Several small law practices made big waves in Oregon law this year, taking on major corporations and winning favorable jury verdicts and appeals.
The Business Journal asked six attorneys from a variety of specialties to describe a case, trial, decision, verdict, pro bono client or other legal work that stood out to them and why.
Here are their stories.
Brien Flanagan, Schwabe, Williamson & Wyatt
Brien Flanagan, an attorney at Schwabe Williamson & Wyatt, represented Next Renewable Fuels in acquiring a defunct southern Oregon biofuels facility.
Specialty: natural resources and environmental regulations, ports and maritime, Indian Country
J.D.: Georgetown University
Brien Flanagan represented a Texas company in its April purchase of a defunct biofuels refinery in Lakeview.
“The energy sector has become a massive portion of my portfolio in the last several years,” driven in large part by capital from the federal Inflation Reduction Act, he said.
Flanagan is now helping Next Renewable Fuels revive the Red Rock Biofuels facility, which was originally envisioned as a plant to transform woody waste into a feedstock for sustainable aviation fuel. But delays in permitting doomed the project and the bondholders took it back. Next “looked at it and said, ‘We can buy this distressed asset, have the equipment there to go to market quickly with a different product,” Flanagan said.
The company is looking to produce renewable diesel fuel at the site from vegetable oils and beef tallow.
“That’s a great starter for this facility and gives us time look to phase 2, those other potential products, like renewable natural gas and sustainable aviation fuel,” Flanagan said.
The project will bring family wage, green jobs to a depressed area near the California border.
“The renewable economy is not just talked about but actually happening in Oregon,” he said. “You’re reducing the carbon output based on proven models. You could feel really good both about what you’re doing for the environment and for the people in that community.”
Kristen McCall, Johnson McCall
Specialty: nursing home and elder abuse and negligence
J.D.: Lewis & Clark Law School
In 2021, Kristen McCall went up against one of Oregon’s largest, most prominent and deep-pocketed corporations: Nike Inc.
McCall and her partner Megan Johnson, Portland attorneys who were both with Pickett Dummigan McCall at the time, filed a $20 million lawsuit in Multnomah County Circuit Court on behalf of distance runner Mary Cain. She alleged infliction of emotional and physical abuse by then-coach Alberto Salazar and lack of supervision by Nike.
“It was a mutually agreeable resolution and an honor to work for Mary Cain for three and a half years,” McCall said. “Mary found her peace. That’s what she wanted. It’s about accountability, reckoning, a chance to be heard.”
Backing up, Cain had signed an endorsement deal with Nike to become a professional runner when she was 17 years old. Salazar, the head coach of the Nike Oregon Project, constantly pressured Cain to lose weight and pushed her to train when she was injured and ill, according to the suit McCall and Johnson filed on her behalf.
Nike compensated Cain, known as “the fastest girl in America,” based on her race performance. She developed an eating disorder, attempted self-harm, suffered panic attacks and endured a host of emotional and physical injuries, including difficulty walking and osteoporosis, according to the suit.
Cain alleged Salazar breached a duty of care owed to her based on the special relationship with her, whereby he invited her to travel with him and live at his home, and she relied on him more than her parents. (She also alleges she and her parents were unaware of a doping scandal also involving Salazar and alleged sexual misconduct with another athlete).
Attorneys for Nike and Salazar responded in a 48-page motion for summary judgment in September, arguing Cain’s “allegations are demonstrably false” and contradicted by her own statements and are barred by Oregon’s two-year statute of limitations.
Cain’s case was “incredibly novel,” McCall said.
“I’ll never have an opportunity to work on another case like this in my career — there were so many implications that were new to Oregon law that make this case unique,” she said.
The lawsuit was also something of a departure for McCall, a trial attorney specializing in wrongful death and personal injury claims, especially for victims of elder abuse and neglect. Johnson is a former prosecutor who focused on abuse in vulnerable populations, including children, the elderly and the disabled.
Mary Cain’s case came to them via a New York attorney who didn’t think the athlete’s claim was viable, due to the statute of limitations. But Cain, who is now 27, had always blamed her “own internal failings,” rather than Salazar’s and Nike’s conduct, for her condition, according to the case McCall and Johnson laid out.
“By the time she was 18, she was already in the talons and reach of Alberto’s inappropriate behavior as a coach,” McCall said. “In this case, it was many years after the action had occurred, but she hadn’t come to an understanding of the nature of her abuse until September 2019.”
Another risk with the case concerned whether Cain would legally be considered an employee of Nike or a contractor. Case law on that point is thin, McCall said.
“How Oregon law applies to protect her and her position is still unclear,” she said.
Adding even more to the two attorneys’ full plate, they left Pickett Dummigan and founded their own, all-women law firm in January, as briefing continued in what McCall describes as a “behemoth” lawsuit.
“I will never meet a more well-resourced defendant in my career,” McCall said of Nike. “They leave no stone unturned and no technicality unaddressed or unexploited. The legal team I assembled to fight this was so engaged and responsive, and we being the underfunded little guys, we brought it for Mary. We were so blessed with a lot of fight, a lot of passion.”
Any trial lawyer relishes the opportunity to take a case to a jury. That won’t happen here.
“For Oregonians, a jury of our peers is the only true justice,” McCall said. “Yes, yes, yes, you want an opportunity for the public to hear what private companies do to people. That’s what my whole legal career has led me to do, and to the extent we preserved Mary’s story, that is valuable. And she made headway in getting her voice out there in an unprecedented way and she did that without us. What an honor for me to stand in her court and hold her up.”
McCall did copious legal research into the far-reaching legal questions raised in the case — covering sex abuse allegations, employer-employee relations and vicarious liability on behalf of companies — that she plans to share with other attorneys.
“To the extent that our firm got to do this research in this case, it is applicable to big companies trying to prevent individuals from getting to court,” she said.
Michelle Burrows, Michelle R. Burrows P.C.
Specialty: representing individuals who were harmed by unlawful government actions, especially police agencies and prisons
J.D.: Lewis & Clark
Michelle Burrows was hoping to retire in 2023, after 37 years in practice.
Instead, the Portland civil rights attorney plunged headfirst into the wildest courtroom battle of her career.
“I have never experienced a trial like that before,” she said.
In August, Burrows won a major victory for her client, John Hacker, who was sued by Andy Ngo, a right-wing writer and provocateur. Ngo had sought monetary damages from Hacker and other liberal activists for their alleged roles in two assaults, including one that took place on the one-year anniversary of George Floyd’s murder.
Burrows first met Hacker when she helped represent him in an earlier lawsuit against the federal government. Hacker had been covering the protests in downtown Portland as a citizen-journalist in 2020, when federal agents “scooped” him up and took him in an unmarked van to an unknown location, according to that complaint.
Meanwhile, Hacker got himself “sideways with Andy Ngo,” who “dedicated his co-called career to eradicating Antifa,” the left-wing anti-fascist movement, Burrows said. “And anyone who is liberal leaning is Antifa, in Andy’s mind.”
She described Ngo as a “darling of the right-wing propaganda machine,” someone who would post online the names and mugshots of left-wing protesters, including Hacker, for potential doxing by his millions of followers.
The trial was unusual for Burrows, who is not a defense attorney and represented Hacker on a pro bono basis. Normally, she represents plaintiffs alleging violation of prisoner rights and unlawful police use of force.
The proceedings took an especially dark turn after a conservative Canadian outlet published stories about the trial that were “not true,” Burrows said. That’s when the death threats started rolling in.
“Security at the courthouse was reporting an escalating series of credible threats,” Burrows said. “Some of these people were saying they were going to set up sniper positions across the street in a garage and shoot us as we came out. We were supposed to go out different doorways. The judge said, ‘I don’t want you using public bathrooms.’ Our witnesses were being verbally assaulted and physically threatened.”
Burrows said by the time closing arguments began, she was “pissed off by all the threats and attempts to damage the process of the courts.”
“We have a remarkable system that is supposed to give everyone access to the courts and a fair playing field, and Andy and his hordes of Twitter followers were damaging that,” she said. “We came close to a mistrial half a dozen times because of the things Andy and his lawyers were doing.”
When the jury returned its verdict, Burrows said she felt “gleeful.”
“The jury were commonsense, right-minded people who were tired of the bullshit,” she said. “It’s gratifying. I’m glad I beat Andy. He’s a dangerous person.”
Zachary Stern, Stern Law
Specialty: Cases involving Measure 11, a voter-passed measure that prohibits receiving time off a prison sentence for good behavior
J.D.: Willamette University College of Law
Zachary Stern, a criminal defense lawyer in Salem, scored a huge win in March, when the Oregon Court of Appeals issued a decision two years after he delivered oral arguments in his client’s case.
The court ruled that Oregon voters rendered the state’s civil forfeiture law unconstitutional.
“Historically — in Oregon and elsewhere — the law has provided for the forfeiture of property involved in criminal activity, regardless of the owner’s involvement in any crime,” the justices wrote. “The law has done so through a legal fiction: that property itself can be a guilty actor, entitling the government to take it.”
Some context: Oregonians approved a ballot measure in 2000 to create new limitations on forfeiture, requiring a criminal conviction first and that the value of any property forfeited be “substantially proportional” to the crime.
Stern started representing Sheryl Sublet in 2018, when she pleaded guilty to selling methamphetamine. She agreed to forfeit $50,000 in cashier’s checks police found at her Yamhill County home. Then the county tried to seize her house through civil forfeiture.
Stern argued both at trial and on appeal that Oregon’s civil forfeiture scheme is so punitive that it constitutes a criminal punishment, in violation of the Fifth Amendment’s prohibition on double jeopardy. The appellate justices, in a landmark opinion, agreed.
“It took the Court of Appeals a lot of guts to write on that issue,” Stern said. “There were a lot of easier doors out, but this is a central issue that affects all Oregonians, whether people know about it or not.”
At the time of his interview with the Business Journal, Stern was gearing up for oral arguments on Dec. 14 in the Sublet case before the Oregon Supreme Court.
“Any time you go before the Oregon Supreme Court, it’s an honor,” Stern said. “Frankly, I’m interested to see what judges are curious about, which is a more diplomatic way of saying I hope I win.”
Jeff Pitzer, Pitzer Law
Specialty: Commercial, environmental and construction litigation, intellectual property and antitrust
J.D.: University of Wisconsin
Jeff Pitzer, who owns a two-attorney firm in Portland, won the verdict of his career in August, when a Multnomah County jury awarded his clients $65.5 million.
Not only was the amount notable, but so was the party who was found liable for giving negligent tax advice: The Big-Four accounting firm PricewaterhouseCoopers.
“I felt we were proving our case and things were going well, but you never know until the jury returns its verdict,” Pitzer said. “We were fighting for vindication for our clients, who in essence had been accused of doing something wrong, and we did not think they had.”
The trial was the culmination of events occurring 20 years ago that landed Pitzer’s clients in hot water with the IRS. In a nutshell, two brothers alleged that PwC gave them bad advice during the sale of their Tualatin construction company. Sadly, John and Richard Marshall, didn’t live to see the verdict, but their 80-something-year-old widows Karen and Patsy, did.
Before forming his Portland firm, Pitzer had worked for a 400-lawyer national firm in Chicago, Jenner & Block. A Chicago attorney recruited Pitzer, who specializes in complex business disputes, to handle the Marshalls’ lawsuit. Pitzer’s partner Peter Grabiel tried the case with him.
“It’s a small operation, even though we oftentimes go up against much bigger adversaries than we are,” Pitzer said. “Obviously, the law firms we were contending with were some of the best in the country, so it was somewhat daunting, I will concede, but we do that on a fairly regular basis.”
Pitzer said he felt confident in the facts of the case.
“I certainly believed in our clients and that they were honest, hardworking people, not the type of people who would set out to violate any laws, much less tax laws, and I believed very strongly that they deserved justice, and that’s what we were fighting for in this case,” Pitzer said.
Liz Davis, Lane Powell
Specialty: Advising businesses and nonprofits on corporate and transactional matters, including M&A, business formation and succession planning
J.D.: Albany Law School of Union University
The former Quality Inn hotel in Tigard can now house up to 70 families who might otherwise be homeless, thanks in part to the work of Liz Davis, an attorney at Lane Powell.
Davis, along with her Seattle colleague Julia Clark, represented Family Promise of Tualatin Valley in the nonprofit’s purchase of the 120-room hotel to transform into transitional housing. Family Promise provides people experiencing homelessness with safe spaces to sleep, eat meals and gain access to resources and community supports.
Family Promise was able to buy the hotel for $12.3 million entirely with grant funding, $10 million of which came from the state’s Project Turnkey program. The transaction took a bit longer than contemplated, however.
“Unfortunately, as the deal progressed, we learned that this particular property was not a turnkey situation,” Davis said. “Our representation expanded beyond its original scope.”
The parties worked through a variety of issues, mainly related to deferred maintenance and roof work. But the deal did go through in late June, and families are now living at the property.
“This felt really great, because it’s such a wonderful mission we believe in, and we’re getting supportive transitional housing for people in our community, which is unique to our practice,” Davis said. “Typically, I’m working with national corporations and entities that are buying and selling throughout the country.”
Read the full article in the Portland Business Journal
This article was republished with permission from the Portland Business Journal.
This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.