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The Daily Journal and Recorder Cover Early Sullivan New Hires David Giannotti and William Lalor
Category: News, Press | Friday, August 17th, 2018 | Comments Off on The Daily Journal and Recorder Cover Early Sullivan New Hires David Giannotti and William Lalor
On August 8, 2018, the Los Angeles and San Francisco Daily Journal highlighted the firm’s hire of senior counsel David Giannotti. The Daily Journal notes David’s three decades of environmental law experience, as well as his successful negotiation of a settlement in the Environmental Protection Agency’s (EPA) Superfund program, among other accomplishments.
The Recorder says: “Early Sullivan Wright Gizer & McRae brought on environmental law attorney David Giannotti and litigator William Lalor to its practice. Giannotti represents clients regarding due diligence, compliance, remedy implementation, environmental risk assessment and environmental litigation. Lalor represents clients in issues regarding complex insurance coverage, toxic torts, mass torts, business disputes and regulated matters.”
Early Sullivan Obtains Defense Verdict in Favor of Sun West for Alleged RESPA Violations
Category: News, Press, Results | Monday, March 5th, 2018 | Comments Off on Early Sullivan Obtains Defense Verdict in Favor of Sun West for Alleged RESPA Violations
Scott Gizer, along with Diane Luczon, recently achieved an outstanding result on behalf of the firm’s client, defendant Sun West Mortgage Company, Inc., in lawsuit where the plaintiff had alleged that Sun West had violated certain RESPA provisions when it force-placed flood insurance on plaintiff’s behalf. Specifically, the plaintiff had alleged that Sun West failed to follow the requirements of the Florida Insurance Code when procuring the force-placed insurance, which in turn violated Section 2605 of RESPA. Following a Bench Trial in the United States District Court, Southern District of Florida, Judge Robin Rosenberg found in favor of Sun West holding that the plaintiff could not use section 2605 of RESPA to assert of violation of the Florida Insurance Code when the Florida legislature had not provided for a private right action. The decision, which was covered in RESPA News, was of critical importance to lenders because it limits the ability of plaintiffs to use RESPA to assert violations of State statutes that a plaintiff would not be able to sue directly under.
The full article from RESPA News is below.
Florida court rules on extent of RESPA private right of action
In a case involving a reverse mortgage which fell into foreclosure proceedings, a lender purchased forced-placed insurance on the property. After the borrower brought her account current through a Florida government program and the foreclosure complaint was dismissed, she sued the lender and the insurance intermediary for RESPA violations.
The borrower alleged to a Florida district court that the force-placed rates charged were not bona fide and reasonable under RESPA because the procedure for obtaining the rates violated state regulations.
The district judge ruled that RESPA contains only three private rights of action, and the borrower could not “bootstrap” the state regulations through another cause of action.
The case is Michelina Iaffaldano v. Sun West Mortgage Co. and Proctor Financial (U.S. District Court, Southern District of Florida, 17-cv-14222).
Scott Gizer, the lead attorney for Sun West on the case and a partner at Early Sullivan Wright Gizer & McRae LLP, told RESPA News the ruling was significant.
“If plaintiff’s argument was accepted, plaintiffs could use section 2605 of RESPA to assert claims far beyond those three areas,” he said. “The judge’s decision is important because it prevents plaintiffs from using state statutes to create new causes of action where no private right of action was intended.”
In the ruling, District Judge Robin Rosenberg described the three private rights of action in RESPA under established law:
Payment of a kickback and unearned fees for real estate settlement services;
Requiring a buyer to use a title insurer selected by the seller; and
The failure of a loan servicer to provide proper notice about the transfer of loan servicing rights or to respond to a qualified written request for loan information under Section 2605(e).
None of those acts were alleged by Iaffaldano, though, with the court saying the allegations were that Sun West failed to advance insurance premiums on her behalf through an escrow account in violation of 12 C.F.R. § 1024.17 and that the force-placed rates charged were not bona fide and reasonable because the procedure for obtaining those rates violated Florida Insurance Code Section 626.916.
“However, it has been expressly held that 12 C.F.R. § 1024.17, governing escrow accounts, does not create a private right of action for alleged negligence with respect to the administration and maintenance of an escrow account,” Rosenberg wrote, citing Perron v. JP Morgan Chase Bank, N.A, (S.D. Ind. Mar. 10, 2014). “Likewise, it has been held that 12 C.F.R. § 1024.37 does not create a private right of action. Wing Kei Ho v. Bank of Am., N.A., (S.D. Fla. June 21, 2016).”
That logic, Rosenberg wrote, extended to the allegation of bona fide and reasonable charges, because section 626.916 does not create a private right of action – which Iaffaldano did not dispute in the case.
“A plaintiff may not plead around this bar by trying to bootstrap section 626.916 through another cause of action,” Rosenberg wrote, citing Lemy v. Direct Gen. Fin. Co., (M.D. Fla. 2012). “In Lemy v. Direct General Finance Company, the court held that while certain sections of the Florida insurance code provide for a private remedy, section 626.916 is not one of those sections.”
Rosenberg wrote that the court in Lemy explained that “a plaintiff ‘may not evade the Florida legislature’s decision to withhold a statutory cause of action’ for a violation of the insurance code ‘by asserting common law claims based on such violations.’ ”
The Lemy decision focused on common law claims under Florida law, but Rosenberg ruled the reasoning applied would be applicable to a federal cause of action.
“In other words, the court fails to see how a federal RESPA claim could be premised upon an alleged violation of a Florida regulatory statute which contains no private right of action,” Rosenberg wrote.
In fact, the court asked for guidance to case law where it did, and found none.
“The court expressly asked counsel for Iaffaldano to provide case law for the proposition that her RESPA claim could be premised on a Florida statute which lacked a private right of action, and counsel was unable to provide any authority to the court,” Rosenberg wrote. “For these reasons, Iaffaldano has not established that a private right of action exists for any of the RESPA violations she alleges have occurred.”
Iaffaldano also brought an allegation of tortious interference with a business relationship against Proctor, but Rosenberg ruled the claim failed because “the record evidence shows that Proctor did not intentionally or unjustifiably interfere with Iaffaldano’s relationship with Sun West.”
Four Early Sullivan Attorneys Named 2018 Southern California “Super Lawyers”
Category: News, Press | Wednesday, January 31st, 2018 | Comments Off on Four Early Sullivan Attorneys Named 2018 Southern California “Super Lawyers”
The firm is pleased to announce that several of its attorneys have been selected by Thomson Reuters as 2018 Southern California “Super Lawyers.” The “Super Lawyers” distinction is given annually to the nation’s most outstanding attorneys, based on peer recognition, professional achievement, and independent research. Only the top 5% of lawyers in each state are selected to receive this honor.
The following attorneys have been recognized as “Super Lawyers” for their expertise in these practice areas:
Eric Early – Business Litigation, Entertainment & Sports, Securities Litigation (2005-2018)
Stephen Ma – Business Litigation (2014-2018)
Devin McRae – Entertainment & Sports, Intellectual Property Litigation, Business Litigation (2016-2018)
Bryan Sullivan – Entertainment & Sports, Business Litigation, Business/Corporate (2015-2018)
Devin McRae Quoted in The Hollywood Reporter, IndieWire and The Wrap on Harvey Weinstein Scandal
Category: News, Press | Thursday, November 9th, 2017 | Comments Off on Devin McRae Quoted in The Hollywood Reporter, IndieWire and The Wrap on Harvey Weinstein Scandal
Devin McRae was quoted in The Hollywood Reporter, IndieWire and The Wrap regarding Harvey Weinstein’s potential lawsuit against the New York Times, his employment contract with The Weinstein Company, and the use of Hollywood NDAs in cases of felony sex crime allegations.
Devin told The Hollywood Reporter “If he brings a defamation claim, he’s going to have to identify the specific facts reported in the article that are not true,”and “Everyone is going to assume that everything he doesn’t take issue with was, in fact, true.”
Devin told IndieWire “The provision demonstrates that the company was well aware of his propensities,” “And so much so that it came into the negotiation of the contract, in which it was, ‘You could keep your job if you keep doing this.’”
Devin told The Wrap “Attorneys have to tread carefully in these confidentiality provisions, because if they don’t, they could open themselves up to professional discipline and in some cases criminal prosecution.”
The Hollywood Reporter article can be found here.
IndieWire article can be found here.
The Wrap article can be found here.
Ninth Circuit Rejects En Banc Review Bid in Risinger v. SOC
Category: News, Press, Results | Wednesday, October 18th, 2017 | Comments Off on Ninth Circuit Rejects En Banc Review Bid in Risinger v. SOC
9th Circ. Won’t Rethink Class Cert. For Private Iraq Guards
By Vin Gurrieri
Law360, New York (October 17, 2017, 9:15 PM EDT)
The full Ninth Circuit on Tuesday let stand its decision that thousands of armed guards at U.S. military bases in Iraq can collectively pursue claims that the private security contractor they worked for forced them to work far in excess of the hourly limits imposed by the federal government.
A three judge panel issued a one page order rejecting a bid by SOC LLC and its parent company Day & Zimmermann Inc. for an en banc review of a September decision that upheld a ruling by U.S. District Judge Miranda M. Du to certify a class of armed guards represented by plaintiff Karl Risinger.
Judge Du had held that the guards could collectively pursue claims that SOC uniformly misrepresented the amount of time they were required to work at no more than six days per week and up to 12 hours per day — a ruling the Ninth Circuit affirmed in its September decision.
But in a Sept. 15 petition for en banc review, SOC said the Ninth Circuit essentially used an approach to class certification that existed before the U.S. Supreme Court’s landmark Dukes decision in 2011 that decertified 1.5 million female Walmart employees. The decision was widely perceived as raising the bar for plaintiffs bringing classwide discrimination claims.
Plaintiffs’ counsel Scott E. Gizer of Early Sullivan Wright Gizer & McRae LLP told Law360 Tuesday that “we are pleased the Ninth Circuit correctly and unanimously denied SOC’s petition, moving us one step closer to justice for these brave plaintiffs.”
Representatives for SOC were not immediately available for comment Tuesday.
The dispute stems from a $485 million contract awarded to SOC in 2009 by the U.S. Department of Defense. Under the terms of that deal, SOC had to staff 16 military bases in Iraq and had to limit guards at 72 hours per week, according to court filings by the plaintiffs. Those parameters were communicated to potential employees by SOC recruiters, who used call scripts, and outlined in the workers’ employment contracts, according to court documents.
Risinger, a U.S. Army veteran who worked for SOC in Iraq for a period, alleged in a 2012 lawsuit that the company intentionally understaffed bases and that those manpower shortages meant that guards at the 16 bases in Iraq were forced in practical terms to work seven days a week for more than 14 hours per day, with some going months before having a day off.
The lawsuit, which sought to represent all individuals employed as armed guards by SOC in Iraq from 2006 through 2012, included allegations of promissory fraud, negligent misrepresentation, and breach of contract related to the company’s alleged misrepresentation of guards’ anticipated work schedule before they went to Iraq and breach of its employment contract after they arrived. The class could potentially include in excess of 4,000 people, according to court filings.
In appealing the class certification ruling, SOC had challenged Judge Du’s conclusion that the guards met the predominance prong for certification, which requires that questions of law or fact that are common to class members predominate over any questions that affect only individual class members.
But the Ninth Circuit in its September ruling said that Judge Du had “permissibly found” that SOC recruiters made nearly identical representations concerning guards’ anticipated work schedule in scripts used by recruiters.
Additionally, SOC employees and several recruits described a similar understanding of the work schedule limits, according to the Ninth Circuit ruling.
“Because the district court’s finding renders the misrepresentation element of Risinger’s fraud claims amenable to classwide proof, the district court did not abuse its discretion by concluding that common issues would predominate,” the panel said, adding that the lower court also correctly decided that a common question of contract interpretation predominates for Risinger’s breach of contract claim.
Day & Zimmermann is also named as a defendant.
Circuit Judges Susan P. Graber and Mary H. Murguia as well as U.S. District Judge Edward Davila sat on the panel for the Ninth Circuit.
Risinger is represented by Scott E. Gizer and Devin A. McRae of Early Sullivan Wright Gizer & McRae LLP.
SOC is represented by Theodore J. Boutrous, Theane Evangelis and Bradley J. Hamburger of Gibson Dunn & Crutcher LLP, and Kimberly J. Gost, Matthew J. Hank and Rick D. Roskelley of Littler Mendelson PC.
The case is Karl Risinger v. SOC LLC, case number 1615120 in the U.S. Court of Appeals for the Ninth Circuit.
–Editing by Kelly Duncan.
California Court of Appeal Affirms Summary Judgment Victory Obtained by Eric Early and William Wright on Behalf of First American Title Insurance Company
Category: News, Press | Tuesday, October 17th, 2017 | Comments Off on California Court of Appeal Affirms Summary Judgment Victory Obtained by Eric Early and William Wright on Behalf of First American Title Insurance Company
In 1500 Viewsite Terrace, LLC v. Pickford Escrow, Inc., et al., the California Court of Appeal has affirmed the summary judgment victory obtained by Early Sullivan for its client First American Title Insurance Company.
In the Viewsite action, the plaintiff/appellant had sued First American for breach of title policy and bad faith relating to multimillion-dollar residential property in the Hollywood Hills. The Court of Appeal’s decision in Viewsite involves issues that are important to the title insurance industry, including regarding the interpretation of certain key title insurance policy forms, provisions and exceptions.
The decision is the first in California interpreting a binder of title insurance. And, the decision confirms that a policy of title insurance issued pursuant to such a binder does not provide more coverage than that offered in the binder. The decision is also important insofar as there is relatively little California case law interpreting exceptions to coverage in title insurance policies, particularly since the California Legislature made certain amendments to the Insurance Code in 1981 which eliminated any duty of disclosure on the part of title insurers and confirmed that preliminary reports are not representations of the condition of title.
In the decision, the Court found that an exception for a recorded lis pendens, and a separate exception for a recorded judgment, were neither vague nor ambiguous. The decision is the first in California to interpret the legal effect of an exception for a lis pendens and an exception for a recorded judgment in a title insurance policy. The decision also interprets Condition 3 of the CLTA standard coverage policy of title insurance. The CLTA standard coverage policy of title insurance is one of the commonly used form policies of title insurance in California, and identical or nearly identical provisions to Condition 3 are found in many other form policies of title insurance policies issued in this state and around the country. Despite the ubiquitous nature of this policy provision, there is a dearth of case law interpreting Condition 3 (which obligates the insured to provide prompt notice of any potential claim and that, if prompt notice is not given and such lack of prompt notice prejudices the insurer, that all liability of the insurer shall terminate).
The decision confirms that this form policy language means what it says. The decision also found that the title policy in question was not illusory. This is the first California opinion addressing the doctrine of illusory contracts in the specific context of a title insurance policy.
Click on Download PDF to see the judgment.
Early Sullivan Wright Gizer & McRae Named a 2017 Top Litigation Boutique
Category: Awards, Press | Monday, May 8th, 2017 | Comments Off on Early Sullivan Wright Gizer & McRae Named a 2017 Top Litigation Boutique
The firm was recently recognized as a top litigation boutique in Los Angeles by JD Journal. The firm is one of 14 recognized by the Journal as the “best of the best” in LA.
“Los Angeles is a great place to set up shop if you’re a litigation attorney, and JD Journal has identified the best of the best when it comes to boutique litigation firms in the city,” JD Journal.
Find the complete list here.
Four Early Sullivan Attorneys Named 2017 Southern California “Super Lawyers”
Category: News, Press | Tuesday, January 24th, 2017 | Comments Off on Four Early Sullivan Attorneys Named 2017 Southern California “Super Lawyers”
The firm is pleased to announce that several of its attorneys have been selected by Thomson Reuters as 2017 Southern California “Super Lawyers.” The “Super Lawyers” distinction is given annually to the nation’s most outstanding attorneys, based on peer recognition, professional achievement, and independent research. Only the top 5% of lawyers in each state are selected to receive this honor.
The following attorneys have been recognized as “Super Lawyers” for their expertise in these practice areas:
Eric Early – Business Litigation, Entertainment & Sports, Securities Litigation (2005-2017)
Stephen Ma – Business Litigation (2014-2017)
Devin McRae – Entertainment & Sports, Intellectual Property Litigation, Business Litigation (2016-2017)
Bryan Sullivan – Entertainment & Sports, Business Litigation, Business/Corporate (2015-2017)
Scott Gizer’s 4 Corners Holdings LLC v. Nazarian Case Featured in Los Angeles Business Journal
Category: News, Press | Wednesday, January 18th, 2017 | Comments Off on Scott Gizer’s 4 Corners Holdings LLC v. Nazarian Case Featured in Los Angeles Business Journal
Scott Gizer’s representation of 4 Corners Holdings was featured in Henry Meier’s Los Angeles Business Journal article “Investor Claims Being Locked Out of Hotel Sale,” which details the alleged self-dealing by SBE Entertainment Group hotelier Sam Nazarian.
“The case is about the defendant breaching his fiduciary duty and misrepresenting how much my clients would make (on the SLS deal). We are very confident that at trial our claims will be borne out,” Gizer said.
The case (4 Corners Holdings LLC v. Nazarian et al., case number BC579079, in the Superior Court of the State of California, County of Los Angeles) was also covered in Matthew Perlman’s Law360 piece “SBE’s Nazarian Heading To Trial Over Miami Hotel Deal.”
Click “Download PDF” to read the full article.
Devin McRae Speaks to New York Times
Category: News, Press | Tuesday, December 6th, 2016 | Comments Off on Devin McRae Speaks to New York Times
Devin McRae was recently quoted in Michael Corkery and Stacy Cowley’s New York Times piece “Wells Fargo Killing Sham Account Suits by Using Arbitration.” Devin represents Mexican music star Ana Bárbara, whom was a victim of massive theft by a bank employee and is one of the thousands of Wells Fargo customers suing the bank for using personal information to create fake, unauthorized accounts. According to Devin, the case of Wells Fargo’s abuses towards its customers should be reviewed in open court, not in arbitration.
“I think it’s a major problem when you have a bank that is so large, doing the things that Wells Fargo did on a systematic basis, to be able to keep that under wraps,” Mr. McRae said.
To read the full article, click here.