Cases
Experience: Trial
appellate experience includes: jury trials
court trials in Federal
State Courts
complex arbitrations
appellate experience in the California State Court of Appeal, the California Supreme Court, the Ninth Circuit Court of Appeals, the Court of Appeals for the Federal Circuit
the United States Supreme Court.
Represented various industries in litigation: financial institutions, real estate, aerospace, computer design
manufacture, computer hardware
software sales, retail, healthcare, medical devices
instruments, cosmetics, automotive products
services, construction, motion pictures, music, airlines, plastics, soft drinks.
Representative Litigation
Trial Experience: Pomona Corporate Real Estate Drive, Inc. v. Mack-University Parking LLC, et al., Los Angeles County Superior Court Case No. BC599778 (2019)
Mr. Malingagio, as lead counsel supervising a team of five lawyers
two paralegals, represented the Plaintiff in this 30-day bench trial that involved more than a 1,000 trial exhibits
45 witnesses, including 10 retained expert witnesses. The subject of the litigation was a commercial real estate development in Los Angeles County, involving issues related to the scope
interpretation of recorded easements, the interpretation
enforcement of Covenants, Conditions
Restrictions on real property, breaches of fiduciary duty by the Declarant charged with administering
enforcing the Covenants, Conditions
Restrictions,
alleged environmental contamination. After three
a half weeks of trial, the parties agreed to settle on terms extremely favorable to Mr. Malingagio's client.
JAMS Arbitration No. 12200 ____, Los Angeles, California (2018)
Mr. Malingagio was lead counsel in this seven day JAMS arbitration, representing the Respondent who held a contract to operate the Internet connection facility in a data center building in Los Angeles. The Claimant asserted that Mr. Malingagio's client had breached the operating agreement by failing to charge the building tenants market rates for the Internet connection services. The Arbitrator's award determined that Mr. Malingagio's client had not breached the agreement.
United States Fidelity
Guaranty v. Rexford Properties, LLC, et al., Los Angeles County Superior Court Case No. BC499060 (2015)
As lead counsel representing Defendants Rexford Properties LLC
its individual officer, Mr. Malingagio obtained a jury verdict in favor of the Defendants on Plaintiff's claim for fraudulent conveyance,
a court decision finding that the individual officer was not the alter ego of the corporation.
General Motors Corporation
Allison Engine Company, Inc. v. Northrop Corporation, Northrop Aircraft Division, Marion County Superior Court Case No. 49D05-9902-CP-154 (Indiana State Court)
Mr. Malingagio
one of his partners defended Northrop in this $75 million superior knowledge
breach of contract action filed in Indiana State Court. The plaintiffs were subcontractors to Northrop for a key component on Northrop's YF-23 advanced tactical fighter aircraft designed
produced for the United States Air Force. During the eight-week jury trial in Indianapolis, Indiana, Mr. Malingagio was responsible for conducting the direct
cross-examinations of percipient
expert witnesses in the fields of aerodynamics, jet propulsion
acoustic fatigue. The experts included a 20-year NASA propulsion specialist, a Ph.D. employed at the Jet Propulsion Laboratory
a tenured professor at Purdue University, in addition to various engineers employed by the plaintiffs
by Northrop.
Kum Suk Kim, Jonathan Joonyean Kim v. Bank One, Los Angeles County Superior Court Case No. BC336027
Mr. Malingagio was lead counsel
successfully defended J.P. Morgan Chase (formerly Bank One) at the jury trial of claims for wrongful collection on a credit card account which had been issued erroneously to the plaintiff through identity theft. The jury rendered a defense verdict in favor of Bank One on all causes of action.
AOL Time Warner Cases I & II Coordinated Actions : Regents of the University of California et al. v. Parson, et al. (L.A. Superior Court Case No. BC293848)
California Public Employees' Retirement System v. AOL Time Warner Inc., et al. (Sacramento Superior Court Case No. 03AS04015)
California State Teachers' Retirement System v. AOL Time Warner Inc., et al ., (S.F. Superior Court Case No. CGC-03-422609)
Los Angeles County Employees Retirement Association v. Parson, et al. (L.A. Superior Court Case No. BC303050)
Judicial Council Coordination Proceeding Nos. 4332 & 4325
Mr. Malingagio acted as California counsel representing Citigroup Global Markets, Merrill Lynch
Morgan Stanley in defense of federal
state law securities claims arising from the 2001 merger of America Online
Time Warner. Several California-based pension plans opted out ' of the Second Circuit class action
filed four lawsuits in California Superior Court, all of which were coordinated
consolidated in Los Angeles.
Flex-Foot, Inc.
Van L. Phillips v. CRP, Inc., d/b/a Springlite, United States District Court Case No. SACV 97-504 DOC (EEx) (Central District of California)
Mr. Malingagio, as the lead counsel in a four lawyer team, represented Springlite in a series of five patent infringement lawsuits with Flex-Foot, Inc. involving the field of lower leg prosthetics. Multiple claims of infringement of multiple patents were filed by both parties against each other. Pursuant to the parties' agreement, three claims were tried before arbitration panels of three patent lawyers, with two arbitrations concluding in favor of Springlite
one in favor of Flex-Foot. During the course of this representation, Mr. Malingagio briefed
argued an appeal before the Federal Circuit Court of Appeals in Washington, D.C.
Ossur North America, Inc.
Van L. Phillips v. Freedom Innovations, Inc., United States District Court Case No. CV 03-1414 ET (CWx)
Mr. Malingagio, as lead counsel in a team of three lawyers, represented Freedom Innovations in defense of patent infringement claims filed by Ossur North America, one of the world's two largest manufacturers of lower leg prosthetic devices. After Mr. Malingagio filed counterclaims
a summary judgment motion raising issues of inventorship, patentability
inequitable conduct, the matter was settled on favorable terms with a license to Freedom Innovations.
United States of America Ex Rel David Peterson
Jeff Kroll v. Northrop Corporation, United States District Court Case No. CV 87 3698KN (GHKx) (Central District of California)
Mr. Malingagio
two of his partners defended Northrop during the jury trial in this $50 million government contractor procurement fraud case arising out of the Peacekeeper intercontinental ballistic missile program. The United States Attorney's Office prosecuted this case for 10 years, culminating in a two-month jury trial. Mr. Malingagio
his partners obtained a jury verdict in favor of Northrop
an award of attorneys' fees against the United States Government. This result was designated as one of the National Law Journal's Top Ten Defense Trial Verdicts in 1996.
Larry Rasmussen v. Eugene T. Lombardi, et al., Los Angeles County Superior Court Case No. PC038491
Mr. Malingagio was lead counsel representing one of the two co-owners in a real estate partition action regarding a 200 acre parcel in Los Angeles County. After an eight week superior court trial, judgment was issued in favor of Mr. Malingagio's client to divide the property in kind as opposed to a court-ordered sale as requested by plaintiff.
Downey Savings & Loan Association v. Sears, Roebuck
Co .
Case No. VCV 015597 (San Bernardino County Superior Court)
Representing Sears as the defendant
cross-complainant, Mr. Malingagio obtained a defense judgment for Sears in this four month trial of a breach of contract/fraud action. On post-trial motions, the Court awarded Sears over $900,000 in attorneys fees
costs, covering 90% of Sears' total litigation expenses.
In Re The Gator Corporation Software Trademark & Copyright Litigation, MDL No. 1517
Mr. Malingagio
one of his partners represented The Gator Corporation in defense of trademark
copyright claims in a multidistrict litigation (MDL) action set in Atlanta, Georgia, involving pop up Internet advertising delivered by Gator to its subscribers
targeted at subscribers' particular interests as determined through analysis of their web-surging behaviors. The multiple plaintiffs argued that delivery of pop-up ads to consumers' computer monitors infringed the plaintiffs' trademarks
copyrights, even though the consumers were Gator subscribers
agreed to receive the pop-up ads.
Matt Knudstrup, Daniel Cimino, Aaron Tyler, Lisa Tyler, Mark Lytwyn v. 2K Sounds, Inc., Lord John Guidon, Michael Blakey, Bruce Gladstone, et al.
Los Angeles County Superior Court Case No. BC277640
Mr. Malingagio was lead counsel prosecuting this shareholder derivative suit against 2K Sounds
its directors to enforce pre-merger buy back rights
for breaches of fiduciary duty. Mr. Malingagio obtained issuance of a writ of m
ate from the California Court of Appeal directing the trial court to disqualify counsel for 2K Sounds due to a conflict of interest. The case settled shortly thereafter.
DMX Music, Inc. v. CVS Pharmacy, Inc., Muzak LLC, et al., Los Angeles County Superior Court Case No. BC297752
Mr. Malingagio was lead counsel representing Muzak in defense of claims filed by its major competitor for predatory pricing
unfair competition under California state law. After 15 months of intense litigation, the matter was settled on favorable terms.
Constant v.Texas Instruments, United States District Court (Central District of California)
Mr. Malingagio was co-counsel for Texas Instruments, in a case involving patents on computer chip technology which was litigated from 1985 until 1989. Texas Instruments obtained a favorable summary judgment under Section 102 on the grounds that the patent was anticipated by prior art. The trial court's ruling was upheld through appeals to the Federal Circuit
Petitions for Certiorari to the United States Supreme Court.
Homestead Savings & Loan Association v. Security Pacific National Bank
Case No. 325160 (Sacramento County Superior Court)
Mr. Malingagio
one of his partners defended Security Pacific National Bank in this multi-million dollar, twenty-three count lender liability action filed by Homestead Savings & Loan Association. Three weeks into the jury trial in Sacramento County, the case settled on terms favorable to Security Pacific.
Plastic Recycling Corporation of California v. wte Corporation (American Arbitration Association)
On behalf of the Plastic Recycling Corporation of California, Mr. Malingagio instituted this contractual arbitration before the American Arbitration Association seeking damages
termination of a contract with a failed plastic bottle recycling facility in Northern California. The respondent counterclaimed for fraud
breach of contract, claiming over $10 million in damages. The arbitration involved 53 days of live testimony before a retired Superior Court Judge
resulted in a termination of the contract
no damages against Mr. Malingagio's client.
Purosil, Inc. v. Agnes Enterprises, Inc . (American Arbitration Association)
Purosil acquired the business operations of Agnes Enterprises in a leveraged buyout ( LBO ) transaction. On behalf of Purosil, Mr. Malingagio instituted a contractual arbitration proceeding before the American Arbitration Association seeking rescission of the LBO transaction or alternative monetary damages based on fraud
mistake. Mr. Malingagio conducted a complex hearing involving 41 days of testimony before a retired Superior Court Judge which resulted in an $800,000 recovery for Purosil.
GE Engine Services - Corporate Aviation, Inc., dba Garrett Aviation Services v. Chartwell Aircraft Co., Inc., et al. (J.A.M.S. Arbitration - three arbitrator panel)
Mr. Malingagio was part of a team representing Chartwell in claims against General Electric
its subsidiary, the Jet Center, alleging that General Electric had breached a $13 million contract to build out the interior of a new Boeing 737 for use as a luxury private jet. After two weeks of testimony
300 pages of briefing, the three-arbitrator JAMS panel issued an award in favor of Chartwell.
H. Robert Holmes, et al. v. Avanza Corp., et al
Case No. RCV 10578 (San Bernardino County Superior Court).
Mr. Malingagio defended Avanza Corp.
its officers
directors in this shareholder derivative
breach of fiduciary duty lawsuit filed as part of an attempt to hostilely take over Avanza Corp. After defeating two motions for preliminary injunctions, Mr. Malingagio negotiated a settlement resulting in current management retaining control of the company
purchasing a controlling percentage of the outst
ing stock at one-third its pre-litigation price.
Northrop Corporation v. McDonnell Douglas Corporation
United States District Court Case No. 79 04145 R (Central District of California)
Northrop filed an action against McDonnell Douglas ( MDC ) alleging breach of contract
antitrust violations arising out of the teaming agreement between the two companies to co produce the F/A-18 jet fighter aircraft for the U.S. Navy. MDC cross-claimed against Northrop alleging that Northrop misappropriated MDC's F/A-18 trade secrets
used them in the design of Northrop's F-20 jet fighter aircraft. Mr. Malingagio worked as part of a team of 15 lawyers representing Northrop. Mr. Malingagio was primarily responsible for Northrop's defense of the claims of trade secret misappropriation,
specifically with respect to the design of the avionics, computers, cockpits, controls
displays in the aircraft. Mr. Malingagio managed
conducted extensive discovery
depositions of percipient
expert witnesses, including numerous avionics design engineers, former military pilots, government officials, a former Deputy Secretary of Defense,
U.S. Air Force General (Ret.) Charles E. Yeager. Prior to trial, the case was settled when MDC agreed to pay Northrop in excess of $50 million.
MAI Basic Four, Inc. v. Jonas & Erickson Software Technologies, Inc.
United States District Court No. 85 07673 PAR (Central District of California)
MAI Basic Four, Inc. ( MAI ), a $250 million computer hardware manufacturer filed an action against Jonas & Erickson Software Technologies, Inc. ( J&E ), a $10 million computer software manufacturer, alleging unfair competition, misappropriation of trade secrets
trade libel. Representing J&E with a limited litigation budget, Mr. Malingagio filed a cross-claim, devised
conducted a discovery plan, prevented the filing of a motion for preliminary injunction by MAI,
negotiated an extremely favorable settlement wherein J&E paid no money or other consideration to MAI.
Plastic Recycling Corporation of California v. California Department of Conservation, Division of Recycling
Case No. 366192 (Sacramento County Superior Court)
Mr. Malingagio represented the Plastic Recycling Corporation of California, a consortium of plastic bottle manufacturers, in this Writ of M
ate proceeding to challenge the manner in which California's Division of Recycling implemented the California Beverage Container Recycling
Litter Reduction Act.
