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Shirish Gupta

Shirish Gupta

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Case Manager
Cynthia Victory
T: 408-346-0736
F: 408-295-5267
160 W. Santa Clara St., Suite 1600, San Jose, CA 95113

Shirish Gupta brings to JAMS several years of experience as a successful neutral, as well as a decade and a half of experience as a litigator at top law firms and as a solo practitioner. Shirish is known for his legal acumen and economic prowess, which makes him particularly adept at diving into complex financial/technical disputes, including patents, securities and accounting, and class actions. Shirish has successfully settled numerous cases and is sought out by Silicon Valley startups, as well as Fortune 500 companies. In 2014, The Recorder conducted an extensive survey of Bay Area Attorneys and named Shirish the Best Independent Mediator.

In 2013, Shirish's mediation skills were recognized when he was recruited to mediate Superstorm Sandy insurance coverage claims in New York. At the peak, he was mediating and resolving 4 claims per day.

Shirish is an Adjunct Professor at UC Hastings, where he teaches Negotiation. Shirish serves as Co-Chair of the California State Bar Council of Sections and is a past chair of the State Bar Solo and Small Firm Section Executive Committee.

ADR Experience and Qualifications

  • Recorder's Best Independent Mediator for 2014
  • Recruited to mediate Superstorm Sandy insurance coverage claims in New York
  • Active ADR practice since 2010, specializing in intellectual property, employment, and professional liability
  • Adjunct Professor of Law at UC Hastings

Representative Matters

Mr. Gupta has mediated or arbitrated disputes over the following issues:
  • Americans with Disabilities Act
    • Access in retail stores (changing stalls, checkout counters, entryways, parking lots), public parks, and county jails
    • Personal injuries suffered by disabled inmate while incarcerated
    • Claim of inaccessibility against the private landlord of a historically-registered building that housed a federal court because it lacked a wheelchair ramp
    • Municipalities/counties sued for non-inaccessible facilities/amenities
    • Apportionment of liability between landlord and tenant for access violations
  • Banking
    • Identity theft victim claiming that the issuer illegally did a hard pull to verify a fraudulent credit application
    • Debtor claiming that collection agency illegally disclosed collection efforts to a third party
    • Whether CRAs and creditors adequately and timely reported the notices of bankruptcy
    • Homeowner claiming that he was not given adequate notice of foreclosure sale
    • Multiple homeowners claiming that they were given mortgages they could not afford and should not have qualified for
    • Multiple homeowners claiming that the banks were not processing their HAMP properly
  • Business/Commercial
    • Tech
      • Dispute between a software developer and a Fortune 100 virtual cloud provider alleging breach of software licensing agreement
      • Contract dispute between software developer/IT services provider and hardware company claiming $1.5M breach of payment terms
      • Dispute between a smartphone company and an IT services provider claiming nonperformance.
      • A payment dispute between a Russian software developer and a Bay Area startup
      • Dispute between a retail PoS integrator and Southern California retail chain over payment and performance
      • Dispute between a mobile app developer and a startup customer alleging $400k in unpaid development fees with customer counter-claiming for a refund due to allegedly defective apps
      • Dispute between EMEA-based reseller and a US corporation alleging non-payment of $300k in reseller fees
      • Dispute between co-founders and software engineers over founders shares
      • $500k online advertising commission dispute between website and advertise
    • Non-Tech
      • Omnibus mediation of 43 filed + four yet to be filed cases involving in a series of multi-party Fair Credit Reporting Act disputes
      • Dispute between large Indian grocery wholesaler and an Indian retail chain claiming $450k non-payment
      • Shareholder dispute involving a cash-poor closely held corporation with illiquid assets
      • Dispute between third-party litigation funder and the attorney over the adequacy and value of legal services
      • Dispute between the star of a series of dog training instructional videos and the production company over IP rights
      • Breach of patent license and manufacturing agreement dispute between a China-based patent-owner and a white label manufacturer in North America
      • Dispute between US reseller and a China-based supplier over alleged defective products
      • Dispute under the Fair Credit Reporting Act brought by an employee against one of the largest background check providers alleging rejection of employment based on false information in the credit report
      • Dispute between software engineering staffing agencies over commissions and enforcement of non-compete provisions
      • Payment dispute between incubator and startup tenant
      • Cases involving California Unfair Competition Law (B&P Code 17200) claims between competitors and suppliers
      • Arbitration of attorneys’ fees portion of case post-settlement of a wage & hour action
  • Civil Rights
    • Latina women alleging that a police officer racially profiled and planted evidence on her
  • Construction
    • Landlord claiming defective construction of a commercial laundromat
    • Landlord claiming that general contractor abandoned commercial renovation project with contractor claiming performance was excused because landlord breached its payment obligations
    • Claim that licensed contractor rented out its license to an out-of-state contractor
  • Employment
    • PAGA claims and putative meal/rest break class arbitration involving national transportation and logistics company
    • PAGA claims by clerical assistant, temporary office worker and front desk coordinator against a national staffing agency and its local franchisee
    • PAGA claim by counter sales clerk against national tool rental company
    • Wrongful termination dispute between Master craftsman and an artisanal furniture company
    • Shareholder dispute at an employee-owned closely held company
    • Wage & hour dispute brought by employees of a startup against their dissolved employer and its alleged successor-in-interest
    • Retaliation case involving a retail sales clerk alleging termination as retaliation for reporting wage/hour violations
    • Dispute between employees and a retail startup over ownership interest
    • Fair Credit Reporting Act (FCRA) case brought by prospective employee against employer for rescinding offer based on an alleged false credit report
    • Racial discrimination case between an Army Lieutenant and his superior officer
    • Wage & hour case involving a retail sales clerk claiming missed meal/rest breaks over a two month period
    • Disability discrimination matter involving a public entity clerk and claims of nearly $1M in emotional distress damages
    • Wrongful termination dispute between a supermarket employee and a national chain
    • HR recruiters claiming that they were not compensated for all meal/rest breaks missed
    • Claims against a staffing agency for failure to pay missed meal/rest breaks
    • Heavy equipment driver claiming that he was not paid a prevailing wage for the portion of time worked on a government contract
    • Pre-suit age discrimination claim by deli manager against a prominent supermarket chain
    • Pre-suit age discrimination claim by cashier against a local supermarket
    • Racial discrimination claim against a prominent doctor’s group by a female African-American medical technician
    • Unionized delivery driver alleging sexual harassment and disability discrimination
    • Driver fired for gross insubordination for taking pictures on company property claiming retaliation for opposing harassment
    • Undocumented immigrant working as a dishwasher/cook claiming unpaid overtime, meal/rest breaks
    • Pre-suit pregnancy discrimination claim alleging that a new mother was instructed to pump in a toilet stall
    • Pre-suit sexual orientation discrimination claim by a gay assistant harbormaster
    • Restaurant workers alleging that they were not given meal/rest breaks
    • Sous chef claiming that he was misclassified as exempt and should have qualified for overtime
    • Delivery drivers and stock-room workers alleging failure to pay overtime or give meal/rest breaks
    • Developmentally disabled dishwasher claiming he was wrongly terminated and inadequately supervised
    • Female corrections officers claiming that they were being subjected to gender harassment and pornography at work
    • Minority police officers claiming that the police chief refused to promote or terminated them based on their race
    • Claim that a former employer is refusing to honor the terms of a severance agreement
    • Undocumented immigrant working as a nursing home orderly claiming failure to pay minimum wage and overtime or provide meal/rest breaks
    • Government agency claiming that former senior officer converted over $100k of equipment for personal use
  • Insurance Coverage
    • Mass disaster property damage coverage claims (Superstorm Sandy)
    • Million dollar business interruption coverage claims for Manhattan law firms (Superstorm Sandy)
    • Business damage claims by supermarkets and retailers whose stores had been flooded and corroded by seawater
    • Disputes involving public entities that are both self-insured and part of government insurance pools
    • Whether excess coverage policy was adequately rescinded based on insured's alleged failure to disclose facts that led to a recall of its product
    • Whether the facts causing a food supplier's product to be contaminated with salmonella was a single occurrence
  • Intellectual Property
    • Copyright
      • Public broadcast of copyrighted boxing match without permission
      • Publisher claiming that the author of copyrighted work was selling an unauthorized new version of the work
      • Use of copyrighted videos/photos beyond the terms of the license
      • Display of copyrighted photos on a commercial website without a license
      • Claims that an imported textiles' design and patterns infringed a copyrighted design
      • Ex-co-founder alleging joint ownership of code that he had helped develop
    • Trademark and False Advertising
      • Business name with a similar prefix as a famous mark
      • Use of famous person's name, image, and likeness in videos and on the web allegedly without permission
      • Use of a franchised gym's trademarks after the franchise agreement had allegedly been breached
      • Importation of footwear infringing trademarked design and marks
      • Cellphone cases/peripherals
    • Patent
      • DVD software patent claim by non-practicing entity against Fortune 500 OEM
      • Multiple actions brought by a Chapter 11 non-practicing entity against OEMs over Flash memory patents
      • USB interface hardware patent claim by non-practicing entity against multiple Fortune 500 OEMs
      • Arterial stent patent claim by non-practicing entity against medical device maker
      • Shower fixture manufacturer asserting an assembly patent against its former customer
      • Cellphone case patent claim by non-practicing entity against case and peripherals distributor
      • Network security patent claim by non-practicing entity against mid-size company
      • Post-license sales of a product using a patented claim
      • Whether an upstream patent license covered a downstream OEM
  • Personal Injury
    • Personal injuries suffered when a paraplegic's wheelchair tipped over on a public park trail that lacked a guardrail
    • Alleged sexual assault by taxi-cab driver against female paraplegic passenger
    • Complications from surgery resulting in permanent loss of bladder control
    • Death of young mother of three after delivery
  • Professional Liability
    • Medical malpractice claims against county health systems and the VA
    • $1.5M contingency fee award dispute between an attorney and client
    • $150k contingency fee award dispute resulting from successful real estate action during the Great Recession
    • Dozens of attorney fee arbitrations and mediations
  • Real Estate and Foreclosure
    • Landlord complaining that commercial tenant abandoned a half-completed remodeling project during Great Recession
    • Homeowner association-member disputes over use of common space and payment of dues
    • Commercial landlord-tenant disputes
  • Warranty
    • Claim that automobile navigation and entertainment system were defective and instructed the driver to drive into a lake

Representative Legal Experience

Prior to becoming a full-time neutral, Mr. Gupta handled the following representative matters:
  • First chair construction defect and commercial landlord-tenant trial
  • First chair employment arbitration concerning the vesting of stock options
  • Represented a sexual harassment claimant before the DFEH
  • Defended an employer in a matter before the Department of Industrial Relations
  • Defended patent infringement cases involving tooth whitening, dental pouches and laminate flooring
  • Defended a trademark infringement action involving the "DOSA" mark
  • Resolved, pre-litigation, a copyright claim over the use and public performance of a musical composition
  • Defended several securities fraud and related derivative actions
  • Filed consumer class actions against Apple (iPhone), Kashi (all natural), Naked Juice (all natural)
  • Defended consumer class actions over car batteries, anti-virus software and PC optimization software
  • Internal investigations which resulted in the resignation of the CFO and Chief Accounting Officer
  • Founder disputes
  • Supervising counsel for employment actions filed in New York and Massachusetts
  • Breach of contract over website development and sales
  • Dissolution of joint ventures
  • Investor counsel on a Series A financing
  • Advisor to entrepreneurs and pre-Series A companies
  • Acquirer counsel on a corporate acquisition
  • Negotiated several commercial leases
  • Honors
    • Best Independent Mediator, The Recorder, 2014
    • Northern California Super Lawyer, 2013-Present
    • South Asian Bar Association of North America's Cornerstone Award, 2015
    • Coach of the Year – Foster City AYSO, 2014
    • Southern California's Top Rated Lawyers, 2012-2013
    • Super Lawyers Bay Area Rising Star in ADR, 2010-2012
    • National Asian Pacific American Bar Assoc.'s (NAPABA) Best Under 40 Award, 2007
  • Memberships/Professional Activities
    • State Bar of California: Council of Sections Co-Chair (2015-2016); Solo and Small Firm Section Chair (2013-2014)
    • South Asian Bar Association of Northern California President, 2006-2008
    • San Francisco Bay Area Intellectual Property Inn of Court Barrister, 2003-Present
    • California Minority Corporate Counsel Program Member, 2009-Present
    • National Asian Pacific American Bar Association, Alternate Regional Governor, 2008-2010
    • American Association of Physicians of Indian Origin Ethics and Grievances Committee Advisor, 2010-2011
    • South Asian Bar Association of North America: Board Member (2006-2007); National Convention Co-chair (2007: San Francisco)
    • The Mediation Society Member, 2013-Present
    • U.S. Courts of Appeals for the Ninth Circuit and the Federal Circuit
    • U.S. District Courts for the Northern, Central, Southern, and Eastern Districts of California
  • Authored Articles
  • Speaking Engagements
    • Ethics in Arbitration Agreements, Fee Agreements, Joint and Successive Representation (2015: San Mateo); Carden Academy Commencement Keynote Address (2014: San Jose); Arbitrating a FRAND License for a Standards Essential Patent (2014: Redwood City); To Post or Not: The Social Media Ethical Dilemma (2014: Oakland, Riverside); ADA and Accessibility Risk Management for Law Firms (2013: Long Beach); Thinking on Your Feet at a Mediation (2012: Long Beach, Philadelphia, Ventura); Mock Mediation: A Behind the Scenes Look at a Mediation (2011: Long Beach); NASABA Idol - Interactive Workshop Focusing on Negotiation Strategies in Mediation (2010: Boston); New Initiatives in ADR in India (2006: Menlo Park); Mediation in Intellectual Property Matters in the U.S. (2005: New Delhi); Hot Topics in Trademark Law (2012: Monterey); Implications of Recent Patent Case Law (2012: San Jose)
  • ADR Profile
  • Principal, Flashpoint Mediation (San Mateo, Sacramento, and Irvine, CA), 2010-2015
  • Principal, Flashpoint Law (San Mateo and Irvine, CA), 2008-2015
  • Senior Litigation Associate, Mayer Brown (Palo Alto, CA), 2002-2008
  • Litigation Associate, Howard Rice Nemerovski Canady Falk & Rabkin (now Arnold & Porter) (San Francisco, CA), 1999-2001
  • Summer Associate, Cooley Godward (Palo Alto, CA), 1998
  • J.D., University of Chicago Law School
  • B.A., magna cum laude, Double Major: Economics and Legal Studies, UC Berkeley

Counsel Comments

    • “Shirish was extremely effective as a mediator. It was readily apparent that Shirish thoroughly enjoyed his role as the mediator. He remained undaunted in the face of the occasional emotional outbursts of the parties. I contribute the reason the parties eventually settled this highly contested dispute to Shirish's unrelenting patience and understanding, as well as his ability to empathize with each party.”
    • “From the outset, I was impressed by Mr. Gupta’s professionalism and intuitive ability to navigate the parties’ conflicting views and positions. Shirish is fair, unbiased and I felt I could trust him.” 
    • “Shirish was personable, made efforts to put people at ease, and was empathetic without losing efficiency.” 
    • “On the eve of trial, the parties remained substantially apart. Mr. Gupta demonstrated patience in helping both sides understand not only the strengths, but also the weaknesses in their respective positions.” 
    • “Shirish is a thorough and thoughtful mediator.” 
    • “I thought Shirish did a good job of trying to understand the technology and bridge the gap between the parties. I also felt that he was good at trying to bring the parties together without being too pushy.”



Practice Areas

Available nationwide


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