Hon. Wayne Brazil’s 25 years on the federal bench, as well as his post-retirement years in the private sector as a arbitrator, mediator, special master and referee, equip him to deliver sophisticated neutral services in a wide range of roles and cases.
Since joining JAMS, Judge Brazil has arbitrated and mediated cases across a wide spectrum of subject matter and value. His many appointments as sole arbitrator have tended to cluster in matters involving employment, health care, and business disputes. 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.
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.
Even though Judge Brazil sat in a federal court, because of diversity jurisdiction, his docket also included many kinds of cases that are generally filed in state court, e.g., personal injury, first-party insurance coverage, and products liability. Often these cases involved claims for damages in six-figures or less. Judge Brazil enjoys working on such matters- in part because they involve issues of importance to individuals. Just as he helped parties find common ground in half-day settlement conferences on the bench, at JAMS Judge Brazil welcomes half-day mediations in cases of moderate value where the claims sound in state law.
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 an arbitrator or special master, Judge Brazil is tenacious in his commitment to cutting to the chase as efficiently as fairness permits. As a mediator, he works hard to help parties identify the best terms that are accessible through settlement, then to assess realistically and comprehensively the pros and cons of proceeding with litigation.
Judge Brazil brings to all his roles a penetrating intelligence, thorough preparation, sustained engagement, 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.
- Arbitrated multiple breach of contract and fraud disputes between high level executives (CEOs, for example) and the entities for which they worked
- Arbitrated termination of employment and failure to deliver equity in cases involving sophisticated medical products and electronics industries
- Arbitrated termination and failure to accommodate medical/veterinary professionals
- Wage and hour class actions involving alleged mis-classification of employees, overtime, benefits
- Executive and employee compensation, commissions, and expense reimbursement disputes
- Meal, rest break, pay stub deficiencies.
- Race, age, and disability discrimination in employment; wrongful termination; harassment; retaliation
- Sexual harassment and gender discrimination
- Dispute between employer and union regarding protection of right to solicit, and liability for exceeding that right
- Breach of contracts with delivery drivers (territorial rights; termination of relationships)
- Contract negotiations for health care benefits between union and major institutional health care provider
- Breach of contract/fraud between national network of radio stations and a prominent talk show host
- Breach of contract/wrongful termination claims by co-founder of international provider of IT support
- Wrongful termination claim by senior executive in violation of public policy – refusal to bribe foreign government
- Thomas v. T.D. Ameritrade: class action re classification, overtime, and benefits; approved class settlement
- Arbitrated employment compensation and reimbursement claims
- Meal, rest break, and under compensation cases
- Health care plan dispute between union and major health care provider
- Breach of contract/fraud between national network of radio stations and a prominent host
- Sexual harassment, discrimination and wrongful termination
- Dispute between employer and union regarding protection of right to solicit, and liability for exceeding that right
- Wrongful termination claim by co-founder of international provider of IT support
- Wrongful termination claim by senior executive in violation of public policy (refusal to bribe foreign government)
- Volation 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
Business and Commercial Contracts
- Arbitrated multiple cases involving disputes between various categories of members of LLCs, including breach of operating agreements, fraud, expulsions or terminations of membership status, etc.
- Arbitrated dissolution of medical practice groups and termination of relationship between service provider entities and physicians
- Dispute between hospital and provider of full range of IT services and support, EMR, billing, collections and accounting
- Termination of franchise agreements
- Breach of contract between founders of start-up tech company
- Breach of contract between investor and internet venture
- Breach of multi-site construction and maintenance contract between state government and general contractor
- Breach of contract and fraud by general contractor for major projects in Afghanistan and Pakistan
- Investors allege fraud and breach of contract by builder
- Beach of contract between former shareholders and entity that purchased the company
- Breach of contract to jointly develop software/source code in semi-conductor industry
- Breach of real estate contract between physicians’ group and high end residential cooperative
- Breach of contract between general contractor and Indian tribe to build casino/hotel complex
- 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
- Arbitrated very high value dispute between major hospital system and major carrier
- Arbitrated batches of underpayment claims prosecuted by health care provider entities against carriers
- Mediated, to settlement at relatively early stage, False Claims Act case brought by experienced plaintiffs’ counsel against major provider of health monitoring services that faced potentially huge damages/penalties on allegations of outsourcing components of sophisticated, comprehensive systems for gathering real-time data from and generating reports about patients with wide range of cardiac conditions
- Dispute between union and major health care provider re scope of benefits under plan
- Disputes between physicians over contracts with hospitals and entitlements to on call opportunities
- Disputes between practice groups and national providers of full packages of services to support sophisticated medical practices
- Accounting and income stream disputes between physicians, practice groups, and support service contractors
- Medical malpractice
- Arbitrated to judgment a complicated case involving two surgeries, alleged failure to detect and treat Deep Vein Thrombosis, Pulmonary Embolism, and the death of the patient
Arbitrated case involving near death of patient due to alleged mis-prescribed medications, failure to provide prescribed medications, and failure to treat low oxygen levels
Cases involving failure to detect and/or treat hernias, penile dysfunction, torn ligaments, and other conditions
Claims for health care benefits/coverage
Disputes between hospitals and comprehensive IT and EMR serviced providers
Helped a union and a large network of hospitals and providers negotiate a multi-year contract for provision of health care benefits to members of the union
Resolved many personal injury and disability cases that required compromising or satisfying liens held by health care providers
Wrongful termination (in breach of contract) of high level hospital executive
Wrongful termination of health care workers
Labor disputes between hospitals and employees
Multiple mock trials in patent cases involving cutting edge medical science (e.g., in pharmaceuticals and in bio-medical research and products), as well as the economics of developing and marketing sophisticated diagnostic and treatment tools
Disputes between a university hospital, some of its physicians, and a product manufacturer over multi-billion dollar income streams generated by innovative systems for treating wounds
Alleged denial of equal access to medical facilities and professional services
Civil and criminal cases involving allegations of systematic fraud by doctors or institutions, fictitious patients, or over-reaching claimants
Published opinions include cutting edge decisions about scope of duty to defend and duty to indemnify
- Car care products
- Mock class certification hearing in billion dollar telecommunications case
- Large real estate and investment fraud cases
- "Cramming" by national provider of telephone services
- Invasions of consumer privacy and solicitations (electronic, telephone) without consent
- Arbitrated multiple cases involving alleged theft of trade secrets by former employees- medical products, software, hardware
- Mock trials and hearings in multiple patent cases involving pharmaceuticals, bio-medical products, research, and software
- Pre-filing dispute between joint venturers developing major medical products
- Trademark cases involving retail products, software companies, and education services
- Trademark dispute between international bank and international accounting firm over rights (in several countries) to use similar logos
- Trademark dispute between competing high end wineries
- Dispute between artist and managers/exhibitors over rights in paintings
- Dispute over unauthorized commercial exploitation of famous image
- Methods for searching large data bases using variable sequences of criteria
- Source code for protocols to protect security of streamed audio/video content
- Protocols for effective wireless communication by multiple users in closed environment
- Means to assure integrity of forensic duplication and analysis of electronically stored data
- Means for effective and secure communication between remote servers and on-site data processors
- Copyrights in source code
- Copyrights in books, manuals, and music
- 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
- Breach of duty by union to pay premiums for health care benefits for its members
- Bad faith breach by carrier of duties to insured health care professionals
- Dispute between receiver for failed workers’ comp carrier and an insured over liability for large deductibles
- Dispute between carriers for a contractor over liability for contribution to settlement fund
- Many cases involving coverage for officers and directors, E&O policies, medical benefits, personal injuries, business losses, etc.
- Special master in multi-state dispute between life insurance companies and state regulators over proceeds from policies insuring decedents
- 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
- Many cases alleging excessive force by police causing death or serious injury
- Many cases alleging race, age, gender, religious, or disability discrimination in employment or housing
- Many cases alleging invasions of Fourth (and 14th) Amendment rights
- Several cases alleging abridgment of first amendment rights by public entities
- 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
- Many complex cases involving disputes over proportionate responsibility for clean-up of contaminated property.
- 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
Special Master/Discovery Referee
- Appointed by federal court to make findings and recommend rulings on very large number of documents to which government alleged crime-fraud exception applied to privileged documents
- Appointed by state court to make findings and recommend rulings a multiple, complex discovery disputes involving sensitive psychological issues and an array of intricate partnership disputes
- Nation-wide dispute between insurance regulators and life insurance companies over proceeds of policies for deceased insureds
- Monitor compliance by employer with equitable decree re hours, wages, benefits, working conditions for truck drivers
- Resolve disputes and enforce court orders re discovery and motions to seal in major international patent cases
- Discovery and privilege issues in major consumer and commercial fraud matter
- 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
- Shaking Decision Trees for Risks and Rewards (with Majorie Aaron), 22 ABA Dispute Resolution Magazine 12, Fall 2015
- Early Neutral Evaluation: A Guide For Neutrals, Advocates, and ADR Program Designers, Dispute Resolution Section, ABA, 2012
- 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
- 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
- Recognized as a Top California Neutral "Rising Star," Daily Journal, 2012
- Recipient of Prestigious D’Alemberte-Raven Award from the Dispute Resolution Section of the ABA, 2009
- The Mediation Society of Northern California: Annual Award for “Outstanding Contribution in the Field of Alternative Dispute Resolution,” 2007
- California Dispute Resolution Council: Donald Weckstein Award for “Outstanding Contribution to the Profession of ADR Neutrals,” 2007
- American College of Civil Trial Mediators (national association headquartered in Florida): award for “Outstanding Achievement in the Advancement of Alternative Dispute Resolution,” 2005
- "Using Mind Over Matter," ADR Profile, Daily Journal, September 14, 2012
- D'Alemberte-Raven Award, American Bar Association Secton of Dispute Resolution, 2009
- Member, American Bar Association Section of Dispute Resolution
- Law Professor (“Professor from Practice”), Berkeley Law (Boalt Hall), University of California, Berkeley, full-time 2009-2011; part-time 2011-2014
- United States Magistrate Judge, United States District Court, Northern District of California, June 1984-October 2009
- Professor of Law, Hastings College of the Law, University of California, San Francisco, California, Courses: Civil Procedure and Civil Rights, 1980-1984
- Associate Professor of Law, University of Missouri, Columbia, Federal Courts, Civil Procedure, Professional Responsibility, 1978-1980
- Farella, Braun & Martel, Litigation Associate, San Francisco, California, 1975-1977
- J.D., University of California, Berkeley Law (formerly Boalt Hall School of Law), Order of the Coif, 1975
- Ph.D. in American Political and Cultural History, Modern European and American Intellectual History, Harvard University, 1975
- M.A. in American History, Harvard University, Woodrow Wilson Fellow, 1967
- B.A., Stanford University, Graduated with Great Distinction, Lloyd W. Dinkelspiel Award, Phi Beta Kappa, 1966
- "Thank you [Judge Brazil] for your excellent work in getting us across the finish line yesterday. We sincerely appreciate all of your efforts getting us to a successful resolution for our clients. Your contributions and efforts were critical to us breaking the previous logjam that we found ourselves in."
-Energy Technology Litigation Partner
- “Few people have the range of vision, the attention to detail, the energy for new tasks, the depth of experience, or the passion for the enterprise of dispute resolution that Wayne Brazil so generously shares with the world.”
– Former Chair of the ABA Section of Dispute Resolution
- “[Judge Brazil] add[s] the depth and luster of unparalleled experience, and tremendous insight into how the law can and should work to illuminate and resolve disputes….”
– Named Partner at Premier Firm
- “I have observed with great pleasure over the years [Judge Brazil’s] tireless work on the bench, the unique and powerful commitment [he] gave to the bench on the record, off the record at settlement conferences, and the zest that [he] breathed into the Northern District ADR program.”
– Partner at Regional Firm
- “[Judge Brazil’s] intellectual and analytical thinking, which [he] shared throughout the process, helped us to validate what we saw as the strengths and weaknesses of our case and move us towards settlement. I honestly believe that without [Judge Brazil’s] assistance, the case would not have settled.”
- “I have the utmost respect for [Judge Brazil’s] skills as a mediator as well as [his] obvious great intellect. [He] was prepared coming into the mediation and while it went on, did a superb job of focusing my side in the right places. The rapport of mutual respect [he] created with both [parties] contributed greatly to being able to get this matter resolved… [His] dogged pursuit of a settlement is one of the major things that allowed us to get over the finish… I really hope I have another opportunity very soon to have [Judge Brazil] involved in another matter.”
- “I am so appreciative for the gift of the mediation…Two decades of tension dissolved as [Judge Brazil] first touched them and then let them find their way. For the first time everyone became single-mindedly focused on the common purpose. I could not have imagined that what I had worked toward for nearly 3 years would come together in a morning. I am truly grateful.”
- “Thank[s] for all of your help in getting me through one of the most difficult years of my life. You have restored my faith in justice.”
- "As far as mediators go, on a scale of one to ten, [Judge Brazil] is an eleven."
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