Counsel Report

“Judge Nusbaum is hard working, intelligent, patient. . . “

“I highly recommend her as a neutral.”

She has “…a calm, analytical approach which moved things forward in a positive way.”

“She rapidly gained a thorough understanding of the factual and legal issues. “

She “always dealt professionally and fairly with people on both sides of the issue.”

Commercial

Judge Nusbaum has judged, arbitrated, mediated and helped parties to settle hundreds of commercial disputes.

Recent Commercial Cases

Claims for Breach of a Design Services and Compensation Agreement. Issues included whether bankruptcy terminated copyright and trademark rights under the Design Services Agreement, copyright preemption of Rights of Publicity, arbitrability/jurisdiction over claims of nonsignatory to arbitration agreement, unlicensed sale of goods under the Lanham Act, Lanham Act False Endorsement, Unfair Competition under Cal. Bus. And Prof. Code §17200, False Advertising under Cal. Bus. & Prof. Code § 17500, Unfair Competition under California Common Law, Violation of California Civil Code § 3344, California common law Right of Publicity and amount of damages for breach of contract. Sole Arbitrator, Arts Arbitration and Mediation Services.

Claim by a distributor against a manufacturer for breach of a distribution agreement. Sole Arbitrator, International Centre for Dispute Resolution.
Claim of failure to pay a promissory note in the amount of $27,000. Sole Arbitrator, American Arbitration Association.

Legal Fees. Disputed legal fees and costs for an eminent domain case that went to jury verdict, with result that was less than prior mediation offer but more than the minimum amount set in legal fee agreement to trigger payment of contingent fee. Sole Mediator, Santa Clara County Bar Association Fee Arbitration Program.

Breach of contract. Claim by business client that amount of legal fee charges were unreasonable and need not be paid. Sole Mediator, Santa Clara County Bar Association Fee Arbitration Program.

Cable-Internet Billing Dispute. Claims for fraud, conversion, deceptive business practices and negligent misrepresentation. Certification of out-of-state attorney arbitration counsel pursuant to California CCP § 1284.2. Disputes over whether Commercial Rules or Consumer Rules apply, and the locale for in-person hearing. Use of Skype videoconference for evidentiary hearing. Sole Arbitrator, American Arbitration Association.

Legal Fees. Issues of whether the legal fee agreement was an unconscionable contract, rendering it unenforceable, and whether the fees and costs charged were reasonable. Fraud by asking for services to be rendered without paying for them. Violation of Professional Responsibility Rules 3-100, 3-500 and 4-200(A). Legal rate and costs charges increased if the bill was not paid within 27 days. Contract limited challenges to the invoice to those made within 30 days of receipt. Overhead percentage charges for secretarial work, and other items commonly included in the legal hourly rate. Application of State Bar Fee Advisories 1992-02, 1996-03, and 1998-03. Arbitration Panel Chair, Santa Clara County Bar Association Fee Arbitration program.

Action for conversion, and claim and delivery of personal property left in a trailer on property owned by another. Early Settlement Conference Neutral, Superior Court of California, Santa Clara County.

Commercial Lease. Claims arising out of co-tenancy clause in shopping center lease, where original tenants closed stores and reduced size below a minimum threshold. Question of whether Minimum Rent or Substitute Rent is due. Sole Mediator, American Arbitration Association.

Claims by a patient against a durable medical equipment provider for overcharges of co-insurance amounts, incorrect billing, delivery of defective equipment and negligent assessment and education. Consumer-Related Dispute under the Expedited Track of the Commercial Arbitration Rules. Sole Arbitrator, American Arbitration Association.

Breach of Contract: Commercial Lease. Action for specific performance, breach of lease and injunction, counterclaim for promissory fraud. Nonpayment of rent for a Mexican restaurant. California Superior Court, Temporary Settlement Judge.

Consumer: Breach of Warranty. Claims under the Song-Beverly Consumer Warranty Act, California Civil Code § 1790 et seq., for replacement or repurchase of 2003 Lincoln Navigator, defective back up sensors and air conditioning. Amount in controversy $175,000. California Superior Court, Temporary Settlement Judge.

Breach of Contract: Real Estate Guarantee. Action to collect on shopping center construction loan guarantee. Issues of bad faith refusal to approve lease amendment, demand to rebalance interest reserve, refusal to fund draw, and release funds for tenant improvements. Amount in controversy $114,000,000. California Superior Court, Temporary Settlement Judge.

Breach of Contract: Real Estate; Fraud. Claims for return of investment funds used to purchase real estate. Allegations of fraud and misrepresentation, breach of contract, conversion, unfair and deceptive business practices under California Business and Professions Code (B & P) § 17200 and intentional infliction of emotional distress. Bankruptcy of codefendants. Amount in controversy $250,000. California Superior Court, Temporary Settlement Judge.

Breach of Contract. Fraud. Claims involved the alleged nondelivery of jewelry by a package delivery service, whether maximum liability was limited to the declared value of the package pursuant to the terms of the shipping contract, interest, attorneys’ fees and punitive damages. Intrastate shipping by a common carrier, Federal Aviation Administration Authorization Act of 1994 (FAAAA), Pub. L. No. 103-305, Title VI, § 601, 108 Stat. 1569, 1605; federal preemption. Amount in controversy $ 48,000. California Superior Court, Temporary Settlement Judge.

Breach of Contract: Construction. Fraud. Claims involved breach of contract, breach of the covenant of good faith and fair dealing, conversion, declaration of who were agents of the franchisor, libel and trade libel. Franchise for group purchasing and retailing home improvement interior products; independent home improvement contractor. Amount in controversy $400,000. Temporary Settlement Judge, California Superior Court, Santa Clara County.

Breach of Warranty. Claim of failure to perform repairs required under 3-36 Ford New Vehicle Bumper to Bumper Warranty. BBB Autoline, Sole Arbitrator.

Securities: Fraud. Claims of fraud and misrepresentation based upon the sale of illiquid Auction Rate Securities arising under California Corporations Code § 25401 and SEC Rule 10-b-5; breach of the account contract and breach of fiduciary duty of the broker to the customer. Effect of the settlement between the State of California and Wells Fargo Investments, LLC in The People of the State of California v. Wells Fargo Investments, LLC et als, Superior Court of California, Case No. CGC 09-487641. Consequential and punitive damages, interest, costs and attorneys’ fees. Panel arbitrator, FINRA.

Real Estate: Mortgage Foreclosure. Claims for violation of Truth in Lending Act (TILA), Fair Credit reporting Act, negligent misrepresentation, breach of fiduciary duty, California Unfair Competition, conversion, breach of contract, and wrongful foreclosure. Sole Mediator, U.S. District Court, Northern District of California ADR Program.

Breach of Contract. Claims for breach of an agreement for project site inspection services by a school district; nonpayment; counterclaims of fraudulent invoices, False Claims under California Government Code § 12650(b)(1). Amount in controversy $565,000. Early Settlement Neutral, Superior Court of California, Santa Clara County.
Consumer Warranty. Claims for repurchase or replacement of a 2009 Chevrolet Impala because of problems with the service air bag light, seat belt light and tire alignment. Sole Arbitrator, BBB Auto-Line.
Consumer Warranty. Claims for repurchase of a 2010 KIA Sorrento because of problems with the engine, electrical system, climate control system, body and trim, transmission, and brakes. Business Tort. Claims by a municipality for injunctive relief to abate a public nuisance arising out of the operation of a nightclub. Temporary Settlement Judge, California Superior Court, Santa Clara County.

Contract Law, Real Estate Construction Defect. Claims to recover payment for unpaid invoices for work done at homeowners’ association; counterclaims for negligence. Amount in controversy $21,000. Temporary Settlement Judge, California Superior Court, Santa Clara County.

Claims of fraud, and breach of a non-disclosure agreement signed in course of negotiations regarding potential acquisition of certain assets. Amount in controversy $15 million. Temporary Settlement Judge, California Superior Court, Santa Clara County.
Consumer Warranty. Claims for breach of automobile warranty under the California Lemon Law, the Song Beverly Act. Request for repurchase of vehicle. Amount in controversy $ 30,000. Sole Arbitrator, BBB Autoline.
Consumer Credit: Truth in Lending. Claims that loans in the amount of $855,000 used to finance a home purchase were purchase money obligations, precluding the lender from seeking any deficiency judgment after foreclosure. California Commercial Code § 9604(a). Failure to comply with California Civil Code § 2923.5. Sole Mediator, U.S. District Court, Northern District of California ADR Program.

Contract Law. Claims of breach of contract for failure to pay a promissory note; counterclaims of usury under Article 15, Section 1 of the California Constitution and assault. Amount in controversy $135,000. Early Settlement Neutral, Superior Court of California.
Contract Law, Real Estate Development. Claims of breach of contract on a promissory note, guaranty, and Trust Deed instrument. Amount in controversy $250,000. Temporary Settlement Judge, Superior Court of California.

Contract Law, Real Estate Development. Claims of breach of an oral contract to purchase land and develop homes for sale. Amount in controversy $350,000. Temporary Settlement Judge, Superior Court of California.

Professional Negligence. Claims for negligence and fraud by an income tax preparer. Issues of statute of limitations. Amount in controversy $100,000. Sole mediator, California Superior Court, Santa Clara County.
Federal Communications Act; Unauthorized Reception of Cable Service; commercial signal piracy. Claims involved the exhibition of a program in a commercial establishment through a home services subscription with Dish Network, in violation of 47 U.S.C. §§ 605 and 553, conversion, Cal. Business and Professions Code 17200, attorneys’ fees and costs, in the amount of 170,000. Sole Mediator, U.S. District Court, Northern District of California ADR Program.

Legal Fees, Professional Responsibility. Claims involved the overcharging of legal fees and the refusal to refund retainer fees when the representation was terminated. Chair, Arbitration Panel, State Bar of California Fee Arbitration Program.

Breach of Contract. Claims involve infringement of an audio visual work, false representation in copyright registration, implied license, joint authorship, breach of a limited partnership agreement, fraud, breach of fiduciary duty, and copyright and contract statute of limitations. Sole Mediator, U.S. District Court, Northern District of California ADR Program.

Securities. Claims involve breach of contract, breach of fiduciary duty and negligent misrepresentation. Amount in controversy $5,782, 813. Panel Arbitrator, FINRA.
Legal Fees. Client claims unauthorized expenditure of time and work that was billed but not performed. Sole Mediator, Santa Clara County Bar Association Fee Arbitration/Mediation Committee.

Breach of Book Publishing Contract. Termination of publisher’s of copyrights, damages for failure to publish. Sole Arbitrator, Arts Arbitration and Mediation Services.
Trade Secret, Patent, Copyright. Declaration of Intellectual Property Rights; Breach of Contract. Claims involve the intellectual property rights arising out of development of software technology in a start up venture, founders’ shares, patent, trade secret and copyright ownership and rights of use, misappropriation, fraud, violation of fiduciary duty, breach of implied covenant of good faith and fair dealing, and interference with prospective business advantage. Early Settlement Neutral, Superior Court of California, Santa Clara County.

Breach of Construction Contract. Claims involve breach of an oral contract between the general contractor and its subcontractor, set-off for defective work, and the availability of attorneys’ fees. Settlement Judge Pro Tem, Superior Court of California, Santa Clara County.
Breach of Contract. Claims involve indemnification, and fraud arising out of the purchase and sale of a business. Settlement Judge Pro Tem, Superior Court of California, Santa Clara County.

Law Firm Shareholder Suit. Petition for Writ of Mandate to inspect accounting books and records of law corporation. Settlement Judge Pro Tem, Superior Court of California, Santa Clara County.

Breach of Contract. Claims arising under an international exclusive distributor agreement for DNA test kits. Issues involved refunds, indemnification, use of domain names and website representations about the product. Parties: United States and United Kingdom. Choice of Law: State of California and U.S. Forum Selection: Santa Clara County, California, U.S. Mediator, ad hoc mediation.

Breach of Contract/Warranty. Claims arising out of termination of a commercial restaurant lease, including responsibility of damage to the premises, insurance coverage, subrogation rights, collateral source rule, landlord and tenant responsibility for maintenance and repair under the terms of the lease, non-payment of rent and common area fees, and vandalism. Mediator, Superior Court of California, Santa Clara County.

Breach of Contract/Warranty. Claims for breach of a construction contract, breach of the implied warranty of fitness, and fraud. Issues of construction defects, disgorgement of all monies paid because the defendant was not a licensed contractor pursuant to California Bus. & Prof. Code §7031, attorneys fees and costs pursuant to Cal. Code Civ. Proc. §1029.8, and solvency of the defendant and collectability of any judgment. Amount in controversy in excess of $3,000,000. Settlement Judge Pro Tem, Superior Court of California, Santa Clara County.

Real Estate: Unlawful Detainer. Claims for nonpayment of rent under a commercial lease. Issues involved interpretation of the lease terms regarding the landlord and tenant responsibilities to repair and maintain the premises and to replace the roof, responsibility for a collapsed roof, tenant’s removal of fixtures at the lease termination, insurance coverage, solvency and the collectability of any judgment. Amount in controversy $55,000. Early Settlement Neutral, Superior Court of California, Santa Clara County.

Honors

Fellow, Chartered Institute of Arbitrators (FCIArb).

Fellow, American Bar Foundation.

Lifetime Fellow, Massachusetts Bar Foundation

Administrative Law Judge, Massachusetts Department of Industrial Accident Reviewing Board (Ret.)

Commissioner, Maine Workers’ Compensation Commission (Ret.)

Commercial Law Publications and Lectures

I Want to Be the Chair: Scenarios of AAA Tribunal Relations, AAA Round Table, November 28, 2017.

Fees: How to Get Paid, Arbitration, Collection. Santa Clara University School of Law, Solo Practice Seminar, January 22, 2015.

Hot Topics in Federal Arbitration, ABA Dispute Resolution Section, August 11, 2013.

Working at the Edge of Settlement/ADR: What You Can and Cannot Do, The 28th ABA Annual Intellectual Property Law Conference, April 3, 2013.

ADR in the Northern District of California, Hong Kong University, March 2013.

Law Updates on Arbitration Topics, ADR Times, May 2, 2012.

ADDRESS
2120 Harbourside Drive, Unit 638, Longboat Key FL, 34228, USA

EMAIL ADDRESS
snusbaum@impartia.com

PHONE NUMBER
+1-941-383-1667