Kimberly Arouh
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Kimberly Arouh

Shareholder

San Diego, CA
 
 
 

Kimberly Arouh has more than 20 years of litigation experience to efficiently and cost effectively handle, from pre-trial to trial to appeal, any type of business litigation. She is dedicated to providing excellent client service, understanding the business of each of her clients and achieving her clients’ objectives.

She represents clients in complex litigation in a range of areas, including contract, employment, land use, eminent domain, construction and real estate litigation, water rights litigation, energy-related litigation, securities and derivative litigation, class actions, antitrust litigation and merger and acquisition litigation. Her clients span a variety of industries, including energy, financial services, telecommunications, life sciences, real estate, construction and international services. She is currently head of the firm's San Diego office and serves on the firm's Electronic Discovery Committee and Diversity and Inclusion Committee.

Kimberly represents clients in federal and state trial courts and on appeal, as well as before domestic and international arbitration tribunals. She has been involved in litigation and arbitrations that impact her clients’ interests throughout the United States, as well as American Samoa, Australia, Bermuda, Canada, England, France, Israel, Indonesia, Italy, New Zealand, the Philippines, Singapore and Thailand.

Kimberly is active in the community and local bar organizations, including the Forum For Executive Women, the American Inns of Court, Louis M. Welsh Inn and the San Diego Regional Chamber of Commerce. She has previously served on the Mega Region Committee for the San Diego Regional Economic Development Commission, on the Steering Committee for the Pinnacle Awards for Athena, as the newsletter editor for the Federal Bar Association and as the president and on the Board of Directors of the San Diego League.

She has been selected for inclusion in the San Diego Super Lawyers lists consecutively since 2015, a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement, and has been named to 2016, 2017 and 2018 The Best Lawyers in America® list for Commercial Litigation.

Kimberly frequently lectures and participates in panel discussions on topics of interest, including the representation of public companies, issues relating to the sale of private companies, social media policies and trial preparation. She has presented at Association of Corporate Counsel roundtables and to the Big Brothers Big Sisters Large Agency Alliance Conference, among other forums.

Prior to joining Buchanan, Kimberly was a litigator with the international law firm of Latham & Watkins LLP for 20 years, where she was the local chair of its Securities and Professional Liability Practice Group and a member of Latham’s Employment, Securities, Appellate, Energy and International Arbitration Practice Groups. Kimberly prosecuted trials in the District Attorney’s Office and presided over trials as a judge pro tem for the San Diego Superior Court. Kimberly served as a judicial law clerk for the Honorable David R. Thompson in the United States Court of Appeals for the Ninth Circuit. Kimberly graduated from the University of Pennsylvania with summa cum laude honors and as a member of the Phi Beta Kappa academic honor society.

Kimberly graduated from the UCLA Law School, where she was elected to the Order of the Coif academic honor society and where she served as an editor of the UCLA Law Review and the UCLA Women’s Law Journal.

Business Litigation

  • Kimberly represents her clients in a range of complex business litigation. In this context, Kimberly has:
  • Obtained summary judgment, including recovery of attorney's fees, in favor of financial institution in collection of commercial debt.
  • Obtained summary judgment, including recovery of attorney's fees, in favor of commercial enterprise in breach of contract case.
  • Represented the airframe manufacturer of the Apache attack helicopter in a multi-week arbitration concerning a teaming agreement to develop and produce the airframe.
  • Represented an Italian fashion designer in a suit involving lost profits and damage to the designer’s luxury brand stemming from the development and marketing of a fragrance.
  • Represented Societe Generale in a suit involving private investment vehicles.
  • Represented Goldman Sachs in connection with recovering funds from a guarantor of a commercial loan concerning the Lowes Coronado Bay Resort.
  • Represented Houlihan Lokey Howard & Zukin Capital in suit regarding advisory services rendered in connection with a public company’s acquisition of a private business.
  • Removed UCC-1 security interests and liens on the Library Tower in Los Angeles, and obtained an injunction prohibiting select parties from placing future liens on the property.
  • Defeated a request for an injunction of her client’s draw on multi-million dollar letter of credit.

Class Actions & Antitrust, Securities & Derivative Litigation, Merger & Acquisition Litigation

  • Kimberly represents public and private companies and officers and directors in complex litigation, including securities class actions, shareholder derivative actions, merger and acquisition cases, class actions, antitrust cases and cases alleging business judgment and fiduciary duty issues. She also handles SEC investigations, FINRA investigations and internal corporate investigations. In this context, Kimberly has:
  • Won motions to dismiss derivative and securities claims based on financial restatements for InfoSonics Corporation. In re InfoSonics Securities Litigation, 2007 WL 2301757; In re InfoSonics Corporation Derivative Litigation, 2007 WL 2572276.
  • Won motions to dismiss derivative and securities claims based on financial restatements for Leap Wireless International, Inc. HCL Partners v. Leap Wireless International, Inc., 2010 WL 4027632.
  • Defeated plaintiffs’ requests for injunctive relief of Amgen’s US $1.3 billion acquisition of Tularik and obtained dismissals of two securities class actions in California and Delaware in exchange for a waiver of defense costs.
  • Defeated plaintiffs’ requests to enjoin a scheduled shareholder vote on a US $1.6 billion merger transaction between DJO Incorporated and ReAble, an affiliate of Blackstone.
  • Obtained the dismissal of two securities class actions challenging the $305 million acquisition of DEI Holdings by funds affiliated with Charlesbank Capital Partners for no settlement consideration.
  • Negotiated a favorable disclosure settlement for Pan Pacific Retail Properties, Inc. of two shareholder lawsuits challenging a US $4 billion transaction with Kimco Realty to ensure a timely merger close without any change in the merger terms.
  • Negotiated a favorable settlement and dismissal for Price Legacy in two securities class actions in California and Maryland stemming from a merger agreement with PL Retail.
  • Obtained a dismissal of a class action complaint against Laser Spine Institute regarding corporate operational issues.
  • Represented a company in a suit for class overtime wage and hour claims that was settled on terms acceptable to the employer.
  • Represented a leader in specialty coffee and other beverages in an antitrust class action case regarding single serving coffee portions.
  • Won a motion to dismiss state antitrust energy litigation against generators, sellers and traders of wholesale electricity stemming from the California wholesale electricity energy crisis, and obtained a favorable ruling on appeal affirming the dismissal. Wholesale Electricity Anti-Trust Cases I and II, 147 Cal. App. 4th 1293.
  • Won a motion to dismiss federal antitrust energy litigation on filed rate and preemption grounds, and obtained a favorable ruling from the Ninth Circuit Court of Appeal affirming the dismissal. People of the State of California v. Sempra Energy Trading Corp., 2007 WL 2434168 (9th Cir.); 292 Fed. Appx. 676 (9th Cir.).
  • Represented an airline in an antitrust suit alleging predatory pricing in violation of the Sherman Act.
  • Represented a footwear company in a suit alleging violations of antitrust laws that was settled on terms acceptable to the employer.

Real Estate, Construction, Water Rights and Land Use Litigation

Kimberly also handles real-estate related litigation matters, ranging from breach of real-estate related contracts (such as construction, architecture, sales, financing and loan contracts, commercial leases, letters of credit, operation and maintenance agreement, turnkey construction contracts and build-operate-transfer contracts) to eminent domain to environmental issues. Her clients in this regard have included Senior Operations LLC., County of San Diego, City of Carlsbad, Barratt Developments, Ltd., Majestic Realty Co., Library Square Associates, Lowes Coronado Bay Resort, Ameristar Hotel and Casino, CalEnergy, MidAmerican Energy Holdings, Metropolitan Transit Development, Taylor Woodrow Homes, City of West Hollywood, Excel Realty, the Handler Trust and World Oil.

In the real estate, construction, water rights and land use context, Kimberly has:

  • Represented real estate owner in putative class action alleging claims for negligence and nuisance stemming from alleged environmental contamination and vapor intrusion in neighboring parcels of land.
  • Defeated two CEQA challenges to the Mission Valley West Light Rail Transit Project in superior court and on appeal. River Valley Preservation Project v. Metropolitan Transit Development Board, 37 Cal. App. 4th 154.
  • Defeated a CEQA challenge to her client’s 40-unit low-income housing project in the City of West Hollywood in superior court and on appeal. Citizens for Responsible Development in West Hollywood v. City of West Hollywood, 39 Cal. App. 4th 490.
  • Obtained a favorable settlement for her client (in excess of US $125 million) after an eight-week arbitration with a contractor regarding an engineering, procurement and construction contract of a hydroelectric infrastructure project.
  • Litigated a contract to build and share profits of four ecotourism resorts and after a multi-week state court trial, successfully struck the opposing party’s only damages expert prior to trial court dismissing claims against her client. Geyser v. Excel Legacy Corp., 2003 WL 21054762.
  • After an eight-week arbitration under the Construction Industry Rules of the AAA, obtained a multi-million dollar award for her client in a construction dispute of a casino hotel.
  • Won summary judgment for her financial industry clients in a tortious interference case involving the construction of an infrastructure project. Represented a property owner in an eminent domain proceeding involving the highest and best use of a 40-acre parcel of raw land and after demonstrating her client’s proposed land use was in compliance with the general plan and zoning regulations, and proposed amendments and variances thereto, she achieved a settlement that was more than seven times the government’s fair value determination.
  • Negotiated a favorable disclosure settlement for Pan Pacific Retail Properties, Inc. of two shareholder lawsuits challenging a US $4 billion transaction with Kimco Realty to ensure a timely merger close without any change in the merger terms.
  • Represented the parent company of a home developer in a construction defect case concerning a condominium project.
  • Represented a real estate company in a commercial lease dispute with a tenant and brokers regarding the exercise of a long term option. Represented the City of Carlsbad in a water rights dispute concerning the jurisdiction of the California State Water Resources Control Board. Represented the County of San Diego in connection with a contractual water rights dispute with the Julian Community Services District.
  • Defeated a NEPA challenge to the Campo Band of Mission Indians’ non-hazardous solid waste landfill in district court and on appeal to the Ninth Circuit. County of San Diego v. Babbitt, 61 F.3d 909 (9th Cir.); 1994 WL 16121517.

Employment Litigation

In the employment context, Kimberly advises and defends employers in the full range of employment claims, including those alleging gender discrimination, sexual harassment, race discrimination, disability discrimination, religious discrimination, retaliation, wrongful termination in violation of public policy, violation of noncompetition agreements, violation of overtime wage and hour laws, breaches of employment contracts and violations of various state and federal statutes pertaining to employment and discrimination, including the Fair Employment and Housing Act and other California Government Code sections, the California Labor Code, Title VII, the Family and Medical Leave Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act. Her clients in this regard have included The Richmond Group, Faro Technologies, Eco Services Operations, GHS Security, Zep Inc., Allstate, AIDS Foundation San Diego, Thermoscan, Avanir Pharmaceuticals, Flagstar Corporation, Denny’s and El Pollo Loco.

Kimberly provides employment advice and counsel to help her clients avoid litigation, uses creative approaches to negotiate resolutions without judicial intervention and where the matters proceed to litigation, aggressively litigates and defends her clients in court. She has a successful track record at the motion to dismiss phase, at trial and on appeal.

In the employment context, Kimberly has:

  • Obtained workplace violence temporary restraining order to protect company's employees in multi-state offices, and after a bench trial, obtained permanent restraining order against former executive and in favor of company.
  • Won motions to dismiss, on behalf of various employers, on employee claims for age discrimination, gender discrimination, sex discrimination, sexual harassment and wrongful termination and where appealed, had the judgments affirmed on appeal.
  • Won summary judgment for an employer in a damages claim brought by an employee, and had the judgment affirmed on appeal.
  • Obtained the dismissal of two plaintiffs’ entire cases against her client, a fast food chain, after a trial on race discrimination claims.
  • Obtained a favorable settlement for a food market chain in defense of employment discrimination claim.
  • Negotiated a favorable settlement on behalf of an employer in a case involving claims for breach of employment contract, religious discrimination and wrongful termination. Investigated executive whistleblower claims and obtained a favorable resolution.
  • Represented a company in a suit for class overtime wage and hour claims that was settled on terms acceptable to the employer.
  • Represented company in suit with senior executive involving claims and cross claims of breach of fiduciary duty, tortious interference, breach of contract and wrongful termination.

Appeals

Kimberly handles appeals and writs in state and federal court. Kimberly has:

  • Obtained a favorable California Court of Appeal ruling affirming the dismissal of antitrust claims against generators, sellers and traders of wholesale electricity stemming from the California wholesale electricity crisis. See, e.g., Wholesale Electricity Anti-Trust Cases I and II, 147 Cal. App. 4th 1293.
  • Obtained a favorable Ninth Circuit ruling affirming the dismissal of antitrust claims against her clients in a multi-district litigation on filed rate and preemption grounds. People of the State of California v. Sempra Energy Trading Corp., 2007 WL 2434168 (9th Cir.); 292 Fed. Appx. 676 (9th Cir.). Obtained a peremptory writ of mandate for Montrose Chemical Corporation in connection with its lawsuit for insurance coverage for CERLA actions. Montrose Chemical Corporation of California v. Superior Court of Las Angeles; Canadian Universal Insurance Company, 25 Cal. App. 4th 902.
  • Obtained a favorable Court of Appeal ruling affirming the grant of summary judgment in favor of her clients in a suit alleging negligent tax advice with respect to tax treatment of stock options. Henry v. Monaghan v. Henley Group, Inc., Wheelabrator Technologies, et al., 1997 WL 33799336 (Cal.).
  • Obtained a favorable Court of Appeal ruling affirming the dismissal of a religious discrimination claim under California’s Fair Employment and Housing Act. Sipperly v. Thermoscan, Inc., 2000 WL 34492167.
  • Obtained a favorable Court of Appeal ruling affirming the superior court’s order determining the governmental entity acted in compliance with CEQA with respect to the approval of a low income housing project. Citizens for Responsible Development in West Hollywood v. City of West Hollywood, 39 Cal. App. 4th 490.
  • Obtained a favorable Ninth Circuit ruling affirming the district court’s order determining a proposed landfill complied with NEPA. County of San Diego v. Babbitt; Campo Band of Mission Indians and Muht-Hei, Inc., 61 F.3d 909 (9th Cir.); 1994 WL 16121517.
  • Obtained Ninth Circuit relief reversing the district court’s erroneous dismissal of a retaliation claim. Cervantes v. Pratt, 2006 WL 2983547 (9th Cir.); 224 Fed. Appx. 697.
  • Represented a client in a discretionary writ of mandate and prohibition proceeding in the California Court of Appeal and the California Supreme Court in connection with jurisdictional objections. Barratt Developments PLC v. Superior Court; Seahaus La Jolla Owners Association, 2012 WL 1344999, 2012 WL 838387.
  • Represented foreign clients in two separate appeals in connection with the arbitrability of the investment disputes in state court. Jones v. Jacobson, 195 Cal. App. 4th 1.
  • Obtained a favorable Court of Appeal ruling affirming the superior court’s denial of CEQA petition for writ of mandate challenging a public transportation project. River Valley Preservation Project v. Metropolitan Transit Development Board, 37 Cal. App. 4th 154.
  • Represented a public entity in a water rights dispute in a discretionary petition for review in the California Court of Appeal.

Energy Litigation

In the energy area, Kimberly has handled litigation related to energy exploration, development and trading, construction of energy and other major infrastructure projects, energy take-or-pay contracts, build-operate-transfer contracts, engineer, procure and construct contracts, operation and maintenance agreements, emissions litigation and cases alleging antitrust violations stemming from the California wholesale electricity energy crisis. Kimberly has represented utilities, energy exploration and development companies, energy holding and trading companies and owners, developers and operators of power plants. Kimberly’s clients in this area have included Sempra Energy, San Diego Gas & Electric, Sempra Energy Trading, Sempra Energy Resources, MidAmerican Energy Holdings, CalEnergy Minerals LLC, Patuha Power, Himpurna California Energy, Mandala Nusantara Ltd., Brierly Investments Ltd., TransAlta Coal, CE Malitbog and CE Casecnan.

In the energy arena, Kimberly has:

  • Won a motion to dismiss state antitrust energy litigation against generators, sellers and traders of wholesale electricity stemming from the California wholesale electricity energy crisis, and obtained a favorable ruling on appeal affirming the dismissal. Wholesale Electricity Anti-Trust Cases I and II, 147 Cal. App. 4th 1293.
  • Won a motion to dismiss federal antitrust energy litigation on filed rate and preemption grounds, and obtained a favorable ruling from the Ninth Circuit Court of Appeal affirming the dismissal. People of the State of California v. Sempra Energy Trading Corp., 2007 WL 2434168 (9th Cir.); 292 Fed. Appx. 676 (9th Cir.).
  • Obtained a multi-million dollar settlement for her client in a dispute with a contractor regarding an engineering, procurement and construction contract of a major hydroelectric infrastructure project that involved issues of delay liability, force majeure, sub-surface risk and contract interpretation.
  • Won summary judgment in a tortious interference case involving the construction of a hydro-electrical project.
  • Obtained a preliminary injunction, successfully defended a draw on a substantial letter of credit and, after extensive discovery, obtained a favorable settlement on the eve of trial concerning the construction of a zinc extraction and geothermal energy plant, where the issues included design of the plant, feasibility, delay liability, mechanical completion and contract interpretation.
  • Represented a multi-national client in an international arbitration regarding the construction and operation of a geothermal energy plant in Indonesia.
  • Represented the owner of a power company in an energy antitrust case in Nevada.
  • Represented multiple defendants in a series of state lawsuits in the western United States concerning the wholesale electricity energy crisis. Represented the owner of a wind farm in a dispute regarding the manufacturing of and warranties regarding a turbine.