Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, P.C.
1875 Century Park East, 23rd Floor
Los Angeles, California 90067-2561

T. 310 201-2100    F. 310 201-2110
trf@birdmarella.com

Tom Freeman has been a partner at Bird Marella since 1994. His practice focuses on civil litigation at the trial and appellate levels, and criminal appeals. He has handled a broad range of complex civil matters, including claims brought under federal and state antitrust laws, federal communication laws, California's Business and Professions Code §17200, federal copyright law, federal securities laws, the U.S. Constitution, and federal anti-racketeering law (RICO). He has also handled many traditional common law business disputes involving claims of breach of contract, fraud and defamation, and matters pertaining to the provision of legal services, including claims for legal malpractice and malicious prosecution.

In Prospect Med. Group, Inc. v. Northridge Em. Med. Group, __ Cal.4th __, 2009 Westlaw 36855 (Jan. 8, 2009), a case of widespread interest, Tom successfully argued to the California Supreme Court that emergency-care providers cannot "balance bill" HMO enrollees for the difference between the amount billed by the provider and the amount paid by the HMO.

Tom recently argued in Beck v. City of Upland, 527 F. 3d 853 (9th Cir. 2008), that a long-established Ninth Circuit causation standard in civil rights cases could not stand in light of a recent U.S. Supreme Court decision, issued while the appeal was pending. Tom argued that the logic of the Supreme Court decision undermined Ninth Circuit precedent and the Ninth Circuit agreed in a 21-page published decision-establishing a new standard under the First Amendment and implying that this new standard will have to be applied to Fourth Amendment cases as well.

Tom has substantial experience in class action defense. He successfully argued that class allegations are subject to pre-discovery motions to strike in Canon U.S.A. v. Superior Court, 68 Cal. App. 4th 1 (1998), setting precedent of widespread use in a case where certification of a nationwide class was denied. He has successfully argued against class certification in a number of complex cases, including cases involving claims about allegedly defective cell phones, printers and copiers, as well as allegedly deceptive manufacturer rebate practices in one of the first published decisions affirming the dismissal of claims under California's Consumer Legal Remedies Act, Clausen v. Nokia, 125 Cal. App. 4th 214 (2004).

Tom successfully represented a leading cable television and Internet-access provider in City of Thousand Oaks v. Verizon/Adelphia, 2003 Westlaw 21421721 (9th Cir. 2003), where the Ninth Circuit reversed the district court's entry of a preliminary injunction that had prohibited a multi-million dollar acquisition of a cable television company's operating assets by another cable operator. Tom's client valued the successful resolution of this appeal to be worth more than $50 million.

Tom was selected to represent the Los Angeles, Orange County and Beverly Hills Bar Associations before the California Supreme Court as amicus counsel in a case of great importance to the Bar Associations, Ferguson v. Lieff, Cabraser, Heimann & Bernstein, 30 Cal. 4th 1037 (2003), where Tom argued and the Supreme Court held that lawyers accused of malpractice are not responsible for reimbursing so-called "lost" punitive damages.

Tom has been appointed by courts to represent clients on significant appeals. In Smith v. Robbins, 528 U.S. 259 (2000), Tom was the principal author of the respondent's merits brief before the U.S. Supreme Court. Tom was appointed by Ninth Circuit Court of Appeals to represent the plaintiff in Patterson v. Eagleburger, 1995 WL 492905 (9th Cir. 1995), where Tom, as counsel in Patterson, petitioned and persuaded the Ninth Circuit panel in another case, Greenlaw v. Garrett, 59 F.3d 994 (1994), to withdraw its already-published opinion and enter a new opinion that adopted Tom's argument in Patterson. The result was a successful appeal for the client in Patterson.

Tom co-founded and represented Canyon Back Alliance, a non-profit, public benefit corporation, in its successful efforts to preserve public access on historic recreational trails in the Santa Monica Mountains. See www.canyonback.org; Gate May Make Cranky Neighbors, Los Angeles Daily Journal, Aug. 4, 2004.

Admitted
• California (1988)

Education
• Northwestern University, J.D., cum laude (1987). Order of the Coif
• Rollins College, B.A. (1983)

Past Positions
• Latham & Watkins Associate (1988-1990)
• Law Clerk to the Hon. Edward Rafeedie, U.S. District Court, Central District of California (1987-1988)
Assisted Judge Rafeedie in several antitrust matters, including:
• In re Air Passenger Computer Reservation Systems Antitrust Litigation, 694 F. Supp. 1443 (C.D. Cal. 1988), aff'd, 948 F.2d 536 (9th Cir. 1991) (complex antitrust litigation concerning Computer Reservation Systems operated by United Airlines and American Airlines; rejecting Berkey Photo "monopoly-leveraging" doctrine).
• Tominaga v. Sheperd, 682 F. Supp. 1489 (C.D. Cal. 1988) (determining proper antitrust market in which to assess alleged tie-in arrangement between " Pizza Man" and one of its franchisees).

Reported Decisions
• Prospect Medical Group v. Northridge Medical Emergency Group, _Cal.4th _, 2009 Westlaw 36855 (2009). Tom successfully argued that emergency medical providers cannot "balance bill" HMO enrollees.
• Beck v. City of Upland, 527 F. 3d 853 (9th Cir. 2008). Successfully represented civil rights plaintiff/construction businessman in precedent-setting case against municipality for retaliation in violation of First and Fourth Amendments to the U.S. Constitution.
• Pollard v. Ericsson/Clausen v. Nokia, 125 Cal. App. 4th 214 (2004). Obtained dismissal of claims under Consumer Legal Remedies Act, which was affirmed on appeal.
• Ferguson v. Lieff, Cabraser, Heimann & Bernstein, 30 Cal. 4th 1037 (2003). Amicus Brief for Bar Associations of Los Angeles County, Orange County and Beverly Hills addressing availability of "lost" punitive damages in legal malpractice cases.
• Thrifty Oil Co. v. Superior Court, 91 Cal. App. 4th 1070 (2001). Successful writ application, requiring entry of summary adjudication on plaintiff's class action claim concerning credit-card surcharges.
• Smith v. Robbins, 528 U.S. 259, 120 S. Ct. 746 (2000). Lead author of indigent defendant's merits brief in this habeas case addressing the constitutional right to counsel in criminal appeals.
• Linder v. Thrifty Oil Co., 23 Cal. 4th 429 (2000). California Supreme Court merits brief in class action lawsuit raising question concerning the trial court's authority to deny class certification.
• Canon U.S.A. v. Superior Court, 68 Cal. App. 4th 1 (1998). Successful writ application in a putative nationwide class action lawsuit.
• Vu v. California Commerce Club, Inc., 58 Cal. App. 4th 229 (1997). Successful appeal whereby court ruled, on a question of great interest to the gaming industry, that the plaintiffs could not recover on "cheating" claims because any losses were necessarily speculative due to the elements of luck and skill inherent in poker playing.
• Podolsky v. First Healthcare Corp., 50 Cal. App. 4th 632 (1996). Represented, on a pro bono basis, family members of those admitted into nursing homes in a precedent-setting case invalidating deceptive third-party guarantees.
• Rifkind v. Superior Court, 22 Cal. App. 4th 1255 (1994). Successfully argued (and established precedent of widespread use) that "contention" deposition questions are improper.
• In re Owens-Illinois, Inc., 115 F.T.C. 179 (1992). Co-author of respondent's briefs in successful antitrust appeal before Federal Trade Commission involving merger between two leading manufacturers of glass containers.

Noted Publications
• "Aguilar v. Atlantic Richfield Corp.: The Definitive Analysis of California Summary Judgment Law," 23 CEB Civ. Lit. Rptr. 143, Aug. 2001.
• "Guardians at the Gate: Judicial Scrutiny of Expert Testimony," Los Angeles Lawyer Magazine, July-August 2001.
• "Summary Judgment: Untangling The Moving Party's Initial Burden," 22 CEB Civil Lit. Rep. 230, Nov. 2000.
• "Put Up or Shut Up: Summary Judgment in California and Federal Courts," Los Angeles Magazine, Nov. 1999.