Ben Bien-Kahn

Ben Bien-Kahn, senior counsel at Rosen Bien Galvan & Grunfeld LLP, practices complex civil litigation in federal and state courts, with an emphasis on class action litigation, constitutional and civil rights law, business disputes, disability rights, and employment law.  He has substantial experience litigating class actions on behalf of people with disabilities, and has successfully litigated wrongful death cases on behalf of the families and estates of prisoners whose deaths in custody were caused by the deliberate indifference of prison and jail officials.

Mr. Bien-Kahn is a graduate of the University of California-Los Angeles School of Law, where he was the recipient of the Judge Jerry Pacht Constitutional Law Award, and of Tufts University.  Prior to joining RBGG, he served as a law clerk to the Honorable Rosemary Barkett of the United States Court of Appeals for the Eleventh Circuit.  He also played a pivotal role in the successful criminal defense of a client facing racketeering charges in federal court, obtaining an acquittal at trial.  Mr. Bien-Kahn received a California Lawyer Attorney of the Year Award in 2022, and was named a Northern California Super Lawyer in 2023 and 2024, after having been named a Rising Star by Super Lawyers every year since 2014.  He serves as Section Chair for the Bar Association of San Francisco’s Equality Committee on Disability Rights.

REPRESENTATIVE CASES

• U.S. WeChat Users Alliance v. Trump:  RBGG represented a non-profit organization and several individuals and businesses in the first successful challenge to President Trump’s Executive Order 13,943 (August 6, 2020) and its implementing regulations, which would have effectively banned the WeChat social media application and cut off at least 19 million daily users in the United States from their personal, professional, and religious communities.  RBGG (with co-counsel) filed the Complaint on August 21, 2020, just over two weeks after Executive Order 13,943 was issued, alleging that the intended ban unlawfully regulated constitutionally protected speech, expression, and association, and that such a ban would have particularly dire effects on millions of Chinese-speaking American users who depend on WeChat to communicate with their contacts both at home and in China.  One week later, RBGG filed a motion for preliminary injunction that served as a model for subsequent challenges to both the WeChat ban and a similar ban on the TikTok social media app.  The motion raised pathbreaking legal theories under the First Amendment and the International Emergency Economic Powers Act (IEEPA), offered expert testimony that the WeChat ban would do little to advance the government’s asserted national security interests, and included extensive evidence of WeChat’s critical role in connecting Chinese-speaking communities at home and abroad.  On September 19, 2020—the day before the WeChat ban was scheduled to take effect and one day after the Secretary of Commerce publicly vowed to shut down WeChat in the United States—the court granted our motion on First Amendment grounds, thereby ensuring the uninterrupted functioning of WeChat in the United States.  See U.S. WeChat Users Alliance v. Trump, 488 F. Supp. 3d 912 (N.D. Cal. 2020).  RBGG then marshalled additional testimony from experts in cyber-security and internet communications technology to fight off the government’s multiple attempts to obtain an emergency stay of the preliminary injunction in both the district court and the Ninth Circuit Court of Appeals.  President Biden rescinded EO 13,943 shortly after taking office, putting an end to the Trump Administration’s attempt to shut down entirely a public forum used by millions of Americans.
• Stiner v. Brookdale Senior Living, Inc.: RBGG and co-counsel filed a federal class action lawsuit in July 2017 accusing Brookdale Senior Living, the largest provider of assisted living for senior citizens and persons with disabilities in the U.S., of financial abuse and widespread violations of the Americans with Disabilities Act of 1990 (“ADA”) and California’s Unruh Civil Rights Act.  More than 5,000 residents live in Brookdale’s 89 California assisted living facilities.  On January 25, 2019 the district court denied Brookdale’s motion to dismiss, finding the ADA applies to assisted living facilities.  Stiner et al., v. Brookdale Senior Living, Inc. et al.,  354 F.Supp.3d 1046  (N.D. Cal. Jan. 25, 2019).  On March 30, 2023, the Court granted in part and denied in part Plaintiffs’ motion for class certification.  In the Order, the Court reaffirmed its prior judgment that the ADA applies to Brookdale’s assisted living facilities, and certified a class of residents who use wheelchairs and scooters under the theory that Brookdale’s Fleet Safety Policy violates Title III of the ADA by requiring residents to transfer out of their scooters or power wheelchairs in order to ride on Brookdale’s vans or buses, denying them an equal access to Brookdale’s transportation services because of their disabilities.  On October 13, 2023, the Plaintiffs filed a Fourth Amended Complaint.  The trial in the case will begin on September 9, 2024 in federal district court in Oakland, California, and is expected to last several weeks.
• Jay Brome v. California Highway Patrol:  RBGG secured a unanimous reversal in the First Appellate District of the California Court of Appeals of a summary judgment order dismissing on statute of limitations grounds retired CHP Officer Jay Brome’s Fair Employment and Housing Act (“FEHA”) claims, which arose out of the severe and pervasive discrimination and harassment he faced during his nearly twenty-year career because he is gay.  The opinion affirms the importance of applying equitable doctrines— equitable tolling, the continuing violation doctrine, and constructive discharge—to allow employment discrimination and harassment claims to be heard on the merits by a jury.  See Brome v. California Highway Patrol, 44 Cal.App.5th 786 (2020).
• Human Rights Defense Center v. County of Placer; County of Tehama; and County of Napa:  In three separate actions, RBGG obtained court-enforceable settlements protecting our publisher client and other third party publishers from having their books and magazines censored by county jails.  All three cases were filed in early 2020 and fully resolved by June 2020, except for subsequent litigation over attorneys’ fees in the Napa County case.  On March 28, 2021, the Court ruled that Napa County must pay our client the full amount of attorneys’ fees that had been billed at our full 2020 hourly rates.  See Human Rights Defense Center v. County of Napa, Case No. 20-cv-01296-JCS, 2021 WL 1176640 (N.D. Cal. Mar. 28, 2021).
• Sabata v. Nebraska Department of Correctional Services:  RBGG and our co-counsel the ACLU of Nebraska, the ACLU National Prison Project, Nebraska Appleseed, the National Association of the Deaf, and DLA Piper filed a class action lawsuit on August 15, 2017 against the Nebraska Department of Correctional Services and Nebraska Board of Parole, challenging the conditions of confinement in Nebraska’s severely overcrowded and understaffed prison system, including constitutionally inadequate medical, dental and mental health care, the overuse of isolation, and the failure to provide reasonable accommodations to prisoners with disabilities.  Nebraska’s prison system is one of the most overcrowded in the US, operating at about 160% of its design capacity, with many prisons at even more dangerously high levels of overcrowding (with nearly twice as many people as they were designed to house).  In June 2020 the Court denied class certification and the parties agreed to voluntarily dismiss the case without prejudice in November 2020.  The voluntary dismissal came after NDCS made progress addressing some of the lawsuit’s concerns including by closing its solitary confinement unit at the Nebraska State Penitentiary, which expert testimony described as among the worst in the nation.  NDCS also significantly reduced the number of people in solitary confinement overall, made significant changes to policies to improve compliance with the Americans with Disabilities Act, improved access to American Sign Language interpreters, adopted new policies related to mental health levels of care, and made significant improvements to its dental care policies. (U.S. District Court, District of Nebraska, Case No. 4:17-cv-03107-RFR-MDN.)
• Fabio Petrolino v. City and County of San Francisco:  RBGG represented the children, mother, and siblings of Alberto Petrolino, who was arrested after threatening suicide at the Golden Gate Bridge and accepted into custody at the County’s jail rather than being diverted to a psychiatric hospital, where, despite his family’s warnings, he was placed in regular housing with no suicide precautions and denied access to mental health treatment. Three days later, Alberto committed suicide by hanging himself in a shower stall. The family obtained a substantial settlement in the case. (U.S. District Court, Northern District of California, Case No. 16-cv-02946-RS-JCS.)
• Estate of Nunuha v. State of Hawaii: RBGG represented the mother and son of Bronson Nunuha, a young Hawaii prisoner who was brutally murdered at a Corrections Corporation of America private prison in Arizona, when two prison gang members entered his unlocked cell and stabbed him to death. The wrongful death lawsuit alleged that the death was preventable were it not for the prison’s inadequate security policies and practices, and the State of Hawaii’s lack of oversight. We obtained a confidential settlement in the case.
• Estate of Medina v. State of Hawaii: RBGG represented the mother, sister, and two aunts of Clifford Medina, a young developmentally disabled Hawaii prisoner who was murdered by his cellmate at a Corrections Corporation of America private prison in Arizona, less than four months after Bronson Nunuha was killed in the same housing unit. The wrongful death lawsuit alleged that custody staff ignored clear warning signs that Clifford Medina was in danger, including threats made by the killer the day before the murder. We obtained a confidential settlement in the case.
• Amicus Briefs on Behalf of Survivors of Sexual Orientation Change Efforts: RBGG has submitted multiple friend of court briefs urging the Supreme Court to recognize sexual orientation as a suspect classification under the Equal Protection Clause of the Fourteenth Amendment in the recent marriage equality cases. See Obergefell v. Hodges, 125 S.Ct.2071 (2015); Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), andUnited States v. Windsor, 133 S. Ct. 2675 (2013). We also submitted briefs in support of Maryland, California and New Jersey laws enacted to protect minors from the serious harms caused by “sexual orientation change efforts” (SOCE), the dangerous “therapies” purportedly designed to “treat” homosexuality. See Pickup v. Brown/Welch v. Brown, 728 F.3d 1042 (2013), King v. New Jersey, 767 F.3d 216 (2014), and Doyle v Hogan, Case# 19-2064, U.S. Court of Appeals for the 4th Circuit (2019).
• Prison Legal News v. Ventura County:  We established its publisher client’s First Amendment rights to reach its readers by successfully challenging an unlawful jail policy limiting incoming mail to postcards.
• Former Shareholders v. Corporation: The firm represents a corporation that manages elder care communities in the Bay Area in a dispute over the value of various business holdings upon the departure of two shareholders.
• Ramirez v. Ghilotti Bros., Inc.: In this complex class action on behalf of laborers alleging wage and hour violations against a major construction company, we obtained final approval of a $950,000 settlement with injunctive relief for the class. We also defeated the claims of company supervisors who asserted they should share in the settlement, even though they had perpetrated the alleged wage and hour violations against class members. Before the settlement was reached, we obtained a conditional certification of Fair Labor Standards Act claims and a published decision striking all of the defendant’s affirmative defenses. See Ramirez v. Ghilotti Bros., Inc., 941 F. Supp. 2d 1197 (N.D. Cal. 2013).
• Corporation v. Law Firm: RBGG obtained a confidential settlement on behalf of a corporation dedicated to assisting elders and managing elder communities in the Bay Area in claims that its long-time counsel failed to disclose conflicts of interest and to offer proper advice concerning a complex series of real estate investment transactions.
• Armstrong v. Newsom: RBGG proved in federal court that California’s prison and parole systems violate the Americans with Disabilities Act and the Rehabilitation Act of 1973 by discriminating against prisoners and parolees with mobility, sight, hearing, learning, mental and kidney disabilities. We secured systemwide injunctive relief to end the discrimination, which was upheld on appeal.  See Armstrong v. Wilson, 942 F. Supp. 1252 (N.D. Cal. 1996), aff’d 124 F.3d 1019 (9th Cir. 1997). We also established that the State is responsible for taking steps to ensure the rights of prisoners and parolees with disabilities are accommodated when it chooses to house them in third-party county jail facilities. See Armstrong v. Brown, 857 F. Supp. 2d 919 (N.D. Cal. 2012), aff’d 732 F.3d 955 (9th Cir. 2013), cert denied, 134 S. Ct. 2725 (2014); and 622 F.3d 1058 (9th Cir. 2010).   The Armstrong litigation has resulted in a series of ground-breaking precedents, including rulings that the ADA does not permit state government agencies to avoid compliance by delegating responsibilities to local governments, and that prisoners cannot be held in solitary confinement solely on account of disability. We are currently working to stop staff misconduct targeting people with disabilities at CDCR.  On September 8, 2020 and March 11, 2021 respectively, Judge Claudia Wilken granted in part our February 2020 and June 2020 motions to stop staff misconduct at six prisons in CDCR.  The Court found that the systemic abuses against incarcerated people with disabilities at—R.J. Donovan Correctional Facility (San Diego, CA)), CSP – Los Angeles County (Lancaster, CA), CSP -Corcoran (Corcoran, CA), Kern Valley State Prison (Delano, CA), Substance Abuse Treatment Facility (Corcoran, CA), and California Institution for Women (Corona, CA) —violate the ADA and prior court orders.  As a remedy, the Court required Defendants to develop plans to install security cameras and use body worn-cameras (BWCs) throughout the six prisons, reform the staff investigation and disciplinary process, and increase supervisory staffing on all yards at the six prisons.  Currently, BWCs and fixed security cameras are in use at all six prisons.  The Court also appointed an expert to oversee implementation of the mandated reforms.  Armstrong v. Newsom, 484 F.Supp.3d 808 (N.D. Cal. 2020); Armstrong v. Newsom, 2021 WL 933106 (N.D. Cal. 2021).  On February 2, 2023, the Ninth Circuit affirmed the September 8, 2020 RJD Order in full and the majority of the March 11, 2021 Five Prisons Order (except provisions regarding increased supervisory staffing and pepper-spray policies, which were vacated.)  Armstrong v. Newsom, 58 F.4th 1283 (9th Cir. 2023).  Relatedly, on July 30, 2020, the Court ordered that CDCR transfer  two witnesses from the prison where they had faced assault, threats and other retaliation for their participation in the litigation.  Armstrong v. Newsom, 475 F. Supp. 3d 1038 (N.D. Cal. 2020).