Max Factor III, Esq.

Biography

As a mediator, Mr. Factor's goal is to assist the parties to a principled and reasonable resolution. He discusses the real long-term interests, the management of risk, and the potential rewards which each of the parties can achieve. In the appropriate situations, Mr. Factor believes in, compassion, candor and encouraging mutual respect and understanding are necessary ingredients of a successful resolution.

His strategy as a mediator is to respect counsel and clients by using disciplined approaches to conflict resolution: "I exercise common sense and practical knowledge developed from years of litigating and resolving real estate, employment, entertainment, partnership disputes and professional malpractice cases, and I am delighted and determined to explore and assist in creating options to facilitate resolution.  Without undermining the parties' right to self-determination or the clients' relationship to their attorneys, I will be evaluative in analyzing the realistic costs, the probable risks, and the potential rewards of a 'litigated result'."

Mr. Factor has been fortunate to have a remarkably high success rate by working diligently and collaboratively to foster "win-win" solutions tailored to the business, community and/or personal needs of the clients.

He earned his B.A. at Harvard College in 1966, where he graduated Magna Cum Laude in Economics and his J.D. at Yale Law School in 1969, where he was a Member of The Board of Editors of the Yale Law Review.

Primary Areas of Focus

COMMERCIAL & RESIDENTIAL REAL ESTATE, CONSTRUCTION, DEVELOPMENT & INVESTMENT, RE PARTNERSHIP DISSOLUTIONS: Learn More

• Fraudulent transfer of multiple real estate parcels resolved with refinancing.
• Family dissolution of real estate business involving an intra-family auction of property.
• Collapse of several balconies on newly constructed building, resulting in suits against general contractor and subs; resolved with contributions from general and sub contractors.
• Several partnership dissolutions between developers and investors, and between two or more general partners.
• Multi-party breach of contract dispute among general contracts, subs and property owner in residential and commercial developments
• Land movement, soil erosion and drainage dispute among adjacent landowners in several hillside properties
• Numerous restructuring of loans and equity on real estate ventures in which partners have filed breach of fiduciary duty, fraud and accounting claims and/or sought dissolution of partnership and partition by sale of in kind.
• Constructive eviction of undesirable national tenant by major investment group seeking to upgrade commercial tenancies for sale of office park
• Real estate investors’ claims a licensee either misrepresented material facts or failed to competently handle commercial and residential real estate transactions involving several million dollars
• Probate contests involving complex real estate, business partnership and successor liability issues
• Easement disputes for property owners with limited or no reasonable public access

 

EMPLOYMENT & LABOR PRACTICES:  More than 150 employment related cases during the past three years, including: Learn More

• numerous claims of wage and hour violations in the restaurant and retail industries;
• retaliation and wrongful termination (actual and constructive);
• sexual harassment and hostile work environment;
• failure to provide  reasonable accommodations;
• workplace discrimination (hiring, promotion, benefits and pay disparities) based upon race, national origin, sexual preference, gender and disability;
• sexual harassment by supervisors, co-workers and vendors;
• several claims that foreign workers grossly underpaid based on false commitments made on entrance visas procured by employers to import nurse and computer technicians from abroad;
• defamation and public humiliation claims arising from workplace dispute

 

ENTERTAINMENT & INTELLECTUAL PROPERTY:

• Multimillionaire investors sought “net profits” from a major Hollywood studio when a low budget movie became an unexpected international blockbuster (several hundreds of million grosses), and a foreign tax shelter deal in which the claimants had invested became hugely profitable.  Late-night negotiations and Mr. Factor’s ability to combine his litigation experience, business negotiation skills and persistent problem-solving  approach to resolve the litigation with a multi-million dollar payout that did not claw back earlier distributions to top Hollywood talent. Foreign investors and participants in the original deal restructured their business relationships to obtain returns on future movie deals.
• A $1 million-plus settlement to a software manufacturer in China from an American wholesaler and retailer of computer games associated with upcoming major movie sequel and re-release of original film. This was paid through an inventory exchange of goods which maximized the marketing relationships of each side, along with $100,000-plus payout of litigation costs.
• Movie producers and directors feuding over funding and credits and repayment of loans. Solved by partial payment and adjustment on future credits and funding.
• Various disputes between writers, directors, musicians, intellectual property owners, over copyright and royalties.

 

BUSINESS CONTRACT, CONSUMER TORT, MALPRACTICE, PARTNERSHIP DISSOLUTION, & INSURANCE COVERAGE: Learn More

• Business break-up of restaurant owners and consequent buy-out
• Insurance commission claims when ex-employee moved to arguably competing agency
• Bankruptcy of a major national retailer and successor liability issues
• Breach of fiduciary duty and accounting claims when one of the founding partners of a law firm split off to join another downtown firm
• Countless commercial disputes in the garment industry, diamond trade, construction trades and transportation industry, generally over failure to pay contracted rates and/or failure to deliver timely and/or accurately the goods ordered
• Multi-party accounting claims arising from several partnership dissolutions of physicians in specialty groups that held hospital contracts
• Million dollar-plus attorneys’ fee dispute for defense of a class action
• Licensing and franchise disputes in which the licensee or franchisee has copied product or service and is competing with original holder of protected business property rights
• Commercial contract disputes involving development of computer hardware and computer software systems.
• The reorganization of business partnership assets involving millions of dollars of commercial contracts in the travel industry
• Shareholder/directors’ suit involving medical technology in rapidly developing international markets
• Patent infringement dispute involving high-tech imaging company and hardware developer
• Legal malpractice dispute surrounding the advice offered in post mortem tax planning of a family business

 

SOME HIGH STAKES DISPUTES include:

• Deceptive consumer practices by an internationally known rental car company potentially harmed nearly half a million customers. Resolved by giving each customer the choice between substantial future discounts or a portion of a multi-million dollar pool of funds.
• The market recall of a food distributor’s products resulted in explosive national news stories and and investor losses of more than $4,000,000 in after tax loss.  The accountant and business manager were sued for malpractice.  Resolved through a confidential agreement that includes a prolonged stay and “defend and hold harmless” provisions relating to multiple participants. This avoided continuing business losses and the likely destruction of a national business through a loss sharing arrangement.
• Sexual harassment claims, two involving key executives of multi-national corporations and another involving a claim of serious improprieties by a former CEO of a respected charitable institution. Each was resolved to the satisfaction of all concerned. 
• Current partners of a CPA firm wished to buy out the founding partner. Mr. Factor facilitated a buy-out for almost $1 million, with an intricate restructuring for tax purposes that draw upon Mr. Factor’s economics training at Harvard and his 40 years as a “deal maker” and an “agent of reality.”
• The theft of prescription drugs in transit between manufacturer and drug store distribution points resulted in criminal prosecution of the driver, but an insurance coverage dispute arose between two major carriers, and the insured parties.  Resolved via negotiated disproportionate contributions between the carriers for a full payout of the $2,200,000 claim. This was notable because insurers seldom pay multi-million dollar claims when “inside job” criminal conduct occurs.
• Fired CEO of major private residential developer settled wrongful termination and contract claims with a debt-free transfer of properties suitable for development which had originally been purchased by the employer for more than $1,500,000. This was a creative, tax efficient solution which permitted groups with differing agendas to get fully meet their individual interests in terms of timing of investment results.
• A $16,000,000 put-and-call arrangement on minimum buy-out package that allowed the developer of five commercial buildings and the general contractor and leasing agent to each get a deal that met their vastly different market pricing expectations. This case was settled at the tail end of rising prices of the commercial real estate market.
• Mr. Factor has resolved numerous construction defect cases in multi-family residential, commercial and single family home developments, in which hundreds of thousands of dollars of damages were alleged. Settlement levels ranged from ‘nuisance values’ to levels between $225,000 and $1,000,000, depending on the facts of each case.
• $10 million-plus buyout of the name partner of an international law firm, with a multi-year payout and a restructuring of the partnership, with the result that the firm remains vibrant despite the payout of capital.
• Conducted a Structured Auction between former partners of a large ethnic food manufacturer and distributor to resolve corporate dissolution action.  This result allowed two families in conflict to separate, with one remaining exclusively in charge of the food company, while the other family was able to pursue another business opportunity.
• A mid-sized downtown LA law firm split, after extended negotiations, into two firms, one of which moved to another trade area in Southern California. Both have experienced substantial subsequent successes, including several major victories on both sides of the aisle involving tens of millions of dollars.

 

Mr. Factor’s Publications have included:

• Recognizing the Real Demon: a Discussion of Splitting & Projective Identification, The Advocate, October, 2008
• Combating Hardball Tactics, The Daily Journal, December, 2007
• Babasa v Lens Crafters Alters Attorneys to a Lurking Mediation Noose (Confidentiality in the Mediation Process), The Daily Journal, October, 2007
• An Angry Negotiator is too often Happy to Strike a Poor Deal (Emotions in the Mediation Process), The Daily Journal, August 2007
• Recognized Exceptions to Mediation Confidentiality and Remedies that Every Litigator Should Know (written with Alice M. Graham, Esq.), mediate.com, 2005
• They Say it’s about Dollars, but it’s often about Emotion:  How to Use Mediation to Restore Business Judgment to Business Disputes, mediate.com, March, 2005
• Making Sure the Rojas Shield Doesn’t Become a Weapon:  How to Prevent Opposing Counsel from Cloaking Evidence with the Shield of Mediation Confidentiality, The Daily Journal, Alternative Dispute Resolution, Focus Column, Thursday, September 20, 2004

 

Mr. Factor’s Speaking Engagements Have Included:

• Los Angeles Superior Court ADR Training Programs: 2007, 2008 and 2009
• International Academy of Mediators Conference, May, 2008 Panelist on: “Emerging Ethical Issues: Are Mediations Really Confidential?”
• Case Western Reserve University School of Law, Distinguished Visitor Lecturer, September 2007: "On Understanding the Effects of Anger and Fear in Negotiating Outcomes"
• International Academy of Mediators Conference, October, 2007: Speaking on: “Excellence in Mediation Advocacy: How to Best Represent Your Client in Mediation” Moderator for: “Fear, Anger & Risk in Mediation”
• Conference Chair, Southern California Mediation Association’s 17th Annual Interactive Conference, Straus Institute, November 2005: Presented Session: “The Absolute Mediator”
• Southern California Mediation Association, Roundtable Meeting, April, 2004: Presented Session: “Human Flaws that Interfere with Rational Decision-Making of Mediation Participants and What Mediators Can Do to Restore Rational Decision-Making”

Fees

• Full day Mediation: total of $4,750 (8 hours + 1 hr prep)
• Half-day Mediation:  total of $2,750 (4 hours + 1 hr prep)
• Special half-day rate for claims under $50,000:  total of $1,750
• Hourly rate: $575

There will be an additional charge for PMA's administrative fee.