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HON. VICTOR B. KENTON, RET.

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HON. VICTOR B. KENTON, RET.

Based in Los Angeles, available Nationwide
Available for Mediation, Arbitration, and Private Judging assignments

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Introduction

Hon. Victor B. Kenton (Ret.) was appointed a Federal Magistrate Judge for the Central District of California in 2001, where he retired July 2015. As a Magistrate Judge, he presided over numerous trials and mediated over 500 cases, in areas including intellectual property, ERISA, ADA, IDEA and FAPE (education), civil rights, employment, wage and hour disputes, pharmaceuticals, complex business disputes, class actions, and commercial litigation. Prior to his judicial service, Judge Kenton was an attorney in both private and public practice, where he tried over 150 civil and criminal bench and jury trials to conclusion.

Judge Kenton has a passion for helping parties resolve disputes and has a reputation for his ability to engender trust from both attorneys and parties. He prides himself in being thoroughly prepared in advance of the mediation to ensure the parties get the most out of their session. If a case does not settle, Judge Kenton is known for remaining engaged and for his continuous follow-up efforts. One attorney on a complex business dispute commented, "Judge Kenton's insights, tenacity, and ability to think 'outside the box' are not only most formidable, but the reason our matter resolved. We could not have reached a resolution without him."

Practice Areas

Hobbies & Interests

In his spare time he enjoys traveling, swimming, hiking, scuba diving and underwater photography.

Testimonials

"He read the briefs, spoke to each side AT LENGTH before the mediation, asked for fact checking, and was candid at the mediation. His comments were thoughtful and considered. One of my pet peeves about bad mediators is the failure to be attentive to parties' concerns, and the need to repeat everything each time the mediator walks into the room. Judge Kenton has a strong interest in getting cases heard, but is thoughtful and listens/processes what the parties tell him."
- Attorney on an ERISA matter

"After yesterday’s mediation, [my clients] expressed sincere appreciation for [his] patient efforts. They mentioned something about divine providence bringing [him] in to mediate our dispute at that moment. I didn’t disagree. I look forward to working with [him] again in the future."
- Defense attorney on a Business/Contractual dispute

"After our 1 day mediation with Judge Kenton did not produce a result, he remained engaged with the attorneys on both sides. Through a series of telephonic calls, emails, and text messages, he worked each side until a mutual agreement was finally achieved. Having practiced law for 30 years, and personally handling and resolving over 500 private and public works disputes during that time frame, Judge Kenton's insights, tenacity, and ability to think "outside the box" are not only most formidable, but the reason our matter resolved. We could not have reached a resolution without him. He is a consummate professional and you are all lucky to have him."
- Attorney on a Business/Contractual Dispute

"Just wanted to express to you how pleased I have been with your hard work on the cases we have been able to work on so far. I hope our 100% streak continues."
- Attorney on an Employment/Discrimination matter

"We thank [him] for all [his] hard work. Our clients were more than satisfied with the result. We appreciate [him] and everything [he] did to get the resolution."
- Attorney on a business/contractual dispute

"I appreciate your insightful questions and intellect that helped move this process toward a resolution."
- Attorney on a Business/Contractual Dispute

"[He] did great work bringing the sides together in a unique and very difficult triangle dynamic."
- Defense attorney on a Business/Contractual dispute

"Again let me express my thanks for conducting a thorough and thoughtful mediation. We appreciate your wisdom and understanding of the issues involved."
- Attorney on a Business/Contractual Dispute

Is the Cal Savers Plan Preempted by ERISA?

Experience Summary

Legal Career

Federal Magistrate Judge, Central District of California (2001 - 2015)
Law Office of Victor B. Kenton, practicing Civil and Criminal Litigation, Business, Employment, Personal Injury, Commercial and Real Property (1982 -1996)
Law Office of Arthur J. Crowley, practicing Business and Family Law (1974 -1978)
Federal Public Defender, Los Angeles, Supervising Trial and Habeas Attorney: (1978 - 1982 and 1996 - 2001)

Education & Professional Affiliations

University of California, Los Angeles, JD (1974)
University of Connecticut, BA with Honors (1969)
Author/thought leader: "Ten Tips for Settling Your Case Before a Federal Magistrate Judge." (Daily Journal, 2015)
Speaker: LACBA and California Society of Certified Public Accountants Forensic Services Sections Steering
Committee (CalCPA) (June 2015)
Adjunct professor: Pepperdine Law School (2009-2010)
Educator: Trial Skills at the National Institute of Trial Advocacy (NITA) (2007-2009)
Panel member: CLE programs for electronic discovery, ERISA, wage and hour cases, the amendments to the Federal Rules of Civil Procedure, and settlement techniques
Board member: Los Angeles Chapter of the Association of Business Trial Lawyers (ABTL) (2007-2010)
Board member: Paul Michel Intellectual Property Inn of Court (2013)
Pepperdine Law School, Straus Institute, Mediation "Boot Camp" (July 2015)

Achievements & Awards

Planning Committee, USC IP Institute (2020 - Present)
Authored, "Is the Cal Savers Plan Preempted by ERISA?" FBA Lawyer (December 2020)
Speaker, “Stress in the Legal Profession,” Judicate West - CA State Bar Approved MCLE Provider (November 2018)
Moderator, "Gender Discrimination and Harassment in the Legal Profession: The Role of the Court in Addressing and Enforcing Civility and Non-Discrimination," Federal Bar Association, Los Angeles Chapter (2018)
Speaker, "Ethical Considerations in Mediation: Locating the Path to Help You Maneuver the Minefield," Judicate West - California State Bar Approved MCLE Provider (October 2016)
Panelist, "Best Defense is the Best Offense," California Lawyer, Patent Disputes Forum South (October 2016)
Speaker, "Perspectives on Effective Mediation," Judicate West - California State Bar Approved MCLE Provider (March 2016)
Panelist, "Arbitrating in 2016: New Cases, Rules, Challenges & Opportunities," Judicate West: California State Bar Approved MCLE Provider (January 2016)

Legal Experience

Business/Commercial
Intellectual Property
Employment
Civil Rights
ERISA
Americans with Disabilities Act (ADA)
Class Action
Professional Malpractice
Real Property and Personal Injury

Representative Case Information

Recent Representative Cases

Business/Commercial

Complex Commercial

Complex dispute: employer of a products manufacturing company sued 4 former key employees, alleging that they stole the employer's confidential information to set up their own competing company. The first mediation ended with a 7-figure demand, and an offer of 5-figures. The mediator suggested a discovery plan to bring the case to a stage where mediation would be productive. Three months later, at a second session, the case settled in mediation.

Consumer Class Action

Mediated and settled a federal injunctive class action under "slack fill" statutes.
Judge Kenton was retained by outside counsel for a major tech company to review case documents in an MDL consumer class action case and to then advise counsel and company executives on the most effective and persuasive presentation of a significant motion to be made before a Federal Judge.

Contractual

Complex disability case involving qualification for extended benefits.
Mediated a real estate dispute involving a home health care business, using real estate forms for the sale of the business had asserted material representations in the contract.
Employment termination and emotional distress claims, regarding a high level manager of a startup company
Case involving sale of a home care business and franchise. Disputes centered on adequacy of disclosures by seller as these affected the value of the business.
Legal malpractice case stemming from post settlement representation of client, failure to appear for hearing to enforce settlement and resulting appeal from unfavorable trial court ruling.
Commercial real estate investment. Plaintiff claimed to be a general partner, but there was no written agreement. Defendant asserted plaintiff only was a limited investor. Defendant put up all of the capital.
Clothing manufacturer sued major retailer for breach of contract based on buyer's refusal to accept large shipment of goods, as non-conforming, and based on late delivery. In addition, unfair competition, and 17200 claims. Case settled after extensive negotiations and detailed factual review of issues pertaining to asserted non conformance of goods, and late delivery.
This case involved two interrelated disputes: a license for software to manage a chemical supplies business, along with a separate installation contract with a third party, all of whom participated in the mediation. The contracts contain explicit damages limitations. Efforts were explored to resurrect the business relationship, along with a concurrent termination/damages model.
Trademark infringement case brought by insurance company against former independent agents alleging that agents used insurer's trademarks to create false loss run reports. Interesting legal questions whether these activities, if true, constitute trademark infringement. Case settled with payment to insurer and private settlement with prohibitive language regarding future conduct
Plaintiff, a company that sells products both retail and wholesale, contracted for installation of a software program to manage sales. The program did not perform successfully, because the software platform had serious performance issues. The customer was disenchanted, at minimum, so the case had to be settled on strictly monetary terms. The contract, as is typical of software contracts, specifically limited damages. The case settled after 6 months of follow up negotiations with the mediator.
Patent case involving numerous patents, cross claims of literal infringement, infringement by doctrine of equivalents, claims of invalidity, and invalidity by infectious invalidity; inequitable conduct in failing to properly disclose prior art to the PTO, and other complex issues. The products are highly competitive in a limited market. The court had already held two Markman hearings, with additional motion practice on claim construction and inequitable conduct coming up. A very expensive litigation process. A long mediation successfully concluded, primarily with injunction-like terms satisfactory to both sides.
ERISA plan sued 4 fiduciary and non fiduciary service providers for negligence in facilitating a fraudulent withdrawal of a plan participant's assets. The case settled by payment to the Plan of varying amounts.

Fraud/Misrepresentation

A shareholder dispute in a family owned company involving accounting disputes, interpretation and validity of a buy/sell agreement. Looming court deadlines, prospect of appointment of a provisional director.
Plaintiffs owned a retail baking business. They obtained financing from a lending company; however, a dispute arose over whether plaintiffs should have been reimbursed for business expenses on their credit cards. The lending company asserted that plaintiffs had failed to disclose material information, and actually owed the lending company far more than the credit card debt.

Cannabis

Cannabis Industry

Landlord/Tenant case involving property damage that was a direct result of the landlord and new owner of the building who leased space to a marijuana grower. Generator and power supply shut down due and resulted in damage to all tenants.
Mediated a dispute among several partners who owned a grow operation and dispensary. One of the partners wanted out and the value of the current and future business and future were the key issues in the case.
A mediation to resolve ownership of an LLC that sells herbal remedies. The settlement involved consideration of tax issues, non solicitation clauses, trademark, and other factors.
An arbitration to determine ownership of a marijuana dispensary and cultivation business, involving regulations and laws governing marijuana businesses

Employment

Breach of Contract

Software case, involving the retail customer, the software writer (licenser) and the installation/service company. Software did not perform as it should have, likely due to defective/inadequate platform. Software company rewrote the software, but the retail company had soured on the product. The principal issue was whether the contract liability limitations built into the contracts with the software company and the installation company would limit or prohibit incidental and consequential damages.

Disability Discrimination

ERISA case involving subjective pain from chronic migraine headaches; claimant put back on claim pending review of additional treatment records, plus all attorneys fees paid to date.

Discrimination

Employment wage and hour case, brought by 6 former employees, alleging a range of claims, including meal and rest break violations, overtime, etc. Because of the variety of claims, and that not all claims applied to each employee, it was delicate to fashion a settlement acceptable to all claimants.
Age discrimination lawsuit, settled prior to mandatory arbitration.

ERISA

ERISA disability case of disabling back pain. Involved intensive review of medical records, and sensitive negotiation with the Plaintiff concerning subjective pain and the application of applicable law on this topic.
ERISA case involving application of reasonably necessary care standard for plan participant with long term eating disorder. This required an understanding of treatment guidelines under APA.

Labor Code

Mediated dispute involving ERISA disability and the analysis of the risk of future harm from continued employment.

Sexual Harassment

Allegations of sexual harassment and gender discrimination. Case was in pre litigation context. Most allegations disputed. Full day mediation resulted in settlement.

Wage and Hour

Employment termination cases for 4 related plaintiffs, alleging related claims for discrimination, failure to provide rest, etc. breaks, failure to pay overtime, and other claims.
Wage and hour case, alleging usual claims, focusing on the exempt/non-exempt classification, plus racially based claims, although not alleged under FEHA, but as negligence and negligent supervision, which may not have been cognizable as pled.
An employment case, in which plaintiff alleged the employer interfered with his FMLA rights and unlawfully terminated him for attempting to fully exercise those rights. The employer contended that plaintiff was terminated for violating specific rules governing employees not being permitted to create their own retail transactions.
Employment case of an automotive dealer service manager, terminated for alleged unauthorized off the clock time, and other claims against him. He filed suit for wrongful termination, unpaid OT, and related wage claims. Case settled based on allocation of amounts claimed for various wage violations.

Wage and Hour Class Action

Employment class action involving issue of classification of truck drivers as independent contractors or employees.

Wrongful Termination

Employment case in which the dispute centered on exempt/non exempt status of former employee. Allegations also made of personal injury damages based on alleged misconduct of employer in the workplace.
Wage and hour and wrongful termination case of a car salesperson. Case involved detailed review of wage and related issues (meal and rest breaks) and alleged retaliatory termination. Case was settled before a scheduled mandatory arbitration.

Insurance

Bad Faith

Disability case. Claimant was on short term disability, then long term disability under "any occupation," but long term disability was then discontinued because insurer determined claimant could do sedentary work. Two years later, claimant discovered he had a neurological disabling condition that had caused his previous problems. Insurer denied request to reopen claim. Litigation followed. Case settled for a lump sum based on maximum possible payout over lifetime of policy.

Coverage

ERISA case involving mental disorder, interpretation of policy language concerning extent of coverage.
Insurance coverage case involving first party claim for damage to commercial property based on third party contractor's negligence which allowed rain damage to occur on the property. Issue was whether policy exclusions/limitations applied as well as a conflicting state and federal case precedent.
Case involving interpretation of insurance contract language regarding coverage for water intrusion damage, turning on definitions of contract terms which have received different treatment in state and federal cases.
A 1500 employee company claimed its broker misrepresented a MEWA as providing full benefits coverage under its ERISA plan, when in fact it was a self insured program without a stop loss policy in place. The underwriter was later liquidated and put into receivership, leaving over $2 million in unpaid provider claims. There were material factual disputes about the broker's representations to the company, but the case was settled based on a combination of immediate cash funding by the broker and a future credit against commissions.

Intellectual Property

IP Copyright

A copyright infringement case involving textile patterns. Good defenses of invalidity of the registration and statute of limitations issues. Case was vigorously litigated by knowledgeable IP attorneys.
Copyright infringement case concerning ownership of photographic images. The photo model sued the photographer. At issue primarily were the terms of the Release signed by the model.

IP Patent

A patent case involving a design for an exhaust manifold and a com device. The mediation occurred prior to the Markman hearing on one of the designs. Issues of patent validity and infringement.
Patent infringement and trade secret misappropriation case. Issues of alleged invalidity were involved in the litigation. Complex technology. Settlement was complicated by a pending IPR and new claims which were recently granted by the PTO.

IP Trademark

Copyright and trademark infringement of software. Case settled pre-litigation
Case involving sales of counterfeit merchandise through a fulfillment service. Allegations of copyright and trademark primary and secondary infringement.
Trademark infringement involving infringement of a fanciful mark in a consumer product. Settled as a percentage of statutory damages.
Trademark case involving infringement allegations as to name of business, logo, and trade dress. Case settled on basis of name change and payment of damages based on lost profits.

Professional Malpractice

Professional Malpractice Legal

A complex legal malpractice case stemming from a pharmaceutical patent and trademark arbitration. Mediating this case required that I have mastery over the IP issues in the underlying arbitration and an understanding of the duty of care owed by attorneys in IP matters. Many moving parts led to a 13-hour mediation which resulted in a mutually requested mediator's proposal that was ultimately accepted by both sides.

Real Estate

Breach Of Contract

Mediated a residential borrower who sued the lender for asserted errors in a refinancing application. Successfully resolved with a very favorable long term refinance package.
Mediated a dispute between a homeowner and a renter on a high end summer residential rental concerning asserted misrepresentations in the listing followed by asserted serious plumbing and other issues.
Arbitrated a matter concerning a residential lease in which the landlord asserted that the lessee violated the lease by allowing the landscaping to seriously deteriorate.
Complex commercial lease action, involving lease assignments, issues of landlord allowing damage to lessee's property; and whether the communications between attorneys was specific enough to form a lease assignment. Each side wanted the other to pay damages. Case settled with a mutual walkaway.

Buy/Sell

Mediated a sale of a residential property held up by a bank lien of questionable validity which needed to be resolved ultimately by a quiet title action to allow the sale to proceed.

Landlord/Tenant

A tenant alleged that the property he rented online turned out to have serious damage, such as mold, when he took possession.
Commercial real estate dispute involving a restaurant. Issues of Conditional Use Permit issued to restaurant for continued liquor service, but would potentially require landlord to sign a Master Covenant, which could create difficulties because of parking and other issues that impacted other tenants. Settlement was pursued on a second track of financial consideration to restaurant to vacate the space. Land use and zoning issues were at the forefront of the negotiations.

Real Estate Land Use

Mediated a complex case involving a commercial property which involved the Superfund regarding toxic waste on the site.

Real Property

Mediated complex international case involving a bitter family dispute concerning 3 Beverly Hills residential properties held by various family trusts

Warranty of Habitability

A landlord-tenant dispute, in which the tenant alleged that the rented premises had several serious defects, such as plumbing and sewage leaks.

Tort

Personal Injury

Construction worker was injured on the job; his foot fell into a concealed hole. Liability contested as to who might have been responsible. Liability was apportioned among the parties, including the safety inspection company.
Serious slip and fall, resulting in 3 surgeries. Liability seriously contested.
Slip and fall and premises liability on stairs that were non conforming to code; plaintiff fell and suffered broken ankle requiring surgery. Liability conceded for mediation purposes.

PI Auto

Plaintiff slipped off the steps of a livery vehicle, alleging he fell into a ditch and sustained serious knee injuries which will require knee replacement. The principal dispute concerned liability, and causation.
Underinsured motorist arbitration; double rollover after impact, resulting in extensive medical treatment. Liability not contested; submitted on causation and damages.Very efficiently presented and arbitrated in a half day; arbitrator was provided with all necessary medical records.

Premises Liability

Plaintiff was seriously injured in a fall in her apartment while navigating the stairs. Likely that stairs and railing were not ADA compliant or within current code. Negotiations centered on extent of emotional distress, effect on elderly Plaintiff's lifestyle, and likely future medical expenses.

Product Liability

Pre-filing putative class action founded on CLRA statute, involving a consumer product alleged to have been misrepresented. Settled the dispute based on class action model for common fund (attorneys fees allocation) or lode star method.

Neutral Profile