Previous Page Richard H. Herold Partner

Richard H. Herold

 

Richard "Rick" Herold's business and commercial litigation practice includes financial services litigation, intellectual property litigation, privacy and data protection litigation, and real estate litigation.

Rick serves as a Co-Chair of Snell & Wilmer's Real Estate Litigation practice, and is a member of the firm's Litigation Training Committee. He served on the firm's Ethics Committee in 2012-2014.

 

Rick Herold's real estate litigation practice has included real estate litigation for developers, real estate brokers/agents, title companies.

  • Acquisition and development: disputes arising under purchase and sale agreements, option agreements, development agreements, and land use and zoning disputes
  • Management: litigation of property management agreements and prosecution of receivership actions
  • Real estate brokers and agents: disputes relating to brokers, agents and their ethical, fiduciary and other common law disclosure and other obligations, as well as alleged breaches in civil actions and in ethics proceedings before state regulatory agencies
  • Loan workouts, trustee's sales/foreclosures, collection and bankruptcy: disputes relating to business loan agreements, promissory notes, deeds of trust, assignments of rent and guarantees, including loan workouts/restructurings, trustee's sales, deficiency actions and related bankruptcy proceedings such as motions for relief from the automatic stay
  • Title disputes: easement, property line, adverse possession, quiet title, trespass, nuisance and other title disputes and actions
  • Landlord-tenant disputes: eviction proceedings, complex lease interpretation issues and the entire spectrum of landlord-tenant disputes
  • HOA disputes: disputes relating to communities governed by homeowners' associations and related CC&Rs
  • Eminent domain, condemnation, valuation and partition disputes: fair market value hearings, condemnation hearings, valuation disputes and partition proceedings

Representative Experience

  • Defense of $5,000,000 Claim. Defended national real estate broker against $5,000,000 claim which claimant abandoned 48 hours before the start of an 8-day American Arbitration Association hearing
  • Defense of Condemnation Proceedings. Defended against condemnation proceedings for lender, resulting in negotiated resolution consistent with lender's appraised value
  • Defense of Real Estate Agent. Defended Arizona real estate agent in evidentiary hearing on ethics charges, resulting in complete vindication by the Arizona Real Estate Board

 

Rick Herold's financial services litigation and dispute resolution work includes commercial receiverships, trustee's sales, post-sale deficiency litigation, condemnation proceedings, lender liability defense, bankruptcy litigation and related workout and dispute resolution efforts.

Representative Experience

  • Jury verdicts and/or summary judgment motions for bank clients and related rejection of defenses and/or counterclaims based on state or federal law, with related attorneys' fee awards
  • Motions to dismiss frivolous lender liability complaints, with related attorneys' fee awards
  • Numerous commercial receivership applications instituted by emergency Orders to Show Cause
  • Motions for stay relief in bankruptcy proceedings and resulting trustee’s sales
  • Motions for examiners and/or trustees in bankruptcy proceedings
  • Prosecution and negotiation of proofs of claim with related payment of all attorneys' fees
  • Loan workout negotiation for bank client in connection with a multiple participant $75,000,000 loan
  • Defense  of banks and other financial institutions against lender liability claims based on state and federal law, including the Truth-in-Lending Act, Real Estate Settlement Procedures Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, Home Owner Equity Protection Act, and Electronic Funds Transfer Act

 

Rick Herold's intellectual property litigation includes injunctive relief cases involving trademarks, trade dress, trade secrets, unfair competition, copyright and patent issues.

Representative Experience

  • Motions to dismiss or for summary judgment as to federal and state law claims, with related attorneys' fee awards, including trademark, trade dress, copyright, and patent litigation
  • Prosecution and defense of emergency requests for injunctive relief by TRO to protect trade secrets and/or enforce non-solicitation/non-compete agreements for national franchisors and others
  • Pre-mediation filing of a motion to dismiss Lanham Act claims leading to de minimis settlement by a financial institution at a small fraction of anticipated defense costs

 

Rick Herold's business and commercial litigation practice has included a wide range of industries, issues and contracts as detailed in part below.

Representative Experience

  • Defense of $25,000,000 Lost Profits Claim. Defense of $25,000,000 lost profits claim filed in Orange County, California, resulting in a $15,000 settlement payment and abandonment of case one day before the start of a nine-day jury trial
  • Dismissal of Successor Liability Claim. Defense of a national lender-franchisor against allegations of successor liability, resulting in dismissal of the complaint and payment of all attorneys' fees and costs
  • Full Recovery Involving Fraud in Sale of Business. Pre-judgment garnishment in case involving business seller's misrepresentation of corporate liabilities, resulting in a full recovery and payment of all fees and costs
  • Insurer Summary Judgment Result Based on Statute of Limitations. Summary judgment motion for national insurer based on the applicable New York statute of limitations resulting in dismissal of case
  • Legal Malpractice Defense. Defended multiple out-of-state lawyers sued for $3,000,000 in Arizona, resolving case for de minimis settlement sum at a small fraction of the anticipated defense costs
  • Motions to dismiss claims under the Computer Fraud and Abuse Act, the Digital Millennium Copyright Act, and the Electronic Communications Privacy Act
  • Resolution of discovery disputes to preserve privacy and ensure data protection, including resolutions avoiding production of sensitive records, allowing production only pursuant to tailored protective orders and/or imposing the cost of production upon the party requesting access
  • Defense of directors and officers in many settings ranging from FDIC claims to insider trading and other securities litigation matters

Education

  • George Washington University School of Law (J.D., 1990)
  • Emory University (B.A., 1986)
    • Strasbourg, France (Fall, 1984)

Court Admissions

  • Supreme Court of Arizona
  • United States District Court, District of Arizona
  • United States Court of Appeals, Ninth Circuit

Professional Memberships & Activities

  • American Bar Association
    • Commercial & Business Litigation Committee (2013-present)
    • Ethics Subcommittee, Co-Chair (2013-2014)
    • Trade Secrets Litigation Subcommittee, Co-Chair (2013-2014)
  • Judge Pro Tempore, Maricopa County Superior Court
  • State Bar of Arizona
    • Fee Arbitration Committee, Member (2005-2012), Chair (2008-2011)
    • Ethics Committee (2010-present)
  • Urban Land Institute (2013-present)
  • New Jersey, District XIII, Ethics Committee (1996-1997)

Representative Presentations & Publications

  • Risk Management Presentation to Real Estate Agents and Title Agents (October 15, 2013)
  • Snell & Wilmer Real Estate Litigation Blog, Contributing Author (2013-present)
    • The Risk of Intent in Your Letter of Intent
    • The U.S. Supreme Court's Latest Attempt to Differentiate a Fair Quid Pro Quo in the Developer's Permitting Process From an Unconstitutional Taking
    • Bidding on State Land Trust Leases: Even the Top Revenue-Generating Bids Must be Balanced Against Qualitative "Best Use" Factors Designed to Protect the Land
  • From the Front Line - Legal Hazards and Issues of Interest to Banks and Their Directors, Presenter, Arizona Bankers Association: Directors and Leadership College (November 2012)
  • Lender's Credit Bid is Not Evidence of a Fair Market Value, Co-Author, Snell & Wilmer Legal Alert (October 5, 2012)
  • No Need to "Show the Note" for a Non-Judicial Trustee's Sale, Co-Author, Snell & Wilmer Legal Alert (July 9, 2012)
  • Objections to a Non-Judicial Trustee's Sale are Waived if Not Timely Preserved by Injunctive Relief, Co-Author, Snell & Wilmer Legal Alert (June 21, 2012)
  • Real Property Management and Leasing in the Wake of a Trustee's Sale, Co-Presenter, MCBA Real Estate Series CLE Presentation (February 2012)
  • Current Developments in Ethical Issues, Panelist, State Bar of Arizona's Ethics Committee-Hosted Seminar addressing Ethical Rule 4.4 and related opinions issued by the State Bar of Arizona's Ethics Committee and the American Bar Association regarding the obligations of counsel when privileged communications are inadvertently disclosed (December 14, 2011)
  • Managing Your Practice, Presenter, 2010 State Bar of Arizona Annual Convention, Glendale, AZ (June 2010)
  • Taming the Tumult: Law Practice Management Tips from the Trenches, Presenter, State Bar of Arizona CLE, Phoenix, AZ (September 2009)
  • Risk Management for Litigators, Presenter, Hinshaw & Culbertson CLE Presentation, Chicago, IL (October 2008)
  • How to Make Money Ethically: Tips for Attorneys in Fee Arbitration Hearings, Presenter, State Bar of Arizona CLE, Phoenix, AZ (August 2007)
  • Arbitration Provisions May Inadvertently Waive Indian Tribes’ Sovereign Immunity, Author, Maricopa Lawyer (May 2002)
  • Putting Together a Successful Mediation, Author, Maricopa Lawyer (March 2002)
  • Cost-Effective Business Litigation in Arizona, Speaker, Lorman Education Services (October 2001)
  • The Americans With Disabilities Act: Litigation Risks and Preventive Measures, Presenter, Somerset County Chamber of Commerce, Somerset, NJ (June 1996)
  • Hiring, Testing, Supervising and Terminating Employees in Safety-Sensitive Positions: Legal Issues Arising Under the Department of Transportation’s Drug and Alcohol Testing Regulations, The Americans With Disabilities Act, The Family and Medical Leave Act and Related Federal and New Jersey State Law Requirements, Presenter, Somerset County Chamber of Commerce and the Governor’s Council for a Drug-Free Workplace, Somerset, NJ (April 1996)

Professional Recognition & Awards

  • Southwest Super Lawyers®, Business Litigation (2014), Bank Litigation (2013)
  • Ranking Arizona: The Best of Arizona Attorneys, Banking (2013)
  • Arizona’s Finest Lawyers (2011)

Community Involvement

  • Partnership for a Drug-Free America, Arizona Affiliate, Board of Directors (2014-present)
  • Paradise Valley, Arizona Personnel Appeals Board/Public Safety Personnel Retirement Board (2013-present)
  • Emory College Alumni, Board of Directors (2012-present)
  • Brophy College Preparatory
    • Dad's Club (2010-present)
    • Crew Team Advisory Board (2012-2013)
  • Phoenix Country Day School Dad's Club (2013-present)
  • Pro Bono Legal Service to Clients
    • Death Penalty Representation Project of the ABA (2013-present)
    • Ninth Circuit Appointee to Assist on Immigration Matter (2012-present)
    • Volunteer Lawyers’ Program (2003-present)
  • Valley of the Sun United Way
    • Resource Management Committee (2011-present)
    • "Destination Graduation" Mentor at Central High School (2012-2013 Academic Year)
  • St. Mary's Food Bank, Volunteer (2011-present)
  • Economic Club of Phoenix (September 2011-present)
  • Phoenix Chamber of Commerce
  • Junior Achievement of the Central District of Arizona, Board of Directors (2006-2008)
  • State Bar of Arizona’s "Operation Good Neighbor" Program (aiding displaced victims of Hurricane Katrina), Volunteer
  • United Way of Somerset County, New Jersey, General Counsel and Trustee (1993-1996)

Other Professional Experience

  • Hinshaw & Culbertson LLP, Partner, Phoenix, Arizona
  • McCarter & English, LLP, Associate, Newark, New Jersey
  • Wilmer, Cutler & Pickering, Law Clerk, Washington, DC
  • Henderson Trout, Articled Clerk, Brisbane, Australia

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