Representative Experience

Construction/Government Contracts

Assisted Major League Baseball club in evaluation of claims relating to design/construction of new baseball facility.

Defended design firms in two cases against claims by public school districts that alleged design deficiencies contributed to cost overruns. One case involved construction of a new high school; the second involved renovation of a high school with buildings up to 90 years old. Both cases settled at a small fraction of the amount claimed.

Defended fiber optic company against claims of contractor relating to digging of trench, laying of conduit, and restoration of public rights of way. Case settled after substantial discovery.

Defended U.S. Dept. of Energy (DOE) Hanford contractors in several cases in which contractors claimed additional compensation on a variety of projects.

• One case, taken to trial in the E.D. Washington, concerned fabrication of structural steel for DOE’s Environmental Molecular Sciences Laboratory in Richland, Washington. Obtained summary judgment dismissing almost half of claimed amount; bench trial resulted in judgment in favor of plaintiff of approximately one-half of plaintiff’s last settlement offer. First chair.
• In another case, a commercial drilling and exploration company sought additional compensation relating to environmental well-drilling program at DOE’s Hanford Nuclear Reservation. The dispute was submitted to the DOE Board of Contract Appeals under its then newly-adopted ADR rules. The matter settled for less than one-third of the amount sought. First chair.
• Acted as second chair in defense of DOE Hanford contractor in action brought by construction contractor alleging bad faith termination of contract, breach of contract, defamation, tortious interference, conspiracy, and destruction of business. Tried to a jury in Benton County in 1992.
• Acted as second chair in defense of DOE Hanford contractor in construction contract dispute. Plaintiff based its claims, which totaled $2.5 million, on theories of delay, constructive acceleration, breach of contract, negligence, differing site conditions, defective specifications, constructive change, and cumulative impact. The court dismissed all claims at the close of plaintiff's evidence.
• Acted as second chair in defense of DOE Hanford contractor in contract dispute involving allegations of defective specifications. Matter settled after substantial discovery for less than one-sixth of amount demanded.
• Defended claims brought by DOE contractor against subcontractor for alleged deficiencies in mobile laboratory trailers. The matter settled following private mediation by establishing escrow fund to pay unknown future claims for limited period. Liability was capped at the sum placed in escrow, with the cap declining to zero over five-year period. No substantial claims were ever asserted against the fund, which was then returned to DWT’s client. First chair.

Counseled other commercial and residential construction clients on contract issues and lien rights. Assisted clients in review and negotiation of construction contracts and related agreements. Helped clients negotiate contracts subject to federal procurement law.

Commercial/Banking

Represented and currently represent major national wireless telephone carrier in several disputes with its dealers involving claims by the dealer for additional compensation on contract theories, but also allegations of federal and state antitrust/unfair competition act violations, fraud/misrepresentation, franchise and business or investment opportunity protection legislation. To date, have always succeeded in enforcing arbitration clause and obtaining dismissal of claims for consequential damages and non-contractual claims (statutory, tort).

Represented major national lender in defense of lender liability claim based upon claims of promissory estoppel and breach of contract to lend. Judgment for defendant lender following a two-week bench trial was affirmed on appeal. Brundage-Bone Concrete Pumping v. HSBC Commercial Credit, 45 Fed. Appx. 595, 2002 WL 1890441 (9th Cir. 2002).

Represented major national bank in obtaining dismissal on summary judgment of tort claims against lender relating to dispute whether assets owned by decedent at death were or should have been held jointly with right of survivorship.

Second chair in jury trial defending lender liability claims totaling approximately $1 million.

In re Exxon Valdez, U.S. District Court, D. Alaska (1995). Assisted Exxon Valdez plaintiff’s team by research, briefing of summary judgment issue concerning continuing vitality, scope of economic loss rule in admiralty and interpretation and enforceability of assignments of claim by fish processor claimants to Exxon.

Represented Canadian forest products manufacturer in product defect case involving pre-primed trim. Matter settled shortly before trial with no payment by DWT client.

Acted as third chair in defense of government contractor against product liability (tort and warranty) claims exceeding $300 million relating to design, manufacture, and testing of cesium capsules used in irradiation. Complex litigation. All claims against client dismissed on summary judgment. Responsibilities included discovery depositions and summary judgment motions.

Acted as third chair in partnership dispute seeking declaratory relief involving control of $350 million newsprint mill in Usk, Washington. Matter settled prior to trial after extensive pretrial discovery.

Intellectual Property

Representing recording artist in defense of copyright claim.

Assisted in representing Microsoft in dispute over patent license. Primarily responsible for pretrial discovery and motions. Bench trial resulted in judgment for Microsoft.

First chair in prosecution of computer copyright infringement action. Matter settled prior to trial but after extensive pretrial discovery.

Assisted University of Washington School of Law Prof. Donald Chisum, special copyright counsel to Microsoft early in 1989, in Apple litigation. Updated 1987-88 analysis of computer copyright “look and feel” cases and assisted in locating and interviewing experts knowledgeable in human factors of computer interface design.

Counseled clients on copyright, trade secret, patent litigation issues. Acted as local counsel in biotechnology patent infringement claim; analyzed potential patent infringement claim involving food processing equipment; and evaluated recoverable damages in patent infringement claim against United States relating to night-vision goggles.

Real Estate and Land Use

Represented several owners of real property in damages actions brought against municipal and other government entities for damages relating to delayed or arbitrary/capricious permitting actions. Representation has ranged from owners of single-family residences to a subdivision developer. Damages actions typically relied upon RCW 64.40 and federal civil rights legislation.

Successfully defended upzone ordinance in writ of review challenge based upon arguments relating to notice, State Environmental Policy Act compliance, whether required "change of circumstances" was shown, and whether rezone was unlawful spot-zone. Concurrently assisted in gaining planned residential development approval for portion of project. Project encompassed approximately 220 multi-family units and resort-class hotel having combined value of over $30 million. Court of Appeals affirmed dismissal of challenge.

Indian Law

Represented gaming/casino company in defending action by a Washington Indian Tribe and other parties seeking to terminate and claim damages pursuant to agreements involving construction of a resort-class casino in Everett, Washington. Matter settled prior to trial after extensive discovery.

Counseled bank clients on transactions with Tribal entities and members. Also counseled telecommunications clients on contracting and claim issues relating to tribal entities. Issues typically addressed include sovereign immunity, jurisdiction, and alternative dispute resolution.

Antitrust

Paladin Associates, Inc. v. Montana Power Company, 328 F.3d 1145 (9th Cir. 2003). Second chair in defense of utility against claims totaling $39 million for alleged antitrust violations in context of deregulation of natural gas transmission. Responsibilities included conducting most depositions of adverse party and third-party witnesses and briefing summary judgment motions. Court dismissed all antitrust claims on summary judgment, including tying, monopolization, attempted monopolization, boycott, and essential facilities claims. Court declined to continue exercise of supplemental jurisdiction as to state law claims and dismissed them with leave to refile in state court. Affirmed on appeal in all respects.

Represented and currently represent major national wireless telephone carrier in disputes with its dealers that frequently raise claims under the Robinson-Patman and other acts regulating competitive behavior. Representation has included antitrust counseling outside of litigation.

Publications and Presentations
Daniel B. Ritter & Alan S. Middleton, New Revisions to UCC Articles 3 & 4 (1993)

Alan S. Middleton, Note, A Thousand Clones: The Scope of Copyright Protection for the "Look and Feel" of Computer Programs, 63 WASH. L. REV. (1988)

Lecturer on Commercial Paper (Negotiable Instruments), Bar Review Associates of Washington, (1993-1995)

Memberships and Activities

Bar Admissions
Washington State Bar Association
U.S. District Court, Eastern and Washington District of Washington
U.S. Court of Appeals for the Ninth Circuit

Bar Associations
Washington State Bar Association
American Bar Association

Other Membership Activities
Orchestra Seattle Chamber Singers, President and Member of the Board of Directors (1992-1998)

Education
J.D., with high honors, University of Washington School of Law, 1988

Associate Articles Editor, Washington Law Review; Order of the Coif

B.A., with honors, in Social Studies, Harvard College, 1980; National Merit Scholar