Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday

FREDERICK BARON, DENNIS AFTERGUT, AUSTIN SARAT

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

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Alston v. Dawe

Docket: G057157(Fourth Appellate District)

Opinion Date: July 28, 2020

Judge: Goethals

Areas of Law: Business Law, Legal Ethics

Paul Copenbarger and Kent McNaughton formed Newport Harbor Offices & Marina, LLC (NHOM) in 2003 to acquire an office building in Newport Beach. McNaughton and Copenbarger were equal owners and the sole members of NHOM. Copenbarger delegated to McNaughton “management of the day-to-day operations of the commercial real property owned by the Company,” and McNaughton delegated to Copenbarger “management and handling of all legal affairs of the Company.” These delegations were “[s]ubject to revocation” by the delegating members. McNaughton later leased several office suites in NHOM’s building for his separate real estate business. McNaughton signed the rental agreement on behalf of both himself and NHOM. In early 2008, after learning McNaughton had unilaterally increased his monthly NHOM management payments to himself, Copenbarger revoked McNaughton’s delegated authority to manage NHOM’s day-to-day operations. In response, McNaughton stopped paying rent to NHOM. NHOM hired attorney Elaine Alston and her firm, Alston, Alston & Diebold (collectively, Alston), to file unlawful detainer actions against McNaughton. In June 2008, while the unlawful detainer actions and arbitration were pending, McNaughton formally revoked Copenbarger’s delegated right to manage NHOM’s legal affairs. He also filed a motion to compel arbitration of the lease dispute. The arbitrator issued an interim award in 2011, finding largely in Copenbarger’s favor. He further found McNaughton had breached his leases with NHOM by improperly withholding rent. Copenbarger petitioned to confirm the arbitration award with the trial court, and McNaughton filed a motion to disqualify Alston. The court denied McNaughton’s disqualification motion, granted Copenbarger’s petition to confirm the arbitration award, and confirmed the award in all respects. McNaughton filed an action seeking declaratory relief against Alston, "vaguely alleging" Alston was impermissibly representing NHOM in litigation matters now adverse to McNaughton. The trial court sustained Alston's demurrer without leave and granted her anti-SLAPP motion, citing the collateral estoppel effect of the first case. Alston then filed the underlying malicious prosecution action against McNaughton and his attorneys, who each filed anti-SLAPP motions. The Court of Appeal affirmed that portion of the trial court's order granting McNaughton's anti-SLAPP motion as to Alston's fraud claim; the portion of the order granting McNaughton’s and his attorney's anti-SLAPP motions as to Alston’s malicious prosecution claim was reversed. The matter was remanded for further proceedings.

King v. U.S. Bank National Assn.

Docket: C085276(Third Appellate District)

Opinion Date: July 28, 2020

Judge: Ronald B. Robie

Areas of Law: Civil Procedure, Labor & Employment Law

A jury returned verdicts in favor of plaintiff Timothy King against defendant U.S. Bank National Association (U.S. Bank) for defamation, wrongful termination in violation of public policy, and breach of the implied covenant of good faith and fair dealing, awarding King almost $24.3 million in compensatory and punitive damages. King started in the position of senior vice president regional manager, market lead, and market president for U.S. Bank’s Sacramento area in January 2007. In 2012, two of King's subordinates contacted the Bank's human resources department, raising claims of gender discrimination and harassment. There was substantial evidence from which the jury found the subordinates were biased and hostile toward King, and thus there were "obvious reasons to doubt the veracity of the informant[s] or the accuracy of his [and her] reports." U.S. Bank moved for judgment notwithstanding the verdict on the ground that there was no substantial evidence to support the jury’s verdicts and the award of punitive damages. The trial court denied the motion. U.S. Bank also moved for new trial on the grounds that there was insufficient evidence to support the verdicts, the damages were excessive, and there was an irregularity in the proceedings that prevented a fair trial. The trial court conditionally granted the motion for new trial on the excessive damages ground conditioned upon King agreeing to a remittitur, but denied the motion on the other grounds asserted. King accepted the remittitur and the trial court entered judgment on the remitted award of over $5.4 million. U.S. Bank appeals, challenging the jury’s verdicts on each of the causes of action and the remitted award of punitive damages. King cross-appealed, challenging the trial court’s new trial orders on excessive damages. The Court of Appeal reversed the trial court’s new trial orders, but agreed with the trial court, following its own independent review, that a one-to-one ratio between compensatory and punitive damages was the constitutional limit under the facts of this case. The Court remanded with directions to modify the judgment accordingly.