Ethan J. Birnberg
Ethan is a business attorney. Clients hire him because he improves their business. His approach is simple: first, understand what the client cares about; second, formulate a strategy to reach their goals; and third, implement and execute. This works whether the client is an owner or executive operating a company, a volunteer board running a local association, or an individual rearranging personal business.
Ethan is an AV-rated attorney and a Northern California Super Lawyer (awarded to only 5% of attorneys in California). His practice spans from business and corporate transactional work for individuals and companies of all sizes, to litigation matters requiring mediation, arbitration, and multi-day trials.
Homeowner Association (HOA) Representation
Ethan guides homeowners in common interest developments and their HOA Board of Directors through California’s Davis-Stirling Act and Chapter 116 of the Nevada Revised Statutes (Common-Interest Ownership). His work includes drafting and amending Declarations, Covenants, Conditions and Restrictions (CC&Rs), Rules and Regulations, adopting schedules of fines and fees, and enforcement of CC&R provisions including meet and confer requirements, pre-lien letters, lien recording procedures, and resolving delinquent assessment disputes. Ethan negotiates and drafts road maintenance, contracts for shared amenities and common areas, and restrictive covenants. He has significant experience with California’s HOA lien process and procedure and non-judicial and judicial foreclosure laws when foreclosing upon assessment or judgment liens.
Real Estate and Land Use Matters
Ethan commonly assists buyers and sellers of residential and commercial real property engaging in off-market transactions, lender or loan workouts, and restructuring or refinancing existing loans to maximum equity in property or other assets. He is well-versed in the California Association of Realtor (CAR) standard forms, documents, and disclosures. In addition to negotiating and drafting real estate transactional agreements, Ethan has litigated escrow and deposit disputes, enforced liquidated damages provisions and performance required under purchase agreements, and finds efficient resolutions to preliminary title concerns, easement issues, and lack of disclosure issues under Civil Code § 1102.
Ethan works with general contractors and subcontractors to draft, negotiate, and interpret construction contracts, home improvement contracts under California’s Business and Professions Code, and mechanic lien issues. He drafts leases for landlords, advises clients of security deposit and lease termination laws, and has handled a variety landlord/tenant disputes. For co-owned properties, Ethan’s work includes tenancy in common agreements, partnership agreements, forming entities to address liability and insurance issues, and identifying strategic management options and ownership structures with local property managers.
Ethan frequently interprets the scope of easement and similar property rights. He drafts easement agreements, agreements or quitclaim deeds to abandon, release, or extinguish easements, and additional covenants when clients need to restrict development or actions by surrounding or future landowners. Ethan’s developer clients have successfully planned and built some of the most well-known communities in the Truckee and Lake Tahoe region. He understands government processes and procedures, conditions for approval before permit issuance, and has worked with local government authorities on small and large projects, including the Town of Truckee, California Tahoe Conservancy, Tahoe Regional Planner Agency, Placer County, Nevada County, El Dorado County, Sierra County, and Washoe County. These projects often require collaboration with architects, engineers, land use planners, land surveyors, design and construction professionals, and contractors.
Corporate Formation and Governance
Ethan helps individual and corporate clients form appropriate structures to maximize their business operations while invoking limited liability for unexpected problems. Depending on the client, this may require creating a C-Corp corporation or limited liability corporation (LLC) and guiding the entity’s decision to make a S-Corp election. Ethan customizes Bylaws, Articles, Shareholder Agreements, and LLC Operating Agreements to reach specific client goals that affect ownership interests, distributions, capital calls, and non-voting or passive member rights and remedies. He ensures compliance with federal and state securities laws for all sizes of businesses seeking to raise capital through traditional financing, private placement memorandums (PPM), promissory notes, security interests (deeds of trust, UCC-1, and personal property). His work requires that clients understand the California Revised Uniform Limited Liability Company Act (RULLCA) that replaced the prior California limited liability company law called the Beverly-Killea Limited Liability Company Act, and Nevada’s LLC statute (Chapter 86 of the Nevada Revised Statutes) and its Private Corporations Code (Chapter 78 of the NRS). When an entity has sold substantially all its assets or the principal members otherwise decide that operations should stop, Ethan helps clients dissolve the entity, provide notice to creditors, and wind up its business.
Purchase and Sale of Companies / Mergers & Acquisitions
Ethan assists purchasers and sellers of all sizes of businesses, including clients operating in Truckee, Tahoe City, South Lake Tahoe, Incline Village, Kings Beach, Olympic Valley, Sierraville, Graeagle, Crescent Mills, Grass Valley, Newcastle, Placerville, and Nevada City. His work includes stock and asset purchase and sale agreements, sales of LLC membership interests, and redemption agreements. He guides clients to negotiate term sheets, execute letters of intent, and work through key employee issues, transfers and assignment of title, and ultimately closing the transaction. Representative clients include owners operating marinas, grocery stores, snowmobile and recreational/adventure companies, home care, property management, and concierge services, golf courses, wealth management firms, and an approximate $700 million acquisition of nation’s largest concrete pumping company (at closing of the acquisition).
Litigation / Bankruptcy Representation
Ethan is licensed in four states and has litigated federal and state cases concerning corporate and shareholder disputes, federal and state consumer protection statutes, class actions, WARN Act claims, and partition actions between parties needing to resolve real estate issues. He has litigated cases in many federal district courts, state and appellate courts, bankruptcy courts across the nation, the Bankruptcy Appellate Panel, the Ninth Circuit, and Tenth Circuit. After a judgment that concerned a novel and complex bankruptcy law issue was awarded for his client (a trustee of a liquidating chapter 11 case concerning a $30+ million-dollar Ponzi scheme), Ethan’s pathway to argue before the United States Supreme Court was squandered when the opposing party dismissed its appeal of the judgment.
Ethan is one of very few lawyers in the nation with dual certifications as both a business and consumer bankruptcy specialist from the American Board of Certification. He has extensive insolvency experience representing debtors, trustees, creditors, and receivers, including court-appointed receivers in Ponzi scheme cases. He has assisted entities seeking to restructure under chapter 11 of the U.S. Bankruptcy Code, borrowers and lenders seeking out-of-court workouts, representing chapter 7 trustees, and advising directors, officers, and executive management regarding labor and employment matters, fiduciary duties, and corporate governance issues.
His insolvency clients include lenders and creditors seeking court adjudication of non-dischargeable debts under Section 523 of the Bankruptcy Code, and defending those claims for individual debtors. Ethan uses his transactional and litigation skill set to help businesses sell their assets under Section 363 of the Bankruptcy Code, which have included sales of recreational vehicle parks, oil and gas wells and land across Wyoming, South Dakota, Colorado, and New Mexico, and real and personal property, while navigating clients through the applicable regulatory compliance and governmental regulations.
Community Service and Pro Bono Activities
Ethan enjoys benefitting his community and has provided pro bono services for the Will for Heroes program (drafting wills and estate plan documents for firefighters, police officers, and other first responders), served as a council member for the Nevada Disability Advocacy and Law Center, and helped first and second graders strengthen their reading skills through the Washoe County’s Read & Succeed Volunteer Program. He is well-versed in bird law after growing up in a family of birders, continuously searching for lifers, and actively seeks to increase his knowledge despite that bird law is not governed by reason.
Ethan often presents at local business events such as Good Morning Truckee and the Tahoe City Breakfast Club and is a proud graduate of the North Lake Tahoe-Truckee Leadership Program. When not in the office, Ethan can be found on a mountain or lake around Truckee, Lake Tahoe, and the many other beautiful places in the Sierra Nevada region.
Bar Admissions: California; Nevada; Colorado; Wyoming
Certifications: Business Bankruptcy Specialist and Consumer Bankruptcy Specialist (American Board of Certification)
Law School: Thomas Jefferson School of Law, summa cum laude
Externship: Externed for Judge Barry T. Moskowitz, U.S. District Court for Southern District of California
Undergraduate: University of California, Santa Barbara, (B.A., Law & Society and Global Peace & Security minor; Honors Program; received Academic Award for Excellence)
Recognition/Awards: Martindale Hubbell – AV Preeminent Rating; Northern California Super Lawyer, Super Lawyers Magazine, 2020-current; Rising Star, Colorado Super Lawyers Magazine, 2013-2019; Donald E. Cordova Distinguished Service Award (for pro bono service), award by Chief Colorado Bankruptcy Judge Michael E. Romero; International Insolvency Institute, NextGen Class V Inductee (Tokyo, Japan)
Associations (Past and Present): American Board of Certification (Board of Director); Faculty of Federal Advocates (Board of Director); Turnaround Management Association (Rocky Mountain Chapter Board of Director); Wyoming State Bar Bankruptcy & Creditor’s Rights Section (Board of Director); Colorado Bar Association, Business Law and Bankruptcy Subsection, International Law and International Transactions Subsection
Publications: Ethan has published articles concerning a wide range of topics, including corporate and shareholder disputes, litigation and appeals, creditor’s rights in bankruptcy and enforcement of judgments, reporter’s privileges, liability under the Fair Debt Consumer Protection Act, and landlord and tenant rights. He co-authored a volume about transnational insolvency issues and cross-border bankruptcy proceedings under Chapter 15 of the Bankruptcy Code, which was reprinted in Russian by the Kutafin Moscow State Law University.
Ethan’s articles include:
– Give The Corporate Director A Serpent Deflector: Reinforcing An Absolute Right To Inspection Under The California Corporations Code
– When Is It Fair To Use Someone Else’s Property? Creating An Equitable Easement Under California Law
– Easement Issues When Buying Or Selling Real Property: California Court Of Appeal Declines To Create Exclusive Implied Easement When Lot Line Application Was Not Finalized
– Dancing Around Landlord-Tenant Lease Problems: Options To Renew Under California Law
– Releasing Earnest Money Deposits As Liquidated Damages And California’s Real Estate Response To Covid-19
– California’s Response To Covid-19: Regional Stay-At-Home Order Precludes Hotel, Lodging, And Short-Term Rental Reservations
Co-author, “Find the Cost of Opportunity: Doing it Right with ABC Certification,” American Bankruptcy Institute Journal
Co-author, “Transnational Insolvency: A Guide to Cross-Border Bankruptcy Proceedings,” Vol. 2, Ch. 9A, The Law of Transnational Business Transactions (reprinted in Russian by Kutafin University Law Review, April 2017, Volume 4, Issue 1
“Nevada Adopts the Doctrines of Claim Preclusion and Issue Preclusion,” Nevada Lawyer
SPEAKING ENGAGEMENTS: Ethan has taught continuing legal education courses to attorneys, presented to realtors on dual-agency and disclosure issues, and spoken on panels about emerging business trends and corporate day-to-day operational and financial issues. He has taught practitioners and state court judges how to navigate and understand bankruptcy law and its effect on pending proceedings in other jurisdictions. For several years he planned and acted as the emcee for roundtable events attended by Colorado and Wyoming bankruptcy judges and practitioners. Recently he has presented on housing developments and short-term rental issues, business and employee trends, California HOA laws, and arbitration issues at Good Morning Truckee and the Tahoe City Breakfast Club.
Ethan’s presentations include:
“Homeowner Association and Timeshare Laws, Short-term Rentals, SB9 Construction and Housing Developments,” Good Morning Truckee; second presentation at Tahoe City Breakfast Club
“Arbitration, Easements, and AB 5 (Classification of Employees),” Good Morning Truckee; second presentation at Tahoe City Breakfast Club
“It’s Never Really Over, Even When It’s Over: Analyzing the Limits of Bankruptcy Jurisdiction,” American Bankruptcy Institute webinar
“The Net’s Unbreakable, So Don’t Worry About Falling: When Bankruptcy Enters the Estate Planning Picture,” Colorado Bar Association Trust & Estate Fall Update
“Was It For This My Life I Sought? How to React, Prepare, and Handle the Increase of Wyoming’s Consumer Bankruptcy Cases,” Wyoming State Bar Annual Meeting & Judicial Conference, Cheyenne, WY
“A Fresh Start with Low Oil Prices, or Deja Vu All Over Again in Bankruptcy?,” Wyoming State Bar Annual Meeting & Judicial Conference, Jackson, WY
“Protecting Creditors Rights and Problems for Secured Creditors in Bankruptcy,” Protecting Creditors’ Rights Seminar, Sterling Education Services, Inc., Cheyenne, Wyoming
“When a Landlord or Tenant Files Bankruptcy,” Landlord Tenant Law Update, Sterling Education Services, Inc., Reno, Nevada
More article titles and presentations are on Ethan’s LinkedIn page.