Importance of Collection Strategy:

Ensuring Judgement Collection

By Darrell P. White and Maxx E. Sharp

[Editor’s note: Judge Holcomb currently

serves as a judge on the United States

District Court for the Central District of

California. He was nominated by Presi-

dent Trump in November 2019 and con-

from Harvard Business School, and a J.D. from Harvard Law

School. Judge Holcomb served in the United States Navy from

1980 to 1989, and was on active duty as a Commissioned Of-

ficer from 1984 to 1989.]

Q: Many past profiles about you note that you

knew you wanted to be a judge even before law

school—now that you achieved your goal, what are

your aspirations going forward?

-Continued on page 4-

Q&A with the Honorable John W. Holcomb

By Kristopher R. Wood

ment collection methods is im-

portant when setting realistic ex-

pectations for a case. This is

equally helpful for attorneys who

regularly take contingency fee

matter. Understanding the available collection methods

available to the plaintiff (and potential creditor) is perti-

Pre-Judgment Asset Investigation

debtor’s assets is pertinent to deciding whether obtaining

a judgment is worth the time and money. Thus, it is im-

portant to have a discussion about the defendant’s assets

with the plaintiff before filing a case. Additionally, public

information such as bankruptcy proceedings, civil litiga-

ducted on a defendant’s companies,

which weighs the general character

of the defendant as it relates to

debts. If a potential defendant is

already dealing with multiple credi-

tors, then joining that list may be

an exercise in futility. However, if the Plaintiff is in-

formed and still wants to proceed, a prompt money-up-

front settlement with the defendant may be a good way to

-Continued on page 7-

ABTL REPORT EDITOR

President’s Message

By William C. O’Neill

The statements and opinions in the ABTL-Orange County

Report are those of the contributors and not necessarily those of

the editors or the Association of Business Trial Lawyers of

Orange County. All rights reserved.

counsel table, it is oftentimes making the effort to men-

the other half to an irrevocable marital and family trust.

have harnessed the power if AI to develop tools to aid

employers in the hiring process. Many employers now

use AI-powered software to

screen job candidates or even se-

lectively advertise job postings.

line hiring, but they also may

subject employers to liability un-

der a range of federal, state, and

local laws. As regulatory atten-

tion continues to shift toward AI-

level, both the EEOC and the

DOJ released technical guidance,

enforcement action on the sub-

ject. The California Fair Employ-

ment and Housing Council

(FEHC) (now called the Califor-

nia Civil Rights Council) released

proposed revisions of the state’s

employment non-discrimination

laws to address the use of AI in

regulators and employers who use AI in the workplace.

AI Defined

Expansive definitions of AI abound. Congress has de-

fined AI as any “machine-based system that can, for a

given set of human-defined objectives, make predictions,

recommendations or decisions influencing real or virtual

environments.” National Artificial Intelligence Act of

-Continued on page 9-

mining and assessing a compa-

tices. There is no definitive list

of ESG factors and the three cate-

gories often overlap. Prototypi-

cal examples of environment,

social, and governance factors include:

E: climate change mitigation and adaptation, waste

S: human rights, diversity and inclusion, wages and

Standards Board (“SASB”) standards, the Global Re-

porting Initiative (“GRI”) standards, and United Nations

Principles for Responsible Investment (“PRI”).

This lack of definitive industry standards, combined

with newly proposed and recently adopted legal regula-

tions in the United States, has created a situation ripe for

litigation. Several key areas of emerging ESG litigation

are discussed below.

Greenwashing Litigation

Cloud, 72% of North American executives agreed that

their organization has overstated its sustainability ef-

forts. (https://services.google.com/fh/files/misc/

google_cloud_cxo_sustainability_survey_final.pdf).

Plaintiff consumer and activist organizations have taken

appointment, so I want to stay for life. I love this job.

It’s what I’ve always wanted to do, and I want to do it for

as long as I can. Rarely does one find the perfect job, but

trying to find the right answer.

umpires, probably enjoying an adult beverage after a

game and talking about the art of calling balls and strikes.

The first says, “I calls ’em as I sees ’em.” The second

says, “I calls ’em as they are.” And the third says, “Nah,

they ain’t nothing until I calls ’em.” I like that story, and

I tell it often, because it illustrates three views of reality.

his view is that “I determine the truth because I alone call

it a ball or strike.”

of the law and the art of judging. I agree with the first

one. There is an objective truth—the correct ruling under

the law—and my mandate as a judge is to seek that cor-

rect ruling as best I can.

particularly influenced your career?

Chicago, Judge Ronald Barliant. He was (and is) a great

Sometimes at hearings a lawyer would be really aggres-

sive or, in my view, annoying. Judge Barliant and I

would talk afterward and I would ask “Why didn’t you

cut him off?” He would say, “I never want to interfere

-Q&A: Continued from page 1-

The Rising Tide of ESG Litigation: An Overview

By Lisa M. Northrup

and my office was next to his, so I got an unusual oppor-

tunity as a new associate to see how he performed as a

managing partner—especially his humanity, and his

deep concern for all the people in the firm, including

non-lawyer staff members.

my nomination was confirmed. My former partners,

Alan Greenberg and Wayne Gross, are both terrific trial

lawyers. When I was there, I witnessed Alan Greenberg

win an absolutely unwinnable jury trial. It was a work

Q: What was the biggest unexpected difference for

you between private practice and being a judge?

knew there would be many new areas of law that I had

A: The limited time and attention that courts have to

every day. I get a report every morning of everything

that was filed in all my cases on the previous day. Now,

I may not look closely at a summons or even an answer.

But I read every new motion, every opposition, every

reply, every Rule 26(f) report—those sorts of things.

Then, the week before the hearing on a motion, I meet

with my two law clerks. If the motion is relatively

straight forward, I’ll make a decision, and it will be done

give the parties what they want in terms of the original

and the parties are expected to adhere to it. Now, when

there is a good reason, such as lead counsel experiencing

health issues, I’ll grant more time. But “we didn’t finish

taking discovery and we’re not ready” does not constitute

Finally, aesthetics can matter. The formatting of briefs,

line numbers aligning with text, and things like that are

easy things to get right. Now, I’m not going to deny a

motion over formatting issues—I’m going to deal with it

on the substance. But first impressions can matter, and

provide that counsel should let the court know if there is

a relatively young or inexperienced lawyer who is going

to argue a motion. We’ll conduct the hearing and let

him or her handle it. I’m a big proponent of letting less

experienced attorneys get some experience. And the on-

ly way they’re going to get experience arguing motions

is by doing it, so I want to encourage that. It doesn’t

mean I’m going to be easier on the client or the sub-

motion, and at the start of the hearing, Judge Otero said

he wanted to hear argument from the associate. Of

course, Judge Otero told me that I could assist if the as-

enough to understand that the associate had put in a lot

of work on the motion and knew the case well. Ulti-

mately, the associate did a great job and we won. I don’t

know that I’m going to go that far in my courtroom—put

the junior associate on the spot. But I think it’d be nice

if everyone knew that there was a chance I might.

Kristopher R. Wood is a senior

cut the line of creditors. Additionally, once a case is

commenced, discovery of relevant information will of-

plaintiff with a better understanding of the defendant’s

assets. Note that any applicable discovery related pro-

tective orders could interfere with using said infor-

mation in collection efforts, depending on the language

of the order. Thus, it is pertinent to evaluate protective

order language carefully under the perspective of a po-

Preliminary Relief to Protect Collectable Assets

When dealing with a defendant who is at risk of liq-

pay money damages is a classic type of irreparable harm

supporting the issuance of an injunction as a provisional

remedy. (See California Retail Portfolio Fund GMBH &

Co. KG v. Hopkins Real Estate Group (2011) 193

Cal.App.4th 849; see also Earth Island Institute v. U.S.

Forest Service, (9th. Cir. 2003) 351 F.3d 1291 (holding

degree of irreparable harm required for preliminary in-

decreases, and vice versa.)) Additionally, in suit for a

preliminary injunction ancillary to an accounting and

dissolution of a limited partnership, preliminary injunc-

“irreparable injury” to the partnership assets where it

would remain intact pending an accounting and a final

porate rights… [and] In all other cases where necessary

to preserve the property or rights of any party. (Cal. Civ.

sert her rights to preserve collectable assets by request-

ing preliminary relief when necessary. Even when not

enough information is known to request a remedy like

an account freeze, a precautionary order preventing the

liquidation of funds can set up for contempt sanctions if

this order is violated.

Once a judgment is obtained, a judgment debtor’s

exam is a useful tool to apply pressure on a debtor and

or does not appear at a debtor’s exam at the time, date,

and location ordered by the Court, the debtor will be sub-

ject to a bench warrant for arrest for contempt of Court.

Indeed, California’s Debtor’s Exam form (EJ-125) puts

the debtor on notice of this, stating: “if you fail to appear

at the time and place specified in this order, you may be

subject to arrest and punishment for contempt of court,

and the court may make an order requiring you to pay

the reasonable attorney fees incurred by the judgment

creditor in this proceeding.” This threat of a potential

questions. After that, the attorney and the debtor will

leave the court room with a court reporter to begin ques-

tioning. Note that this proceeding can be recorded, so the

creditor should bring a court reporter.

The scope of a debtor’s exam is extended to any infor-

mation that will aid in the enforcement of the judgment

or that relates to the debtor’s assets or liabilities. Note

that it may be helpful to review the applicable collection

forms to determine which information is necessary. For

instance, the bank levy collection form requires the bank

of the debtor. The debit or credit cards in a debtor’s wal-

let could also be used to cross-examine any previous an-

swers relating to the debtor’s bank accounts.

Post-Judgment Asset Investigation

with notice to appear at a judgment debtor’s exam. In

this situation, an asset search conducted by a private in-

vestigator may be the best available option to obtain in-

formation concerning a debtor’s assets. It is important to

ensure that the private investigator’s findings are made in

compliance with the law, such as the Gramm–Leach–

Bliley Act (GLBA) Section 313.15 (a)(2)(ii). Additional-

information can be used for collection purposes.

Bank Levy

taining a judgment, the Plaintiff is permitted to collect

the judgment directly from the debtor’s bank account(s).

Learning this information can potentially alleviate the

Plaintiff’s concerns of inability to collect and help the

Plaintiff understand the power of a legal judgment.

Sheriff’s Department, wherein the Sheriff will serve le-

branches or offices located within this state shall be

hicle to satisfy a judgment. This collection device goes

beyond the monetary realm and will apply significant

pressure on the debtor. To serve a vehicle levy, there is

no requirement to exhaust all possible monetary collec-

tion methods, thus this method could potentially be used

to induce a payment of the full judgment amount if the

serts her right to obtain preliminary relief preventing the

transferring assets out of the United States (i.e. moving

money offshore).

Importance of Assessment of Collection

There are many collection devices available, thus it

is important to evaluate a wide variety of potential assets

and revenue sources for any defendant or potential debt-

or. In doing so, attorneys can set realistic expectations

for collection for their clients. This is equally helpful for

& White LLP, handles commercial litigation matters.

Such broadly defined key terms give regulators a wide

In its first major undertaking following the announce-

connection with the third-party best aquaculture practices

certification symbol. See Rawson v. ALDI, Inc., No. 21-

coffee pods as recyclable. The court granted plaintiffs’

120863 (N.D. Cal. July 8, 2022). Keurig is now waiting

for court approval of a $10 million class settlement.

of Green Guides designed to help companies avoid mak-

precedent, courts frequently look to the Green Guides

Hennes & Mauritz LP (“H&M”) is defending against

“environmental scorecards” for its products called

solved a case involving its “100% natural” advertising

missals. For example, a court recently granted a motion

gle-use plastic bottles supplied by defendants Coca-

making false and misleading claims about dam safety

prior to the collapse of one of its dams. (https://

“Pinkwashing” also refers to companies with advertising

aimed at showing support of breast cancer awareness

and research, when the companies continue to sell prod-

ucts with cancer-causing ingredients or otherwise fail to

take action to genuinely support reducing breast cancer.

The term “bluewashing” has been used to describe com-

panies promoting the United Nations Global Compact,

including its human rights and labor standards, but at the

same engaging in child labor, slavery, or other human

rights violations and/or failing to take any real measures

to improve in these areas.

SEC’s Proposed Rules and Enforcement

proposed several rules in 2022 directed toward helping

requirement does not apply to a fund’s investment

“strategy.” (https://www.sec.gov/news/statement/lee-

names-rule-statement-052522). The proposed rule elim-

inates this confusing distinction so that the 80% rule re-

quirement will apply whenever a fund’s name suggests a

www.sec.gov/rules/other/2020/ic-33809.pdf). As a re-

sult, the proposed rule restricts funds aiming to attract

investors as an ESG-focused fund from using “ESG,”

“sustainable,” “green,” or other terms in the fund name

www.sec.gov/rules/proposed/2022/ia-6034.pdf). For

example, all ESG focused funds that consider green-

house gas emissions as part of their investment strategy

the fund’s annual report the fund’s portfolio carbon foot-

print and weighted average carbon intensity.

Similarly, the SEC also proposed a rule that would

enhance the disclosure and reporting requirements for

investment advisers pertaining to an adviser’s ESG strat-

egies. (https://www.sec.gov/rules/proposed/2022/33-

Antitrust Litigation

tember 2022 hearing held by the Senate Judiciary Sub-

committee on Competition Policy, Antitrust, and Con-

sumer Rights, five senators issued a letter on November

3, 2022 to dozens of law firms. The letter advised the

incur by participating in climate cartels and other ill-

www.grassley.senate.gov/imo/media/doc/

cotton_grassley_et_altolawfirmsesgcollusion.pdf). More

specifically, the letter calls out as a particular concern the

“collusive effort to restrict the supply of coal, oil, and

gas, which is driving up energy costs across the globe

and empowering America’s adversaries abroad” and ad-

the Sherman Act. Hopefully this will not dissuade com-

panies from participating in industrywide ESG efforts,

but companies should take appropriate precautions to

mitigate potential risks.

Concluding Thoughts

both plaintiffs and regulatory agencies will continue to

pursue ESG claims and likely with an increased zeal

moving forward. Companies can proactively manage and

minimize their litigation risk by engaging in an ongoing

review of their ESG advertising, disclosures, policies,

and practices. Companies additionally may benefit from

action defense.

Increase Diversity Leads to Fake Job Interviews” report-

ing that for many “open” positions a candidate repre-

senting a historically underrepresented group would be

interviewed, but the job would have already been prom-

ised to someone else. Wells Fargo’s stock dropped fol-

Defendants likely will file a motion to dismiss in spring

2023 following filing of a new complaint by lead plain-

On November 22, 2022, the United States Department

Selecting Plan Investments and Exercising Shareholder

ebsa/our-activities/resource-center/fact-sheets/final-rule-

on-prudence-and-loyalty-in-selecting-plan-investments-

and-exercising-shareholder-rights.) While clarifying

how ERISA’s fiduciary duties of prudence and loyalty

apply to the selection of investments, the final rule pro-

vides that a fiduciary’s duty of prudence may include

consideration of ESG factors when evaluating invest-

ment options and the financial benefits of investing in

tors and asset managers have an increased interest in

nancial officer announced Florida is pulling $2 billion in

Blackrock is prioritizing ESG over higher returns for

florida-pulls-2-bln-blackrock-largest-anti-esg-

divestment-2022-12-01/).

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