GAME THEORY

REPRESENTATIVE WORK

GAMBLING LICENSE PROCEEDINGS

(Administrative Hearings)

Following a closure order and accusation seeking the revocation of the client's state gambling license, David negotiated the prompt re-opening of the card room and remedial measures instead of suspension or revocation of the gambling license.

POLITICAL STRATEGY

(Gambling Measures)

Represented businesses and citizens challenging the development of a $1.5 Billion tribal casino backed by well-connected developers.  The casino appeared to be on its way to approval, but we sponsored a ballot measure demonstrating public opposition to the casino.  We defeated legal challenges to our ballot measure, successfully supported City Council candidates opposed to the casino, and lobbied at the federal and municipal levels against government approvals.  The casino project was defeated.  David has also worked on several other successful casino gaming measures.

TRIBAL GAMING LITIGATION

(IGRA & Casinos)

Represented plaintiffs challenging California’s Proposition 1A, which granted Indian tribes a monopoly on casino gaming.  A second case also challenged the acquisition of an off-reservation urban site for an Indian casino, and the status of an Indian group as a recognized tribe.

CONSTITUTIONAL LAW

(First Amendment Rights)

Represented journalists as lead counsel in a novel suit to establish a First Amendment right to witness capital executions.   Ordinarily the First Amendment protects the right to disseminate information, but this case involved the right to witness and gather information.  After trial, the federal district court, Judge Vaughn Walker, held that the State's policy restricting media access was an exaggerated response to security concerns and the media should be allowed access to executions.    The right to witness executions was upheld after two appeals to the U.S. Ninth Circuit Court of Appeals and an emergency petition to the U.S. Supreme Court.

The Court of Appeals decision has been cited in more than 45 other judicial decisions, more than 80 federal briefs and Supreme Court petitions, and more than 50  law review articles and journals. California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002); prior: California First Amendment Coalition v. Woodford, 2000 U.S. Dist. LEXIS 22189 (2000); 532 U.S. 939 (stay denied); California First Amendment Coalition v. Calderon, 150 F.3d. 976 (9th Cir. 1998); California First Amendment Coalition v. Calderon, 956 F. Supp. 883 (1997); 517 U.S. 1182 (1996) (stay denied).

BUSINESS LITIGATION

(Business Cases)

Represented a gaming software company in a bad faith suit against its insurer.  The insurer denied coverage under a prior litigation exclusion in a patent infringement policy.   The scope of the  exclusion had never before been litigated.  After establishing coverage and defeating the policy exclusion, the bad faith case against the insurer settled for almost twice the face value of the policy.

Represented limited partners/investors in a suit against the general partner, involving contract, real estate appraisal, accounting and fraud issues.   After a three-week trial, the general partner was removed and his claim for management fees was defeated.  The Court recognized the clients' appraisal and accounting, and awarded the clients' their attorneys’ fees and costs.

APPELLATE REPRESENTATION

(Appeals & Writs)

Represented MCI Telecommunications on appeal seeking a tax refund for sales and use taxes upon property acquired in corporate mergers.  In settlement, MCI received $4.9 million.

Other Appellate Cases:

Aviation Data v American Express, (2007) 152 Cal. App. 4th 1522

Advanced Nutrients v Hunter, 2009 WL 1020636 

Woods v. Cingular Wireless,  2005 WL  1178052

As a law clerk David worked on more than 100 federal appeals, including Price v Viking Penguin, 881 F.2d 1426 (1989)  (William Styron, Kurt Vonnegut, John Irving, Alfred Kazin and Susan Sontag, Amicus).  David Price, an FBI agent who played a role in investigating Wounded Knee, sued for defamation allegedly found in the book In The Spirit of Crazy Horse by Peter Matthiessen.  The suit led to the book being removed from sale.  The Court rejected Price's claims on First Amendment grounds which led to the book being re-published.

"New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), established the modern rule that, even when the defendant's remarks are both defamatory and false, where the remarks are directed at a public official and related to her official conduct, the plaintiff must also prove by clear and convincing evidence that the false remarks were made with actual malice or reckless disregard for the truth. Id. at 279-80, 84 S.Ct. at 725-26.  The motivating factor in the Court's analysis was protection for criticism of public officials and speech regarding issues of political concern. The New York Times standard was constructed in light of three truths about public speech. First, false statements would necessarily occur in the course of a vigorous public debate. Second, absent protection for even false statements, destructive self-censorship would result. Third, the legal standards for defamation must protect defendants from the self-censorship imposed by threats of litigation. Id. at 271-72, 278-79, 84 S.Ct. at 720-22, 724-26. The Court felt that debate on matters of public concern "should be uninhibited, robust, and wide-open, * * * [though] it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times, 376 U.S. at 270, 84 S.Ct. at 720….

In this setting, we have decided that the Constitution requires more speech rather than less. Our decision is an anomaly in a time when tort analysis increasingly focuses on whether there was an injury, for in deciding this case we have searched diligently for fault and ignored certain injury. But there is a larger injury to be considered, the damage done to every American when a book is pulled from a shelf, as in this case, or when an idea is not circulated….  "

Past Clients include:

Sun Microsystems, MCI Telecommunications, and the California First Amendment Coalition.

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