Jonathan joined Kelly, Hockel & Klein P.C in 1998 as a partner. He offers extensive jury trial experience to his clients, especially in the areas of labor & employment, pharmacy and commercial litigation.

EMAIL JONATHAN KLEIN

Education

• University of California at Santa Cruz, B.A. Politics, 1989
• Santa Clara University School of Law, J.D., 1992, cum laude, Dean’s list
• University of Sussex, Brighton, England, 1987-1988

Admissions

• Admitted to practice before all state and federal courts in California, December 1992.
• Admitted pro hoc vice in state and federal courts in Nevada, Idaho, Utah, Montana, Washington, Arizona, Maryland and Oregon.

Recent Successes & Achievements

• On December 24, 2009, the Nevada Supreme Court, in a case of first impression, held that pharmacies do not have a duty to unknown third parties injured by the pharmacy’s patients.  (Sanchez v. Wal-Mart (125 Nev. Adv. Op. No. 60, 2009.)  Mr. Klein, on behalf of Rite Aid, joined several other Nevada pharmacies in moving for dismissal of plaintiffs’ claims for wrongful death, amongst others.  Read the decision at 221 P. 3d 226 (2009) or read it here. 125_Nev__Adv__Op__No__60.
• Jonathan Allan Klein and Annmarie Liermann, and their co-authors, won the distinguished G. Duffield Smith Outstanding Publication Award for their 2008 article – “Making the Possible Impossible: Medicare Reimbursement Problems”, which was published in the February 2008 edition of For The Defense. This award, given annually by DRI, was formally presented at DRI’s October 2009 Annual Meeting, held this year in Chicago. FTD-0802-KellyKleinLiermannMeseck.  The article discussed the pitfalls of the Medicare Secondary Payer Act and provided tips for navigating settlement of claims where Medicare has a right to reimbursement.  According to DRI, the article received tremendous feedback from readership of For the Defense, with several other organizations and law firms requesting permission to reprint or redistribute copies to their members.  Read DRI’s summary of the award HERE. (An excellent follow-up article on this subject can be found here. Medicare Impossible DRI.)
• On October 21, 2009, Jonathan Klein and Tom Hockel successfully obtained summary judgment, in a case before the United States District Court, District of Nevada, against a plaintiff suing for various forms of discrimination.  In that case (read the opinion here), the Court agreed with our arguments that plaintiff had not established any triable issues of material fact sufficient to defeat summary judgment.  Read the Order HERE.
• On November 12, 2009, Jonathan Klein and Katie Weeks obtained an arbitration award for Rite Aid Corporation in the matter of Ortiz v. Rite Aid, which involved a grievance brought by the United Food and Commercial Workers Union, Local 1167, on behalf of a Rite Aid retail employee.  Local 1167 brought the matter to arbitration on grounds that Rite Aid allegedly failed to grant the employee’s request to work weekdays only, from 9:00 a.m. to 5:00 p.m.  In ruling in favor of Rite Aid, the arbitrator found that Rite Aid had fulfilled its duty under its labor contract with Local 1167 to attempt to accommodate the grievant’s scheduling requests, in so far as the accommodation was operationally practical for Rite Aid.  The arbitrator held that Local 1167 did not satisfy its burden to prove that Rite Aid’s inability to accommodate the grievant’s scheduling request violated the terms of the labor contract. Read the Ortiz Decision HERE.
• On June 5, 2009, Jonathan Klein and Katie Weeks succeeded in obtaining a binding arbitration award on behalf of Rite Aid Corporation by arguing that Rite Aid had good and sufficient cause to terminate an employee who furnished alcohol to a minor in violation of Rite Aid’s company policies and California Alcoholic Beverage Control laws. The arbitrator awarded in favor of Rite Aid over UFCW Local 1167’s argument that putting alcoholic beverages in the car of a minor did not constitute “furnishing” under California law as long as the minor did not drink the alcohol.  Read the Hall Decision HERE.
• On April 23, 2009, Jonathan Allan Klein and Tom Hockel, on behalf of Rite Aid Corporation, successfully defended an appeal by Plaintiff against Rite Aid’s costs recovery following Plaintiff’s dismissal. The First District Court of Appeal held that defendants seeking costs after plaintiff’s voluntary dismissal did not have to file a proposed judgment together with memorandum of costs.  Read the Appellate Opinion here.
• On April 9, 2009, in the matter of Thrifty Payless, Inc. v. Dralle, in Clackamas County, Oregon, Katie Weeks and Jonathan Klein obtained a $444,644.45 judgment, with attorneys’ fees, in Oregon state court against a former Rite Aid employee and his wife accused of fraudulently inducing Rite Aid to issue payments to sham companies formed by the defendants for the sole purpose of defrauding Rite Aid.  Shortly after Rite Aid commenced the lawsuit, Ms. Weeks and Mr. Klein won prejudgment attachment of the defendants’ cash assets and real property.  The attached property was applied to satisfy the judgment award.  With the assistance of discovery from the civil action, the Dralles were eventually convicted and sentenced to six and four years in Oregon prison for their roles in the aggravated theft.
• On September 15, 2008, on behalf of Rite Aid, Jonathan Klein and David Foster were successful in obtaining dismissal of a plaintiff’s wrongful termination lawsuit. In the case, Gomarooni v. Rite Aid, plaintiff alleged he was wrongfully terminated for failing to join UFCW Location 135, as required by the parties’ collective bargaining agreement. Rite Aid moved, pursuant to F.R.C.P. Section 12(b)(6), for dismissal, arguing that the case was preempted by the Labor Management Relations Act (“LMRA”). Judge James V. Selna of the U.S. District Court, Central Division, agreed.  Read the Order HERE.
• On August 19, 2008, the Court of Appeal, Fourth Appellate District, Division One, affirmed summary judgment for Rite Aid in the Lipkowitz v. Rite Aid case. In the unpublished opinion, the Court held that the trial court properly denied plaintiff’s attempt to enforce and illegal and unenforceable agreement to work more hours as a pharmacist than permitted under California law. Read the Appellate Decision HERE.  D051488.
• On January 17, 2008, Jonathan Allan Klein won a defense verdict in a wrongful death pharmacy malpractice case venued in U.S. District Court for the District of Montana (Missoula division.) In the case, plaintiffs contended that Safeway pharmacy negligently filled three prescriptions, for Clozapine, Accupril and Hydrochlrothiazide, despite a lack of published interactions or contraindications between the drugs. Mr. Klein introduced evidence from a retail standard of care expert, as well as from a psychiatric pharmacist, that the pharmacy was not negligent, and complied with the standard of care, because there were no contraindications or drug interactions published in the package inserts, nor found in the published literature. The jury returned a unanimous 7-0 decision in only 75 minutes.
• In Hull v. Safeway, Court of Appeals affirmed Order granting demurrer on Safeway’s behalf, holding that plaintiff who admitted he did not ingest medication could not sue for damages for inability to read information on OTC box of cold medication. Read the final order HERE.

Experience

• Extensive trial experience representing plaintiffs and defendants in state and federal courts in employment, pharmaceutical, American with Disabilities Act, professional negligence, premises liability, commercial litigation, real estate and construction disputes.
• Currently representing several clients in class action wage and hour litigation involving issues of unpaid vacation, overtime, and meal and rest breaks.  Settled recent federal matter before Southern District of California.
• Serves as national coordinating counsel and liaison counsel for major retail/pharmacy chains on various pharmaceutical matters, including litigation involving Ephedra, Vioxx, Bextra, Celebrex, Baycol and PPA.
• Handled claims before Equal Employment Opportunity Commission, California Department of Fair Employment & Housing, Nevada Equal Rights Commission, Washington Human Rights Commission, Idaho Human Rights Commission, and Oregon Bureau of Labor & Industries.
• Successfully arbitrated dozens of NASD/FINRA matters and NLRB labor arbitrations and grievances.
• Advises employers and employees regarding wage and hour and benefits issues.
• Advises pharmacies regarding compliance with state and federal regulations including duties to warn and HIPAA compliance.
• Regularly presents seminars and training sessions on issues relating to employment and pharmacy law.
• Represents pharmacist and pharmacies regarding Board of Pharmacy investigations, informal conferences and appeals.
• Represents numerous employers in issues relating to Medicare’s rights to reimbursement under the Medicare Secondary Payer Act. Assisted in the formation of the Medicare Advocacy Recovery Coalition (“MARC”) and strategizes with clients and organizations on legislative and judicial efforts at reform.
• Twice oversaw lawsuits seeking to obtain reimbursement of significant funds stolen from clients by company employees.  In both cases, employees were sentenced to prison, and in both cases, substantial assets were recovered for our clients.

Publications

• Co-Author, “Medicare Reimbursement Problems: Making the Possible Impossible, Defense Research Institute,” February 2008.  Read the Article HERE.  Mr. Klein, Ms. Liermann and their co-authors won the distinguished G. Duffield Smith Outstanding Publication Award for this article.
• Co-Author, Medicare White Paper, “Medicare Lien Interests in Liability Settlements: Easy Solutions to Help Resolve Medicare Reimbursement Issues for Beneficiaries and Insuers”, October 2007.

Affiliations and Memberships

• California State Bar
• Defense Research Institute
• American Society for Pharmacy Law
• Member, Medicare Advocacy Recovery Coaltion (“MARC”)
• Northern California Association of Defense Counsel
• Associate Member, California Pharmacists Association (“CPhA”)
• President, Oakland Girls Softball League (“OGSL”), 2008-2009; Vice President and Development Director, 2009-2010

Other

• Quoted in BusinessInsurance.com article regarding a suit involving a major pharmaceutical manufacturer.
• Named Northern California “Super Lawyer” by San Francisco Magazine (2005, 2006, 2007, 2008).
• “AV Peer Review Rating” by LexisNexis Martindale-Hubbell.
• Selected one of America’s Best Lawyers by SkyRadio — heard nationwide on American, Delta, United, US Airways, America West and Northwest Airlines. In an interview heard on those airlines, Mr. Klein discusses recent trends in pharmacy and pharmacist liability for the sale of prescription drugs. Click to listen to the SkyRadio interview

Hobbies and Interests

• Avid fan of San Francisco Giants (waiting for World Series victory).
• Jazz & blues music.
• Travel (especially to Ireland.)
• 6th year of coaching girls’ softball.  Former President of Oakland Girls Softball League.