Scott D. Bertzyk focuses his practice on commercial civil litigation, with particular experience in litigation involving real estate and real estate financing, business torts, probate and family trust issues, public pension and other public employee benefits class actions, business acquisition, and accounting disputes. He has substantial bench, jury trial, law and motion, deposition and appellate experience, both in federal (including bankruptcy) and state courts.
Over the course of his career, Scott has served clients as diverse as General Motors, Bridgestone / Firestone, Goodrich Corporation, Village Properties, Baldwin Builders, the State of California and the County of Los Angeles. For 14 years prior to joining the firm, he was a litigation partner at Jones Day.
Every year since 2006, Mr. Bertzyk has been selected to Southern California Super Lawyers. He taught appellate advocacy at Loyola Law School and holds the distinction of having passed all phases of the certified public accountants' examination in his first sitting.
Professional & Community Involvement
· Member, American Bar Association
· Member, Century City Bar Association
· Member, Los Angeles County Bar Association
· Member, State Bar of California
· Mr. Bertzyk has assumed a wide variety of pro bono representations, including representation of PanCAN (the Pancreatic Cancer Action Network)
· Former Adjunct Professor, Appellate Advocacy, Loyola Law School, Los Angeles
Awards & Recognition
· Listed, The Legal 500 United States, 2013
· Member, Winning Team, U.S. News - Best Lawyers "Law Firm of the Year" in Bankruptcy & Creditor Debtor Rights / Insolvency & Reorganization Law and Litigation - Bankruptcy, 2013
· Listed, Super Lawyers magazine, Southern California Super Lawyers, 2006-2013
· Recipient, University of Wisconsin-Eau Claire Alumni Distinguished Achievement Award, 2011
· Team Member, a Law360 "Appellate Practice Group of the Year," 2010
· Rated, AV Preeminent® 5.0 out of 5
Real Estate/Business Litigation
· Represented the purchaser of two adjoining commercial properties in Las Vegas, Nevada. After client had invested substantial sums to develop and entitle the property, and was poised to sell it for an approximate $150 million profit, seller sued to rescind the transaction and take back the property. Dispute spilled into eight courts - Los Angeles Superior Court, California Court of Appeal, California Supreme Court, United States District Court for Central District of California, Nevada District Court, the Nevada Supreme Court and federal bankruptcy courts for the Central District of California and District of Nevada -- and a two month arbitration before a three-judge panel appointed by JAMS. Secured published decision from California Court of Appeal (and unpublished decision from Nevada Supreme Court) reversing trial court orders denying arbitration. After California appellate victory, represented client in bench trial on the sellers' affirmative defense to arbitration (which mirrored the sellers' affirmative claims). Thereafter, tried both sides' affirmative claims to the arbitration panel throughout January and February of 2009, and secured award for more than $140 million in damages, plus more than $3 million in attorneys' fees and costs. Thereafter, defended a wide variety of efforts to mount collateral attacks on arbitrators and their awards, secured order confirming awards and entering judgment thereon, and secured published decision affirming judgment.
· Represented general and limited partner in action to force dissolution of California limited partnership that owned the Mariner's Village, an approximately 1,000 unit apartment complex in Marina del Rey, California. After one month bench trial before the Honorable Ronald Sohigian in Los Angeles Superior Court, secured decision dissolving the partnership on all grounds urged, including loss of economic value predicated upon the fact that the hold value of the partnership asset was over $100 million less than the projected sales value.
· Represented the 32nd District Agricultural Association (Orange County Fair) as a plaintiff in an action for fraud, breach of contract and antitrust damages arising out of the Association's purchase of the Pacific Amphitheatre pursuant to a purchase agreement containing a "sound covenant" with a noise restriction so severe that it rendered the Amphitheatre useless. After a two-month simultaneous jury and bench trial, the trial court invalidated the sound covenant and the defendants settled the damage claims against them for a substantial sum.
· On behalf of a residential real estate developer, led litigation against the FDIC over its failure to honor a right of first refusal to acquire property surrounding the Westlake reservoir. The matter settled with the FDIC paying a substantial sum. Thereafter, led litigation against water district and environmental group that had induced breach of the right of first refusal, obtaining summary judgment on liability for breach of contract and intentional torts.
· Defended a CEQA suit brought by competitors to halt a major expansion by Desert Hospital in Palm Springs; also defended the judgment on appeal.
· Represented Desert Hospital Corporation in a breach of fiduciary duty and misappropriation of trade secrets case against former board members for improperly competing with the Hospital and improperly pursuing litigation to block the Hospital's expansion efforts. After a one-month jury trial, secured a judgment for $11.75 million in compensatory damages and $1.75 million in punitive damages - which, at the time, was the largest jury verdict ever awarded in the Coachella Valley.
· Represented an anchor tenant (Bullock's) in the Seventh Street Market Place in downtown Los Angeles in lawsuit brought to enjoin it from terminating a lease and vacating the premises. At the start of trial, the case settled on terms that allowed Bullock's to vacate the premises.
· Assumed and completed the defense of the City of Los Angeles' Housing Department in litigation involving municipal bond financing for the nation's largest Section 8 supported housing project; the plaintiffs were institutional bondholders seeking to recover over $60 million in damages; the case was litigated vigorously, thrown out three times, and ultimately settled for approximately one-half of one percent of the plaintiffs' claims.
· Represented General Motors in arbitration initiated by real estate developers who had purchased property from GM in Southgate, California. The developers sought to avoid payment obligations under their purchase contract. Took over the arbitration only days before the scheduled commencement date. After cross-examination of the developers' expert, the developers dropped their claims and stipulated to payment in full.
· One of the principal lawyers prosecuting litigation for the bankruptcy estate of the Baldwin Company, one of the nation's preeminent luxury, hillside, residential developers, including a one-form-of action suit against the estate's working capital line of credit provider.
· One of the principal lawyers handling litigation for Pioneer Liquidating Corporation, which was the liquidation instrument for the assets of the Pioneer Mortgage bankruptcy estate. The Pioneer Mortgage bankruptcy was the second largest mortgage banking bankruptcy in California history, involving over $6 billion in real estate assets. On behalf of the liquidating corporation, handled lawsuits to enforce or defend the validity of real estate security held by the corporation, as well as fraudulent transfer and preference claims.
· Defended a prominent California-based law firm in an action for malpractice and breach of fiduciary duty, arising out of a failed real estate limited partnership formed to lend money to a residential developer.
· Represented Bridgestone/Firestone, Inc., in connection with its recall of roofing products manufactured by the plaintiff; the plaintiff brought a $7 million tort action, claiming that it had been libeled in the recall notice. After asserting counterclaims and obtaining summary judgment, negotiated a settlement in which Firestone recovered all its known damages plus a reserve for future damages.
· Represented the sole non-contingent beneficiary of the $400+ million Mark Hughes Family Trust in a multitude of disputes and proceedings against originally named co-trustees of trust, including petition resulting in removal of co--trustees for mismanagement and breaches of trust, petition establishing mandatory support budget for client and requiring former trustees to honor it, opposition to former trustees' petitions to allocate trust obligations to a separate custodial account established for client's benefit (which were denied), and opposition to former trustees' petition for approval of a proposed settlement with the lender in a Graegin (estate tax loan) transaction (which was also denied).
· Represented one of two beneficiaries of the Superstein Family Trust against the other beneficiary and putative trustee, in petition seeking to invalidate death-bed trust amendments purporting to alter the otherwise equal control of an estimated $300+ million real estate portfolio of over 60 light industrial properties as well as vast undeveloped property.
· Represented the trustees of another family trust in litigation against certain trust beneficiaries (and their business partners) in wide ranging disputes involving a substantial real estate portfolio owned or controlled by the trust. After securing a ruling rejecting beneficiaries' primary claim, negotiated a settlement of all outstanding claims.
· Defended the former trustee of another family trust against a beneficiary's objections to his accounting and resulting eight-figure surcharge claims. All objections were overruled, and the former trustee's accounting was approved in full.
Public Entity Litigation
· Both at trial and in connection with the ensuing appeal (which resulted in a published decision), represented several counties, including Los Angeles County, in a series of coordinated class action lawsuits seeking increases in retiree pensions in light of a 1997 California Supreme Court decision regarding calculation of pension benefits under the County Employees Retirement Law of 1937. The claims had created over $10 billion in exposure to the counties.
· Defended suit brought to enjoin provision of "local judicial benefits" (flexible benefits and the like) to all Los Angeles Superior Court judges. Secured published decision dismissing the suit at the pleading stage, and defended the ruling on appeal.
· Obtained a defense judgment in a coordinated pension case involving efforts by plan members in Los Angeles County to challenge the constitutionality of measures taken by the County Board of Supervisors that effectively capped the pension bases of the affected members.
· Represented the County of Los Angeles in a lawsuit challenging the validity of an agreement between the County and its pension administrator and seeking reimbursement of approximately $3 billion. After narrowing the case through a series of motions, the matter was settled on a class action basis, binding all potential challengers, validating the agreement, and insulating it from all future challenges. The County's sole payment was $35,000 in attorneys' fees.
· Defended the County of Los Angeles in a class action brought by Los Angeles Superior Court reporters, seeking to substantially increase their pensions by including additional incremental income (transcript fees) in the computation of their pension bases. Secured published decision affirming dismissal complaint with prejudice at the pleading stage.
· Represented the County of Los Angeles in a class action lawsuit brought by a group of approximately 200 female attorneys asserting Equal Pay Act and FEHA claims based on the allegation that their lower pay was the result of gender discrimination. Among other things: (i) secured disqualification of class counsel through an appellate decision; (ii) secured issue and evidentiary sanctions against the plaintiffs; (iii) then obtained summary judgment; and (iv) defended that judgment on appeal, securing another published decision. In a related class action, obtained defense judgment through trial court rulings on "threshold issues" establishing that: (i) the claims of most of the plaintiffs were time-barred; (ii) with the exception of one claimed benefit (reserved for briefing as a separate issue), all monetary claims of the plaintiffs failed on the merits; and (iii) the last claimed benefit (the asserted right to a county pension) failed on the merits as well.
· In two separate lawsuits in Los Angeles and Ventura Counties over the interpretation of state statutes allocating property tax revenues, obtained judgments directing the Controller of the State of California to revise her audits of the counties' implementation of the legislation, which, unless altered, would have deprived Fire Districts of revenues needed to sustain operations. The judgments obtained gave the Consolidated Fire Protection District of Los Angeles County entitlements to a refund of more than $135 million and $18-20 million in annual funding on a go forward basis, and assured $30 million in refunds and funding for Ventura County.
· Represented the County of Los Angeles in two related lawsuits brought by members of the County's Safety Police to obtain the pay and benefits associated with the separate position of Deputy Sheriff. In one lawsuit, obtained defense judgment establishing that the plaintiffs were not entitled to a safety pension under the County Employees Retirement Law. In the other, a discrimination lawsuit, retained as appellate counsel and secured published appellate decision reversing approximate $40 million judgment and directing entry of complete defense judgment.
In addition to the appellate proceedings already described above, the following matters are representative of Mr. Bertzyk's appellate experience:
· In a lawsuit arising out of a Stock Purchase Agreement, the plaintiffs obtained a $50.4 million judgment against Goodrich Corporation and a subsidiary. Retained to handle the appeal, and secured a decision reversing the judgment and directing entry of a defense judgment on all claims. Thereafter, represented Goodrich and its subsidiary in a separate lawsuit brought by the same plaintiffs (both at the trial court level and on an interlocutory appeal), posturing the case for a walk-away settlement.
· After an arbitration panel had ordered the State of California to pay a consortium of plaintiffs' firms $88.5 million in fees for having a smog impact fee declared unconstitutional, retained to handle defense of the efforts to enforce the arbitration award. After securing a judgment vacating the award, obtained a unanimous published decision affirming the judgment and reducing the potential fee award upon re-arbitration by approximately 75%.
· Represented fifty percent income beneficiary of nine-figure family trust with a "no contest" clause, who sought leave to challenge trust amendments that disadvantaged her. Retained after trial court ruled that proposed challenge would be a "contest" that would result in her disinheritance if she tried her claims and lost. Convinced Court of Appeal to consider arguments not raised below and secured unpublished decision reversing trial court and establishing that proposed challenges were not a "contest." Thereafter, handled resulting bench trial, which resulted in judgment invalidating all amendments.
· Defended a Pitney Bowes subsidiary from appeal of the appellant's motion to vacate a seven-figure judgment entered against the appellant in an action originally brought against a LLC of which the appellant was a member. The Court of Appeal affirmed in full, and the California Supreme Court denied review.
· Appeared as amicus counsel on behalf of various clients advocating outcomes in a variety of contexts and/or prevailing upon Courts of Appeal to publish otherwise unpublished decisions in cases of importance.
Publications & Presentations
Articles, Lectures & Publications
Scott has lectured on developments in public pension litigation and is the Co-Author of "FDA Versus The First Amendment - Round Two," Pharmaceutical Executive, April 2000.