Thomas C. Sand

Representative Experience

• Securities Litigation Plus

  • Wurster, et al. v. Deloitte & Touche LLP, et al. Represented 70 investors who collectively lost nearly $100 million in the Aequitas Ponzi scheme. Obtained favorable settlements with third-party professionals in state court litigation and private arbitration, resulting in a gross recovery exceeding our clients’ investment losses.

  • In Re Barrett Business Services Securities Litigation. Tom represented a publicly traded company in defending a federal court class action securities fraud case, a state court shareholder derivative suit, and government investigations by the Department of Justice and SEC Enforcement Division. The claims arose from various allegations of accounting impropriety and insider trading that were successfully resolved.

  • Umpqua Bank Shareholder Derivative Suit. We achieved trial court dismissal of shareholder derivative claims that executive compensation was excessive and approved in violation of the “say-on-pay” provisions of Dodd-Frank legislation. We represented the directors and officers of a publicly traded bank holding company, together with national counsel.

  • Schilling Livestock v. Sterling Bank. Our client won a unanimous defense award from a panel of three arbitrators after two weeks of hearings on investor claims for securities violations arising from tenant-in-common investments.

  • Boyer v. Salomon Smith Barney. Our client, a broker-dealer of investment securities and commodities, won a jury verdict after a six-day trial. The case was brought by a commodities trader alleging claims for breach of contract, breach of fiduciary duty, statutory violations, and negligence seeking compensatory and punitive damages for losses incurred in connection with trading contracts for future delivery of crude oil and natural gas. The plaintiff appealed, and the Oregon Court of Appeals split five votes to five. The Oregon Supreme Court unanimously affirmed in favor of our clients, the broker-dealer and its agents.

  • Barinaga, et al. v. Paulson Investment Company, Inc. and UBS PaineWebber, Inc., et al. This case was brought by an investor who engaged in “short-selling” stock. After a substantial share value drop, claimant alleged numerous claims, including that his loans of stock were investment contracts and thus constituted sales of securities in violation of state and federal securities laws. Claimant sought $52 million in damages, plus attorney fees. Four experts testified in support of claimant’s theory, but the three-member arbitration panel dismissed claimant’s claims in their entirety. The arbitrators also awarded our client UBS all its attorney fees incurred in defending the case.

  • Wallace v. Hinkle Northwest Inc. Plaintiff alleged several claims arising from losses she incurred on investments, and after a week-long trial, the jury returned its verdict in favor of our clients, the brokerage firm and the stockbroker, on all claims. The court of appeals affirmed the jury verdict in part but remanded the case on one legal ruling by the trial court. On remand, the case was settled for a nominal amount.

  • In re Badger Mountain Irrigation District Bondholder Litigation. This case began when a bankrupt irrigation district brought a claim against the underwriting firm that handled its municipal bond offering. We succeeded in dismissing all claims brought by the district against the underwriter in state court, and then we defended against the bondholders’ claims in a federal court class action, which was resolved in a settlement.

  • The Estate of Glancy v. Merrill Lynch, Pierce, Fenner & Smith, Inc. The family members and heirs of a deceased executive alleged mishandling of stock option transactions and sued our client to recover nearly $900,000. The three-member arbitration panel unanimously ruled in favor of Merrill Lynch and dismissed all the claims.

  • Fulkerson, et al. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., et al. Claimants sought damages for allegedly unsuitable investment recommendations, violations of the securities laws, fraud, and negligence, including claims for punitive damages. All claims were unanimously rejected by the arbitration panel. A small award was entered in claimants’ favor for a clerical error that we conceded.

  • In re Louisiana Pacific Corporation Securities Litigation. Shareholders brought a nationwide class-action securities fraud case because of a decline in the company’s stock price after significant losses in product liability litigation. The case was settled before trial, but only after extensive and complex litigation.

  • Brown and Boston PCS 2000, et al. v. Gary H. Arizala, et al. These consolidated actions involving multiple parties alleged securities fraud in connection with creation of a cellular telephone network in Puerto Rico. After several years of litigation, we obtained dismissal of our client, the law firm that created the entity and prepared the securities offering that was alleged to be unlawful.

  • In re Capital Consultants Litigation. We represented several trust funds in claims against an investment adviser and numerous others arising out of mismanaged investments causing losses of hundreds of millions of dollars. After prevailing in significant motions and more than a year of mediation, all claimants recovered approximately $200 million.

  • In re Southern Pacific Funding Corporation. On the first day of trial, we settled an action involving a lender whose stock had been traded on a national exchange and that was forced to seek bankruptcy reorganization following a dramatic decline in its stock price. It was, at the time, the largest bankruptcy in state history.

  • Newman v. Comprehensive Care Corp. In this case, investors sued multiple defendants after failure of a proposed merger transaction that arose from a proxy solicitation. The complaint alleged violation of federal securities laws, RICO, and state law claims. In representing the investment banker, we obtained summary judgment before trial.

• Employment Litigation Plus

  • Davidson v. UBS/Paine Webber, et al. The arbitration panel denied claimant’s claims and awarded our client damages on its counterclaim. The claimant, a former employee, asserted numerous claims, including employer retaliation for “whistleblowing” related to alleged violations of SEC regulations. Our client asserted a counterclaim for breach of contract.

  • Sibley v. Portland Public School District. Our client, Portland Public School District, won a jury verdict after a four-week trial, defeating claims by a former administrator who alleged “whistleblower” retaliation, defamation, “false light,” battery, and intentional infliction of emotional distress when her position was eliminated after she raised concerns about safety in special education programs.

  • Spicer v. Cascade Health Services, Inc. We won a unanimous jury verdict in favor of our hospital client, the employer, after nearly three weeks of trial in federal court. Plaintiff, a nurse manager, brought claims against the hospital for discrimination, retaliation, and breach of confidentiality, based on her post-traumatic stress disorder. The Ninth Circuit Court of Appeals affirmed.

  • Snider v. Barrett Business Services, Inc. Our client (the employer) won a unanimous jury verdict in a case brought by plaintiff, a disabled worker, for discrimination and retaliation in her employment. The judgment was affirmed by the Oregon Court of Appeals.

  • DeJong v. WinCo Foods, LLC. Won a jury verdict after a four-day trial defeating all claims arising from plaintiff’s termination of employment. Plaintiff alleged that he had been discriminated and retaliated against for utilizing the workers’ compensation system after an injury on the job.

  • Norman G. Lewis v. Washington State University, et al. Our client, a state university, won a decision from the United States Court of Appeals for the Ninth Circuit which held that a tenured professor failed to establish a constitutionally protected property right to continue as project director of a federal grant. The decision was upheld on appeal to the United States Supreme Court.

  • Howard v. Waremart, Inc. After a five-day trial, the jury returned a verdict “in favor” of the plaintiff for only $2. This case involved a wrongful-discharge allegation and “whistleblower” claim brought by a former employee against our client. The court of appeals remanded the case for further proceedings because it disagreed with the trial court’s decision to grant a motion for directed verdict on the issue of punitive damages. The case then settled.

  • Drew Ray v. Frito Lay. In a federal court jury trial, we achieved a defense verdict on behalf of the employer who was accused of race discrimination.

  • Downs v. Waremart, Inc. The Oregon Supreme Court affirmed summary judgment on behalf of our client, the employer, on all claims except for defamation (an issue of first impression), which was resolved by settlement on remand. The case was brought by a discharged employee who sought damages for a variety of claims arising from her discharge, including defamation.
    

  • Byun, et al. v. Winco Foods, Inc. The trial judge dismissed all claims on our motion for directed verdict at the conclusion of plaintiffs’ case. The action was brought by five Korean grocers alleging violation of public accommodation statutes based on ethnic origin.

  • Wage and Hour Class Actions. In several wage and hour class action cases, Tom has negotiated favorable settlements early in the litigation, often before class certification, most recently in an action challenging a company-wide overtime payment program.

• Business Litigation Plus

  • Major builder’s risk insurance recovery for new Oregon data center. Successful litigation and mediated resolution of a project owner’s $8 million claim against its builder’s risk insurance carriers following two explosions and fires during the construction of a 250,000 sq. ft. data center in Washington County, Oregon. The builder’s risk insurers’ untimely and unreasonable claims adjustment resulted in zero payment to the project owner prior to Miller Nash’s involvement. Litigation involved extensive discovery of electronically stored information and depositions, in addition to summary judgment briefing and other motions. With the assistance of a mediator, the vast majority of the owner’s losses were recovered.

  • Gary M. Klein, et al. v. West Coast Bancorp, et al. Tom represented an acquired bank in a shareholder class action alleging breach of fiduciary duty in approving a merger. The case settled while our motion to dismiss was pending.

  • IBEW Local 98 Pension Fund, et al. v. Cascade Corporation. Tom represented a manufacturing company in a shareholder action alleging breach of fiduciary duties by company directors in connection with a merger. The case was settled while our motion to dismiss was pending.

  • Hemstreet, et al. v. Merrill Lynch Mortgage Capital Inc. The district court issued an opinion and order granting our motion for summary judgment on plaintiff’s claims for fraud, breach of contract, negligence, and intentional interference with contract.

  • Sulzer Pumps v. Pacific Indemnity, et al. We successfully resolved long-tail insurance coverage for superfund environmental claims after 18 months of litigation in two states that included winning Oregon’s first recorded antisuit injunction prohibiting insurers from continuing with a duplicative action brought by them in another state seeking a declaratory judgment of no coverage.

  • $75 Million Recovery―Bodily Injury/Religious Institutions. Acting as lead counsel for the Archdiocese of Portland in Oregon’s insurance coverage team, we recovered more than $75 million from their insurers after years of litigation and mediation.

  • Van De Hey v. U.S. National Bank of Oregon. We prevailed in each of two separate state court proceedings, including two rounds in the Oregon Court of Appeals and in the Oregon Supreme Court, as well as in a separate action filed by plaintiffs in federal court. This series of cases was brought by trustees of various employee benefit trusts and alleged violations of the Employee Retirement Income Security Act of 1974.

  • ITEX Corporation and SLI, Inc. v. Saul Yarmark; Stephen Friedland; Business Exchange International Corp., and BX International. We represented plaintiff, a public company, in litigation arising from the disputed acquisition of a 50 percent stake in a privately held competitor. We recovered judgment along with an award of damages to compensate our client for attorney fees and court costs. The case was then settled on appeal.

  • Clopper v. Merrill Lynch Relocation Management, Inc. We prevailed on behalf of defendant in a jury trial, on appeal to the Ninth Circuit Court of Appeals in the primary action, as well as in ancillary proceedings against opposing counsel, also appealed to the Ninth Circuit. This case began as a real estate dispute over competing property appraisals.

  • Epiq Systems v. Prutsman. This case involved competing litigation in two different state courts and a federal court. After a two-day trial, we obtained a preliminary injunction enforcing a covenant not to compete and protecting trade secrets.

  • All Phase Utility Corp. v. Williams Communications, Inc. We represented defendant and prevailed on a motion for summary judgment after plaintiffs sought to recover nearly $500 million, alleging that defendant had absconded with route and stationing information and then built a fiber-optic route in violation of the Oregon Trade Secrets Act and a nondisclosure agreement.

  • Grifphon Asset Management Litigation. Tom represented a group of investors in recovering funds lost due to a Ponzi scheme.

• Civil Rights Plus

  • Wasco County Voter Registration Hearings. When Bhagwan Shree Rajneesh and his followers threatened to take over the government of Wasco County, Tom joined other Miller Nash lawyers in donating their time to take buses to The Dalles, Oregon, to hold voter qualification hearings for registered voters. Our efforts to protect the sanctity of the ballot box received national and international attention.

  • Citizens’ Rights and Obligations Under Public Accommodation Laws. When citizens of Grant County, Oregon, were concerned that a neo-Nazi group would locate its headquarters in the county, Oregon’s Attorney General asked Tom to lead a Miller Nash team to advise the citizens on their rights and obligations under public accommodation laws.

• Pro Bono Plus

  • State v. Lawrence. For more than six years, Tom worked on appeals raising constitutional challenges to the conviction of a young mentally ill Native American suffering from the effects of fetal alcohol spectrum disorder. The Washington Supreme Court referred the case back to the trial court for a hearing on the defendant’s competence to waive his right to counsel. After a two-day hearing involving lay and expert witness testimony, the court found in favor of the defendant. That led to an appellate court decision to vacate the conviction and remand the case for a new trial on the original charges, which, in turn, resulted in a new sentence reduced by more than 50 years.

• Client Comments Plus

  • Results achieved on behalf of one client in one matter does not necessarily indicate that similar results may be obtained for other clients.

  • “Thanks again for the excellent job you did as our mediator. We all appreciate how much effort you put into the case and I am convinced that most mediators would not have gotten the claims settled. You have a very effective style!” (Plaintiff’s Counsel)

  • “Mr. Sand’s performance as a mediator . . . was exemplary. He was thoroughly prepared and knowledgeable. It was clear to both sets of defense counsel that we did not need to spend any time educating him on the . . . unique complexities of alternative products. Mr. Sand is clearly an experienced litigator in securities matters, and that experience was an important benefit in our mediation. He demonstrated great patience as well, diligently working for nearly 11 hours in resolving our case.” (Defense Counsel)