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Leonard Feldman, a partner in the Litigation group, focuses his practice on appellate work and complex commercial litigation. His appellate practice encompasses all phases of civil and criminal appeals, including emergency motions, expedited appeals, case management, drafting and oral argument. His commercial litigation experience includes class actions, antitrust (litigation and counseling), intellectual property, construction law, securities litigation, environmental litigation and civil rights. Leonard is currently a District Coordinator for the Ninth Circuit Pro Bono Program and is the Pro Bono Coordinator for Division One of the Washington Court of Appeals. He is also a lecturer and teaches a course on appellate practice at the University of Washington School of Law.

In State v. Arreola (pdf), the Washington Supreme Court confronted, once again, the tension between liberty and privacy interests and safety and security intersts.  There, it ruled that a police officer may conduct a traffic stop to investigate unlawful activity (driving under the influence) without any permissible basis for doing so as long as there is another – independent and lawfully sufficient – reason for the stop.  As Justice Chambers notes in dissent, the majority’s holding does not appear to comport with existing case law or with the constitutional mandate that “no person shall be disturbed in his private affairs … without authority of law.”
Continue Reading Wash. S. Ct. Defines Constitutional Limits of “Mixed-Motive” Traffic Stops

In Staples v. Allstate Insurance Co. (pdf), the Washington Supreme Court squarely held (disapproving prior precedent to the extent contrary) that an insurer does not have an unfettered right to request that a policyholder submit to an Examination Under Oath (“EUO”).  Instead, the EUO must be material to the insurer’s investigation or handling of a claim.  The court also held that an insurer cannot deny a claim based on failure to submit to an EUO unless it first establishes prejudice.  The court’s opinion seeks to strike a reasonable balance between an insurer’s interest in obtaining information that is reasonably necessary to investigate a claim and a policyholder’s contractual right to coverage.
Continue Reading Wash. S. Ct.: To Deny a Claim for Failure to Submit to an Examination Under Oath, Insurers Must Show Prejudice

In P.E. Systems, LLC v. CI Corp. (pdf) the Washington Supreme Court clarified two important points about the Washington Civil Rules and the common law of contracts.  First, the Court squarely held that Washington trial courts may consider a contract attached to a pleading in deciding a motion to dismiss under CR 12(b)(6) without converting the motion to dismiss into a motion for summary judgment.  This is an important procedural issue.  While federal courts have clearly addressed the issue in dozens of published opinions, this opinion eliminates any uncertainty under Washington law and aligns our courts with federal courts.  Second, the Court concluded that a contract that incorporated by reference an incomplete addendum was an “agreement with open terms,” which is binding on parties, rather than an “agreement to agree,” which is unenforceable under Washington law.
Continue Reading Wash. Supreme Court: Authentic Contracts Attached To Pleadings May Be Considered On A CR 12(b)(6) Motion

In Arzola v. Name Intelligence, Inc. (pdf), the Washington Court of Appeals concluded that payments due to employees under a stock right cancellation agreement did not constitute “wages” as that term is used in Washington’s wage-withholding statute (RCW 49.52.070) because the payments were not for the employees’ services but rather for relinquishment of shares.  It so held even though the underlying stock was expressly provided to the employees based on job performance.  The court’s holding allows employers to convert consideration paid to employees in lieu of cash wages into a separate and distinct contractual right and thereby avoid liability under the wage-withholding statute.
Continue Reading Wash. Ct. of Appeals: Employee Wages Do Not Include Contractual Rights to Company Stock

The Ninth Circuit recently reiterated the critical importance of a district court’s gatekeeper function with regard to the admissibility of expert testimony under Daubert.  In Barabin v. AstenJohnson (pdf), the court concluded that the district court abused its discretion in admitting expert testimony regarding causation (whether Barabin’s mesothelioma was caused by occupational exposure to asbestos) largely because the district court did not conduct a Daubert hearing as the defendants’ requested.  Having done so, the Ninth Circuit concluded that it was bound by precedent to remand the matter for a new trial.  Two panel members wrote a concurring opinion on that latter point, expressing disagreement with Ninth Circuit precedent requiring a new trial in cases where expert testimony is improperly admitted.  Were it not for that precedent, these judges would have conditionally vacated the district court’s judgment and remanded the matter to the district court to conduct a hearing to properly determine if the expert testimony was admissible under Daubert.  If so, then the concurring judges would permit the district court to re-enter the judgment rather than conduct another lengthy trial.  That approach is patently logical:  no purpose is served by requiring a new trial if, after a proper Daubert hearing, the expert testimony at issue is deemed reliable and therefore admissible.
Continue Reading Ninth Circuit Reiterates Critical Importance of District Court’s Gatekeeping Function under Daubert

In Department of Labor & Industries v. Shirleythe Washington Court of Appeals concluded that an industrial worker’s death was “proximately caused” by an industrial accident where, years after the original injury, the worker simultaneously ingested alcohol and several medications that had been prescribed to treat pain resulting from the accident.  Such activity, the court ruled, was neither reckless nor something that the worker would not reasonably be expected to engage in.  As noted by the dissent, the majority’s analysis appears to overlook principles of forseeability (cause in fact) and public policy (legal causation).
Continue Reading Washington Court Of Appeals Affirms Broad Right Of Recovery Under Industrial Insurance Act

The Greater Wenatchee Regional Events Center Public Facilities District (the “District”) is a municipal corporation formed by the city of Wenatchee and other cities and counties to finance, construct, and operate the Greater Wenatchee Regional Events Center. In 2011, the District proposed to Wenatchee that the parties enter into a Contingent Loan Agreement (“CLA”) to

Steven Schroeder formerly owned a 200-acre ranch in Stevens County. When he defaulted on the loan, Excelsior Mortgage filed an action to judicially foreclose its deed of trust and, eventually, negotiated to foreclose nonjudicially. The nonjudicial foreclosure process culminated in a trustee’s sale at which Excelsior purchased the property. Following the purchase, Schroeder did not

Michael and Theresa Annechino had a long-standing banking relationship with the Bank of Clark County. Before the events at issue, the Annechino had an approximately $1,150,000 balance at the Bank. Additionally, Mr. Annechino was an investor with the Bank. Shortly after the Federal Deposit Insurance Corporation (“FDIC”) increased its coverage for deposit accounts, the Annechinos’

Pursuant to RCW 4.12.010(1), an action for injuries to real property “shall be commenced in the county in which the subject of the action or some part thereof, is situated.” William Ralph and William Forth instituted actions in King County Superior Court against the Department of Natural Resources and other defendants for injuries to real