Mason Floyd, Leigh Roadman, and Matt Ruza, with significant support from Lori Stephens, recently obtained complete dismissal of an action against two clients, former owners of an EB-5 Regional Center, in the Southern District of Ohio. Under the EB-5 program, established by Congress, immigrants who invest $500,000 of capital into an approved project, receive conditional permanent resident status in the United States. After two years, if the immigrants have satisfied the program’s conditions, they will obtain their green cards. Plaintiffs, ten Chinese nationals, alleged that Defendants procured their investments through fraud, misrepresentation and deception and sought not less than $5,000,000. The Complaint alleged ten counts against Defendants. The Court dismissed plaintiffs’ federal securities laws claims with prejudice and denied their request to replead. The Court also declined to exercise supplemental jurisdiction over the remaining counts and entered judgment in favor of Defendants.
Insurance Litigation & Arbitration
Sometimes litigation is unavoidable. Clark Hill attorneys regularly represent insurers in complex multi-party litigation in courtrooms throughout the country. We also serve as panel counsel for several insurers as it relates to employment practices liability insurance (EPLI) and directors and officers liability insurance (D&O). Our attorneys have defended insurers in numerous high profile coverage actions involving long-tail claims, such as environmental contamination or exposure to asbestos-containing materials or toxic chemicals.
Our experience in representing insurers has allowed us to thoroughly understand the needs of insurers and their clients. As early as possible, we provide a detailed opinion that outlines the issues, potential pitfalls, and a proposed strategy for resolution. We find that we can often dispose of litigation at the pleading stage or early settlement.
Where necessary, our attorneys have the experience and resources necessary to defend the company at trial in any jurisdiction.
Mel Karfis, Bishop Bartoni, and Stephanie Anderson recently obtained dismissal of a client/retailer in a treestand/ratchet strap products liability matter pending in the U.S. District Court, Eastern District of Missouri. Plaintiff claimed that a replacement ratchet strap used to secure this treestand to a tree was defectively designed and/or manufactured. Plaintiff claims that this ratchet strap, sold by the client/retailer, broke when the Plaintiff stepped on his treestand approximately 25 feet up in a tree. During the fall the Plaintiff sustained severe deep lacerations to the entire length of his left forearm resulting in permanent tendon and nerve damage. Plaintiff alleged that the client/retailer was liable for selling the allegedly defective strap. Defendant responded that Plaintiff had not made a prima facie case that the product was defective and the client/retailer could not be responsible for the Plaintiff’s injuries. Defendant filed a motion for summary judgment arguing the Plaintiff had not established a prima facie case for a design, manufacturing, or warnings case against the client/retailer. As a result of the motion, the Court entered an order dismissing the client/retailer with prejudice.
Clark Hill’s defense counsel team which included Mel Karfis, Stephanie Anderson, Bishop Bartoni, Vince Roskovensky, and Lisa Eldridge recently obtained a directed verdict in a treestand products liability jury trial pending in Dauphin County, Pennsylvania (Harrisburg, PA). Plaintiff fell 30 feet from a treestand sustaining serious injuries rendering him a paraplegic. Plaintiff alleged that a treestand sold by the client/retailer failed to provide all the necessary components to safely install and use the treestand. Defendant responded that it did provide all the necessary components that would have been supplied by the manufacturer. Defendant further argued that even if the Plaintiff did not receive all the necessary parts and components, Plaintiff had full knowledge that he was allegedly missing parts and made a conscious decision to replace various components with unauthorized replacements. During trial, defense counsel effectively cross-examined the Plaintiff, the Plaintiff’s fact witnesses, as well as the Plaintiff’s engineers. After the close of the Plaintiff’s proofs, Defendant moved for directed verdict alleging that Plaintiff had failed to establish a prima facie case that the client/retailer sold a defective treestand and, in the alternative, the Plaintiff had assumed the risk because cross-examination at trial had revealed the Plaintiff had full knowledge that he was alleging missing vital components and knowingly used unauthorized replacement parts in an improper manner causing his fall. The trial court agreed and granted Defendants’ motion for directed verdict dismissing the case.
Sam Hornak recently won summary judgment in the Court of Common Pleas of Allegheny County in Fores v. The Pittsburgh Water and Sewer Authority, a personal injury lawsuit where the Plaintiff allegedly suffered serious personal injuries from falling into a sewer catch basin. The Court granted summary judgment on the basis that the Plaintiff had failed to establish any defect with the catch basin, or any liability on the part of the PWSA. The award of summary judgment spared the PWSA from the expenses of defending the case at trial, or conducting inquiries into the design of tens of thousands of catch basins in the City of Pittsburgh.
Bill’s client and the client’s former colleague were sentenced last week in the United States District Court for the District of New Jersey. The client and his colleague were accused of orchestrating $3.9 million in bribe payments to foreign officials in various countries in order to secure government contracts for their company. The client pled guilty to one count of conspiracy to violate the Foreign Corrupt Practices Act, and one substantive count of violating the Foreign Corrupt Practices Act. The client was sentenced to two years of probation and received a $10,000 fine. As a result, he will go home to the Philippines. The Sentencing Guidelines called for a sentence of 57 to 60 months.
Represented, counseled, coached, and encouraged a grass roots citizens group, through more than 20 contentious public hearings and meetings, in its successful efforts to thwart the rezoning and sale by a prominent and politically powerful non-profit of one of the last old growth forests in suburban Philadelphia.
Mel Karfis, Stephanie Anderson, and Bishop Bartoni recently obtained a unanimous defense verdict in a products liability lawsuit pending in Rusk County, Wisconsin. The Plaintiff sustained serious permanent injuries and disfigurement when he fell approximately 25 feet from a treestand shattering both legs. The Plaintiff claimed that the safety harness he was utilizing at the time of the fall, manufactured by the Defendant, did not operate properly and failed to arrest his fall. The Plaintiff claimed he received the wrong warnings and instructions for his product and that the safety harness instructions and labeling were inadequate and a direct cause of the accident. Defendant responded that the Plaintiff failed to properly utilize the safety harness as directed from the manufacturer. Defendant also submitted evidence, along with expert testing, that the cause of the accident was not some defect or inadequate warnings or instructions, but rather the Plaintiff’s misuse of the product which was a direct result of the accident. The 11 person jury unanimously agreed with the Defendant’s position and rendered a defense verdict in less than an hour.
Challenging the NHTSA tire pressure monitoring system rule
Defended a gasoline pipeline company in litigation alleging personal injury from exposure to indoor air vapors from petroleum pipeline ruptured by a third party
Represented a utility in seeking regulatory approvals for an electric transmission line from the Canadian border across the State of Maine
Challenged the EPA’s chlorofluorocarbon rule application to a manufacturer of foam
Developed defenses for a trade association to scientifically invalid claims that the members’ products might increase the incidence of asthma among people exposed to emissions from the products
Developed scientific expert testimony in a property damage lawsuit against a manufacturer who disposed of arsenic wastes which allegedly resulted in arsenic groundwater plumes in a residential neighborhood; resulting in a jury verdict for the defendant
Advising a trade association concerning allegations that children and adults may be exposed to carcinogenic and other hazardous chemicals from products made in part of a recycled (post-consumer) product originally manufactured by the trade association’s members. The legal risks include federal and state regulatory liability and potential personal injury claims
Defended a specialty chemical company in a personal injury suit involving alleged present-day exposure to chemicals (including toluene) from a historic pine tar production facility, including preparing for a Frye/Daubert hearing
Represented a New Jersey developer in his lawsuit against an industry research arm due to the contamination of the groundwater near his home with volatile organic chemicals (including trichloroethylene) which had migrated on to his property
Sam Hornak’s recent argument before the Commonwealth Court of Pennsylvania in King v. Pittsburgh Water & Sewer Authority (PWSA) resulted in a favorable opinion for our client the PWSA. Sam defended the PWSA against a Plaintiff who alleged that the PWSA was responsible for an injury suffered as a result of a rusted sewer grate. The Court reaffirmed the PWSA’s current inspection policies which rely on complaint-based investigation and that the PWSA is not obligated to “patrol the streets” looking for defects in its facilities.
The Split Ring sculpture, by Clement Meadmore, will return to downtown Grand Rapids in June 2016. It originally sat outside the Frey building before being moved to Woodland Mall. The sculpture is now returning to downtown after almost 50 years. Steve Stapleton and Ingrid Jensen worked on the negotiations and contracts to bring this iconic piece back to the heart of downtown.
Lead counsel in 3 ½ year commercial loan work out involving nine separate federal and state lawsuits In Pennsylvania, New Jersey, and New York where community bank client recovered substantially the entire eight figure, 10 year old debt owed by the bank’s most recalcitrant borrower, with significant contributions from his foreign partners, despite seemingly intractable fraudulent transfer and lien priority issues.
Engaged by an international carrier to establish uniform, company-wide reinsurance templates for more than twenty products, covering more than $1b in annual ceded risk
Lead counsel for an appointed actuarial firm before the Securities and Exchange Commission as well as in SDNY class action, wherein the allegations included the sufficiency of public company’s loss reserving
Lead counsel for an MGA in an Insurance Department investigation regarding unlicensed activity and excessive fees
Lead counsel for carrier in a three-member New York arbitration against four excess and a catastrophe layer of commercial auto clash cover reinsurance
Lead counsel in London-situs arbitration, where testimony and documents produced in U.S., involving the experience account balance of more than $25m for a property catastrophe excess, finite retrocession agreement involving 9-11 risks
Mel Karfis, Stephanie Anderson, Bishop Bartoni & Barry Sutton won a victory for their clients in a products liability case in Mississippi. The Plaintiffs filed their Complaint in the Circuit Court of Jasper County, Mississippi, one of the most plaintiff friendly jurisdictions in the South, for injuries resulting from a fall while using the subject treestand and full body safety harness. The Plaintiffs filed suit against the manufacturer, retailer, as well as the Treestand Manufacturers Association (TMA), which is a Mississippi voluntary non-profit trade association. Mel Karfis, Stephanie Anderson and Bishop Bartoni defended the manufacturer and removed this case to United States District Court for the Southern District of Mississippi based on fraudulent joinder of the non-diverse TMA. Plaintiffs filed a motion to remand the case back to state court. Sutton joined in opposition to the remand and filed a Motion to Dismiss on behalf of our other client, the TMA.
The Federal District Court, noting the heavy burden in establishing fraudulent joinder, held that Plaintiffs could not establish a viable claim against the TMA because the TMA was not a manufacturer, designer or seller and could not be liable under the Mississippi Product Liability Act. The Federal District Court further noted that Plaintiffs failed to plead any factual allegations that the TMA took any action or made any representations that resulted in the injury. Plaintiffs Motion for Remand was denied and the District Court properly found that the TMA was improperly joined for the sole purpose of defeating diversity jurisdiction. As such, the District Court further dismissed the TMA with prejudice from the suit and Clark Hill will continue to defend its clients in Federal Court, escaping the very dangerous local state court.
National and coordinating counsel for excess workers comp carrier providing coverage for self-funded employers, captives, and trade associations, appearing in more than two dozen federal court matters across the country
Karfis, Bartoni, and Anderson recently obtained dismissal in a products liability action pending in the Northern District of Iowa involving a hunting ladderstand. The Plaintiff alleged that the subject ladderstand was defectively designed and lacked proper warnings. The Plaintiff was attempting to install the ladderstand when the metal frame of the ladderstand bent causing the Plaintiff to fall to the ground and sustain serious injuries. Plaintiff also alleged that he did not receive any written warnings or instructions with the subject ladderstand and thus there was also a manufacturing defect for the subject ladderstand. Defendant asserted that there was no defect with the subject ladderstand and the design had met all industry performance standards. Defendant also obtained very favorable testimony that even if the Plaintiff did not receive the written warnings and instructions, he proceeded to attempt to utilize the ladderstand knowing the warnings and instructions were missing which established the assumption of risk defense. The Defendant filed a Daubert motion to strike the Plaintiff’s expert as well as motion for summary judgment that there was no defect with the subject ladderstand. In response, knowing the very strong position Defendant had developed in the case, the Plaintiff agreed to voluntary dismissal with prejudice as to all counts, dismissing the case in its entirety.
After 3 ½ years, the dogged prosecution of nine separate federal and state lawsuits In Pennsylvania, New Jersey, and New York, and two late night closings, all involving seemingly intractable fraudulent transfer and lien priority issues, a multi-disciplinary team of Clark Hill lawyers recently concluded a massive commercial loan work-out for our Bank client that resulted in the recovery of substantially the entire eight figure, 10 year old debt owed by the Bank’s most recalcitrant borrower, with significant contributions from his foreign partners.
Mel Karfis, Bishop Bartoni, and Stephanie Anderson were successful in having summary judgment affirmed in favor of their clients in the United States Court of Appeals for the Fifth Circuit from a case pending in Federal Court in Louisiana. The Plaintiff sustained significant injuries to his back resulting in multiple surgical repairs and permanent disabling conditions after falling from a treestand he claimed was defective and unreasonably dangerous. The defense presented expert testimony and evidence to establish that Plaintiff had left the treestand exposed to the outdoor elements for years resulting in deterioration of the webbing material of the straps holding the treestand in the tree. Defendant established Plaintiff failed to present sufficient evidence to establish his claims, which resulted in summary judgment in favor of Defendants. The Fifth Circuit Court affirmed finding that Plaintiff’s evidence was purely speculative inferences of a defective condition and agreed with Defendants that Plaintiff could not exclude other possible explanations for the straps’ breaking, including misuse. The Fifth Circuit Court also affirmed that the district court properly granted summary judgment of Plaintiffs warning claims because Plaintiff explicitly admitted his knowledge of the danger associated with environmental exposure of the subject product.
Mel Karfis, Stephanie Anderson and Bishop Bartoni obtained a “no cause of action” in a binding arbitration in a wrongful death products liability action involving an allegedly defective safety harness. The Plaintiff’s estate brought a wrongful death action alleging that Defendant’s safety harness did not operate properly and arrest his fall while utilizing a treestand. Plaintiff alleged the safety harness malfunctioned when the Plaintiff fell from his treestand allowing him to fall to the ground and sustain fatal injuries in front of his two young children. The Plaintiff alleged the safety harness was defectively designed and also provided inadequate warnings. The safety harness manufacturer asserted there was no defect with the safety harness and the warnings were adequate. After presentation of the Defendant’s corporate representative and several experts, as well as effectively cross-examining the Plaintiff’s fact witness and experts, the arbitrator found completely in Defendant’s favor and found “no cause of action”.
Mark Sifferman has successfully pursued an appeal for our client by persuading the Arizona Court of Appeals that all lienholders are entitled to redeem property sold at a mortgage foreclosure sale. The trial court denied the attempt by our client (the holder of a homeowners association lien) to obtain a deed to property through redemption, ruling that Arizona law grants redemptive rights to only judgment lienholders and junior mortgagees. The client hired Mark and Clark Hill to appeal that decision. The problem facing us on appeal was that the Arizona statute relied on by the trial court seemingly supported that court’s ruling. We argued on appeal, however, that the trial court had applied the wrong statute and that another statute granted all lienholders, including our client, the right to redeem. Our argument required tracing the more than 115 year history of the two statutes, establishing the law of the states (Minnesota and California) from which the Arizona Territorial Legislature originally borrowed the statutes, and deciphering a fairly obscure 1925 decision of the Arizona Supreme Court. Our efforts proved fruitful when the Arizona Court of Appeals issued its published opinion on March 17 holding that all lienholders, not just judgment lienholders and junior mortgagees, are entitled to redeem after a mortgage foreclosure sale. In reaching its decision, the appellate court agreed with all aspects of our argument, including our historical analysis. The trial court was instructed that a deed to the property should be issued to our client.
Mel Karfis and Bishop Bartoni, assisted by Catherine Parker, recently won a products liability action in the Northern District Federal Court of Pennsylvania involving a treestand. The Plaintiff was attempting to install Defendant’s ladderstand when the metal frame of the ladderstand bent causing the Plaintiff to fall to the ground and sustain serious injuries. Defendant alleged that the ladderstand was defectively designed, utilized inferior metal and also failed to provide clear and adequate warnings for proper and safe use. The Defendant responded that the sole cause of the action was the Plaintiff’s material misuse of the ladderstand, including numerous material assembly and installation errors. The Defendant responded by attacking the Plaintiffs expert’s opinions and was successful in excluding the Plaintiff’s expert. Defendant also filed a motion for summary judgment on the basis that without an expert, the Plaintiff could not establish any type of products liability case. The Court agreed and struck the Plaintiff’s liability expert. The Court dismissed the Plaintiffs design defect claim. The Plaintiff attempted to assert he could proceed on a failure to warn case even without an expert. The Court allowed the parties to brief the issue and ultimately the Court agreed with the Defendant and the case was dismissed in its entirety with prejudice.
Mel Karfis and Bishop Bartoni obtained summary judgment on a products liability case pending in Virginia Federal Court. Plaintiff was using steel screw in tree steps to allow him to ascend a tree to get to his hunting treestand. Plaintiff claimed one of the steps broke causing him to fall and sustain serious permanent injuries. Plaintiff argued that inferior steel lead to the tree step breaking. Plaintiff denied that he had left the tree step in a growing tree for many years. After cutting down the tree and taking a cross-section of the tree at the point where the step was screwed into the tree, Defendant was able to ascertain that the Plaintiff was not being forthright. Counting the inner rings of the tree, Defendant’s expert determined that Plaintiff had left the step in the tree for at least 8 years. Defendant also successfully cross-examined Plaintiff’s mechanical engineer and metallurgist that the observed damage was the result of tree growth applying forces to the tree step causing the eventual facture. We subsequently moved for dismissal arguing that there was no evidence to establish a defect, that Plaintiff failed to heed the warnings to remove the step and that Plaintiff’s misuse caused the accident, supported by the evidence learned during discovery. The Court agreed and dismissed the Plaintiffs entire case.
Mel Karfis, Bishop Bartoni, Paul Scheidemantel, and Vince Roskovensky recently obtained summary judgment in a products liability case pending in Pennsylvania Federal Court. In this suit, Plaintiff claimed he suffered significant injuries when he fell from a purportedly defective ladder style treestand. Plaintiff’s expert opined that the design of the ladder was defective, despite the design being the industry standard. The Plaintiffs expert further opined that the warnings were defective because the warning sticker on the ladder itself was not readable by the user, despite the numerous adequate warnings found on the stand and in the instruction manual. After effective cross-examination of Plaintiffs expert during deposition, we filed a motion to preclude Plaintiffs expert from testifying at trial. We also argued in a dispositive motion that Plaintiff had no evidence of a defect in the product and that if the court agreed with our other motion, Plaintiff had no expert to establish a strict products liability claim under Pennsylvania law. The Court agreed with our arguments, struck Plaintiffs expert from testifying and dismissed Plaintiffs complaint in its entirety.
Bob Strong and Sean Gallagher recently achieved a reversal in the Michigan Court of Appeals of the Michigan Public Service Commission’s denial of summary disposition on a claim that the Commission exceeded its statutory authority when it authorized the defendant regulated utility company to raise electrical rates for Clark Hill’s client, a significant North American industrial energy transporter, generator, and distributor, at its facility in Michigan’s Upper Peninsula. Arguing the settlement resolved a disputed legal issue, the Commission approved the rate increases in 2012 under guise of approval of a settlement agreement from 2009 that included a rate-increasing accounting mechanism. The Commission approved the rate increase despite a prior Court of Appeals opinion holding that the statutory authority of electric utilities did not allow for use of the accounting mechanism. Under Bob’s direction, Sean drafted the brief and handled oral argument before the Court of Appeals panel, which included the judge who authored the prior opinion. In a published opinion, the unanimous panel decided the rate increases were ultra vires based on interpretation of clear statutory language and the prior Court of Appeals decision interpreting the Commission’s authorizing statute. The Court of Appeals ordered the case remanded for further proceedings before the Commission, which are expected to involve determination of the amount of refund owed to Clark Hill’s client, likely in excess of $200,000, and potentially all of the ratepayers of the utility, which could exceed $10,000,000.
Successfully argued to the Michigan Supreme Court that the termination of a joint tenancy caused solely by the death of the other joint tenant is not a transfer of ownership that uncaps the property taxes under the General Property Tax Act (GPTA).
Successfully argued to the Michigan Supreme Court that the offer of judgment rule (MCR 2.405) did not apply to a monetary settlement offer in return for a quitclaim deed in a quiet title action because said offer was not a "judgment for a sum certain" under MCR 2.405.
Represented a public safety communications consortium in an action to vacate a significant arbitration award regarding a dispute with a contractor retained to implement an integrated automated public safety system. The District Court agreed with our arguments that the arbitrator exceeded his authority and vacated the arbitration award. The U.S. Circuit Court for the Sixth Circuit affirmed the District Court's opinion and order.
Successfully obtained summary judgment for the defendant in a premises liability action claiming a significant head injury and substantial monetary damages that was removed to federal court based on diversity of citizenship. The District Court held that the accumulation of ice and snow on the retailer's roof was an open and obvious danger under Michigan law.
Bob Gordon and Charles Murphy were mentioned in an October 9, 2015 Wall Street Journal article, “Ponzi Schemer’s Bad Investments Lead To Arbitration Award”, regarding a securities fraud case before FINRA arbitrators in which they obtained a $2.75 million consent award, following four weeks of hearings conducted by Charles Murphy and Eric Shih.
Bob Ridge and Elizabeth Collura obtained a significant victory in the Court of Appeals for the Third Circuit, on behalf of our client who is an inmate in the Pennsylvania Department of Corrections. DOC facilities have recently come under scrutiny from the Department of Justice for the inhumane treatment of inmates in solitary confinement. The inmate has been held in solitary confinement for over seven years. A corrections officer mistakenly released him from his cell. Once the officers secured him and de-escalated the situation, they restrained him in a restrictive movement chair for over 14 hours. The District Court granted summary judgment for the defendants and dismissed the case. On appeal, the Third Circuit issued a precedential opinion, holding that the District Court misapplied the legal standard for evaluating excessive force claims in 8th Amendment civil rights cases. The Third Circuit also held that the District Court must analyze the Department of Justice’s reports on the DOC facilities under the Rules of Evidence, because they may be relevant evidence at trial.
Eric Dorkin, MacKenzie Hyde and Ray Koenig obtained a significant victory in the 1st District Appellate Court. In a case of first impression, the Illinois Appellate Court granted Clark Hill’s emergency appeal in favor of Nina L., a minor seeking to apply for Special Immigrant Juvenile Status to stay in the United States following her 18th birthday. The trial court had denied Nina L.’s request for the judicial findings necessary for her to apply to remain in the United States after being abandoned by her natural parents. The trial court held that it was not proper for it to enter findings pursuant to federal statute. The Appellate Court reversed and entered the required findings itself on an emergency basis so that Nina L. could timely file the required documents with the U.S. Citizenship and Immigration Services, as her 18th birthday was just days away.
As reported in the local legal press, “This is a case that really mattered,” said Dorkin, who represented Nina L. “If the case was decided the other way, she was going back to Taiwan with no known family or connections and just a high school degree, and I think that’s a recipe for lifelong disaster.”
Danny Cerrone recently obtained a non-jury verdict in favor of the firm’s client, Morgan Franklin & Co., in the Court of Common Pleas of Allegheny County, Pennsylvania. Morgan Franklin held a 5% ownership interest in a limited partnership. In 2002, the general partner informed Morgan Franklin that the limited partnership was going to dissolve, and that Morgan Franklin would receive the pro rata book value of the company. Morgan Franklin received payment of around $200,000, based upon the purported book value. After receiving the payment, Morgan Franklin learned that the general partner sold the limited partnership for $34 million. Allen Lopus and Robert Ridge sued the general partner on behalf of Morgan Franklin and, in 2006, received an arbitration award of approximately $2 million on behalf of Morgan Franklin. In 2010, the general partner filed suit against Morgan Franklin for claims of breach of implied contract, unjust enrichment and quantum meruit based upon an alleged indemnification obligation arising out of the sale of the limited partnership and the arbitration award. Essentially, the general partner argued that the limited partnership sellers were required to defend and indemnify the purchaser and that, because of the arbitration award, Morgan Franklin was a de facto seller, and thus obligated to indemnify under the sales agreement. The non-jury trial resulted in a defense verdict in favor of Morgan Franklin, with a strong opinion from the Judge in our favor.
Ryan Lorenz and Sean Carroll were successful in obtaining a reversal of a $12 million verdict against their client, Sherry Petta, in a published opinion of the Arizona Court of Appeals. Desert Palm Surgical Group PLC v. Petta, 236 Ariz. 568, 343 P.3d 438 (App. 2015). On July 30, 2015, the Arizona Supreme Court denied the Carlottis’ petition for review, thereby ending the appeal in Ms. Petta’s favor.
Jack Kalmink and Mary Kalmink represent a long-standing client of the firm who, along with other investors, invested $13,000,000 in a building project in Texas. As an inducement to get the client to make this investment, two of the investors signed Personal Guarantees for a total of $5,000,000. The project failed and the lenders foreclosed on the property. The client sought to recover on the Personal Guarantees to recoup some of its losses. The investors refused to pay on the Personal Guarantees, so Jack and Mary Kalmink filed lawsuits on behalf of their clients in federal courts in Phoenix and San Diego where the investors lived. The San Diego investors filed a motion to dismiss the case as a matter of law. Mary Kalmink drafted the briefs in response to the motion to dismiss. The Judge issued a written opinion, denying the investors’ motion, thus allowing the lawsuit for $2.5 million to proceed in San Diego, and precluding a similar motion in the Phoenix lawsuit.
On behalf of two of our firm’s largest clients, a multi-office and multi-practice group team of Clark Hill attorneys and others recently obtained a $7,300,000 non-dischargeable fraud and conversion judgment by summary proceedings against their opposition in the United States Bankruptcy Court for the Northern District of Georgia. The ruling came after substantial briefing completed by Jordan Bolton (Birmingham – Litigation), Peter Jackson (Detroit – Bankruptcy), and Stuart Schwartz (Detroit – Construction); and a nearly two-hour oral argument session, led by Jordan and Stuart, and supported by Tim Lee (Detroit – Summer Associate). Substantial additional support was provided by one of our client’s outside general counsel, Ronald King (Lansing – Litigation).
Estate of Donald Howell v. Donald Brenard Howell, 2015 IL App (1st) 133247 and 1140810 (cons.)
Represent national lender in actions against borrowers and guarantors on defaulted multi-million dollar loan agreements and lines of credit, including successfully defending against lender liability claims in state and federal bankruptcy court, successfully obtaining judgments against and pursuing guarantors in state court, successfully obtaining a charging order over a guarantor’s interests in a limited liability company, and pursuing separate foreclosure actions against guarantors.
The Raymond W. Pontarelli Trust, et al. v. Michael Pontarelli, et al., 2015 IL App (1st) 133138
In re Estate of Leonard Koenen, 2014 IL App (1st) 140080-U
Successfully oversaw litigation at arbitration, trial, appeal, and Illinois Supreme Court regarding the closure of State facilities and employee layoffs.
Represented national real estate developer at trial in tax assessment dispute, which resulted in an unprecedented reduction in taxes for client.
Successfully managed challenge to $31 billion capital bill, seeking to strike down entire bill.
Oversaw major class actions, including challenges to $100 billion pension reform legislation and enhanced retiree healthcare payments.
Represented a multinational banking institution throughout regulatory compliance, and provided strategic analysis regarding the Fair Debt Collection Practices Act, the Real Estate Settlement Procedures Act, the Home Affordable Modification Program, as well as state foreclosure and consumer fraud laws
Represented client against shareholder claims challenging proposed merger
Represented a multinational banking institution in federal and state court actions relating to foreclosure processes
Represented a financial services client in class action alleging violations of state and federal securities laws
Represented client in proxy contest involving shareholder proposal for change to board of directors
Represented a nationwide publisher in various individual matters alleging violations of the federal Copyright Act
Obtained dismissal on the eve of trial of multi-million dollar claim against commercial landlord for alleged breach of lease exclusive; client landlord received full indemnification from violating tenant, including counsel fees, and paid nothing toward settlement
Successfully defended coal mining company in state court litigation by land owners, involving breach of contract, fraud and civil conspiracy claims in connection with lease disputes
Represent and defend substantial real estate developer and owner against large scale mechanic’s lien claims surrounding work and improvements performed by tenant
Represent national real estate company in various contract and business tort disputes, including not only litigation but advising on pre-litigation strategies and cost beneficial approaches
Defended coal mining company against claims for statutory violations, breach of implied contract/unjust enrichment, breach of contract, negligence, misrepresentation, unfair trade practices, trespass in property damage and subsidence actions by landowners
Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, et al., 476 F. Supp. 2d 913, (N.D. Ill., 2007), affirmed by Seventh Circuit in Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371 (7th Cir. 2008). Obtained summary judgment, upheld on appeal to the Seventh Circuit, for defendant clients in a $3.2 Million alter ego and veil piercing case.
CNH Capital America LLC v. Trainor Grain & Supply, Co, et al., 478 B.R. 876, 78 U.C.C. Rep. Serv. 2d 782 (2012). Obtained summary judgment on behalf of a lender claiming rights to crop proceeds under the Uniform Commercial Code against a grain elevator claiming setoff rights under both a contract and the Food Security Act.
Represented a large, multinational corporation in a multi-million dollar arbitration involving breach-of-contract claim.
Represented a multinational chemical corporation in an anti-dumping matter.
Provided advice and counsel to an international union on various matters.
Represented national financial institution in a suit alleging conversion, tortious interference, and breach of contract.
Phillips v. Bally Total Fitness Holding Corp., 372 Ill. App. 3d 53 (1st Dist. 2007) Obtained dismissal of putative nationwide class action alleging violations of the Illinois Consumer Fraud and Deceptive Practices Act. Kent also successfully argued the appeal before the First District Appellate Court of Illinois.
Represented a large regional energy company in a multi-million dollar breach-of-contract suit.
Successfully defending a trustee in an undue influence and breach of fiduciary duty case in the Wayne County Probate Court.
Representing leading diesel engine manufacturer in breach of warranty, breach of contract and product liability disputes.
Defending Chase Manhattan Mortgage Company in several real estate cases in Wayne County Circuit Court.
Successfully defending world’s largest insurance broker against a multi-million dollar claim in a multiple week state jury trial. The matter settled for less than 10% of the claimed damages just prior to closing statements.
Successfully defending Tier 1 automotive supplier in million dollar breach of contract action. Secured dismissal via motion for directed verdict at arbitration.
Obtaining foreclosures of commercial properties for many of the nation's leading banking institutions.
Successfully representing plaintiffs and defendants in numerous injunctive proceedings and evidentiary hearings.
Representing one the country's largest retailers in trade dress and copyright lawsuit against a Chinese manufacturer.
Defending a registered representative in a FINRA arbitration brought by several customers over a failed investment sold to the customers by an unrelated promoter.
Successfully defending Tier 1 automotive supplier in federal court jury trial involving tort claims. Obtained judgment of no cause of action as to one plaintiff. As to second plaintiff, the jury issued an award for only 2% of the claimed damages.
Successfully defending manufacturers/property owners in claims brought by workers allegedly exposed to dangerous work conditions. Obtained summary judgment dismissing plaintiffs' claims. Grants of summary judgment were affirmed on appeal.
Successfully obtaining judgment and collection in Oakland County Circuit Court against a series of real estate LLC entities, including reverse piercing
Serving as a facilitator in an automobile supplier contract dispute involving Johnson Controls, ThyssenKrupp Steel Services and other entities
Represented the former Chairman of Audit Committee of a Fortune 500 corporation in SEC option backdating investigation that resulted in no action being taken against the client by SEC.
Represented the Russian Federation and its Federal Atomic Energy Agency (FAAE) in a federal action in the Eastern District of Michigan to recover $300 million of smuggled isotopes from a Russian company and its major shareholder who had fled to St. Kitts
Defending and achieving a favorable resolution and dismissal for Norstar, a Florida construction company, in an action brought by its former president in Fort Myers, Florida
Serving as an internal arbitrator at Henry Ford Health Systems in a physician staff privilege hearing
Obtaining a no-cause for Bondpage.com (Cambridge Group Investments), an internet bond broker-dealer, in a FINRA securities arbitration brought by a customer in Los Angeles, California
Obtaining summary dismissal of a business claim brought by a broker-dealer against a departing representative
Representing elderly investors in two FINRA arbitrations involving the inappropriate sale of variable life and annuity products
Represented a former CEO of a publicly traded company in an SEC investigation concerning allegations that CEO failed to disclose information concerning prior regulatory and criminal history of consultants hired by the company.
Represented multi-national energy company in a FINRA inquiry and SEC investigation regarding allegations of insider trading.
Represented a Canadian accounting firm in a SEC option backdating investigation of a multinational corporation that resulted in no action being taken against the client by SEC.
Represented a broker-dealer and its principals and a trader in a NASD inquiry. The result was no action taken by the NASD against the client.
Represented two consultants to an over-the-counter bulletin board (OTCBB) company in an SEC enforcement investigation concerning registration violations, false and misleading statements via electronic methods, and a scheme to defraud.
Represented 12 individuals who participated in a 504 offering in an SEC informal inquiry, with the SEC taking no action taken against any individuals.
Represented two related broker-dealer firms and their officers in an NASD investigation.
Represented a broker-dealer and its president in an SEC civil enforcement proceeding concerning failure to supervise brokers and engaging in manipulative and deceptive practices.
Successfully shepherding and negotiating departures of registered representatives from numerous broke-dealers and negotiating employment agreements with broker-dealers
Representing a regional bank in a FINRA arbitration against a broker-dealer and insurance company arising out of the inappropriate sale of bank-owned life insurance (BOLI) to officers of the bank
Achieving a very substantial settlement buy out during arbitration on behalf of a founding oppressed minority shareholder of National Precast, Inc., a precast construction company
Lead defense counsel in claim against automotive dealership involving allegations of substantial injuries arising out of faulty vehicle service and failed airbag. Obtained extremely favorable settlement for client
Court-appointed Receiver in an SEC enforcement action entitled Securities and Exchange Commission v. Gregory N. McKnight, et al., involving an Internet-based international Ponzi scheme that raised approximately $75 million
Representing two registered representatives of UBS in a FINRA Review in fall 2008 of closed-end fund trading practices at the UBS Scottsdale, Arizona office. FINRA Review discontinued following depositions
Defending Delphi’s Director of Capital Planning in the SEC enforcement action against Delphi and its former officers and related securities matters, in the Eastern District of Michigan
Successfully obtaining dismissals of four cases brought by the Fort Street Presbyterian Church against the Presbytery of Detroit in the Wayne County Probate Court alleging mismanagement of two endowment funds and breaches of fiduciary investment duties
Representing broker-dealer, investment advisor and two principals in FINRA Case No. 08-04137. Nature of Case: Securities fraud and suitability
Representing the Receiver for Legisi Marketing, Inc. and Gregory McKnight, vs. Alan Goddard McGowan Pak & Partners, et al., FINRA 09-01690. Receiver was appointed in an SEC Enforcement Proceeding brought against Gregory McKnight and Legisi Marketing, Inc. for operating an internet Ponzi scheme. The FINRA arbitration involves suitability, churning, and other claims against the broker-dealer and representatives who sold restricted stock in former shell companies to Legisi. Also pursuing separate securities claims against Elite Consulting Group, LLC and Edgetech, Case No. 2:09-cv-10772, and against Royal Palm Real Estate Investment Fund LLP et. al. Case No 2:09-cv-1170, in the United States District Court for the Eastern District of Michigan
Successfully defending Merrill Lynch Trust Company in a breach of fiduciary investment duty claim brought in Ann Arbor, Michigan
Lead counsel for litigant in contentious personal protection litigation which spanned two years and ended in favor of Kevin’s client in the Michigan Supreme Court. See Evarian v. Michalski, 2004 Mich. App. LEXIS 456 (February 17, 2004); lv. den., 471 Mich 866; 683 NW2d 670 (2004)
Lead counsel for multi-state electrical components supplier in construction lien foreclosure litigation leading to top priority of the lien in favor of Kevin’s client over the mortgage of a national bank
Lead counsel for loan servicer of national bank in receivership actions in five counties involving default under $13 million loan. Obtained the appointment of receiver to manage and operate collateral
Lead defense counsel in dispute over lease of warehouse involving over $1 million in claims. Filed motion for summary judgment leading to successful resolution of action
Counsel for national bank in receivership and judicial foreclosure action. Obtained appointment of receiver and judgment for foreclosure of $9 million defaulted loan. Successfully defended two interlocutory appeals contesting the appointment of receiver and foreclosure of loan
Trial counsel for global food and beverage company with locations in 44 countries. Obtained summary judgment in federal district court dismissing opposing party’s claims, including sanctions against the opposing lawyer. See Dunkin’ Donuts Franchised Restaurants v. Mr. Omar, Inc. et al., 2008 U.S. Dist. LEXIS 18001 (E.D. Mich., Mar. 10, 2008); 2008 U. S. Dist. LEXIS 39849 (E.D. Mich., May 16, 2008)
Counsel for shareholders of Car.com in securities arbitration in Phoenix, Arizona and a federal securities action in the Central District of California arising out of the acquitision of Car.com by Autobytel in a stock purchase subject to a later financial restatement by Autobytel
Recently conducted jury trial for five weeks as one of two principal trial attorneys on behalf of former Delphi employee in securities enforcement action brought by the SEC against Delphi and its former officers in the United States District Court (E.D. Mich.), Judge Avern Cohn presiding. The litigation was successfully resolved as to Mr. Fanning's client prior to verdict
Represented several high level Collins & Aikman executives, vs. Collins & Aikman Corporation, et al., in United States Bankruptcy Court, Eastern District of Michigan, Southern Division, Adversary Proceeding No. 08- 04709-swr. Case involved issue of whether the Collins & Aikman “Top Hat Plan” for high level executives complied with the Plan and ERISA so as to be excluded from the debtor’s estate
Representing Hunt Construction, the general contractor for the Northwest Airlines Mid-Field Terminal Project at Detroit Metropolitan Wayne County Airport in numerous construction cases in federal and state court arising out of delays, scheduling, acceleration, and termination of sub-contractors with over 100 million dollars at issue
Representing the shareholders and former officers of Car.com in AAA securities arbitration in Phoenix, Arizona and a federal securities action in the Central District of California arising out of the acquisition of Car.com by Autobytel with stock subject to a later financial restatement by Autobytel
Successfully represented mall developer in multi-million dollar contract and tort action against shopping center chain involving real estate disputes, lease disputes, intentional interference claims and related contract and tort claims. Jury Trial, Johnstown, Pennsylvania
Health Care Industry Litigation - Participated and litigated in several federal bankruptcy and state court receivership proceedings of hospitals.
Insurance Industry Regulation - Represented insurers at hearings before the Pennsylvania Insurance Department.
Antitrust and Trade Regulation - Reported antitrust decisions include the following: Pennsylvania Dental Association v. Medical Service Association of Pennsylvania, 815 F.2d 270 (3d Cir. 1987), rev’g, 632 F.Supp. 653 (M.D. Pa. 1986), cert denied, 484 U.S. 851 (1987); Pennsylvania Dental Association v. Medical Service Association of Pennsylvania, 745 F.2d 248 (3d Cir. 1984), aff’g, 574 F.Supp. 457 (M.D. Pa. 1983), cert. denied, 471 U.S. 1060 (1985).
Employment Litigation - Successfully defended sexual harassment and wrongful discharge claims against corporate employers.
Franchise Law and Litigation - Pursued franchisor's rights against franchisee.
Antitrust and Trade Regulation - Represented corporations and other business organizations in numerous complex antitrust cases at the trial and appellate levels.
Insurance Industry Regulation - Represented insurance companies on regulatory matters before the Pennsylvania and out-of-state Insurance Departments.
Managed Care and Health Care Industry Litigation - Represented health insurers in antitrust, bankruptcy and creditor’s rights, professional association, class action, contract, employee benefits, ERISA, employment, fraud, managed care, insurance industry regulatory, RICO and miscellaneous tort litigation.
Franchise Law and Litigation - Litigated franchisees’ rights against franchisor.
Antitrust and Trade Regulation - Counseled business organizations on applicability of antitrust laws.
Bankruptcy and Financial Restructuring Litigation - Tried/argued bankruptcy cases on behalf of creditors in U.S. District Courts in the Western, Middle and Eastern Districts of Pennsylvania; Southern District of New York; Northern District of Illinois; and Second and Third Circuit United States Courts of Appeal.
Successfully represented clients in federal court action brought by offshore captive insurance company where claims involved alleged breach of loan guarantee agreements surrounding clients’ participation in alleged abusive and fraudulent offshore tax shelter scheme. Action settled favorably to clients while jury deliberating. Advisory Jury Trial, Western District of Pennsylvania (2013)
Managed Care and Health Care Industry Litigation - Counseled clients and litigated third party reimbursement and accounting for reimbursement issues.
Public Finance and Public Finance Litigation - Listed in Bond Buyer’s Redbook of Municipal Bond Attorneys for more than 40 years.
Public Finance and Public Finance Litigation - Represented a series of municipal authorities defending and successfully deflecting attempted takeovers by their incorporating municipalities.
Successfully represented international construction and engineering company in multi-million dollar contractual indemnity action, arising out of underlying lawsuits involving an oil refinery expansion project. Jury Trial, Corpus Christi, Texas
Franchise Law and Litigation - Litigated/defended franchisor in suit brought against the franchisor by franchisee for alleged breach/violation of the applicable franchise agreement.
Antitrust and Trade Regulation - Lead Counsel in an antitrust case which successfully put an end to a decade’s long boycott against one of the largest dental insurers in the country.
Litigation - During 1990s, obtained a nominal damage jury verdict in a multi-million dollar case against the third largest hardware cooperative in the nation, in which a midwestern bank brought claims of tortious interference and conversion.
Employment Litigation - During late 1970s, successfully defended a series of race and sex discrimination class actions brought against a major Pittsburgh corporation.
Public Finance and Public Finance Litigation - Represented numerous public bodies, defending against challenges to bond issues, before courts and state agencies.
Insurance Industry Regulation - Successfully deflected an attempted hostile takeover of a domestic insurer by an out-of-state insurance company in proceedings before the Pennsylvania Insurance Department.
Franchise Law and Litigation - Successfully defended franchisor against litigation brought by Pennsylvania Attorney General for alleged violations of the Consumer Protection Act.
Antitrust and Trade Regulation - Antitrust litigation experience includes representing clients in the insurance, health care, soft drink, construction, manufacturing, hardware and building materials industries.
Managed Care and Health Care Industry Litigation - Conducted corporate internal investigations and antitrust audits of participants in the health insurance industry.
Intellectual Property Litigation - Represented major health insurance company in suit to compel private arbitration of dispute under Trademark Act and alleged breach of fiduciary duty regarding alleged diversion of managed care business and use of famous trademark in connection with alleged diversion.
Franchise Law and Litigation - Negotiated terms of franchise agreements.
Managed Care and Health Care Industry Litigation - Litigated issues related to institutional providers’ Medicaid cost reports.
Successfully defended international electronics corporation in multi-million dollar breach of commercial lease dispute involving tenant
Conducted corporate internal investigation on behalf of audit committee of board of directors of publicly traded savings institution
Bankruptcy and Financial Restructuring Litigation - Represented bond trustee in bankruptcy of debt service obligor.
Bankruptcy and Financial Restructuring Litigation - Reported bankruptcy-related decisions include the following: In re Monsour Medical Center, 11 B.R. 1014 (Bankr. W.D. Pa. 1981), aff’g, 8 B.R. 606 (Bankr W.D. 1981); In re Grimes Furniture, Inc., 47 B.R. 68, 12 Collier Bankr. Cas. 2d 193 (Bankr. W.D. Pa. 1985); In re Chateaugay Corp. 86 B.R. 40 (Bankr. S. D. N. Y 1988); In re I.D. Craig Service Corp. No. 89-00640, 1993 Bankr. Lexis 886 (Bankr. W.D. Pa. 1993); In re I.D. Craig Service Corp. 125 B.R. 453 (Bankr. W.D. Pa. 1991); In re I.D. Craig Service Corp. 118 B.R. 335, 20 Bankr. Ct. Dec. 1597 (Bankr. W.D. Pa. 1990); In re Clark Grind & Polish, Inc. 137 B.R. 172 (Bankr. W.D. Pa._1992) In re Passodelis, 234 B.R. 52, 41 Collier Bankr. Cas. 2d 1757 (Bankr. W.D. Pa. 1999).
ERISA Litigation - Represented a national health plan administrator against ERISA claims for breach of fiduciary duty in the administration of a major airline’s national employees’ self-insured health care plans. After extensive pretrial discovery and motions practice, participated in a one day minitrial before a federal judge and senior executives of client health plan administrator and airline which led to reasonable compromise settlement.
Franchise Law and Litigation - Litigated antitrust claims against franchisors.
Employment Litigation - Represented clients before federal EEOC and Pennsylvania Human Relations Commission.
Insurance Industry Regulation - Represented insurers in matters relating to the licensing of insurance agents.
Public Finance and Public Finance Litigation - Lectured municipal authority solicitors on topic of municipal authority takeovers at a series of seminars before the Pennsylvania Municipal Authorities Association
Public Finance and Public Finance Litigation - Represented bond trustees in default settings including the bankruptcy of obligor of debt service requirements under bond issues.
Insurance Industry Regulation - Counseled insurers relating to contract and rate filings with the Pennsylvania Insurance Department.
Represented local and national real estate developers in multi-million dollar breach of commercial contract/lease actions against landowners and tenants
Represent healthcare insurers, third party administrators, managed care organizations and others in contractual, business and other disputes. Representation includes counseling clients and litigating issues regarding payments, accounting for payments, third party administration and self-insured health plan issues, fraud claims, among others
Represent national title company in litigation matters involving alleged title defects, tort claims and contractual disputes
Represent a regional financial institution on SBA related matters, involving purchase and re-purchase guarantees, litigation and liquidation processes, and negotiations with the SBA regarding competing secured claims
Public Finance and Public Finance Litigation - Lectured at a Pennsylvania Association of Bond Lawyers Seminar on the topic of municipal authority takeovers.
Public Finance and Public Finance Litigation - Reported public finance-related decisions include: West Deer Civic Association v. West Deer Township, 75 Pa. D. and C. 2d 611 (1975); Harrison Township Water Authority v. Township of Harrison, 141 Pitts. L.J. 175 (1993).
Managed Care and Health Care Industry Litigation - Represented durable medical equipment vendors and professional and institutional providers in a variety of settings, including peer review, professional staff committees, regulatory agencies and the courts.
Managed Care and Health Care Industry Litigation - Litigated provider participation status under the Medicare program.
Managed Care and Health Care Industry Litigation - Practiced before state and federal agencies and the courts relating to Medicare and Medicaid reimbursement issues.
Bankruptcy and Financial Restructuring Litigation - Enforced rights of creditor corporations and other business organizations with respect to federal bankruptcy and state insolvency/receivership proceedings in Bankruptcy Courts, United States District Courts, United States Courts of Appeals, and state courts in various regions of the country.
Public Finance and Public Finance Litigation - On behalf of county commissioners of a Pennsylvania county, successfully defended a challenge brought by a county controller attacking the legality of the county’s annual budget relating to public indebtedness legal issues.
White Collar Criminal Defense/Internal Investigations - Conducted corporate internal investigations on behalf of audit committees of boards of directors of publicly-traded corporations and insurance companies.
Insurance Industry Regulation - Represented insurers in litigation under the Commonwealth Court’s original jurisdiction and the Pennsylvania Supreme Court’s appellate jurisdiction pertaining to issues relating to Pennsylvania Insurance Department oversight and regulation of insurance companies.