News, Highlights & Reported Cases
Esler, Stephens & Buckley's lawyers have the highest rating attainable from Martindale-Hubbell (A-V). All three of our Firm’s partners – Michael Esler, John Stephens, and Kim Buckley (recently retired partner emeritus) – have been named by Super Lawyers magazine as top attorneys in Oregon. Only five percent of the lawyers in the state are named by Super Lawyers. Mike Esler was selected for inclusion in the 2011 edition of “The Best Lawyers in America” in “Bet the Company Litigation” and Commercial Litigation. Mike won Best Lawyers' “Lawyer of the Year” award for 2012 for securities litigation in the Portland area. Mike, John and Kim have been listed in “Best Lawyers” for years, including 2015. The firm won Benchmark's “Highly Recommended” rating for 2013 and has held it since. Mike and John are also 2018 Benchmark “Litigation Stars”. The firm is also rated a Tier 1 Best Law Firm by the US News & World Report. Most recently, Mike was honored by an invitation to join the elite International Society of Barristers as a Fellow of the Society.
News & Highlights
- July 2018: Mike Esler is quoted in an article in The Oregonian on a recent successful settlement with our group of Aequitas investors with the Tonkon Torp law firm in Portland, which will contribute $18.5 million to investors who lost their money in the Aequitas Ponzi scheme. This money constitutes virtually all of that firm’s insurance policy proceeds. We continue to work on claims filed against other professionals who provided aid to the Aequitas Ponzi scheme.
- July 2018: ES&B concludes successful settlement of FINRA arbitration against a New York City brokerage involving churning. Churning is the excessive buying and selling of securities in a portfolio designed primarily to pad the pocket of the broker with commissions and not generate successful returns for the investor. If you think your broker is doing too much buying and selling or is not responding to your interest in understanding what is going on, you should talk to an experienced securities attorney to determine if you have a legal claim.
- June 2018: ES&B successfully settles FINRA arbitration over sale of highly unsuitable L-share variable annuities by a major Northwest regional broker. Variable annuities are expensive investment products that include elements of life insurance and are difficult for most people to understand. L-Share variable annuities are usually even more unsuitable given their higher fees and short-term surrender periods. They are particularly unwise for high net worth individuals. If you have any doubts about your purchase of a variable annuity you should talk to an experienced securities attorney.
- August 2017: ES&B co-counseled with trial attorneys Cody Hoesly and Bridget Donegan (from Larkins Vacura Kayser) and helped obtain $1,000,000 jury verdict for our business broker client after a company he helped sell failed to pay him.
- January 2017: ES&B successfully wraps up settlements totaling almost $18,000,000 in the Berjac securities fraud case. As a part of that work, ES&B assisted the related bankruptcy trustee and its counsel in obtaining $7,000,000 in settlement funds for investors. This result meant that investors received back about half of what they lost, an unusually high amount in cases like these where the issuer files for bankruptcy. The judge on the case said that “all the legal work done on the case was extraordinary and helped contribute both to a just result as well as to a very fair and rational and efficient way of getting us there.”
- April 2016: John Stephens and Mike Esler appointed Special Attorneys General by the Oregon DOJ to help prosecute Unlawful Trade Practices claims against General Nutrition Center and later, Vitamin Shoppe.
- March 2016: ES&B obtains federal trademark registrations for award-winning chef David Machado’s celebrated restaurants NEL CENTRO and ALTABIRA. Gary Hardiman did much of the work for us and has helped register a number of restaurant names including Jeremiah Tower's famous STRS and Bradley Ogden's FUNKY CHICKEN.
- February 2016: Mike Esler mentioned in front page article in The Oregonian “Investors fear their savings gone to pot,” about new case we are working on (with others) involving losses at Iris Capital.
- Fall 2015: Mike, John and Gary obtained a seven figure settlement of a FINRA arbitration on behalf of a retired doctor whose broker repeatedly placed him in Pro Shares' “geared” and “leveraged and inverse funds.” These types of exchange traded funds (ETFs) are designed to deliver one, two, three, or four times the inverse of the daily result of a particular index like the Dow or S&P 500, and they must be bought and sold on an almost daily basis to have their intended effect. If the market index goes down, the investment goes up. If the market goes up, the investment goes down. They are widely misunderstood. As a significant part of any individual investor's holdings, especially older investors, we believe they are completely unsuitable. Be wary if your broker is pitching these funds.
- November 2015: Mike Esler is key witness for Federal prosecutors at sentencing hearing of Sunwest’s former CEO Jon Harder. Harder’s plea bargain provided for a range of 5 to 15 years and he received the maximum—15 years. Read The Oregonian’s article. Read Mike’s testimony transcript.
- July 2015: Mike Esler completed a graduate level MOOC (massive open online course) for alumni of the University of Chicago Law School on the antitrust aspects of the growth of the “internet giants.”
- July 2015: John Stephens was named Chair of the US District Court of Oregon Local Rules Advisory Committee. John has served on the Committee in various capacities for 15 years.
- April 2015: John Stephens’ service as coach helps Grant High School's Constitution Team win first place in the 2015 'We the People' national competition in Washington, D.C.
- April 2015: Kim Buckley and (now Justice) Meagan Flynn (then of Preston, Bunnell & Flynn) successfully defended ES&B’s trial court victory in appeal and cross-appeal of judgment in favor of our client, a distinguished law firm, against a former partner. The issues concerned the terms of their partnership agreement and allocation of assets between the firm and its former partner. Read more about the case.
- February 2015: Gary Hardiman’s Comment Letter was cited 4 times by the SEC in its Order Approving a Proposed Rule Change Relating to the Revisions to the Definitions of Non-Public Arbitrator and Public Arbitrator. Gary, a FINRA arbitrator, wrote in opposition to a rule change that would place professionals who spend 20% or more of their time advocating on behalf of investors in the “Non-Public” arbitrator category, urging that they remain “Public” arbitrators. Unfortunately, we think, for investors, the SEC approved the change.
- Kim Buckley served as a judge in the National Black Law Students Association 2015 National Moot Court competition.
- May 2014: Portland firms to pay for link to hedge fund scam, The Oregonian.
- April 2014: As log export market booms, Astoria partnership dissolves into acrimony, The Oregonian.
- August 2013: Esler, Stephens & Buckley files class action against banks and accounting firm over Berjac collapse. Read The Oregonian article.
- April 2013: Mike Esler quoted in article on indictment of Grifphon hedge fund head, The Oregonian.
- December 2012: Oregon Supreme Court victory in State of Oregon v. Marsh & McLennan. Kim Buckley and John Stephens authored a brief on behalf of the Oregon Trial Lawyers Association in this important Oregon Securities Law case.
- October 2012: Federal Court awards ES&B enhanced fee for excellence in providing service to the Receiver and the Court in Sunwest case.
- October 2012: Mike Esler and Gary Hardiman spoke on Securities Litigation at the NALS (Association of Legal Professionals) Annual Education Conference and National Forum, Oct. 18-21, 2012. Because the presentation was so well-received, Mike and Gary were invited to present a national webinar.
- September 2012: Mike Esler quoted in article on indictment of Sunwest CEO, The Oregonian.
- September 2012: ES&B wins coveted “Highly Recommended” rating from Benchmark as 1 of top 5 plaintiffs' law firms in Oregon for 2013.
- July 2012: Articles on ES&B’s expanded lawsuit against hedge funds: Lawsuit against failed hedge funds grows, Portland Business Journal and Hedge funds suit expands, The Oregonian.
- July 2012: Pacific Seafood battles law firm, The Oregonian. Mike Esler and John Stephens credited with “momentous dual legal victory” in complex antitrust case.
- April 2012: Gary Hardiman lectures on E-Discovery at continuing legal education seminar.
- April 2012: Deal ends fishing industry lawsuit, The Oregonian. Front page article in The Oregonian lauds ES&B's “big win” for client Pacific Seafood in class action antitrust case.
- January 2012: SEC expands inquiry into two Portland hedge funds. The Oregonian interviewed Michael Esler, the attorney representing the investors.
- October 2011: Suit alleges Madoff-like fraud, The Oregonian. ES&B then-represented some 50 investors in lawsuit alleging securities violations against hedge funds sponsored by Grifphon and Sasquatch Capital. The Oregonian interviewed Michael Esler.
- November 2009: ESB settles Pac Equities suit, The Oregonian.
- June 2008: Update on M-DAC Farms Wetland Restoration: Rare Wildlife Species Flock to Restored Habitat, Cascade Pacific Annual Report for Fiscal Year 2008.
- AIArchitect: Buildings As Trademarks (08/01/1995).
- ES&B wins $10.8 Million Dollar Jury Verdict Against Bank, The Oregonian (6/12/1993).
- ES&B scores win for investors following 3 week trial, The Oregonian (03/19/1991).
SIGNIFICANT REPORTED CASES
Ainslie v. Spolyar, 144 Or App 134, 983 P.2d 533 (1996) (securities case decided in favor of our plaintiff-clients).
Ainslie v. First Interstate Bank of Oregon, 148 Or App 162, 939 P.2d 125 (1997) (securities case in which our plaintiff-clients received a jury verdict, including ORICO treble damages and punitive damages, of more than $10.8 million, all affirmed on appeal except for ORICO damages).
Anderson v. Carden, 146 Or App 675, 934 P.2d 562 (1997) (another successful securities fraud prosecution).
AT&T v BNSF Railway Co.; TriMet, 323 Fed Appx 487 (9th Cir 2009) (Ninth Circuit Court of Appeals affirmed favorable interpretation of easement and related documents for our client TriMet over claims by telecommunications companies that TriMet should pay for relocating fiber optic lines. Case written up in 11/30/06 issue of Mass Transit Lawyer).
Burns Bros., Inc. v. Pewag, Inc., 53 Fed Appx 77 (Fed. Cir. 2002) (affirming judgment of noninfringement for our defendant-clients).
Citizen’s Utility Board v. Public Utility Commission of Oregon, 154 Or App 702, 962 P.2d 744 (1998) (obtained reversal of a PUC decision that would have allowed PGE to charge ratepayers for lost profits on the Trojan nuclear plant; estimated to save PGE customers $21 million per year).
City of Bend v. Juniper, 242 Or App 9 (2011) (following three months of trial in late 2005, the condemnee was awarded about 25% of what it sought from our client, the City of Bend. The trial judge commented that the case presented the best lawyering he had ever seen. The award was reduced by another $1 million on appeal and the parties settled).
Employers’ Fire Ins. v. Love It Ice Cream, 64 Or App 784, 670 P.2d 160 (1983) (insurance carrier to our client found liable based on bad faith refusal to settle).
FTC v. Francis Ford, Inc., 673 F2d 1008, cert denied, 459 US 999 (1982) (abusive use of adjudicatory hearing to create an industry rule).
Freeman v. Duffy, 328 Or564, 983 P.2d 533 (1999) (personal jurisdiction issue decided in favor of our plaintiff-client).
Hallco Mfg. Co. v. Foster, 256 F.3d 129 (Fed. Cir. 2001) (patent infringement; one of several before the Federal Circuit on behalf of Hallco).
Harris v. Dyer, 292 Or 233, 637 P2d 918 (1981)(client’s right to attorney fees incurred in arbitration successfully defended).
Harris v. Warren Family Properties, LLC, 207 Or App 732, 143 P.3d 548 (2006) (won reversal for our plaintiff-client of judgment for landlord in lease interpretation case).
Hayden v. Shin-Etsu Handotai America, 80 F. Supp.2d 1119 (D. Or 1999) (successful personal jurisdiction and patent infringement prosecution).
Hayes v. Olmsted, 173 Or App 259, 21 P.3d 178 (2001) (minority shareholder squeeze-out/freeze-out case in which client shareholder recovered about three times the highest offer of the company).
Landye Bennett Blumstein, LLP v. Jeffrey S. Mutnick, PC, 274 Or App 158 (2015) (Won appeal on behalf of our distinguished law firm client in a dispute with a former partner. The Court of Appeals agreed with our interpretation of the partnership agreement at issue and affirmed the trial court’s allocation of assets in our client’s favor. Meagan Flynn, then of Preston, Bunnell & Flynn had the lead on writing the briefs and argued the case before the Oregon Court of Appeals. Meagan is now Justice Meagan Flynn of the Oregon Court of Appeals, a well-deserved appointment).
Mainland Industries, Inc. v. Timberland Machine and Engineering Corp., 58 Or App 585, 649 P.2d 613 (1982) (fiduciary duties of a corporate officer and ownership of patent, trade secrets, and unfair competition).
Mackey v. TKCC, Inc., 134 Or App 121, 894 P2d 1200 (1995)(client’s right to proceed against contractor and landlord successfully defended).
Northwest Climate Conditioning Assn. v. Lobdell, 77 Or. App. 325, 713 P.2d 612, on reconsideration, 79 Or. App. 560, 720 P.2d 1281 (1986) (public utility and trade regulation).
Oil Heat Institute of Oregon v. Northwest Natural Gas, 123 FRD 640 (D. Or 1988) (successful false advertising prosecution for our client Oil Heat Institute).
Pac Equities, Inc. (US v. Rich) (represented numerous investors and the Receiver in securities fraud claims against attorneys who assisted Pac Equities in the formation and sale of fraudulent securities. Case settled for policy limits (over $6,000,000) after opening arguments of what would have been a six-week trial. Won affirmance of judgment approving settlement and claims bar). 317 Fed. Appx. 63D, 2008 WL 4946310 (CA9) (unpublished).
In Re Portland General Electric Co., 86 PUR 4th 463 (Or. PUC 1987) (ratemaking proceeding in which the Commission said this of our work on behalf of Citizen’s Utility Board: “The Commission wishes to compliment the parties on the quality of the advocacy before the Commission. This proceeding has been extremely controversial. However, the quality of counsel and the presentations by the witnesses have been exceptional. **** The Citizens’ Utility Board’s efforts in this proceeding require special mention. Although limited by lack of funds, CUB presented thought-provoking and incisive testimony. In addition, CUB’s opening brief is remarkable in its historical scope and authoritativeness. The Commission looks forward to CUB’s participation in the future proceedings.”)
QSIndustries, Inc. v. Mike’s Train House, Inc., 230 F. Supp.2d 1240 (D.Or. 2002) (patent litigation on behalf of model train electronics company).
Rosekrans v. Class Harbor Association, 228 Or App 621, 209 P3d 411 (2009)(client’s rights successfully defended against action by majority of members of non-profit association).
SEC v. Capital Consultants, Inc., 185 Fed Appx 705, 2006 WL 1932 989 (9th Cir 2006) (won reversal of denial of clients’ ability to elect tracing option to recover from receiver of failed investment company). The collapse of Capital Consultants has been described as “the biggest fraud by a pension fund manager in US history.” The Firm was lauded for its overall contribution to the case by all plaintiffs.
Topinka v. ITC Corp. [1987-88 Transfer Binder] Blue Sky L. Rep. 72, 615 (D. Or. 1987) (securities).
Widmer Brewing Co. v. Rolph, 128 Or App 666, 877 P.2d 112 (1994) (unfair competition/bid-rigging judgment affirmed in favor of client).
OTHER HIGHLIGHTS OR SIGNIFICANT CASES
Grifphon/Sasquatch Hedge Fund Class Action (Adams et al. v. Perkins & Co. et al.) We filed Oregon securities law claims on behalf of investors in so-called black box hedge funds. The case converted to a class action and resulted in a successful settlement in 2015 well in excess of the average result in a securities fraud case–upwards of 30% (0.30 on the dollar) returned to investors. This was a complex case which focused on aiders and abettors of the issuers of the securities whose insurance (virtually all the available assets of the defendants) funded the bulk of the settlements (as is often the case, the issuers themselves had no assets). The head of the hedge fund was sentenced to six years in prison.
Whaley et al. v. Pacific Seafood Group et al. We defended Pacific Seafood Group in an antitrust class action filed by fishermen alleging that our client unlawfully created and maintained monopoly control over four West Coast seafood commodity input markets for the purpose of suppressing prices paid to fishermen. We achieved a settlement in 2012 that involved no payment of monetary damages and a client that remained structurally intact (no divestment). Local media described it as a “big win” for our client and a “momentous dual legal victory.”
Sunwest Management, Inc. Represented 300 investors in largest securities fraud of its kind on West Coast. The Court described the results as “nothing short of astonishing and border on the miraculous.” Awarded enhanced fee in September 2012 for “invaluable assistance” in providing services to Receiver and Court.
Akerman et al. v. Bean et al. Represented investors in a Las Vegas real estate project on securities fraud and other claims. Case settled favorably in third week of trial.
Gross v. Eckankar. Successful defense of religion against claims by its former leader to enforce a “lifetime” contract and seeking to invalidate trademarks.
Trademarks. Obtained registration of mark for the famous San Francisco restaurant, STARS, in what we believe was the first time the USPTO recognized a distinction between fast food and gourmet restaurants in a likelihood of confusion analysis. Obtained registration of Eckankar’s Ziggurat temple headquarters in what we believe was the first registration in the U.S. of a religious building design.
The Firm steps outside its business practice on occasion to take on cases that interest its lawyers or have compelling circumstances, e.g., the Firm represented an African-American cab driver beaten by security guards and falsely accused of trespass. The case resulted in a significant settlement for our client. The Firm was counsel to a Willamette Valley landowner/farmer and helped in qualifying a 580 acre parcel for the Wetlands Restoration Program sponsored by USDA and obtaining support and grants from several agencies and organizations. It was the largest private land wetlands restoration to date in the Willamette Valley.