Middleton, Alan S.

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Address: 1501 N 200th Street Suite 102, Shoreline, WA 98133
Lawyer Firm: Law Offices of Alan S. Middleton, PLLC
Phone: 206-745-0653
Website: https://www.alanmiddletonlaw.com

Areas of Practice Business & Commercial Law, Business Organizations, Construction Law, Contracts, Litigation & Appeals, Real Estate, Federal, State and Municipal Government Contracts

My focus is on commercial litigation. I represent businesses of various sizes in a broad range of industries and interests, from manufacturers of various products to wireless telephone companies, condominium and subdivision developers, large public and private owners, developers, and design professionals. I have also handled substantial distribution and antitrust litigation and counseling.

Selected Commercial Litigation Experience

Breach of Supply ContractRepresentation of Computer Part Supplier Against Manufacturer2010Represented Keytronic Corp. in claims of approximately $50 million, counter­claims revolving around alleged breach of supply agreement. Three actions brought in federal and arbitration forums. Settled following substantial discovery including several rounds of e-discovery. Brought in as senior litigator to analyze and guide case strategy.

Breach of LeaseRepresentation of Terex Corp. Subsidiary Genie Industries Against Lessor2010Represented Genie Industries in alleged breach of lease upon expiration of lease of facilities from Park 180. Matter settled at mediation following analysis, modest discovery.

Employee Raiding CaseRepresentation of Business Purchaser Against Competitor2008-presentRepresenting Wesco Group in suit in Idaho against competitor alleging competitor improperly raided Wesco’s employees two weeks after business purchase. Included appeal before Idaho Supreme Court.

Intra-Entity Governance LitigationVarious clients2007-presentRepresented individual members of Limited Liability Companies (LLCs) in litigation to resolve intra-entity disputes in the wake of the real estate market crash. In the only such dispute to proceed to hearing, I prevailed at arbitration.

Defense of Start-UpPendingDefending start-up company in claims brought by shareholder/former executive for repayment of loans, compensation.

Defense of National Wireless CarrierDealer Dispute/Termination Litigation1999-2006Defended national wireless carrier as first chair in many claims brought by various independent dealers nationwide alleging various theories, including breach of contract, violation of Robinson-Patman Act, violation of state franchise and consumer protection legislation, antitrust. Claims ranged up to $27 million. Most claims settled; three taken to arbitration.

Lender Liability DefenseBrundage-Bone Concrete Pumping v. HSBC Commercial Credit1999-2002Represented major national lender as first chair in defense of lender liability claim exceeding $11 million based upon claims of promissory estoppel and breach of contract to lend. Federal bench trial judgment for client HSBC was affirmed by the Ninth Circuit on appeal in an unreported decision..

Antitrust DefensePaladin Associates, Inc. v. Montana Power Company1998-2003Defended utility against $39 million claim for alleged antitrust violations in the context of natural gas transmission deregulation. Acted as second chair, handling all discovery and briefing on summary judgment. Trial court dismissed all claims on summary judgment. The Ninth Circuit affirmed on appeal. 328 F.3d 1145 (2003)

Exxon Valdez Oil Spill LitigationRepresentation of Plaintiffs1990-2003While at Seattle’s Davis Wright Tremaine LLP (DWT), DWT was named co-lead counsel for all plaintiffs in the EVOS litigation. I assisted the EVOS Law Committee in researching/briefing various issues of federal maritime law, including economic loss.

Tribal Casino LitigationRepresentation of Indian Gaming Consultant1996-99Defended Grand Casinos, Inc. as first chair against multi-million dollar claims brought by Tulalip Tribes of Washington and Seven Arrows LLC relating to abandoned project to construct/manage destination casino on Tulalip lands. First chair in matter brought in Tulalip Tribal Court and removed to federal court in Seattle. Matter settled at mediation for nominal sum after substantial discovery, motion practice. Reported at length in SEC filings of Lakes Entertainment.

Radioactive Cesium Capsule LitigationDefense of Design Defect Claims1990-95Third chair in defense of Battelle Memorial Institute in product liability case brought by irradiation companies against U.S. Dept. of Energy and various Hanford contractors claiming damages resulting from termination of lease by DOE of capsules containing radioactive cesium salts. I participated in discovery and was principal drafter of summary judgment briefs (including economic loss doctrine, government contractor defense) that led to summary dismissal of claims exceeding $500 million.

Selected Construction Litigation Experience

Claim Against ArchitectPendingPursuing claim brought by client developer against architect for alleged negligence in design of preliminary plat, management of annexation process.

Defense of Utility Contractor2011Acted as first chair in defense of utility contractor in claim brought by equipment supplier for unpaid rental fees. Prevailed in arbitration.

Defense of Construction Impact ClaimKiewit v. Sound Transit2008-10Acted as second chair to principal client attorney in defending public transit authority against claims of general contractor exceeding $50 million for addi­tional compensation, delay, impacts relating to construction of maintenance facility for new light rail line. General contractor alleged that design was defective or incomplete. Principal participation was analyzing, responding to general contractor’s claims and preparing for mediation.

Prosecution of Impact ClaimSafeco Field Litigation2003-06Acted as second chair to principal client attorney in pursuing claims of Seattle Mariners Major League Baseball Club against designers of Safeco Field. Claims alleged inadequate/incomplete design and misrepresentation of design firm’s abilities to design professional sports facility. Club settled claims of contractors and sought reimbursement from architectural and engineering firms. Settled on confidential terms.

Construction Delay ClaimNexans, Inc.2007-10Represented German manufacturer of high-voltage cable in claim for contract balance, with counterclaim for late delivery. Settled at mediation following substantial discovery.

Residential Defect ClaimOwner representation2008-presentRepresenting owner in claims against builder/seller for defective construction, breach of warranty, fraudulent inducement. Trial court entered summary judgment against owner when represented by another firm; I obtained reversal on appeal on all counts with a remand for trial.

Condominium Defect DefenseDeveloper/general contractor2007-09Defended Canadian developer/general contractor in two separate cases against claims of condominium homeowners associations and prosecuted third-party claims against subcontractors for indemnity, breach of contract, and contribution. Settled at mediation. Associations’ claims (one exceeding $10 million; another exceeding $8 million) related to alleged deficient design/construction leading to water damage.

Architectural Design Defect DefenseHammel Green & Abrahamson2007Defended architectural firm against claims of University of Alaska (Fairbanks) alleging design issues caused cost overruns on Museum of the North. Settled at mediation..

Defense of Material SupplierLouisiana Pacific2007Defended manufacturer of insulation products in condominium defect litigation against claims it provided/installed defective or nonconforming product. Settled after substantial discovery and pretrial motions..

Representation of Purchasing Agent2006Represented Italian purchasing agent for Russian developer of luxury shopping center in Moscow against Canadian forest products company in claim that product delivered did not meet specification, with resulting damages from cost to cover delay, demurrage, etc. Settled after document discovery and defeating motions for summary judgment.

Defense of Material SupplierNational manufacturer of wood products2004Defended manufacturer of pre-primed wood supplied to condominium project against claims it provided nonconforming product. Settled at zero out-of-pocket cost.

Defense of Owner/Operator of Fiber NetworkMetromedia Fiber Network, Inc.2001Defended owner/operator of fiber network against claims for additional compensation by contractor relating to trench installation of fiber. Settled after substantial discovery..

Architectural Design Defect DefenseHammel Green & Abrahamson2000Defended architectural firm against claims of Kennewick (Wash.) School District alleging that design issues caused cost overrun on third Kennewick high school. Settled just prior to AAA arbitration hearing..

Defense of U.S. Government Site ContractorFluor Daniel Northwest1999Defended U.S. Department of Energy site contractor against claims by steel fabricator for impact cost overruns on Environmental Molecular Sciences Laboratory in Richland, Wash. Federal bench trial resulted in judgment for fabricator for less than a quarter of damages judgment sought and less than half of the amount last offered by fabricator to settle.

Defense of U.S. Government Site ContractorsFluor Daniel Northwest; ICF Kaiser Hanford Co.; Kaiser Engineers Hanford; J.A. Jones Construction Services Co.1989-99Defended U.S. Department of Energy Hanford site contractors charged with managing site construction projects against various claims brought by regional and national contractors in at least 10 separate cases. Projects included re-tubing of N Reactor; installation of pneumatic coal-handling system; monitor well-drilling. Theories spanned full range of construction theories, including cumulative impact, cardinal change, changed conditions.

Defense of U.S. Government Site ContractorKaiser Engineers Hanford1984Defended U.S. Department of Energy site contractor against claim of wrongful termination brought by local contractor.

Selected Real Estate and Land Use Litigation Experience

Owner/Developer Claims Against GovernmentVarious clients2003-presentRepresented various owners in damages claims against municipal, county, and state governmental entities relating to wrongful permitting decisions and alleging claims for tortious interference, inverse condemnation, and Section 1983.

Adverse Possession ClaimsVarious clients2004-presentRepresented residential owners in claiming and defending claims of adverse possession.

Disputes Between Adjacent LandownersVarious clients2004-presentRepresented various commercial and individual landowners in claims against adjacent landowners for property damage, enforcement of land-use covenants, enforcement of easements.

Distribution/Antitrust Litigation Experience

See Selected Commercial Litigation Experience above

Defense of National Wireless Carrier and Antitrust Defense (Paladin Associates, Inc. v. Montana Power Company)

Products Liability Litigation Experience

See Selected Commercial Litigation Experience aboveRadioactive Cesium Capsule Litigation

See Selected Construction Litigation Experience aboveMost of the construction litigation identified involved claims that particular products were defective or design specified or supplied was defective, leading to impacts, repair/remediation, lost profits. Products include cellulose insulation and wood products.

Selected Appellate Experience

Haas v. Kartashev, Washington Court of Appeals (2010), unreported. Assumed representation of homeowner after original firm lost on summary judgment; obtained complete reversal of summary dismissal of claims for defective construction, breach of implied warranty of habitability, violation of Washington Consumer Protection Act. First chair.

Wesco v. Ernest, Idaho Supreme Court (2010). Assumed representation of autobody supply wholesaler after original firm lost on summary judgment. First chair. Sought but failed to persuade conservative Idaho Supreme Court to adopt theories of liability against competitor for employee raiding despite lack of written non-competes. Balance of case remanded for trial in 2012.

Holcomb v. Taree Community Ass’n, Washington Court of Appeals (2009), unreported. Represented landowner in case involving allegedly unreasonable enforcement of design review covenants in residential subdivision. Court of Appeals reversed trial judgment for Association. First chair.

Kam-Ko Bio-Pharm Trading Co. v. Mayne Pharma (USA), Inc., 560 F.3d 935 (9th Cir. 2009). Represented pharmaceutical company in contract dispute. Contract provided for arbitration before the International Chamber of Commerce. Other party argued clause was unconscionable and unenforceable. Ninth Circuit disagreed and affirmed dismissal of claims against client based on other party’s failure to pursue ICC arbitration. First chair.

Tawes v. Dick Bedlington Real Estate, Washington Court of Appeals (2008), unreported.Represented landowner in action brought by purchaser seeking to enforce purchase and sale agreement. Client defended on basis of statute of frauds. Summary judgment in favor of client affirmed on appeal. First chair.

Paladin Associates, Inc. v. Montana Power Company, 328 F.3d 1145 (2003).Represented utility in natural gas antitrust case. Second chair, but handled most appellate briefing. Summary judgment for client Montana Power Co. affirmed.


Battle of the Lien Forms: Claims of Lien Must Strictly Comply with the Lien Statute, 03.25.10U.S. Green Building Council Releases Details on New LEED Version, 03.26.09In Major Antitrust Decision, Supreme Court Overrules 1911 Precedent to Declare Vertical Minimum Price Restraints to Be Governed by Rule of Reason, 07.03.07.

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