Hon. John F. Herlihy (Ret.)

T: 408-288-2240
F: 408-295-5267
Available nationwide
Business/Commercial

Hon. John Herlihy (Ret.), a full-time neutral at JAMS, has extensive experience mediating and arbitrating business and commercial cases.  As former Supervising Judge of the Civil Division of Santa Clara County Superior Court, he also case managed, settled, and tried thousands of civil cases including some of the county’s most complex civil litigation during his 29-year judicial career, of which more than half was spent settling and hearing civil cases.

Judge Herlihy is able to quickly grasp complex facts in business disputes in order to efficiently and fairly resolve matters.  He has the ability to help parties reach agreement that not only resolves disputes, but that helps to foster their ongoing relationship, if any.


Representative Matters 

  • Banking
    • Handled matter involving breach of guaranty of a business loan and a cross-complaint for breach of a business loan agreement, fraud, and misrepresentation
    • Handled matter regarding a debt owed to a lending institution that was subsequently sold to a collection agency which allegedly violated the provisions of the Fair Debt Collection Practices Act
    • Handled a matter involving an incorrect legal description on the deed of trust which was learned after foreclosing; case involved cross complaints between the bank borrowers and title company
  • Breach of Contract
    • Breach of contract claim against a company that booked hotel and failed to pay bill for a conference
    • Handled a matter between two parties’ joint use and ownership of a pool built on one party’s property without a written agreement.
    • Dispute between a law firm and its client about payment of fees and alleged malpractice by the firm for failure to disclose a potential conflict of interest and for failure to obtain a settlement
    • Handled a case involving a prior settlement agreement where intellectual property rights were assigned to the manufacturing company. The breach resulted from company’s failure to pay the manufacturer for the product
    • Class action against multi-national company for violating unfair competition law (UCL); class contended that the computer processor did not perform as advertised and that manufacturer of computer processor manipulated test results
  • Construction
    • Breach of contract matter involving change orders and charge backs between an electrical subcontractor and a general contractor  
    • Dispute involving two contracts between the same parties in which one party was forced to reconstruct a food processing plant because of construction defects and as a result refused to make payments on the subsequent, unrelated contract
    • Dispute arising out of a construction contract between general contractor, developer and subcontractor for allegedly inflated invoices
    • Alleged breach of a contract based on a modified form of the American Institute of Architects Document with guaranteed maximum price using modified AIA general conditions in which the owner failed to purchase builders “all-risk insurance.”
  • Credit Card
    • Consumer action by cardholder against credit card company for violations of fair credit reporting act, fair debt collection practices and identify theft laws
    • Claim by consumer that major credit card company violated Fair Debt Collection Practices Act
  • Fraud and Misrepresentation
    • Claim that provider of private education misrepresented its accreditation to students
    • Matter involving the use of false representations and concealment of material facts to obtain control of subsidiary companies to misdirect its funds as well as failure to disclose criminal fraud record
    • Alleged misrepresentations regarding a breach of contract for equipment, goods, and consulting services; one party had a deed of trust against the others’ commercial property and attempted to foreclose
  • Partnerships and Business Entities
    • Dispute over purchase and sale of partnership interest with issues arising over assignment of interest and frauds claims
    • Case involving  one member of an LLC breached the fiduciary duty to another by buying out interest in company without divulging information that company was going to receive very favorable public attention that would affect the value of the company
    • Matter involving breach of revenue sharing agreement between wealth managers
    • Dispute between business owners over the exercise of a buy-out agreement and the right of first refusal
    • Handled case in which a minority shareholder sued controlling shareholders for breach of fiduciary duty after a they went to work for another company after the winding up of the original company
    • Breach of fiduciary duty suit between part owners of a pre-school after one partner opened an allegedly competing school resulting in a partition action to sell the real estate the school is on and an action to dissolve the corporation that owns the school
  • Real Estate
    • Claims of improper distribution of funds, and constructive fraud with regards to a dispute over investments in a commercial real estate development company
    • Case involving a landlord that terminated a commercial lease due to an occurrence that rendered the premises untenable and tenant claimed breach of lease by landlord causing the tenant significant relocation costs
    • Suit for tort and contract damages: Tenant rented commercial space from shopping center developer and landlord on assurances from the leasing agent that no competing business would be leased space in the shopping center and the lawsuit alleged that space was leased to a competitor
    • Dispute regarding the purchase of two car dealerships and the real estate on which they were located.
  • Technology
    • Claim by software company that manufacturing company failed to pay for ERP software; buyer claimed seller misrepresented the functionality of the software to meet the business needs of the buyer
    • Case involving a flash memory company that was sued for damages and injunctive relief for trade secret misappropriation
    • Breach of contract and intentional misrepresentation case involving intentional misrepresentation claims against a software engineer/entrepreneur for not returning cash advance for the production of prototypes he failed to produce
    • Case in which a supplier to high tech companies sued employee for alleged embezzlement of funds used to conduct business operations in a foreign country
    • Misappropriation of trade secrets case where a software company claims former board member started a competing company and took trade secrets
    • Dispute alleging millions of dollars in lost revenue because of artwork outsourced by a gaming company that was unusable or late

Honors, Memberships, and Professional Activities

  • St. Thomas More Award, St. Thomas More Society of Santa Clara County, 2008
  • Judge of the Year, Santa Clara Trial Lawyers Association, 2007
  • Commendation from the Mayor of the City of San Jose for service on the Mayor’s Gang Prevention Task Force, 1992
  • Commendation from the Board of Supervisors for the County of Santa Clara for service on the Justice System Advisory Commission, 1990
  • Co-chair, ADR Bench Bar Committee
  • Member, Civil Advisory Committee, ADR Subcommittee, and Case Management Subcommittee, Judicial Council for the State of California
  • Member, San Francisco Bay Area Intellectual Property Inn of Court, 1999-2002, 2011-present
  • Member, Santa Clara County Bar Association, 1974-present
  • Adjunct faculty and lecturer in law, Santa Clara University Law School, 1984-present
  • Judge, International Trademark Association (INTA), Saul Lefkowitz Regional Moot Court Competition, 2009-2010 and 2010-2011
  • Created and teaches a college course in ADR for paralegals, De Anza College, 1996-present
  • "Finding His Footing," ADR Profile, Daily Journal, June 24, 2011
  • Publications:
    • Consultant, California Judges Benchbook: Civil Proceedings-Trial 2nd ed., which covered extensively topics related to case management and settlement of civil cases, California Center for Judicial Education and Research, 2008-present
    • Consultant, California Judges Benchbook: Civil Proceedings-Before Trial 2nd ed., California Center for Judicial Education and Research, 2006-2008

Background and Education

  • Judge, Santa Clara County Superior Court, 1990-2009 (Supervising Judge Civil Division, Civil Case Manager Judge)
  • Judge, Santa Clara County Municipal Court, 1982-1990
  • Commissioner, Santa Clara County Municipal Court, 1980-1982
  • JAG Captain, California National Guard, 1980-1985
  • Deputy District Attorney, Santa Clara County, 1976-1980
  • Civil Attorney, Hansen & Herlihy, 1974-1976
  • J.D., University of California Hastings College of the Law, 1974
    (Editorial Associate and Author, Constitutional Law Quarterly)
  • B.A., with Distinction & Honors in Political Science, San Jose State University, 1971

Disclaimer

This page is for general information purposes.  JAMS makes no representations or warranties regarding its accuracy or completeness.  Interested persons should conduct their own research regarding information on this website before deciding to use JAMS, including investigation and research of JAMS neutrals. See More

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