Bird Marella is proud to recognize the attorneys who have been selected for inclusion in the 2017 Southern California Super Lawyers list: Terry W. Bird - Criminal Defense: White Collar, Business Litigation, Civil Litigation Sharon Ben-Shahar Mayer - Business Litigation, Criminal Defense: White Collar Joel E. Boxer ...
Bird Marella Prevails as Ninth Circuit Upholds Constitutionality of Voters’ Initiative Requiring Use of Condoms in Pornographic Films
Tom has handled a broad range of complex matters, including claims brought under federal and state antitrust and false claims statutes, federal communication laws, California’s Unfair Competition Law and Consumers Legal Remedies Act, healthcare law, copyright law, securities laws, the U.S. and California Constitutions, and RICO. Tom also works with Ron Nessim on entertainment litigation representing talent in disputes with major studios.
Tom has represented large manufacturers and retailers in several cases, successfully defending against class action complaints. He pioneered the now widespread practice of moving to “strike” class allegations in state court after he prevailed on a petition for writ of mandate, setting precedent for pre-discovery attacks on class-related allegations. He has successfully argued against class certification of claims about allegedly defective phones, printers and copiers. He also prevailed at the trial and appellate levels in defending against claims about supposedly deceptive “rebate” practices under the California’s Unfair Competition and Consumer Legal Remedies Acts.
He represented the proponents of Measure B, a 2012 ballot initiative in Los Angeles County mandating the use of condoms in adult films. The ballot proponents had intervened to defend the constitutionality of Measure B after the County declined to take a position on the Measure’s constitutionality. Tom prevailed before the Ninth Circuit both in arguing that the ballot proponents had the right to participate in the litigation because they were not required to demonstrate Article III standing and that Measure B passed constitutional muster because it was reasonably tailored to protect public health.
Tom has been lead appellate counsel in a wide variety of precedent-setting appeals. He successfully argued to the California Supreme Court a case of great significance to the health care field, where the Supreme Court held 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. In another precedent-establishing case, Tom prevailed in arguing that parties in civil cases cannot be interrogated at deposition about the legal basis for their claims or defenses, such areas may be inquired into only by written interrogatories, where answers can be carefully crafted by their lawyers. Tom also prevailed in arguing that an established Ninth Circuit causation standard in civil rights cases implicated the First Amendment was inconsistent with recent Supreme Court precedent, causing the Circuit to adopt a new standard.
Tom has been named a “Southern California Super Lawyer” by Los Angeles Magazine and is a Fellow of the Litigation Counsel of America, the Trial Lawyer Honorary Society.
Vivid Ent. v. Fielding, 774 F.3d 566 (9th Cir. 2014): Represented proponents of Measure B, mandating the use of condoms in adult films, before the Ninth Circuit. Prevailed (1) against an attack on the intervening ballot proponents’ “standing” to participate and (2) on the merits, with Circuit holding that the condom mandate was reasonably tailored to protect public health.
Paramount Petroleum Corp. v. Superior Court, 227 Cal. App. 4th 226 (2014): Prevailed on behalf of roofing manufacturer GAF in published opinion affirming trial court’s grant of summary adjudication of the defendant oil company’s “mistake of fact” defense to GAF’s breach of contract claim.
Prime Healthcare Services v. Brotman Medical Center, U.S. Supreme Court Case No. 11-459 (2012): Retained to represent Brotman in successfully opposing a petition for certiorari after the U.S. Supreme Court directed the filing of an opposition brief.
Rappaport v. Gelfand, 197 Cal. App. 4th 1213 (2011): Successfully represented a dissociating partner of a law on a question of first impression under the Uniform Partnership Act.
Culver v. Prospect, 2011 Westlaw 5120838 (Cal. App. 2011): Filed an appeal on behalf of a corporate client challenging the trial court’s entry of a preliminary injunction precluding the corporation from making a stock offering, which was essential to the restructuring of corporate debt. The appellate court reversed, holding that the preliminary injunction was improperly granted.
City of Hermosa Beach v. Superior Court, 2010 Westlaw 459609 (Cal. App. 2010): Filed a petition for writ of mandate on behalf of our client, the City of Hermosa Beach, attacking the trial court’s entry of summary adjudication in favor of the plaintiff oil company. The appellate court ruled in favor of the City, concluding that there was a triable issue of fact on the element of proximate cause.
La v. Nokia Inc., 2010 Westlaw 4245533 (Cal. App. 2010): Defended Nokia against a putative class action based on the allegation that a model of its cellular phone was defective. The trial and appellate courts ruled that the plaintiff lacked standing under California’s Unfair Competition Law.
Prospect Medical Group v. Northridge Medical Emergency Group, 45 Cal. 4th 497 (2009): Argued successfully that emergency medical providers cannot “balance bill” HMO enrollees.
Henneford v. Castaneda, 130 S.Ct. 487 (2009): Lead author of successful petition for certiorari challenging an adverse decision by the United States Court of Appeals for the Ninth Circuit on the scope of immunity for federal officers and employees. Shortly after the Supreme Court granted cert, the plaintiff voluntarily dismissed all claims against our client.
Dicon Fiberoptics, Inc. v. FTB, 173 Cal. App. 4th 1082 (2009): Argued appeal challenging FTB’s rejection of tax credits awarded under the Enterprise Zone Act of 1996.
Beck v. City of Upland, 527 F. 3d 853 (9th Cir. 2008): Successfully represented a civil rights plaintiff/ businessman in precedent-setting case against a municipality for retaliation in violation of the 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): Filed 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): Filed a 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): Served as 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): Drafted 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): Filed successful writ application in a putative nationwide class action lawsuit.
Vu v. California Commerce Club, Inc., 58 Cal. App. 4th 229 (1997): Succeeded in arguing before appellate court that a gambler could not sue a casino to recover losses based on alleged “cheating” in poker because gambling losses are inherently speculative.
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): Argued successfully, and established precedent of widespread use that “contention” deposition questions are improper.
In re Owens-Illinois, Inc., 115 F.T.C. 179 (1992): Co-authored respondent’s briefs in successful antitrust appeal before Federal Trade Commission involving merger between two leading manufacturers of glass containers.
- Certified Specialist in Appellate Law, The State Bar of California Board of Legal Specialization
- Center For Law In The Public Interest, Board, 2004-2006
- Rules Advisory Committee for the Ninth Circuit Court of Appeals, 2006-2012
- Appellate Courts Committee, Los Angeles County Bar Association, 1995-present
12 Bird Marella principals have been recognized and selected by their peers for inclusion in the 2017 edition of the Best Lawyers in America. Best Lawyers is based on an exhaustive peer-review survey in which more than 50,000 leading attorneys cast nearly 5 million votes on the legal abilities of ...
Bird Marella attorneys Benjamin Gluck, Tom Freeman, and Nicole Van Dyk obtained a dismissal of 89 out of 90 counts, including counts of insurance fraud and involuntary manslaughter, on behalf of their client accused of allegedly masterminding a $100 million medical workers’ compensation fraud scheme. The Bird Marella ...
One of the nation’s largest pro bono law firms asked Bird Marella attorneys Tom Freeman and David Chao to handle an appeal on behalf of client Nina Austin, who filed employment discrimination claims against the Los Angeles Unified School District (LAUSD). Her claims were initially dismissed after Ms. ...
Bird Marella is proud to recognize the attorneys that have been selected for inclusion in the 2016 Southern California Super Lawyers list. Terry W. Bird – Criminal Defense: White Collar Joel E. Boxer – Business Litigation Paul S. Chan – Business Litigation Mark T. Drooks – Business Litigation Thomas R. ...
Other News & Events
- “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