Millstein & Associates News & Publications

January 30, 2013 – Millstein & Associates Obtains preliminary Injunction from Federal District Court on Behalf of Policy Owners 

Judge Susan Illston Granted an Preliminary injunction in favor of David Millstein’s client in Brady vs. Conseco, a case pending in the Northern District of California.  Mr. Millstein is co-lead counsel for this national class.
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October 31, 2012 – David Millstein quoted in San Francisco Daily Journal:

The San Francisco Daily Journal quoted David Millstein actively in a profile of a Family Law Judge in San Francisco.

August 30, 2011 – Millstein & Associates Settles False Advertising Matter.

Millstein & Associates resolved a complex Lanham Act false advertising case between two plastic pipe manufacturers/distributors just weeks before the month long trial was set to begin. The case was venued in San Mateo Superior Court, Complex Litigation Department, and involved claims of trade libel against Millstein's clients, P&F Distributors, and counterclaims of false advertising, false trademark and unfair business practices against Underground Solutions.  P&F's claims arose out of statements and advertising by UGSI concerning the qualities of its Fusible PVC water pipe systems. Mr. Millstein negotiated a resolution of the matter after four years of intense litigation, including over 70 depositions.

April 28, 2011 – CEQUA Ruling Against City and County of San Francisco:

Millstein & Associates prevailed in April 2011 on a petition to force the City and County of San Francisco to reverse its approval of the Masonic Auditorium renovation on grounds the owner, Live Nation, failed to obtain an environmental impact report.


City Finds Millions but Reaps Little in Case – The Bay Citizen article, as published in the New York Times on December 11, 2010, focused on San Francisco's prosecution of a former engineer, Jimmy Jen, at the San Francisco Department of Building Inspections. According to the article, Jen is accused of a long list of building related crimes and was also crafty at hiding assets.  Attorney David Millstein, who had briefly represented Jen's wife, Nancy Jen, in the couple's bankruptcy, commented that, "If you look at what the city spent on this guy, what they got is nothing. They obviously didn't do it for financial reasons." According to the article, the city recovered $6 million but more than $2 million was spent on administrative costs and $3 million went to creditors, netting $476,000 for the city.
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National Class Action Status Granted in Conseco Life Insurance Case   David Millstein is quoted as part of the attorney team that crafted a winning strategy distinguishing this case from other financial fraud cases. "We are proceeding on breach of contract claims which are common to all policyholders, uniform and fit the class action mold very well," Millstein said. The Recorder newspaper's October 26, 2010 article pointed out the difficulty of getting national class action status for cases involving financial products.  Yet, that is just what happened in this case in which an insurance company is accused of breaching nearly 10,000 insurance policies with contractual violations such as improper premium charges and improper deductions from policyholders' accounts. 


Panel Finds Former McCaw Attorney Violated Ethics Rule   A feature article in the Santa Barbara News-Press reported the victory of its co-publisher Wendy McCaw, who won a unanimous decision from an arbitration panel in her $9.7 million dispute with her former attorney, Gregory Parker. Millstein represented Mrs. McCaw in the arbitration.  Parker had filed a multimillion-dollar claim against McCaw for a percentage interest in the appreciation of certain stock holdings under the terms of an incentive compensation agreement drafted at his direction. The arbitration panel ultimately found that Parker had failed to comply with Rule 3-300 of the California Rules of Professional Conduct, which establishes the requirements for an attorney who enters into a business relationship with a client. Attorney David Millstein, who represented McCaw in her successful defense that rendered the agreement void, said that the 28-page decision reflected a "careful weighing and reviewing of the evidence and was based upon well-accepted legal precedent." 


A Newsroom Fight Spills Into the Streets of a Once-Peaceful Town  On January 15, 2007, the New York Times published the details of a fight between the owner of the Santa Barbara News-Press, Wendy McCaw, and the news staff over protests that McCaw was meddling in news decisions. In the article, the paper's general counsel, David Millstein, acknowledged that the owner felt victimized by the negative things being written and said about her. Millstein also observed that journalists writing about other journalists meant that a bias against his client was built into much of the coverage. He was quoted saying, "Why do we feel ganged up on? A newspaper's credibility is its stock in trade. To have people we've knocked in editorials, former employees and the Teamsters knocking us – all of whom have an ax to grind – is difficult for any business to tolerate." Millstein also commented that a flurry of legal actions that McCaw had begun against various parties were merely a way for her to demonstrate a belief that she had the right to express her views through the newspaper and to defend herself from critics. 


The Battle for Santa Barbara  In its feature article, Vanity Fair magazine reported that nine top staffers of the Santa Barbara News Press had quit in protest against its owner, Wendy McCaw, who allegedly took too personal an interest in certain stories, who left the editorial page editor in charge of the news while she was away on vacation, and who fired an editor, Michael Todd, for allegedly making death threats to another employee.  Commenting on the editor's firing, McCaw's attorney David Millstein is quoted saying, "Regardless of what Mr. Todd states his intention was, there's no question that his statements, along with the request for help, were of a nature that most employers would have felt obligated to take action about. Workplace violence is a serious issue." Millstein also observed that certain employees were violating confidentiality agreements by publicly disparaging the News-Press. Millstein added that internal newsroom workings and policies are part of the paper's business operations.  


Newsletter and Forum for the Emergency Physicians in California  In October 2001, Lifeline newsletter published an article written by David Millstein entitled, "Corporate Practice." In this article, Millstein focuses on the rules, found primarily in Business and Professions Code Section 2400 and 2052 that prevent doctors from partnering with other professional entities that might exert or seem to exert control over their medical practices.  From MSO agreements to net profit agreements to capitated rate structures, Millstein dissects why a wide range of partnerships and offers to refer patients can be deemed illegal. In stressing the importance of consulting with an attorney, he writes that "the Corporate Practice and anti-referral statutes are complex.  Recent changes in medicine over the last decade have raised issues for which the answers are not always clear, well established or easily articulated."
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Newsletter and Forum for the Emergency Physicians in California   In September 2001, Lifeline newsletter published an article written by David Millstein entitled "Coercive Contracting." This article explores the legality of arrangements between physicians and hospitals in the context of laws preventing referral fees.   In naming some actions that may constitute violations of these laws, Millstein writes, "Forcing emergency physicians to accept low payor rates, discounts or treatment of certain patients (such as all workers' compensation claims) are examples which may constitute types of referral fees or kickbacks, if improper motives can be shown. Likewise, any financial transaction between a hospital and a hospital-based group are subject to scrutiny where they may include a hidden kickback." He concluded, "The key is establishing a relationship between the consideration offered (or demanded) and the act of granting the contract."  

December 10, 1999 – PUBLISHED IN THE RECORDER 

Surgical Strike on Health Care Group   The Recorder newspaper's December 10, 1999 article features the case Affiliated Catholic Healthcare Physicians v. Emergency Physicians Medical Group as being possibly the first California case that could decide whether a management services agreement between a physicians group and a lay entity violates the state's prohibition on the corporate practice of medicine. The controversy stems on whether the management fees are, de facto, referral fees that act as incentives for making health care decisions based on financial rather than health reasons.  Lead plaintiffs' attorney David Millstein wrote in pleading papers that, "One of the primary purposes of fee-sharing prohibitions. . . is to discourage those who have the ability to control patient flow from being influenced to refer patients to doctors or facilities out of financial incentive." Millstein added, "When CHW hospitals contract with physician groups to staff their emergency rooms, CHW is essentially referring ER patients to those physicians on an ongoing basis. CHW has a dramatic incentive to choose EPMG over another physician group. . . CHW [officials] will gain (according to their own admission) 6 percent of the doctors' revenue for 30 years." Millstein commented, "Once you let CHW control the practice of emergency room doctors, it's just a matter of time before other entities that own hospitals decide that it's within their interests to control physicians. It's the dark side of managed care." 
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February 2, 1996 – PUBLISHED IN THE RECORDER   

Civil Litigator Gets Powerful DA Position   In its February 2, 1996 article, the Recorder newspaper announced that District Attorney Terrence Hallinan had picked David Millstein to a six-month post as his chief of special operations. In this highly sensitive position, Millstein assumed supervision of units devoted to consumer fraud and environmental protection; insurance fraud; and special prosecutions of major fraud cases, including political corruption and election-law violations.  
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Right-Hand Man in Special Detail   This feature article published in the Daily Journal in 1996 focused on David Millstein's role as District Attorney Terence Hallinan's head of the special operations unit. In the article, Millstein comments of his new role, "If we prove our ability to generate revenue, then funding us becomes not only providing a public service but also a revenue source. It then becomes easier for the Board of Supervisors to give us a bigger budget."   In comparing his unit's 1995 take of $977,000 in civil penalties and restitution to Marin County's consumer protection arena, Millstein said, "I've been impressed with their office. They have received millions of dollars in software cases. What they've done shows a lot of commitment of resources and foresight."