overtime, failure to provide required meal and rest breaks, and failure to pay wages due upon termination. Defendant contended Plaintiffs were properly classified as independent contractors and that it was accordingly not liable for any of the asserted Labor Code violations.
PAGA action in which Plaintiff alleged, on behalf of aggrieved employees of Defendant's restaurants, failure to provide compliant rest and meal breaks; failure to pay all wages due, including time working through breaks; wage statement penalties; waiting time penalties; and failure to reimburse work-related expenses. Defendants contended that all required meal and rest breaks were provided, all wages due were paid, that employees were reimbursed for business-related expenses when they returned their work uniforms, and that no wage statement or waiting time penalties were applicable.

Sexual Harassment

Plaintiff alleged sexual harassment by individual defendant, who represented himself to be corporate defendant's General Manager at a company holiday party and at his home thereafter. Defendants denied sexual harassment took place and contended company was not liabile since any alleged harassment that took place at individual defendant's home did not occur in a work-related context.
Plaintiff alleged claims for sexual harassment, assault, hostile work environment, and retaliatory termination. Defendant contended no sexual harassment or assault ever took place and that Plaintiff was terminated from employment after the probationary period based on legitimate business reasons.
Virtual mediation involving a Plaintiff who alleged her supervisor at the defendant company engaged in quid pro quo sexual harassment, that she was subjected to a hostile work environment, unlawful retaliation, was wrongfully terminated in violation of public policy, and that the company failed to prevent the sexual harassment from taking place. Defendant contended the relationship between Plaintiff and her supervisor was mutual and consensual and that Plaintiff could not establish the elements of any of her claims.

Wage and Hour

Plaintiff sued company and its president for wrongful termination and various wage and hour claims. Plaintiff also sued former clients to whom she provided home health care services on theory they were joint employers. Former clients asserted cross-claims for indemnity and contribution against defendant company.
Employment wage and hour case in which Plaintiff alleged misclassification as an independent contractor, failure to pay for waiting time when loading and unloading products, failure to provide work-free meal periods, failure to provide accurate pay stubs, failure to indemnify for business expenditures, and waiting time penalties.
Plaintiff alleged claims for unpaid overtime, failure to provide required rest breaks, failure to reimburse for use of personal tools on the job, waiting time penalties, and wrongful termination/retaliation/discrimination for taking sick leave. Defendant contended Plaintiff voluntarily left his job. Defendant also contended it provided all required rest breaks, that Plaintiff chose to use his own tools on the job despite Defedant providing all necessary tools, and that Plaintiff chose to come in earlier than the specified starting time despite being told not to do so.

Wage and Hour Class Action

Plaintiff asserted claims for misclassification of employees as independent contractors, unlawful deductions and unreimbursed expenses, unpaid minimum wages, waiting time penalties, failure to provide meal and rest breaks, failure to provide itemized wage statements, and violations of the Business and Professions Code and PAGA. Plaintiff also sought his attorneys' fees under relevant Labor Code provisions.
Plaintiffs, who worked at Defendants' stores selling cell phones, accessories and mobile phone plans, alleged violations on behalf of a class of all employees of the stores of numerous provisions of the Labor Code, includng failure to provide required meal periods and rest breaks, failure to pay mimimum wages (split shift premiums and reporting time violations), failure to pay double time, unlawful deductions, waiting time penalties and failure to provide timely and accurate wage statements. Defendants contended they provided meal periods and rest breaks and did not commit any of the other alleged violations of the Labor Code, and cross-complained that the Plaintiffs engaged in fraudulent conduct that damaged Defendants' businesses, thereby disabling them from serving as class representatives.
Virtual mediation of an employment wage and hour class/PAGA action in which Plaintiff alleged Defendant, a temporary healthcare staffing company, improperly failed to include per diem reimbursement allowances in the regular rate for purposes of calculating overtime pay, failure to provide required meal and rest breaks, and failure to provide accurate itemized wage statements. Defendant contended the FLSA expressly permits the exclusion from the regular rate of pay for reimbursements that reasonably approximate the expenses incurred on the employer's behalf, that meal periods and rest breaks were provided, and that there was no derivative liability for inaccurate wage statements.
Class and collective action brought on behalf of travel nurses employed by Defendant healthcare staffing company. The nurses asserted claims for unpaid overtime under California law and the Fair Labor Standards Act, as well as derivative claims for unlawful business practices and waiting time penalties. The nurses claimed Defendant improperly failed to include per diem stipends in the "regular rate" for purposes of calculating overtime. Defendant contended it properly excluded the per diem stipends from the regular rate of pay under governing case law. Defendant also contended the vast majority of the class members signed arbitration agreements with a waiver of the right to institute class and collective actions, and that it was entiteld to a credit or offset for overpayments of overtime and doubletime beyond the statutory requirement.

Whistleblower Wrongful Term

A former employee of a commercial real estate services firm was hired as a property manager of a building leased by a city and brought to light concerns about asbestos contamination in the building. The former employee contended he was wrongfully terminated and illegally retaliated against for being a whistleblower. The commercial real estate services firm contended the decision to end the former employee's access to the building and employment on the project was made by the city and that it had taken no adverse employment action against him.

Wrongful Term & Discrimination

Plaintiff alleged Defendant failed to pay all commissions due in accordance with the formula specified in its Incentive Compensation Plan and changed method of calculating commissions after Plaintiff had closed several deals without promulgating a new compensation plan in violation of Labor Code section 2751. Defendant contended the contract for the key deal at issue was never consummated, that it did not retaliate against Plaintiff for raising the issue of alleged withheld wages, and that it had legitimate, non-discriminatory reasons for terminating Plaintiff's employment.
Plaintiff sued defendant for retaliation under the Fair Employment and Housing Act ("FEHA") retaliation based on use of medical leave under the California Family Rights Act, failure to prevent harassment and retaliation under FEHA, retaliation under the Labor Code, negligent supervision, and wrongful termination.
Plaintiff, an Assistant General Manager at one of Defendant's restaurants, was terminated for job abandonment. Plaintiff sued Defendant for disability discrimination, failure to engage in the interactive process, failure to provide reasonable accommodations, retaliation and wrongful termination.
Plaintiff asserted claims for gender and age discrimination, harassment, retaliation, failure to prevent discrimination and harassment, and wrongful termination. Defendant contended Plaintiff failed to establish a prima facie case of age or gender discrimination, that the conduct complained of was not severe enough or sufficiently pervasive to create a hostile work environment, that there was no causal connection between a protected activity and an adverse employment action to support the retaliation claim, and that Plaintiff had voluntarily resigned and there was no constructive discharge to support the wrongful termination claim.
Plaintiff, former Director of Admissions for Defendant, claimed Defendant’s President discriminated against him due to his ethnic and religious background and retaliated against him when he raised concerns about Defendant’s admission practices, ultimately wrongfully terminating him from his employment. Defendant contended Plaintiff’s employment was terminated for legitimate, nondiscriminatory reasons.
Plaintiff alleged claims for disability discrimination, failure to engage in the interactive process, failure to accommodate a disability, wrongful termination, retaliation, and intentional infliction of emotional distress. Defendant contended Plaintff could not perform the essential functions of his job with or without a reasonable accommodation, that his requested accommodation of a permanent six-hour workday was not reasonable, that there was no failure to engage in the interactive process since Plainitff was unable to show a reasonable accommodation was possible, that there was no evidence of retaliation against Plainitff, that he was not wrongfully terminated, and that he did not meet the strict standard for an intentional infliction of emotional distress claim.

Wrongful Termination

Pre-litigation dispute involving claims of hostile work environment, sexual harassment, retaliation, failure to prevent, and wrongful termination. Defendant contended it was not liable for alleged harassment by non-supervisory employee where it took prompt action to investigate the claims upon learning of the alleged harassment and implemented effective remedial action. Defendant also contended there was no retaliation for Plaintiff complaining of sexual harassment and that it had legitimate, nondiscriminatory reasons to terminate her employment.
Case involving alleged wrongful termination of two long-time independent distributorships by Defendant company. Company claimed terminations were proper under distributor agreements with each plaintiff due to acts of dishonesty by plaintiffs toward customers and denied alleged scheme by management to re-acquire distribution routes in order to resell them at significant profit.
Plaintiff claimed he was subjected to retaliation by Defendant's managers and colleagues after reporting another employee's sexual harassment to Defendant's HR Department. Plaintiff claimed he was subjected to national origin discrimination and written up falsely for alleged tardiness. Defendant contended Plaintiff violated its attendance policy by being late for work on numerous occasions and that this tardiness constituted a legitimate, non-discriminatory reason for his termination.
Plaintiff employee alleged retaliation by Defendant and its management/employees for reporting another employee's sexual harassment. Plaintiff alleged the retaliation and hostlie work environment caused him severe emotional distress resulting in necessity of being placed on disability leave and that Defendant failed to accommodate his request for an accommodation and failed to engage in the interactive process. Defendant contended Plaintiff was underperforming and began experiencing alleged emotional distress from Defendant's reasonable attempts to assist him in improving his performance. Defendant also contended it accommodated Plaintiff's request for disabiltiy leave and engaged in the interactive process.
Plaintiff brought claims against their employer and its successor entity for age discrimination, age harassment, failure to prevent discrimination, retaliation in violation of Labor Code section 1102.5, disability discrimination, failure to reasonably accommodate, race-based associational discrimination, failure to pay wages (including commissions allegedly earned before termination and vacation wages owed), failure to pay wages due upon discharge, and failure to provide accurate itemized wage statements. Defendants contended they had legitimate, non-discriminatory reasons to terminate Plaintiff's employment and that it paid all wages due to Plaintiff. Defendants also contended that Plaintiff's claim for commissions owed was actually a claim for a bonus and was defeated by the language of their Incentive Compensation Plan, under which Plaintiff had to have been employed as of the date the bonus was scheduled to be paid out.
Plaintiff, a former supply chain associate at Defendant company, asserted claims for wrongful termination; discrmination, harassment and retaliation under the California Family Rights Act; and discrimination, harassment and retaliation based on sex under the Fair Empolyment and Housing Act. Defendant contended that it had legitmate and non-discriminatory reasons for terminating Plaintiff's employment and that it did not discriminate or retaliate against Plaintiff based on her status as a working mother. Defendant also filed a cross-complaint for unauthorized use and disclosure of its confidential and proprietary information.
Plaintiff was subjected to a drug test along with all other members of the division in which he worked for Defendant. Although Plaintiff's test came back negative, Defendant terminated Plaintiff's employment on the ground that the test reflected a dilute specimen. Plaintiff contended Defendant violated his right to privacy under the California Constitution and that he was wrongfully terminated after being subjected to a random drug test without any individualized reasonable suspicion he was using drugs. Defendant contended it had given Plaintiff and all others in the division sufficient notice in advance of the drug testing and that it had compelling reasons to conduct the testing of the entire division to maintain a safe environment in the company.

Intellectual Property

General IP

Licensor in a Software Licence Agreement ("SLA") sued Licensee for failure to pay all required upfront royalties and additional charges for customization of a software package. Licensee counterclaimed against Licensor, seeking the return of amounts it paid under the SLA, contending there was no valid contract due to lack of agreement on a Statement of Work, which Licensee contended was a material term of the parties' agreement. Licensee also contended that even if there was a valid contract, Licensor failed to perform its obligations to provide customization of its software as required by the SLA.

IP Trade Secrets

Plaintiff asserted claim for misappropriation of trade secrets under the California Uniform Trade Secrets Act of what it contended was confidential and secret customer data. Defendants contended Plaintiff had failed to establish it sustained any damages under the CUTSA and that Plaintiff should be precluded for introducing any damages testimony under Sargon v. University of Southern California, 55 Cal. 4th 747 (2012).

IP Trademark

Trademark infringement case in which Plaintiff alleged Defendant adopted a name for its business that infringed upon Plaintiff's registered trademark. Defendant contended there was no infringement and that Plaintiff's claim was barred by laches.

Professional Malpractice

Medical Malpractice

Medical malpractice case in which Plaintiff alleged defendant doctor and defendant hospital negligently failed to diagnose an aortic occlusion that ultimately resulted in gangrene of her left lower extremity and a left above knee amputation. Plaintiff also alleged the hospital violated the Emergency Medical Treatment and Labor Act ("EMTALA"). Defendants contended they satisfied the standard of care in their examination and treatment of Plaintiff and did not violate EMTALA, as she received appropriate screening examinations to identify an emergency medical condition while in the ER and was not subjected to disparate treatment.
Medical mapractice case in which Plaintiff alleged defendant doctor and defendant hospital negligently failed to diagnose an aortic occlusion that ultimately resulted in gangrene of her left lower extremity and a left above knew amputation. Plaintiff also alleged the hospital violated the Emergency Medical Treatment and Labor Act ("EMTALA"). Defendants contended they satisfied the standard of care in their examinaton and treatment of Plaintiff and did not violate EMTALA, as she received appropriate screening examinations to identify an emergency medical condition while in the ER and was not subjected to disparate treatment.

Real Estate

Breach Of Contract

Plaintiffs entered into a lease with Defendant for a luxury home to be rented by their clients on a short-term basis. Defendant allegedly breached the lease by terminating it without the required notice, thereby forcing Defendant to find alternative lodging for their clients, and by failing to reimburse Plaintiffs for the relocation costs in accordance with the terms of the lease

Property Damage

Plaintiffs alleged claims arising out of water intrusion emanating from Defendant's hair salon business located directly above Plaintiffs' fashion retail and consulting business. Plaintiffs alleged claims for negligence, trespass and private nuisance, seeking damages for lost profits, damaged merchandise, lost bookings, and monies expended to remediate and restore the premises, as well as for emotional distress and physical injury caused to the Plaintiff owner of the fashion retail and consulting business.

Real Property

Plaintiffs had a tentative map for the development of 55 homes. The final map was not recorded before the tentative map expired. Plaintiffs alleged this was due to the negligence of the lead civil engineer, which in turn alleged claims for indemnity and contribution against another engineering firm that was a sub-contractor on the project. The lead engineer on the project contended that Plaintiffs and the sub-contractor were responsible for the conditions identified by the County on the tentative map as not having been satisfied.

Tort

Civil Rights

Claims brought by father on behalf of himself and his son with Down's Syndrome who was allegedly discriminated against by defendant airline at the airport prior to their departure. Plaintiffs asserted claims for negligence, intentional infliction of emotional distress, assault and battery, and violations of the Unruh Civil Rights Act. Defendant contended Plaintiffs' rendition of events was unsupported and implausible, and also asserted defenses under the Montreal Convention.

Personal Injury

Plaintiff, a guest at the home of her siblings, was bitten by their dog, causing injury to her lip and the left side of her face. Plaintiff suffered permanent nerve damage and sensory loss as a result. Defendants contended Plaintiff was comparatively negligent.

PI Sexual Assault

This case involved claims of sexual molestation by a sporting coach of two girls under the age of 10. The mother of the girls, in her capacity as guardian ad litem, sued the coach for sexual molestation and his wife for negligence, negligent supervision and negligent failure to warn, train or educate the girls as to the dangers presented by her husband. The husband was also charged criminally. The mediation was made more complex by the fact that the insurer for the coach and his wife raised several coverage defenses and provided a defense to the wife under a reservation of rights; the insurer separately instituted a declaratory relief action.
Minor plaintiffs, two girls who were under the age of ten during the relevant time period, were sexually assaulted and molested on the premises of defendant homeowners' association ("HOA") by a tennis coach who gave them private lessons and taught them during tennis camps sponsored by the HOA. Plaintiffs alleged a claim for premises liability, contending the HOA violated its own community access and tennis court rules by allowing the coach, who was not a resident of the community, to give the lessons to Plaintiffs (who were also not residents of the community) without any monitoriing or supervision. Plaintiffs alleged the assaults were both foreseeable to the HOA and preventable. Defendant HOA contended it never employed the tennis coach, had no notice of his propensities, and never received reports of similar conduct on its property; the HOA therefore contended it did not owe Plaintiffs a legal duty to protect them from the tennis coach's sexual assaults and molestation. The case also involved a companion coverage dispute, in which the HOA's insurer contended coverage was excluded under the applicable policies' Abuse or Molestation Exclusion.

Premises Liability

Personal injury case resolved in which Plaintiff sued Defendant for negligence stemming from its employees leaving a pallet in the aisle where Plaintiff was shopping. Plaintiff snagged her left foot on the pallet and fell on her left side.

Product Liability

Plaintiff sued her employer and the manufacturer of a metal detector after she sustained severe injury to her hand when she was cleaning the machine. Plaintiff contended the manufacturer failed to include metal guards on the machine, in violation of OSHA standards and its own safety standards and procedures. The manufacturer contended plaintiff was contributorily negligent and ignored warnings on the machine. The manufacturer also contended that the employer bore a comparatively greater degree of fault due to its negligent failure to train Plaintiff on how to properly clean the equipment.

Wrongful Death

Wrongful death action in which Defendant asserted decedent was contributorily negligent. The carrier, defending under a reservation of rights, contended there was no duty to indemnify due to the employee exclusion in the subject commercial auto policy.
Defendant's liability insurance carrier paid out full policy proceeds, which were allocated among four plaintiffs. Workers' comp carrier's lien was also negotiated as a condition of payment of policy proceeds.
Wrongful death case filed against security consulting firm by parents of three children who were murdered in shopping center parking lot. Plaintiffs contended security firm failed to use reasonable care to protect decedents from harmful conduct of other persons that the firm could have reasonably anticipated.

Neutral Profile

HON. JAN M. ADLER, RET.

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HON. JAN M. ADLER, RET.

HON. JAN M. ADLER, RET.

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