Hon. Wayne Brazil’s 25 years on the federal bench, as well as his post-retirement years in the private sector as a mediator, arbitrator, special master and referee, equip him to deliver sophisticated neutral services in a wide range of roles and cases.
As a magistrate judge in the Northern District he developed expertise in intellectual property, high stakes business disputes, class actions (consumer, wage and hour, securities), employment matters, ERISA, civil rights, and environmental cases. With diversity jurisdiction, he also handled many tort, contract, insurance, and property cases – some involving large stakes, some smaller.
Since joining JAMS, Judge Brazil has mediated and arbitrated cases across a wide spectrum of subject matter and value. In addition, he has been appointed a special master or referee in complex business, intellectual property, and insurance matters. He also has been retained to preside over mock trials and hearings, as well as to provide private independent assessments of separable parts of cases (e.g., particularly significant issues, competing arguments, or ways of interpreting critical evidence). His critiques and suggestions are highly valued.
Having presided over so many cases, and having hosted more than two thousand settlement conferences, Judge Brazil has a deep understanding of two pervasive facts of civil litigation life: in cases that can survive an early motion for summary judgment, outcomes are uncertain and transaction costs are high. These realities inform Judge Brazil’s work in all of his roles.
As a mediator, he works hard to help parties identify the best terms that are accessible through settlement, then to assess realistically and comprehensively all the pros and cons of proceeding with the litigation.
As an arbitrator or special master, Judge Brazil is tenacious in his commitment to cutting to the chase as efficiently as fairness permits.
Judge Brazil brings to all his roles a penetrating intelligence, thorough preparation, sustained engagement, tenacity, and worldliness, always accompanied by a nuanced and respectful treatment of parties and their representatives. His greatest satisfaction comes from helping others to move beyond difficult circumstances and into better places. He loves his work.
ADR Experience and Qualifications
- Served 25 years as a Federal Magistrate Judge, presiding over trials and evidentiary hearings, hearing a full range of motions, managing conventional and ESI discovery, and conducting settlement conferences in thousands of cases.
- Judge Brazil oversaw the design and implementation of the Northern District’s multi-faceted ADR program and served as the Court’s first ADR Magistrate Judge for more than 15 years. The Northern District’s ADR program is acknowledged widely to be the most comprehensive and sophisticated in the country.
- In 2009, the Dispute Resolution Section of the ABA conferred its highest award on Judge Brazil. A decade earlier the New York based International Institute for Conflict Prevention and Resolution (CPR) honored him with its Lifetime Achievement Award.
- Member of the 9th Circuit’s ADR Committee for 12 years.
- Served for 6 years on the Editorial Board of the ABA’s Dispute Resolution Magazine.
- In addition to scores of published opinions, Judge Brazil has written more than 30 journal articles and four books, focusing primarily on settlement, mediation early neutral evaluation, special masters, and civil discovery.
- Judge Brazil served the Judicial Conference of the United States as a member of the committees on Civil Rules and on Evidence, and as reporter for the Conference’s Special Committee on the Civil Justice Reform Act.
- Judge Brazil has trained thousands of judges and lawyers from all over the world in mediation, early neutral evaluation, court-sponsored arbitration, and case management – fields in which his publications have earned numerous awards.
- Presided at mock trials and hearings providing evaluation in major pharmaceutical cases
- Mediated significant pre-filing dispute between joint venturers developing major medical products
- Mediated several TM disputes involving retail products, software companies, and education services
- Mediated matter involving method for searching large data bases using variable sequences of criteria (three independent defendants)
- Mediated matter involving source code for protocols to protect security of streamed audio/video content
- Mediated matter involving protocols for effective wireless communication by multiple users in closed environment
- Mediated matter involving means for assuring integrity of forensic duplication and analysis of electronically stored data
- Mediated matter involving means for effective and secure communication between remote servers and on-site data processors
- Mediated matter involving copyright issues regarding unauthorized distribution of core IP source code
- Mediated trademark matter involving international bank and international accounting firm litigating rights (in several countries) to use similar logos
- Highfields Capital Management v. Doe, 385 F.Supp.2d 969; dispute over access to information that would identify persons who posted allegedly defamatory comments on internet message board
- Sharper Image Corp. v. Honeywell International, Inc., 222 F.R.D. 621; scope of waiver of attorney-client privilege as result of asserting advice of counsel defense in patent case
- Intermedics v. Ventritex, multiple reported opinions, e.g., 775 F.Supp. 1258; alleged theft of trade secrets re micro-circuitry for implantable defibrillators; month-long jury trial to judgment
Business and Contract Disputes
- Mediated dispute between hospital and provider of full range of IT services and support, related to electronic medical records
- Mediated disputes regarding termination of franchise agreements
- Mediated many cases alleging breaches of commercial contracts and fraud
- Mediated consumer class action involving car care products
- Mediated breach of contract between founders of start-up tech company
- Mediated breach of contract between investor and internet venture
- Mediated breach of multi-site construction and maintenance contract between state government and general contractor
- Mediated alleged fraud and breach of contract by builder for investors
- Mediated breach of contract between former shareholders of company and the entity that purchased it
- Mediated breach of contract to jointly develop software/source code in semi-conductor industry
- Mediated breach of real estate contract between physicians’ group and high end residential cooperative
- Mediated breach of contract between general contractor and Indian tribe to build casino/hotel complex
- Mediated alleged fraud and breach of contract by pest control company
- Dallas Corp. v. Ido Corp. and BART; court trial over responsibility for revamping BART fleet; multi-million dollar judgment, after which case settled
Consumer Class Action
- Presided at mock class certification in huge telecommunications case with billions in dispute
- Mediated large real estate and investment fraud cases
- Mediated matter involving allegations of "cramming" by national provider of telephone services
- Mediated class action about accessibility of a national chain’s facilities and programs being allegedly inaccessible
- Millard v. Burger King, et. al., access case; managed aspects of pretrial and conducted successful settlement negotiations
Labor and Employment
- Arbitrated employment compensation and reimbursement claims
- Mediated several meal, rest break, and under compensation cases
- Mediated health care plan dispute between union and major health care provider
- Mediated breach of contract/fraud between national network of radio stations and a prominent host
- Mediated matters involving sexual harassment, discrimination and wrongful termination
- Mediated dispute between employer and union regarding protection of right to solicit, and liability for exceeding that right
- Mediated wrongful termination claim by co-founder of international provider of IT support
- Mediated wrongful termination claim by senior executive in violation of public policy (refusal to bribe foreign government)
- Mediated matter involving violation by direct employer and large retailer of meal and rest break rights of janitorial workers
- Thomas v. T.D. Ameritrade, class action re overtime and benefits; approved class-wide settlement
- Mediated matter involving wrongful death due to excessive force during arrest by local police
- King v. City of Oakland, fatal shooting of suspect by police; conducted successful settlement negotiations that yielded seven-figure settlement
- Williams v. City of Clayton, race discrimination allegations against police officers; tried twice; jury verdict
- Robertson v. City & County of San Francisco, allegations of police misconduct; managed case from filing through pretrial
- Kelly v. City of San Jose, 114 F.R.D. 653; principles informing and scope of “official information” privilege
- Mediated matter involving serious injuries suffered by worker on construction site who fell from inadequately protected deck
- Mediated matter involving invasion of privacy by searching computer files of high level executive
- Mediated alleged breach of duty by union to pay premiums for health care benefits for its members
- Mediated alleged bad faith breach by carrier of duties to insured health care professionals
- Mediated dispute between receiver for failed workers’ comp carrier and an insured over liability for large deductibles
- Mediated dispute between carriers for a contractor over liability for contribution to settlement fund
- Bernstein v. Travelers Ins., Inc., 447 F. Supp.2d 1100; relevance of carrier’s reserves to issues of bad faith
- Scottsdale Insurance Co. v. Homestead Land Development Corp., 145 F.R.D. 523; dispute over fees in complex coverage litigation re slander claims
- Mediated dispute re enforceability of and compliance with state-wide, multi-year contract for maintenance and repair of state court houses
- Mediated dispute between owners of real property and general contractor (with equity interest in that property) re quality and timeliness of construction and re respective ownership interests
- Mediated dispute between owners (an association of owners of condos) of high rise and a major commercial tenant over fixtures, advertising, and esthetics
- Mediated dispute where buyers alleged that Pest Control Company conspired with sellers to defraud them, negligently conducted inspections, and left premises with virtually no market value
- Olam v. Congress Mortgage, Inc., 68 F.Supp.2d 1145 (N.D. CA 2000). Homeowner alleges that Mortgage company conspired to acquire title to two properties by manipulating her into loan agreements on which she would default
- United States v. 22.80 Acres of Land, 107 F.R.D. 20 (N.D. CA 1985). Eminent domain proceedings in which parties vigorously disputed value of property being taken
- Skaggs. v. Uwatec, Inc., allegations of known defects in deep water diving apparatus; managed discovery and ruled on motions in contentious case
- Stovall v. Channel Star Excursions, 1989 WL 162322; ruling re whether plaintiff qualified as a “seaman” for purposes of Jones Act
- Humbolt Baykeeper v. Union Pacific Railroad, 244 F.R.D. 560; ruling re types of discovery reasonably necessary to assess scope and sources of contamination
- Mediated or arbitrated multiple matters alleging wrongful denial of benefits due when employee separated from employer
- Bovey v. Informal Plan for Retired Officers of Teamsters; managed case development and resolved discovery disputes
Civil Discovery/Special Master/Discovery Referee
- Refereed deposition of attorney-witness in whistle-blower case; ruled on privilege and work product issues
- In re Convergent Technologies Securities Litigation, 108 F.R.D. 328; applied “proportionality” requirement to discovery disputes in contentious securities class action
- United States v. Chevron Texaco Corp., 241 F.Supp.2d 1065; documents protected from discovery by IRS in tax case
- Jumpsport, Inc. v. Jumpking, Inc., 213 F.R.D. 329; limits on reach of work product protection
Books, Articles, and Chapters in Treatises
- Early Neutral Evaluation: A Guide For Neutrals, Advocates, and ADR Program Designers, Dispute Resolution Section, ABA, forthcoming
- Effective Approaches to Settlement: A Handbook for Lawyers and Judges, published by Prentice Hall Law and Business, 1988
- Settling Civil Suits: Litigators' Views About Appropriate Roles and Effective Techniques for Federal Judges, ABA Press, 1985
- Managing Complex Litigation: A Practical Guide to the Use of Special Masters (with Geoffrey C. Hazard and Paul R. Rice), American Bar Foundation, 1983
- Thoughts About Impasse for Mediators in Court Programs, 15 Disp. Res. Mag. 11, Winter 2009
- ENE or Mediation? When Might ENE Deliver More Value? 14 Disp. Res. Mag. 10, Fall 2007
- Hosting Mediations as a Representative of the System of Civil Justice, 22 Ohio State J. Disp. Res. 227, Winter 2007
- Professionalism and Misguided Negotiating in The Negotiator’s Fieldbook; The Desk Reference for the Experienced Negotiator, ed. by Andrea Kupfer Schneider and Christopher Honeyman, ABA, 2006
- 3 Moore’s Federal Practice, Chapter 16, Pretrial Conferences; Scheduling; Management (Matthew Bender 3d ed. 1997 and updates thereafter)
- 7 Moore’s Federal Practice, Chapter 37, Failure to Make Disclosure or Cooperate in Discovery: Sanctions (Matthew Bender 3d ed. 1997 and updates thereafter)
- Special Masters in Complex Cases: Extending the Judiciary or Reshaping Adjudication?, 53 University of Chicago Law Review 394, Spring 1986
- Special Masters in the Pretrial Development of Big Cases: Potential and Problems, 1982 A.B.F. Res. J. 287, Spring 1982
- Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 A.B.F. Res. J. 787, Fall 1980 (cited twice in Advisory Committee's Note to support 1983 amendments to Rule 26 of the Federal Rules of Civil Procedure)
- The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 Vand. L. Rev. 1295 (Fall 1978) (cited in Advisory Committee's Notes to support 1983 and 1993 amendments to Rule 26 of the Federal Rules of Civil Procedure).