Max H. Stern
Partner
Duane Morris LLP
Suite 2200
One Market Plaza, Spear Tower
San Francisco, CA 94105-1127
USA

Phone: +1 415 957 3129
Fax: +1 415 276 5887
Email: MHStern@duanemorris.com

Max H. Stern is head of the Insurance division of Duane Morris' Trial Practice Group. Mr. Stern is a trial and appellate lawyer practicing in the area of civil litigation, with an emphasis on a result-oriented approach to complex disputes. He has represented plaintiffs and defendants in suits involving issues of contract, real estate, business tort, commercial litigation and consumer class actions. Mr. Stern has tried cases before juries, judges and arbitration panels, and he has argued both state and federal appeals.

Mr. Stern devotes a substantial part of his practice to litigation and counseling services for the insurance industry. He has handled matters in various lines, including general liability, specialty liability, professional liability, excess liability, workers' compensation, property, and personal accident. He provides oversight counsel for clients at a regional or nationwide level with respect to issues of coverage, claims handling, litigation management and corporate risk. He has extensive experience in insurance-related litigation, including coverage, bad faith, subrogation and contribution, reinsurance and regulatory disputes, and he has defended insurers in some of the largest-dollar jury trials in California and Oregon. He also provides defense of insureds in complex or high-stakes cases, including class actions and severe injuries, and he is often called upon by insurers when they need a change in direction in the defense of their insureds.

Chambers USA: America's Leading Lawyers for Business included Mr. Stern in its 2009, 2010 and 2011 editions as one of California's leading insurance attorneys, stating that he "has displayed excellent litigation and negotiation skills in professional liability and construction matters. Sources are particularly impressed that he 'looks at the practicalities of doing business as opposed to sticking to a set way of doing things.'" Mr. Stern also has been named as one of "The Best Lawyers in the Bay Area: Appellate" by Bay Area Lawyer Magazine.

Mr. Stern is a 1991 cum laude graduate of Harvard Law School and a cum laude graduate of Princeton University.

Representative Matters

Business Litigation

• Successfully represented group of franchisees against $95 million class action after substituting in to oppose terminating sanctions motion (granted against co-defendant), eventually obtaining dismissal of entire action.
• Successfully obtained summary judgment and affirmance on appeal of business sued for liability in devastating injury to police officer.
• Successfully represented a Fortune 500 company in prosecuting lost profit claims arising from a $150 million acquisition agreement, obtaining settlement in excess of component purchase price.
• Successfully represented client in an industry-wide class action, obtaining approval of settlement for the smallest share of claimed damages of any industry participant.

Real Estate Litigation

• Successfully represented client in defending breach of lease claims for a facility that was shut down, obtaining dismissal without any payment.
• Successfully prosecuted a multimillion-dollar mold claim for a property owner.
• Successfully obtained recovery for high-end homeowner in nondisclosure case.
• Successfully resolved many real estate contract disputes.

Insurance Litigation

• Obtained judgment of no coverage, affirmed on appeal, on class action complaint brought on behalf of all California insureds, seeking coverage under specialized liability policies for new wave of lawsuits brought against all California insureds.
• Successfully represented many insurance industry clients in monitoring coverage and in coverage lawsuits involving intellectual property, employment, professional liability, serious injury, privacy, advertising injury, construction defect, securities fraud, asbestos and pollution liability disputes.
• Successful representation of cedents and reinsurers in reinsurance arbitrations.

Appellate Litigation

• Tozzi v. Shinefield, 2011 WL 3298958 (Cal. App. 2011) (real estate fraud) – Obtained a decision from a California Court of Appeal reversing the dismissal of two defendants from a suit brought on behalf of two individuals who alleged that they were defrauded into paying more than a $1 million over their original bid on a house by the existence of a sham counteroffer.
• Bruns v. E-Commerce Exchange, Inc., 51 Cal. 4th 717 (Cal. 2011) (class action) – Obtained for a group of businesses the dismissal of a $96 million class action alleging that they violated the Telephone Consumer Protection Act by sending unsolicited advertisement via fax machine on the basis of plaintiffs' delays in prosecuting the case and bringing it to trial. Obtained a unanimous decision from the California Supreme Court that established the statutory five-year period for bringing a case to trial is stayed only when the stay encompasses all proceeding in the action, and that partial stays do not automatically toll the running of the limitations period. On remand, the California Court of Appeal affirmed the dismissal of the class action.
• Stout v. Balboa Ins. Co., 2009 WL 3683792 (Cal. App. 2009). (pollution coverage) – Represented general liability insurer with respect to issues of coverage for pollution liability under products and premises coverages.
• May v. Nine Plus Properties, Inc., 143 Cal. App. 4th 1538 (Cal. App. 2006) (pollution coverage) – Defended an owner and operator of a body shop against a claim for severe bodily injury brought by a police officer who was paralyzed after he was struck by a pick-up truck driven by an individual who had stolen it from the body shop's lot. Obtained summary judgment for owner on the basis that it had no duty to protect the public against the actions of a thief. The California Court of Appeals affirmed in a unanimous decision.
• Moothart Chrysler-Plymouth, Inc. v. Universal Underwriters Ins. Co., 2003 Cal. App. Unpub. LEXIS 5269 (Cal. App. 2003) (business practices coverage) – Represented garage insurer against class action claims by all of its California insured businesses for coverage of claims of violation of the California Unfair Competition Law arising from errors in advertised financing. Obtained demurrers to complaint and unanimous affirmance of dismissal on appeal.
• Aerojet-General Corp. v. Am. Excess Ins. Co., 97 Cal. App. 4th 387 (Cal. App. 2002) (pollution coverage) – Represented liability insurers on appeal of the dismissal of an insured’s declaratory judgment action due to the res judicata effect of a prior action. The California Court of Appeal affirmed the dismissal of the action.
• Dart Industries, Inc. v. Commercial Union Ins. Co., 28 Cal. 4th 1059 (Cal. 2002) (lost policy coverage-amicus) – Submitted amicus brief for London market insurers on heightened burden of proof in lost-document cases; this was the seminal California case on coverage under lost policies. Dart Industries, Inc. v. Commercial Union Ins. Co., 28 Cal. 4th 1059 (Cal. 2002).
• Homeowners Ass’n of Seaview Community v. The Housing Group, No. A079962 (Cal. App. 1999) (professional liability coverage) – Intervened on behalf of a professional liability insurer in an underlying construction defect action brought by a developer against its insured in order to set aside the $12 million award after learning that the insured had agreed not to opposed the damages hearing that was the basis of the its bad-faith action against our client.
• Cooper Cos. v. Transcontinental Ins. Co., 31 Cal.App.4th 1094 (Cal. App. 1995) (pre-merger coverage) – Submitted amicus brief for London market insurers on inapplicability of liability policies to acts of a company acquired through merger or acquisition that occurred prior to the merger or acquisition.
• Bergen Brunswig Corp. v. Safety Mut. Cas. Corp., 985 F.2d 571 (9th Cir. 1993) (business practices coverage) – Obtained on behalf of Liberty Mutual a decision from the U.S. Court of Appeals for the Ninth Circuit affirming a district court summary judgment decision that the insured was not entitled to defense and indemnity under the "advertising injury" clause of a comprehensive general liability policy for class action securities fraud and negligent representation claims brought against the insured.

Professional Activities

• American Bar Association
  - Section of Litigation
  - Business Torts Committee
  - Insurance Coverage Committee
• Association of Business Trial Lawyers
• Bar Association of San Francisco
• Editorial Board, Law360 Insurance

Admissions

• California
• U.S. District Court for the Northern District of California
• U.S. District Court for the Eastern District of California
• U.S. District Court for the Central District of California
• U.S. District Court for the Southern District of California
• U.S. Court of Appeals for the Eighth Circuit
• U.S. Court of Appeals for the Ninth Circuit

Education

• Harvard Law School, J.D., cum laude, 1991
• Princeton University, A.B., cum laude, 1988

Experience

• Duane Morris LLP
  - Partner, 2006-present
• Hancock Rothert & Bunshoft LLP
  - Partner, 1999-2005
  - Associate, 1991-1999

Honors and Awards

• Listed in Chambers USA: America's Leading Lawyers for Business, 2009, 2010 and 2011: California Insurer Representation
• Listed in Northern California Super Lawyers, 2010 and 2011

Selected Publications

• Participant, "2011 Roundtable Series: Class Action," California Lawyer, July 2011
• Author, "Managing Commercial Liability Disputes," chapter in Inside the Minds: Negotiating Insurance Policy Disputes, Aspatore Books, 2011
• Co-author, "Stemming the Tide: The Lesson of Steadfast v. AES and Terminating the Duty to Defend Climate Change Lawsuits," Going Green Hot Topic feature on the American Bar Association Insurance Coverage Litigation Committee website, April 2010
• Co-author, "Keep it Cool: Potential Coverage Defenses to ''Global Warming'' Lawsuits," Coverage, American Bar Association Section of Litigation, Committee on Insurance Coverage Litigation, July/August 2009
• Profiled by Law 360, July 2, 2009
• "Latest Case Law On Coverage Issues Affecting Professional Liability And Directors & Officers Insurance," Mealey's Litigation Report: Insurance, December 2007
• Contributor, The XL Insurance Contract Guide for Design Professionals - A Risk Management Handbook for Architects and Engineers (2007 X.L. America, Inc.)
• "When Government Creates New Privacy Rights, Do Insurers Pay?," Coverage, July/August 2005
• "Cumis Conundrum," The Recorder, January 2005
• "Latest Case Law on Coverage Issues Affecting Professional Liability and Directors & Officers Insurance," Mealey's Litigation Report: Insurance, September 2004; reprinted in Mealey's Commentary Review: Emerging Insurance Disputes, September 2005
• "Recent Developments In Coverage Issues Affecting Claims-Made Policies," Mealey's Litigation Report: Insurance, July 22, 2003
• "Insurance Coverage Issues in California Mold Litigation," Mealey's Litigation Report: California Insurance, June 2003
• "Curbing the Bad-Faith Setup," Claims Magazine, December 2002
• "The Dart Not Thrown: A Response to the California Supreme Court's Invitation to Establish an Evidentiary Standard for Proof of Lost Insurance Policies," Mealey's Litigation Report: Insurance, October 1, 2002

Selected Speaking Engagements

• Panelist, "Casualty Claims and Litigation: Tales from the Front Lines," Advisen's Casualty Insights Conference, New York City, June 2, 2011
• Speaker, "Insurer Litigation Management Guidelines: Ethical Obligations and the Tripartite Relationship," Litigation Section of the Barristers Club, January 24, 2008
• "Preservation of Documents: Where We Are and Where We're Going," presented to the Association of California Insurance Companies Annual General Counsel Seminar, Las Vegas, Nevada, July 20, 2006
• "The Rules of the Road for Claims," presented to the Surplus Lines Association's Ethics Training for the Insurance Professional Seminar, Universal City, California and San Francisco, May 15 and 16, 2006
• "Personal Injury, Advertising Injury and Intellectual Property Coverage Matters," moderator for panel presented to ALFA International's Insurance Law Seminar, New York, New York, June 3, 2005
• "17200 as a Component of Broader Business Litigation Strategies," presented to Bridgeport Continuing Education's 17200 Litigation in California Seminar, San Francisco and Irvine, California, June 28, 2004 and September 10, 2004
• "Suits Against Insurers: Claims and Defenses," presented to Bridgeport's Third Annual Mold Insurance Litigation Conference, February 26, 2004
• "Recovery of Damages by Policyholders," presented to Bridgeport Continuing Education's Third Annual Managing Mold Liabilities Conference, July 16-17, 2003
• "Emerging Issues in California Indoor Air Quality and Toxic Mold Litigation," presented to the National Business Institute, February 28, 2003
• Insurer Client Seminars: Mr. Stern provides regular seminars to insurer clients on the Fair Claim Settlement Practices Act and on emerging issues as to insurance coverage and bad faith liability.