CCCBA’s Bar Fund Receives Generous Cy Pres Award


David Birka-White chose The Bar Fund to receive a cy pres award.

In August, the CCCBA staff was surprised and thrilled when a courier delivered a check in excess of $27,000, payable to The Bar Fund. The check was a cy pres award from a class action matter that local attorney, David Birka-White, had recently resolved on behalf of his clients. The case was presided over by Judge David Flinn, who granted Birka-White’s request that The Bar Fund be the recipient of these cy pres funds. Because this is only the second cy pres award that the CCCBA has received, Board member Candice Stoddard sat down with Birka-White to learn more about him and this award.

 Tell us a little about yourself and your practice.

My story as a lawyer started in Contra Costa County over 35 years ago. As a law student in the mid–‘70s, I clerked for Will Duberstein in Walnut Creek. He was a sole practitioner, who had practiced in New York City for about 50 years, and was probably close to 75 at that time. I learned to practice law from the old school. Everything was dictated to a secretary. We researched cases out of books. We shephardized cases. There were no computers. We had a mimeograph machine that we hand-turned with ink-backed paper for copies. There were no printers. Copy machines were relatively new. An IBM Selectric typewriter was considered fancy.

When I graduated from law school, Duberstein asked me to consider San Ramon for my office location. I said, “You can’t be serious. I am going to San Francisco. Last time I looked, San Ramon had more cattle than people.” He said, “They are going to put in an exit called ‘Crow Canyon Road.’” I said something like, “That’s exactly where I want to be, with the crows and the cows.” He calmly stated, “If you open your office in San Ramon, you will have clients the minute you pass the bar.” I thought it over, and for reasons unknown, opened my office on Old Crow Canyon Road. He was right; there were almost no lawyers in San Ramon at the time. I got business walking in off the street the day I opened in 1979.

We did everything: Divorces, criminal cases, personal injury, custody battles, formed corporations and wrote wills. Then in 1986, we had a change in the direction of my practice and I started working on major product failure cases, involving defective plastic pipe for residential properties. Fifteen years later, we had litigated dozens of these cases and were among the first to prosecute class actions for defective building products. We eventually settled five consolidated ABS Class Actions in the Contra Costa Superior Court for close to $100 million with Hon. Ellen James (ret.) serving as our judge. We put together a group of top-notch contractors as part of the settlement and re-piped thousands of homes. We oversaw the administration of the fund for well over 10 years. The settlement provided an unprecedented service to the class members. I credit Judge James and later Judge Mark Simon for their courage in overseeing these cases.

So, for the last 25 years, I have specialized in class action cases involving large scale product failures and consumer fraud—often in the building industry. We represent plaintiffs against misbehaving corporations.

I have long felt that class actions are critical to the fair representation of consumer groups. Because governmental resources are challenged, in the absence of class actions, corporate wrongdoing can go unchecked. So our cases are large, take a long time and involve high risk. 

Did you always want to be a lawyer?

Yes. When we recently moved our office to the Danville Hotel (from San Francisco), I came across a term paper I wrote in the sixth grade, about 1963. It was entitled, “Occupational Choice: Lawyer.” When I re-read it, I was surprised to see what I wrote—things like “the excitement of being an advocate,”  “the importance of helping your fellow man” and qualities like “good character, common sense, think logically, patience, writing skills and wisdom.” I don’t recall what resources I consulted at the time, but those qualities for a lawyer are timeless. I believe that the practice of law is an honorable profession and fundamental to a democratic society. I still wake up every day excited to do my work—it’s been a lifelong privilege—and hope to practice for many years to come.

What do you do when you’re not working?

I have always worked long hours, but I have tried to keep weekends for my family. My wife, Elizabeth, and I have been married for 32 years and we have three great children. She is a wonderful person with many talents and a writer by profession. There have been times when I have been “absent” because of my work. Whatever success we have achieved is largely attributable to her patience, understanding and commitment to our family.

I am a lifelong woodworker and photographer. I exercise every day. I have played many sports: football, basketball, baseball, rugby, tennis, golf and skiing. I regularly play competitive pool—primarily 8-ball; it is challenging and meditative as well.

On the intellectual side, I have long had a passion for listening to and reading great speeches. I have always been interested in politics, culture, democracy and humanity. Justice and fairness are constant themes in my areas of interest.

Some of my favorite thinkers and speakers are Noam Chomsky, Tariq Ali, Michael Parenti, Arundhati Roy, Howard Zinn and Chalmers Johnson. I enjoy the African American leaders and educators because of their insights into governmental oppression, racism, imperialism and relationships between poverty and capitalism; not to mention the sometimes unfortunate legacy of the United States Supreme Court in perpetuating racism while increasing broad ranging corporate interests. I continue to study Malcolm X, Angela Davis, Martin Luther King, Paul Robeson, Lorraine Hansbury, Langston Hughes, James Baldwin and the fabulous Cornel West. These voices express the injustices and suffering of the past and present as well as the hope for the future.

When I was at Berkeley (‘74), a lot was going on: “counter culture,” Vietnam War, Nixon; the kidnapping of Patty Hearst by the SLA was near where I lived, and there was a lot of activity around the Black Panthers. When I was in my early 20s, I attended a Black Panther meeting in Oakland. What I observed firsthand was a thoughtful, complex and misunderstood community organization intended to help people in need. In 1969, J. Edgar Hoover, Director of the FBI, said the Black Panther Party “represents the greatest threat to the internal security of this country.” The comment was a gross exaggeration at the time—and today seems absurd.

We all have the responsibility to think critically about controversial issues. We must have the courage to criticize ourselves and others, and yes, that includes America. Not gratuitously or venomously, but with the knowledge that we all need to shed preconceived notions about a lot of issues if we want to be better people and improve the world. None of us can change the world dramatically, but we can take important steps every day.

I think lawyers are in a unique position to make the world a better place. However, as a group, we need to speak out against injustices of our society. We are all busy, raising families, building careers, but we should do more. I love America, but I am anti-injustice. The distinctions are important. For example, one debate that should be heard from the bars to the universities is whistleblower Edward Snowden vs. the NSA. Is he a traitor or a hero? Those kind of debates are healthy.

Tell our readers about the cy pres award, the underlying case, and who all participated.

The case from which the cy pres award was presented to the Contra Costa County Bar Association was a class action known as “Old Cal-Shake,” or the Shake Roof Cases. The judge was Contra Costa Superior Court Judge David Flinn. This case was precedent setting and involved “fake” wood shakes made from cement and perlite. One defendant settled for about $70 million after we selected the jury. As to the second defendant, “Old-Cal Shake,” we had a six-week trial. We had a great staff  and I worked with a number of superb lawyers on our team. Steve Oroza of my office, and my co-counsel John Green and Bill Friedrich of Farella, Braun + Martel were critical to our success.

Judge Flinn is a great judge and a rare public servant. Without his dedication and courage to certify these cases as class actions, thousands of people would have gone uncompensated for their defective roofs. Trial judges are important to the fair prosecution of class actions. Contra Costa County has been fortunate to have the  talents of Judge Flinn for so many years.

Why did you select The Bar Fund as the recipient of the cy pres award?

The Bar Fund was the right choice for a number of reasons. Cy pres awards come from the remainder of the unclaimed settlement funds. First of all, the law regarding cy pres awards looks favorably on supporting organizations that provide legal services to those in need. In this case, the resources of the Contra Costa County courthouse were extensively used. Judge Flinn managed the litigation, was trial judge and oversaw administration of the settlement. We even set up a special office in Martinez during the trial. I also feel a sense of loyalty to the Contra Costa court system since it is where I first began practicing law. I asked Judge Flinn to consider The Bar Fund as the recipient of the cy pres award. After some debate, he so ruled. The CCCBA has long provided unselfish services to its residents. The Bar Fund was the ideal recipient of this award and I am proud to be a part of it.

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  1. Malcolm Sher says:

    What a pleasure to read about your outstanding result in “Old-Cal Shake” and your decision to recommend The Bar Fund as recipient of the cy pres award. Congratulations to you and your team on a superb result and on giving back to our community.
    Malcolm Sher