Civil Litigation

The lawyers of OBSK concentrate on complex civil litigation and related appellate proceedings in many diverse areas. We seek the best results for our clients by investigating facts and analyzing issues early and correctly, using our broad experience. We routinely handle all aspects of contractual disputes, antitrust and unfair business practices, accountant's liability, civil rights, consumer and other class actions, false claims cases, employment disputes including unlawful terminations and harassment, executive compensation actions, and real estate disputes. We enjoy working with knowledgeable and motivated clients to achieve meaningful results. We insist on outstanding written and oral advocacy, and we seek opportunities for early and effective resolutions, but we also excel in litigating difficult issues that are critical to the successful resolutions of disputes. Indeed, in our first three years, all of our founders and most of our attorneys have been involved in major trials and arbitrations, including hotly-contested commercial trials in defense of national corporations. We are often hired by clients to replace their existing counsel, or to handle appeals of matters that other firms have litigated, because we have the experience to achieve the best possible results sooner rather than later, as cost-efficiently as possible, and with the creativity and integrity that serve our clients' best interests.

Experienced Attorneys

Mark Borenstein has tried numerous cases in the federal and state trial courts and has represented clients in many courts of appeal and before the California Supreme Court and United States Supreme Court. His practice focuses on general business litigation, with emphasis on real estate, accountant's liability, civil rights and ERISA litigation. Mr. Borenstein, who has taught advanced civil procedure at the University of Southern California Law School, has lectured on employment, workplace safety, pension, disability and civil procedure subjects.

David Scheper also practices in the areas of general commercial and business litigation, where he has represented numerous businesses and financial institutions in federal and state courts throughout California and elsewhere. His engagements for corporate clients have included the successful defense at trial of intentional interference with contractual relations claims, and the successful defense at trial of a legal malpractice action. He has represented companies in a multi-billion dollar breach of contract case, a False Claims Act case involving the National Missile Defense Program, a multi-million dollar uninsured False Claims Act case resulting in a nuisance value settlement on the eve of trial, RICO actions, and environmental, antitrust and breach of contract disputes. Mr. Scheper has also counseled individual clients with regard to severance packages for high-level executives at a closely-held corporation, and a multi-million dollar dispute over commission payments owed on a financing deal.

Diann Kim has more than twenty years of experience in a broad range of commercial litigation. As a lead trial counsel, she has handled numerous complex business disputes in federal and state courts for jury and non-jury trials and appellate hearings. Ms. Kim specializes in civil antitrust and unfair trade practices, including the defense of consumer class actions. Her current and past representations include the defenses of corporate clients in federal and state antitrust actions, in state jury trials on breach of contract and fiduciary duty claims, in state consumer class actions, in a multimillion-dollar state price discrimination and price-fixing jury trial, and in numerous defenses of state unfair trade practices. Ms. Kim has expanded her practice to include employment-related litigation, including through successful jury trials. Ms. Kim has given numerous continuing legal education presentations and demonstrations on advanced antitrust issues, civil investigative demands, distribution and marketing and professional responsibility.

In addition, Mark Overland has litigated in trial and appellate courts and administrative tribunals on behalf of organizations and individuals in civil fraud cases, attorney discipline, employment discrimination, legal malpractice, municipal liability, real estate and civil rights matters. Alexander Cote is an experienced civil litigator, and has represented clients in a wide variety of matters pending in both state and federal courts, at all stages of litigation, including pre-trial and appellate work in business contract disputes, intellectual property, products liability and bankruptcy. Annah Kim has represented clients in a wide variety of litigation through trial and appeal including securities fraud defense, corporate governance matters, and intellectual property litigation including federal trade secrets misappropriation litigation which resulted in a multi-million dollar verdict for her client.  Jeanie Kim has experience in trust and estate litigation, and has successful trial experience in securities fraud defense and general business litigation for diverse clients ranging from Fortune 500 companies to Biotech startups. Jennifer Kennedy has represented insureds and insurance companies in various types of civil litigation, and has also handled estate planning, trust administration, and probate litigation.  Kelley Poleynard has extensive experience in matters ranging from defending commercial developers in multiple jury and bench trials, including a statutory waste action, an action for declaratory and injunctive relief against a lender, and a lender liability action. She has also obtained relief for a client in a complex federal fraud action, defended a national grocery chain in a breach of contract action, and counseled employers and represented them in several wrongful termination and sexual harassment actions.

Representative Litigation Matters

Antitrust:  Successfully represented national cellular telephone company against class-action antitrust claims relating to pager-replacement program

Antitrust: Reyes v. Atlantic Richfield Co., 12 F. 3d 1464 (9th Cir. 1993) (affirming summary judgment, dismissing claims alleging violations of Petroleum Marketing Practices Act by former franchisees)

Antitrust:  People's Choice Wireless, Inc., v. Verizon Wireless, 131 Cal. App. 4th 656 (2005) (affirming demurrer sustained without leave to amend, dismissing multiple class-action antitrust claims brought by independent cellular phone dealers against client Verizon Wireless) 

Arbitration:  Alan v. Superior Court, 111 Cal. App. 4th 217 (2003) (court may not compel arbitration before a forum not designated in arbitration agreement)

Attorney Discipline:  In re Chira, 42 Cal. 3d 904 (1986) (attorney convicted of federal offense involving moral turpitude need not be actually suspended from practice)

Breach of Contract: U.S. Cellular Investment Company of Los Angeles, Inc. v. GTE Mobilnet, Inc., 281 F. 3d 929 (9th Cir. 2002) (affirming trial court's grant of summary judgment in breach of partnership agreement action that threatened a major merger in the cellular telephone industry)

Breach of Contract: Obtained a settlement – on eve of trial – for national franchisor sued for millions of dollars in a business dispute, in which the company paid nothing and was paid its attorneys’ fees

Breach of Contract: Successfully represented national cellular telephone company against breach of contract claims designed to thwart major merger, achieving summary judgment in trial court, affirmed by the Ninth Circuit

Breach of Fiduciary Duty:  Successfully represented major national real estate brokerage in multiple state court jury trials against multi-million dollar claims of breach of fiduciary duty and breach of contract

California Consumer Class Action: Negotiated early favorable settlement for national electronics retailer for class action based on collection of customer personal information in connection with credit card sales

Civil Rights:  California Attorneys for Criminal Justice v. Butts, 195 F. 3d 1079 (9th Cir. 1999) (police questioning of suspect after invocation of right to counsel under Miranda v. Arizona violates clearly established constitutional rule negating officers’ claim of qualified immunity)

Constitutional Law: United States v. Stein, 435 F. Supp. 2d 330 (S.D.N.Y. 2006) (finding that the government impermissibly interfered with the Fifth and Sixth Amendment rights of former partners at KPMG to advancement of legal fees to defend criminal tax fraud case)

Discovery:  Weller v. Superior Court, 2004 WL 2110400 (Cal. App. 2 Dist) (peremptory writ of mandate granted ordering trial court to vacate order denying protective order in civil discovery)

Employment/Wrongful Termination/Sexual Harassment: Represent and counsel employers ranging from law firms to national service providers in full range of employment actions, including wrongful termination, sexual harassment and hostile work environment

Executive Compensation:  Obtained unanimous jury verdict in favor of national company after two-week state court jury trial against multi-million dollar claims by an independent contractor seeking post-termination bonuses

Executive Severance: Secured favorable separation agreements for senior executives against billion dollar employer

False Claims Act:  Obtained costs of suit settlement in 60 million dollar uninsured action against international project architecture and engineering firm

False Claims Act: Obtained dismissal of action against defense contractor firm concerning National Missile Defense program

Federal Civil Procedure:  McSherry v. City of Long Beach, 423 F. 3d 1015 (9th Cir. 2005) (motion for judgment under Fed. R. Civ. Proc. 50(a) cannot be granted before opposing party is fully heard on the issue)

Federal Procedure:  Bentler v. Bank of America, 959 F. 2d 138 (9th Cir. 1992) (for purposes of determining the “last pleading” under Fed. R. Civ. Proc. 38(a)’s 10-day limitation on demand for jury trial, the last pleading is that required to be filed as between the plaintiff and any of the jointly liable defendants)

Legal Malpractice:  Obtained directed verdict in favor of major national law firm after three-week state court jury trial

Legal Malpractice:   Obtained directed verdict after opening statement in favor of major law firm

Legal Malpractice:  Obtained multi-million dollar settlement against national law firm in legal malpractice action

Malicious Prosecution: Roberts, et al. v. Sentry Life Insurance, et al., 76 Cal. App. 4th (1999) (upholding dismissal of insured's action against disability insurer and former counsel for malicious prosecution after insurer's breach of contract, bad faith and fraud suit was resolved in insured's favor).

Preliminary Injunction:  City of Thousand Oaks v. Verizon Media Ventures, Inc., 69 Fed. Appx. 826 (9th Cir. 2003) (reversal of preliminary injunction against client prohibiting asset sale to cable provider as violating city ordinance)

Preliminary Injunction:  South Central Farmers Feeding Families v. City of Los Angeles, 2005 WL 1531980 (Cal. App. 2 Dist.) (reversal of preliminary injunction granted against client)

Real Estate: Negotiated favorable settlement of breach of fiduciary duty action arising from sale of outlet mall in Sikeston, Missouri

State Civil Procedure:  Korea Exchange Bank v. Yang, 200 Cal. App. 3d 1471 (1988) (deficiency judgment may be entered against party served by substitute service; personal service of application for deficiency judgment not required)


Civil Litigation: Overland Borenstein Scheper & Kim LLP, serving Los Angeles, California

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