DAVITA HEALTHCARE PARTNERS INC.
Since 2000, Mr. Winsten has represented DaVita HealthCare Partners Inc. and its affiliates and subsidiaries (NYSE:DVA; www.davita.com) a major provider of healthcare services in outpatient and hospital clinics. Over the last 20 years, and in excess of hundreds of separate reimbursement and payor recovery matters around the country and against most of the national healthcare insurance companies. Mr. Winsten has unraveled the complex facts and legal issues surrounding diverse reimbursement disputes under numerous Federal statutes including ERISA, COBRA, and other Federal and state reimbursement and refund statutes and regulations. Mr. Winsten’s efforts have often resulted in direct recoveries in excess of $2-10 Million annually, with fees and costs averaging approximately 10% of recoveries, and with other indirect long-term recoveries resulting from the subsequent correction of payer claims-processing errors or other malfeasance. Most were resolved in workouts and settlements without litigation. Some were litigated in either State or Federal Court, depending on the subject matter jurisdiction of the claims involved, with a few being subject to AAA arbitration. Of those cases litigated, most were resolved and settled well short of trial, many without significant formal discovery, although Mr. Winsten has also prevailed at trial. Mr. Winsten has also handled many miscellaneous contract negotiations and disputes with creditors or vendors, joint venture disputes, medical director agreement disputes, public contract bidding disputes, and real estate disputes, including lease and sublease negotiations and disputes. The resolution of these matters often included Mr. Winsten’s negotiation and documentation of new contracts, renegotiation of existing contracts, in connection with settlement agreements.
VENDOR VS. CORPORATE OFFICER OF FORMER CUSTOMER
Mr. Winsten represented the defendant, the former President of a bankrupt modular building company, who was sued by a disgruntled creditor based on fine print personal guaranty language in a corporate credit application, signed by the defendant in the ordinary course of his corporate duties. This case is notable since it is one of the few cases taken to trial and won for a defendant on a unilateral mistake-of-fact affirmative defense. Mr. Winsten obtained a defense verdict after the plaintiff rejected a not insubstantial pre-trial cost of the defense settlement offer. In addition, Mr. Winsten obtained an award of all of the defendant’s attorneys’ fees based on a contractual fee-shifting provision in the disputed credit application. The defense judgment and attorneys’ fees award were both upheld on appeal, which was also handled by Mr. Winsten. The plaintiff ultimately paid the defendant’s attorneys’ fees and costs after Mr. Winsten obtained and served writs of execution and threatened to install a keeper at the plaintiff’s business office.
HMO BREACH OF PROVIDER CONTRACT
Mr. Winsten successfully represented a healthcare provider seeking reimbursement for a substantial amount of unpaid claims owed by an HMO under an Ancillary Provider Agreement. The case went to bench trial in the Los Angeles Superior Court and resulted in a judgment for $1.3 Million, $100% of the amount sought.
SMALL E-COMMERCE COMPANY VS. FORTUNE 500 TECHNOLOGY COMPANY
Mr. Winsten represented a young e-commerce company in this case, which arose from numerous breaches of an e-commerce website development agreement by a large Fortune 500 company that over promised and under delivered on the development of an e-commerce website for a novel business opportunity conceived and started by several veterans of other prominent Fortune 500 companies. Despite compelling evidence and reasonable settlement demands, the defendants never made a firm settlement offer and filed a series of cross-claims against the plaintiff. The case proceeded to a nearly one-month jury trial in North San Diego County. The jury rendered a substantial verdict for the plaintiff on the complaint, and a defense verdict on the cross-complaint. The case settled after the defendant’s post-trial motions were denied.
SOUTH COAST CHILDREN’S SOCIETY, INC.
South Coast Children’s Society is a non-profit public benefit corporation that is a leading provider of group homes and wraparound psychological social welfare services for abused, neglected, and abandoned children and their families in Orange County and San Bernardino County, with an annual operating budget of $35 Million and 400+ employees. In this capacity, Mr. Winsten routinely provides counseling and representation for matters including governance, reimbursement, HIPAA and other privacy laws, employment, and in civil litigation.
PUBLISHER VS. FORMER INDEPENDENT CONTRACTOR SALES REPRESENTATIVE
Mr. Winsten represented the defendant in this trade secret case, defeating applications for a temporary restraining order and a preliminary injunction, and ultimately winning a complete defense motion for summary judgment. In this case, a former long-term independent contractor sales representative terminated his relationship with a publisher of a prominent healthcare trade publication and started a competing business. The publisher sued on numerous theories, primarily complaining about the misappropriation of trade secrets. Mr. Winsten was able to convince the trial court that the independent contractor relationship did not create the same kind of common law and statutory duties that arise out of the employment relationship. In the absence of written confidentiality or work-for-hire agreement, the trial court agreed the alleged trade secret work product actually belonged to the defendant, not the plaintiff.
HEALTHCARE FRANCHISEES VS. FRANCHISOR AND FOUNDING DIRECTORS AND OFFICERS
This case involved a 5-month state court, multi-party, complex business litigation jury trial in Orange County, California, on 2 consolidated complaints. Mr. Winsten represented the founder and former Chairman of the Board and Chief Executive Officer of a national in-home healthcare respiratory services company accused by numerous (11) defecting franchisees of various breaches of franchisee agreements and business torts, arising out of alleged lack of enforcement of the franchise agreements and legal compliance and breaches of contract. Mr. Winsten obtained a non-suit on one of the complaints at the close of plaintiffs’ case-in-chief, obtained jury verdicts in his client’s favor on all of the breach of contract and breach of fiduciary duty claims, and contained damages awarded on two tort claims to amounts far lower than the plaintiffs’ pre-trial demands. This decision ultimately resulted in a post-trial settlement of all claims. While the main case described above was pending, numerous other franchisees defected from the franchise system and filed 8 similar suits. Based on the results of the trial of the main case, all of these suits were ultimately settled on terms favorable to Mr. Winsten’s client, without trial.
CLIENT VS. SOFTWARE DEVELOPERS – UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
Mr. Winsten represented 4 corporate defendants and their President who developed a proprietary financial services software program and licensed it to the plaintiff. The software worked but the commercial marketplace for it never developed and the plaintiff terminated the license agreement and stopped making all required payments necessary to maintain the license. After having second thoughts, the plaintiff sued the defendants for breach of contract and violation of the California Uniform Trade Secret Act, claiming the plaintiff was not simply a licensee but was the owner of the software. Mr. Winsten handled pre-trial discovery and filed summary judgment motions for all of the defendants on all of the claims. The District Court granted the motions in their entirety, agreeing that the plaintiff’s claims lacked any factual or legal merit.
UNITED STATE BANKRUPTCY COURT BENCH TRIAL
This case was tried after extensive pre-trial proceedings in September 2012. Mr. Winsten represented the founder and sole shareholder of a group of technology manufacturing corporations that became insolvent when their customer base collapsed during the economic recession of 2008-2009. The sole shareholder was sued by several creditors owed large sums of money by the corporations from an asset acquisition years earlier. Mr. Winsten presented a successful defense of the creditors’ alter ego claims against the sole shareholder, resulting in a defense judgment and the granting of the debtor’s discharge. Mr. Winsten successfully defended the plaintiff’s appeals to the Bankruptcy Appellate Panel for the Ninth Circuit and United States Court of Appeals for the Ninth Circuit, personally briefing and arguing both appeals.
OUSTER OF CORRUPT BOARD OF DIRECTORS & REORGANIZATION OF NON-PROFIT ACADEMIC CORPORATION
Mr. Winsten was retained by the President and Headmaster of a private high school, with the support of the parents of the student body and its alumni, to sue the corporation’s entrenched and self-perpetuating Board of Directors for mismanaging the corporation’s substantial assets, jeopardizing its secondary school business operations and threatening its non-profit status. Mr. Winsten obtained a temporary restraining order and preliminary injunction protecting the plaintiffs from termination or retribution during the litigation. The case ultimately settled after a lengthy mediation process under a court ordered transition of power to a new democratically-elected Board of Directors.
MANUFACTURING AND DISTRIBUTION COMPANY VS. FORMER BIG SIX ACCOUNTING FIRM
This case resulted in a 6-week state court jury trial for negligence arising out of a 5-year course of auditing malpractice, which failed to detect a controller’s $2.5 Million embezzlement scheme. Mr. Winsten represented the plaintiffs as second chair trial counsel and handled the direct and cross-examination of numerous key witnesses. The jury agreed with plaintiffs' expert that the embezzlement should have been detected at the outset by employing basic audit tests set forth and recommended in the defense expert’s undergraduate auditing textbook, but which were never applied. The jury rendered a plaintiffs’ verdict for virtually all of the damages requested, to which interest was added. The case settled shortly after the trial.
NEGOTIATED BUSINESS/INVESTMENT WORKOUT
This engagement initially entailed the investigation and gathering of evidence pointing to the culpability of the promoter of a start-up technology company with numerous affiliates and subsidiaries, which raised over $10 Million in start-up and operating capital based on false representations about the viability of the technology and its prospects for commercial exploitation. After being confronted with the incontrovertible evidence of fraud and misappropriation of assets, the promoter confessed and sought to avoid litigation. Mr. Winsten negotiated and managed the marshaling and sale of the company’s assets and intellectual property, which resulted in the recovery of over 80% of his clients’ lost capital, with total attorneys’ fees and costs amounting to a small fraction of the amount recovered.