Enterprise Counsel Group, A Law Corporation

Real Estate

A significant portion of ECG's practice involves sophisticated real estate transactions. ECG's clients include landowners, investors, lenders, developers, hotel and shopping center operators and other real estate professionals. Our expertise includes acquisitions, dispositions, secured lending, leasing and management of commercial, indiustrial, office, shopping center, residential, mixed-use and resort projects. We routinely handle matters ranging from entity formation and financing to litigation involving development, land use, entitlement, construction, latent defect, environmental, title, condemnation, landlord-tenant and/or broker disputes. Our of court, ECG provides sound advice and pragmatic solutions. In court, ECG's experience, tenaciousness and creative tactics have consistently yielded successful outcomes.

Recent examples of ECG's real estate engagements include:

• ECG successfully defeated overlapping claims of adverse possession, dedicated public access and private easement rights (arising under California's Subdivision Map Act and common law) previously blocking the development of ocean-view property in San Clemente, California
• ECG assisted an institutional investor structure and negotiate a joint venture with a third party resulting in a bulk acquisition of over $100 million in portfolio real estate.
• ECG eliminated, on summary judgment, a multi-million dollar claim asserting that ECG's client, a hotel investment group, breached a written agreement to purchase leased property adjacent to Disneyland in Anaheim , California . ECG's client was awarded all of its attorneys' fees and costs.
• After a two-week trial, a prominent Beverly Hills real estate investment firm abandoned its multi-million dollar fraud and bad faith lawsuit against ECG's client, a NYSE listed lender, in connection with that lender's alleged breach of a restructured mortgage agreement. ECG's client recovered all of its attorneys' fees and costs, as well as interest and penalties under the disputed mortgage agreement.
• In a condemnation action tried before a jury, the jury awarded ECG's client, a residential developer, $2.5 million more than the public agency originally offered. Again, ECG's client recovered its fees and litigation expenses.

Securities Litigation

ECG regularly litigates securities claims, including fraud actions under the Securities Exchange Act. Moreover, ECG's successes in the related field of shareholder and director relations provide a perfect complement to ECG's securities litigation expertise.

By way of illustration:

• In a federal action involving multiple defendants across the United States, ECG represented a company whose former managers liquidated most of the company's assets (including its intellectual property) and allegedly misappropriated the proceeds via a series of complicated international "fencing" transactions. ECG successfully pled, among other things, a violation of Section 10(b) of the Securities Exchange Act and secured a favorable outcome.
• ECG successfully defended a shareholder derivative action brought in federal court under SEC Rule 14a-9. The dismissed action asserted that ECG's client, an incumbent corporate director, used false and misleading proxy solicitations to gain a re-election.
• ECG successfully sued to force corporate recognition of preferred shares, even though the shares were not issued in strict compliance with California law.
• ECG successfully sued to set aside an illegal stock split.

Business and Contract Law

ECG's transactional and litigation attorneys work in tandem to assure common litigation issues are addressed before agreements are signed, and transactional expertise is available and instantly brought to bear when necessary to aid litigation efforts.

To prosper, today every business needs help negotiating the increasingly complex array of transactions that are part and parcel of daily operations and essential to the fulfillment of strategic plans. Clear and well-documented deals lead to smoother relationships and are less likely to end up in dispute. On the rare occasion when deals do sour and wind-up in arbitration, mediation or court, ECG's skill and experience in drafting clear business documents leads to a more predictable and cost-efficient outcome.

ECG evaluates, negotiates and documents transactions in a resourceful, timely and cost-effective manner. Common examples of such transactions include the formation, dissolution, acquisition and disposition of business entities or assets; loans and financing arrangements; insurance management, franchise license and distributorship agreements.

Beyond structuring and documenting commercial transactions, ECG works closely with busy executives and managers to render timely advice on matters ranging from corporate governance and strategic planning to compliance with an often bewildering array of federal, state and local regulatory requirements. On request, ECG holds advisory seminars for its clients on a host of relevant business law topics. By acting as an ex officio member of its clients' management teams, ECG helps fashion policies and procedures that minimize preventable risks.

In today's business world, an ounce of prevention is truly worth a pound of cure. ECG believes the best way to avoid unnecessary and potentially costly disputes is to identify, discuss and accurately document legal options and consequences before action is taken.

Employment

ECG routinely provides education, training and counseling to its institutional clients, thereby reducing the risk of later serious employee/employer disputes. When such inevitable “HR” disputes do arise, however, ECG attorneys have years of experience successfully defending, among other things, harassment, discrimination, wrongful discharge and whistleblower claims.

For example, ECG attorneys have:

• Successfully defended a nationwide health care provider alleged to have wrongfully terminated employees and committed False Claims Act violations.
• Successfully defended a retail apparel store against claims of racial discrimination, wrongful termination and illegal use of lie detectors.
• Successfully defended corporate executives accused of sexual harassment.
• Successfully defended industrial/manufacturing clients falsely accused of “willful wanton” employee endangerment.
• Successfully defended a corporate real estate developer accused of wrongfully terminating its former COO and CFO in violation of public policy.

Health Care

Navigating the muddy waters of overlapping federal and state statutes, as well as avoiding the snare of ever changing administrative regulations, presents a major challenge for those seeking to do business and succeed in today's health care field. The shift from the former indemnity system of healthcare provider profit centers to the present-day system of costs containment and “efficient utilization” threatens the quality of patient health care and economic viability of many health care providers.

ECG attorneys are members in good standing with the American Health Lawyers Association and routinely advise and represent health care providers with respect to the Knox-Keene Act, managed care, capitation, anti-kickback and other health care issues. ECG also represents a operators of acute care facilities and related health care services in an advisory role, as well as in several pending litigation matters. In addition, ECG lawyers routinely handles business related disputes among physicians, IPAs and other health care professionals on matters ranging from unfair competition to managed care compensation.

Unfair Competition & Intellectual Property

In today’s fast paced/ultra-competitive environment, businesses and business owners frequently discover that their trade secrets have been compromised; patents, trademarks, service marks or copyrighted material have been infringed; or competitors have acted illegally and unfairly. Existing or former employees are often caught up in the fray. ECG attorneys have extensive experience investigating, successfully prosecuting and defending such unfair competition/intellectual property claims in both state and federal courts.

By way of illustration:

• Three months before the trial of a multi-million dollar economic espionage case, ECG was retained as lead trial counsel for a defense contractor. Prior to ECG's engagement, the defense contractor had lost several critical pre-trial motions. ECG nonetheless obtained a jury verdict exonerating the defense contractor. At the same time, ECG successfully revamped and prosecuted its client's counter-claim for fraud, slander and theft of trade secrets. Last, but not least, ECG obtained a permanent injunction forever barring the competitor claimant from using any of the disputed technology.
• ECG attorneys represented an educational video producer forced to sue a competitor for unfair competition, as well as copyright and trademark infringement. The competitor used a former employee's knowledge of proprietary production techniques to create videos having an identical “look and feel.” ECG attorneys quickly obtained a temporary restraining order, thereby preventing the competitor from continuing to sell or distribute such “knock-offs.” Shortly thereafter, the matter settled on favorable terms.
• ECG attorneys have also successfully defended doctors, artists, a former national marketing representative for a well-known international electronics manufacturer, and a variety of other companies and individuals unjustifiably accused of misappropriating their former employers' or competitors' customer lists, proprietary designs or copyrighted information ( e.g. , software codes and schematic designs for printed circuit boards and complex manufacturing processes).
• Most recently, following a three-week evidentiary hearing, ECG attorneys obtained a favorable settlement in a case involving the theft and unlawful exportation of cutting edge manufacturing technology to China.

Probate and Trust Litigation

The business and personal success enjoyed by many ECG clients necessitates deployment of sophisticated estate planning devices, including trusts. A significant portion of ECG’s practice, therefore, entails prosecuting and defending actions against trustees, beneficiaries and fiduciaries in disputes involving overlapping trust, estate planning and business law issues.

ECG attorneys have successfully defended actions attacking the enforceability of wills and family trusts. ECG attorneys have similarly prosecuted and defended actions seeking the removal of appointed trustees, especially where the control of on-going family businesses is at stake. ECG is also at the forefront of litigating such issues as the enforceability of a “Qualified Personal Residence Trusts.”

Writs and Appeals

ECG attorneys routinely handle matters before state and federal appellate courts on behalf of both appellants and respondents. Among ECG's more recent appellate victories are the following:

• ECG obtained an emergency writ of mandate vindicating the rights of a director of a publicly reporting corporation. The writ overturned a lower court order barring the director from informing others, including the corporation's shareholders, about what the director learned regarding the corporation's affairs as a result of his investigation of allegedly "sensitive" internal records.
• ECG successfully resited a publicly reported company's attempt to thwart enforcement of a favorable lower court order by defeating the company's emergency writ application. The order prohibited the company from nullifying its preferred shareholder's two-for-one voting rights on the eve of an annual shareholder's meeting.
• ECG represented, in a published disposition, an entertainment industry client in successfully appealing a trial court order wrongfully dismissing that client's malicious procescution in action. Videotape Plus, Inc. v. Lyons, 89 Cal.App.4th 156, 107 Cal.Rptr. 1 (2001).
• ECG obtained an appellate decision affirming a substantial jury award compensating ECG's clients for, among other things, their former lawyer's breach of his fiduciary duties.

Corporate and Partnership Disputes

An unavoidable aspect of doing business is that amicable business relationships among partners, corporate officers and directors, lenders and borrowers, customers and vendors, tenants and landlords occasionally sour. In such situations, ECG is frequently called upon to take aggressive action to protect its clients' interests and investments. Examples of ECG engagements in this area include:

• ECG successfully enjoined the prosecution of a “first strike” lawsuit aimed at coercing existing management of a closely-held, high-tech company to resign. In the process, ECG negotiated a favorable buy-out of the would-be plaintiff's 50% stake in the company.
• ECG successfully represented 50% owners of a nationally recognized dental supply house in filing and prosecuting claims for fraud, breach of fiduciary duties and misappropriation of corporate funds and opportunities against the other 50% owners. ECG's clients ended up as sole owners of the business.
• ECG successfully defended a major Wall Street lender against fraud, bad faith and breach of contract claims arising out of the lender's enforcement of a restructured, multi-million dollar mortgage agreement.
• ECG obtained an injunction preventing one of the nation's largest telecommunications companies from disconnecting service to hundreds of thousands of small business accounts.
• ECG successfully protected a shareholder in a large publicly traded utility from attempts by the utility to cancel his preferred shares.
• ECG successfully obtained multiple orders appointing provisional corporate directors to break management deadlocks, thereby accelerating long-term restructuring and wind-down solutions.
• ECG successfully sued to enforce a “dissident” corporate director's right to inspect corporate records.

Arbitration, Mediation & Provisional Directorships

More and more frequently, entrepreneurs, business owners and asset managers alike ask the question: "isn't there a faster way to resolve differences than going to court?" In many instances, the answer is yes. This is why ECG attorneys stay abreast of the latest arbitration and alternative dispute resolution techniques. In addition, certain ECG attorneys serve as trained and accredited arbitrators for such organizations as the American Arbitration Association, the Better Business Bureaur and the Orange County Bar Association. Others have experience serving as court-appointed provisional corporate directors.

Uncertain of your dispute resolutions options? Ask ECG!