Past Successes/Significant Victories & Recoveries
SELECTED EXPERIENCE BY PRACTICE AREA:
SECURITIES, ERISA AND OTHER CLASS ACTION LITIGATION
- Served as Lead Class counsel on behalf of certified class of 705,000 policyholders of former mutual insurance company that converted to stock corporation, and settled Class Members' undervaluation claims for $90 million in one of largest recoveries in history of Southern District of Indiana (Ormnd v. Anthem, Inc., United States District Court for the Southern District of Indiana, Case No. 1:05-cv-01908-TWP-TAB).
- Represented plaintiff class and secured $51 million recovery in national ERISA pension fund class action (Rybarczyk v. TRW, 235 F.3d 975 (6th Cir. 2000), aff'g, 1997 U.S. Dist. LEXIS 3186 (N.D. Ohio 3-14-97) and 1997 U.S. Dist. LEXIS 13848 (N.D. Ohio 9-5-97)).
- Represented plaintiff class in $30 million settlement of environmental toxic tort class action litigation arising out of major release of toxic chemicals into Sandusky River watershed in western Ohio spilled from ruptured underground pipeline owned by Sun Oil Company (Lowe v. Sun Oil Co., 1994-2002).
- Secured appellate affirmance of $8 million judgment in national ERISA pension fund class action litigation (Costantino v. TRW, 13 F.3d 969 (6th Cir. 1994)).
- Favorably settled class action litigation under federal WARN Act for plant closing (Taylor v. Hough Bakeries, United States District Court for the Northern District of Ohio, 1996-1997).
- Recovered past pension benefits for retired dock workers of bankrupt railroad by obtaining judgment to enforce provisions of pension reimbursement and indemnification agreement (The Erie Dock Company v. Erie Lackawanna, Inc., 688 F. Supp. 1556 (Sp. Ct. R.R.R.A. 1988); see also The Erie Dock Company v. Erie Lackawanna, Inc., 635 F. Supp. 875 (Sp. Ct. RRRA 1986)).
ACCOUNTANT LIABILITY, SECURITIES AND FINANCIAL SERVICES LITIGATION
- National Director of Litigation for Ernst & Whinney (prior to Arthur Young & Co. merger) with responsibilities to handle and oversee litigation throughout the United States (1988-1989).
- Successfully defended Ernst & Young in significant "bet the firm" litigation on national and international scope, with particular focus on professional liability defense, securities fraud, class action and employment discrimination/human resources litigation (1989-1992).
- Successfully defended officers of three publicly-traded companies in SEC investigations and Justice Department prosecutions of securities fraud and Sarbanes-Oxley violations (2004-2006).
- Twice persuaded New York federal court to dismiss $770 million securities fraud action brought by 366 disappointed investors in Kinderhill limited partnerships breeding thoroughbred racehorses (Schick v. Ernst & Young, 141 F.R.D. 23 (S.D.N.Y. 1992); Schick v. Ernst & Whinney, 1991 WL 8543 (S.D.N.Y. 1991)).
- Successfully defended Ernst & Whinney against $60 million claim in North Carolina state and federal courts alleging defective audit by firm's Sao Paolo office of Brazilian tobacco company acquired by R.J. Reynolds Tobacco and improper foreign currency translation of repatriated U.S. investment funds (R.J. Reynolds Tobacco Co. v. Dibrell Brothers, United States District Court for the Middle District of North Carolina, 1990-1992).
- Won defense judgment in $360 million suit in Harris County, Texas, arising from financial services consulting engagement for oil and gas company (Houston Monarch v. Ernst & Whinney, 1990).
- Represented Ernst & Young in Rule 10b-5 securities fraud and RICO class action litigation in Boston federal district court (Bay Financial v. Ernst & Young, United States District Court for the District of Massachusetts, 1991-1992).
- Favorably settled securities fraud claim filed by public company client of Arthur Andersen & Co. (Pages, Inc. v. Arthur Andersen & Co., United States District Court for the Northern District of Ohio, 1997).
- Won precedent-setting cases establishing Ohio law that four-year statute of limitations for accountant malpractice claims begins to run when the allegedly negligent acts were committed and not when tax deficiency is assessed by IRS (Philpott v. Ernst & Whinney, 1992 WL 357250 (8th Dist.); Lord v. Ernst & Whinney, 1992 WL 126125 (9th Dist.)).
- Represented Ernst & Young in protracted jury trial of major savings and loan defalcation suit in Clark County, Nevada (First Western Savings v. Ernst & Young, 1989).
- Successfully defended regional accounting firm in state court accountant malpractice claims arising out of audit of state-regulated employee credit union, resulting in settlement on very favorable terms (BFG Employees Credit Union v. Kopco & Company, 2003).
- Successfully tried significant consulting engagement litigation in Charlotte (Lida v. Ernst & Young, 1990) and San Francisco (Hillhaven v. Ernst & Young, 1989).
- Successfully defended firm in two major employment discrimination cases in Southern District of New York (Fish v. Ernst & Young and Barnard v. Ernst & Young, 1989-1991).
- Favorably settled unsuitability claims in a suit brought by a union insurance association against a California-based national broker-dealer (UTUIA v. Dean Witter Reynolds, 1996).
ANTITRUST AND TRADE REGULATION
- Settled on very favorable terms health care antitrust litigation arising from the merger of two hospital groups, representing Cardiac Institute General Partnership, a Phoenix-based cardiology and cardiac catheterization firm, in connection with $70 million Sherman and Clayton Act claims in parallel federal and state proceedings (Cardiac Institute General Partnership v. Banner Health System, et al., United States District Court for the District of Arizona and Superior Court for Maricopa County, Arizona (2000-2002)).
- In criminal antitrust prosecution by DOJ's antitrust division and the United States Attorney for the Northern District of Ohio, assisted in defending one of several alleged co-conspirators among scrap metal dealers in the northern Ohio market against price fixing and market allocation charges, allegedly per se Section 1 violations, covering a 5-year period of time (United States vs. M. Weingold & Co., United States District Court for the Northern District of Ohio (2004)).
- Successfully defended Whirlpool Corporation against claims that the acquisition of KitchenAid by Whirlpool and Emerson Electric Co. from Dart & Kraft was a horizontal merger of competitors in the major home appliance industry in violation of Section 7 of the Clayton Act and Sections 1 and 2 of the Sherman Act. We prevailed following a three-week-long preliminary injunction hearing on claims brought by industry competitors White Westinghouse and Magic Chef, and the judgment was affirmed on appeal. (White Consolidated Industries, Inc. vs. Whirlpool Corp., et al., 619 F. Supp. 1022 (N.D. Ohio 1985), mod'y 612 F. Supp. 1009 (N.D. Ohio 1985), aff'd 781 F.2d 1224 (6th Cir. 1986)).
- Successfully defended Whirlpool Corporation and KitchenAid, Inc. against antitrust and dealer termination claims in class action cases brought on behalf of 53 terminated national distributors. (Leck Industries, Inc. v. KitchenAid, Inc., et al., United States District Court for the Eastern District of New York; S.S. Fretz, Inc. vs. Whirlpool Corporation, et al., United States District Court for the Eastern District of Pennsylvania (1987-1988)).
- Successfully represented Revco, Inc. in a Justice Department investigation of whether opening so-called "combo" drug stores in the Dallas market constituted monopolization and other antitrust violations in the grocery store and supermarket industry. (United States vs. Revco, Inc., United States District Court for the Northern District of Texas (1986-1987)).
- Obtained summary judgment for national franchisor of weight loss clinics that was sued by the Washington, D.C. area franchisee for antitrust, RICO, wrongful dealer termination and "earnings" claims arising out of the franchisee's termination for failure to meet performance requirements. (Petri vs. Physician Weight Loss Centers, Inc., United States District Court for the Northern District of Ohio (1987-1988)).
- Representing a highway construction contractor in this "seemingly interminable" case that was litigated for more than a decade alleging predatory pricing and "predatory bidding" claims in connection with paving contracts for the Ohio Turnpike, we successfully convinced the Court of Appeals to vacate the trial court judgment for plaintiffs in Langenderfer I and to cut in half the amount of the judgment for plaintiffs in Langenderfer II. (Arthur S. Langenderfer, Inc. vs. S. E. Johnson Company, et al., 729 F.2d 1050 (6th Cir. 1984) (Langenderfer I); Arthur S. Langenderfer, Inc. vs. S. E. Johnson Company, et al., 917 F.2d 1413 (6th Cir. 1990) (Langenderfer II)).
- Represented the City of Cleveland in $330 million restraint of trade and monopolization suit against an investor-owned electric utility in federal district court for the Northern District of Ohio (City of Cleveland v. Cleveland Electric Illuminating Company, 734 F.2d 1157 (6th Cir. 1984), aff'g 538 F. Supp. 1240 (N.D. Ohio 1981) and 538 F. Supp. 1227 (N.D. Ohio 1980)).
- Favorably settled distributor termination litigation (Transportation Accessories Corp. v. Cummins Engine, United States District Court for the Western District of Wisconsin, 2001).
WHITE COLLAR DEFENSE
- Successfully defended officers of two publicly-traded companies in SEC investigations and Justice Department prosecutions of securities fraud and Sarbanes-Oxley violations (2004-2006).
- Defended businessman accused of bank fraud, RICO, forgery, theft and employee benefits violations in parallel state and federal prosecutions (2004-2006).
- Defended accused co-conspirator in criminal antitrust prosecution by Antitrust Division of Department of Justice and the United States Attorney in price fixing and market allocation charges (United States vs. M. Weingold & Co., U.S. District Court for the Northern District of Ohio (2004)).
- Won defense verdict following 6-week jury trial in Ohio state court in environmental white collar criminal prosecution brought by Ohio Attorney General accusing manufacturing company and its president of illegally dumping hazardous chemicals on its site (State of Ohio v. Ozko, Inc. and Sawyer, 1995).
BANKRUPTCY AND RESTRUCTURING LITIGATION
- Represented Ableco Finance, Ltd., the successful debtor-in-possession financier for $125 million credit facility, in LTV Steel bankruptcy litigation in the Northern District of Ohio (2001-2002).
- Successfully settled creditor claims and adversary proceedings in Venture Mortgage Fund bankruptcy litigation in the U.S. Bankruptcy Court for the Southern District of New York (1996-2001).
- Represented majority shareholders in In re: International Total Services, Inc. ("ITS"), Debtor, Chapter 11 proceedings in the Eastern District of New York, as co-counsel with New York firms Chadbourne & Parke and Kelley Drye & Warren (2001-2006).
- Represented the attorney-debtor in bankruptcy litigation in the Sixth Circuit Court of Appeals establishing that an attorney's neglect or failure to meet an obligation, even while acting in a fiduciary capacity, did not constitute a non-dischargeable defalcation under § 523(a)(4) of the Bankruptcy Code (In re: Garver, 116 F.3d 176 (6th Cir. 1997)).
GOVERNMENTAL LIABILITY, MUNICIPAL LAW, CIVIL RIGHTS AND CONSTITUTIONAL ISSUES
- Served as regular outside litigation counsel for the Cleveland Board of Education and the Cleveland City School District in numerous federal court cases and collective bargaining arbitrations. (E.g., Walker v. Cleveland Municipal School District; Brown v. City of Cleveland; O'Neil v. City of Cleveland) (1992-1999).
- Represented charter municipality in original mandamus action in Ohio Supreme Court to compel city council to place ordinance rezoning property within city on election ballot for referendum vote of the electors (State ex rel. Committee for the Referendum of Ordinance No. 3543-00 v. White, 90 Ohio St.3d 212, 2000-Ohio-64, 736 N.E.2d 873).
- Won appellate decision affirming dismissals of multiple administrative appeals from city council's adoption of final development plans for planned community developments based on property owners' lack of standing where they are not directly affected by the development (Antush v. City of North Ridgeville, 9th Dist. Nos. 02CA 008161, 8169 and 8192, 2003-Ohio-3164).
- Represented environmental testing laboratory in Section 1983 action against state regulators at Arizona Department of Health Services for revoking state license without due process (Westech Laboratories v. Dillenberg, 19 Fed. Appx. 484, 2001 WL 727346 (9th Cir. 2001)).
- Successfully defended the Cleveland Board of Education against civil rights and wrongful termination claims asserted by its former general counsel and associate general counsel in the Northern District of Ohio and the Sixth Circuit Court of Appeals (Simiele v. Cleveland Board of Education, 57 F.3d 1070 (6th Cir. 1995)).
- Successfully defended City of Cleveland in five Section 1983 actions in federal court seeking millions of dollars for alleged violations of constitutional rights, including prevailing before the Supreme Court in a challenge to City's affirmative action plan as part of a collective bargaining agreement with the firefighter's union (Local No. 93, International Ass'n of Firefighters, AFL-CIO v. City of Cleveland, 478 U.S. 501 (1986), excluding plaintiffs' damages expert and evidence in back-to-back trials on damages held two weeks after being retained following Court's prior liability ruling that City zoning ordinance regulating abortion clinics was unconstitutional (Family Planning Clinic v. City of Cleveland and West Side Women's Services, Inc. v. City of Cleveland), and winning summary judgment for the City in claim by disappointed electrical subcontractor that City discriminated against non-union businesses in bidding and awarding subcontracts for expansion of Cleveland Hopkins International Airport (West Shore Electric Corp. v. City of Cleveland).
- Represented municipal and local governments in defending a variety of serious damage claims in federal district court, including City of Conneaut, City of Stow, City of South Euclid, Village of Gates Mills, Medina County Welfare Department, Lorain County Board of Mental Retardation, and obtaining dismissal of false arrest and imprisonment case brought against municipal police officers of City of Beachwood by resident who worked as scientist and inventor at NASA (Perlmutter v. City of Beachwood).
- Prevailed in Sixth Circuit in constitutional challenges on vagueness and overbreadth grounds to anti-drug paraphernalia ordinances enacted by three Cleveland suburbs, but Supreme Court's ruling in an unrelated case changed the constitutional landscape for the issues involved, and ordinances (as modified to cure the defects demonstrated during the litigation) were ultimately upheld (Record Revolution No. 6 v. City of Parma, Ohio, 709 F.2d 534 (6th Cir. 1983), rev'g 638 F.2d 916 (6th Cir. 1980), and aff'g 492 F. Supp. 1157 (N.D. Ohio 1980)).
- Twice appointed by Court of Appeals for the Fourth Circuit to represent indigents in constitutional due process claims (Phelps v. Sgt. Anderson, 700 F.2d 147 (4th Cir. 1983); White v. Townley (4th Cir. 1981)).
- Successfully defended Cleveland Board of Education in both trial and appellate courts against Section 1983 federal civil rights claims (Mary Drake vs. State of Ohio Board of Education, 642 F.2d 451 (6th Cir. 1980)).
- Hanna v. Toner, 630 F.2d 442 (6th Cir. 1980) (amicus brief in Sixth Circuit Court of Appeals on behalf of the American Civil Liberties Union of Cleveland, Inc.).
MEDICAL MALPRACTICE, HEALTH CARE, NURSING HOME AND PHARMACEUTICAL LITIGATION
- Won defense verdict on behalf of attending physician after three-week jury trial in Ohio state court of medical malpractice claims seeking $15 million in damages for anoxic brain injury resulting from in-patient respiratory arrest (Mann v. Community Health Partners, 2005).
- Handled large appellate practice for the Cleveland Clinic and University Hospitals of Cleveland in connection with medical negligence and commercial litigation (1982-1988).
- Favorably settled wrongful death claim against nursing home in Ohio state court (Duncan v. Altercare Nursing Home, 2001).
- Favorably settled national class action against pharmaceutical company that manufactured antibiotic Tamaflox (Fesler v. Abbott Laboratories, 1993).
- Successfully defended subsidiaries of Johnson & Johnson that manufactured tampon products in appeal of toxic shock syndrome litigation in Arizona (Baroldy v. Ortho Pharmaceuticals, Inc., 1985-1987) and prescription drug Zomax in product defect suits in Ohio (Marsh v. McNeilabs, Inc., 1984-1987).
- Recovered largest jury verdict in history of Lucas County, Ohio (Toledo) in medical malpractice claim against hospital and obstetrician for hypoxic-ischemic injury to newborn (Smith v. Sharma, 1994).
ENVIRONMENTAL, PRODUCTS LIABILITY AND TOXIC TORT LITIGATION
- Favorably settled wrongful death products liability claims in Ohio state court against boating and equipment manufacturers arising out of deaths of five family members from explosion and fire on their pleasure boat (Moss v. Onan Corp., 1998).
- Recovered large jury verdict for compensatory and punitive damages in Ohio state court action on behalf of landowners whose adjacent property was severely eroded as the result of faulty engineering by large developer (LaFarciola v. Elbert, 1998).
- WRONGFUL DEATH AND SERIOUS INJURY TORT LITIGATION
- Settled on favorable terms employer intentional tort claims in Ohio state court for permanently disabled railroad brakeman who suffered serious brain injury when his head was crushed between two railroad cars that did not have working brakes (Santos v. Republic Technologies International, 2005).
- Favorably settled wrongful death claim against joint tortfeasors and Moore-Sexton claims against deceased's insurance policies in Ohio state court (Hunt v. Wright, 2004).
- Successfully defended a multi-million dollar wrongful death suit against a father accused by his ex-wife of negligently causing their 11-year-old daughter to drown in a private swimming pool (McLaughlin v. Thomas, 1998).
- Favorably settled wrongful death claims under Section 1983 civil rights statute against municipal police department in federal district court for the Northern District of Ohio (Robinson v. Medina Police Dept., 1996).
- Favorably settled wrongful death claim against motor vehicle operator in Ohio state court (Kimble v. Vasiliadis, 1996).