Kelley Drye

Representative Experience

CLASS ACTIONS

Securities Class Actions

• Successfully represented a large IT company in a class action alleging federal securities law violations (Section 10 of the Exchange Act of 1934) in the United States District Court for the Eastern District of New York.
  
  
• Represented a sportswear company in a securities class action alleging federal securities law violations (Section 10 of the Exchange Act of 1934) in the United States District Court for the Central District of California.
  
  
• Represented one of the world's largest banking institutions in a class action brought by shareholders of Enron Corp. claiming that several banks, including our client, were primary violators under U.S. securities laws with respect to Enron's false financial statements. Kelley Drye had responsibility for the accounting issues related to all claims, including prosecuting and defending cross claims by and against Arthur Andersen, Enron's former accountants.
  
  
• Advised one of the world's largest banking institutions on various settlement issues arising out of a securities class action brought by purchasers of WorldCom bonds. Kelley Drye's work included litigation over various provisions of the settlement agreements entered into by some of its co-defendants, including substantial litigation on the propriety of the entry of a Bar Order by the District Court. The firm continues to advise this client on individual actions brought by those plaintiffs who opted out of the WorldCom class action.
  
  
• Represented one of the world's largest banking institutions in its defense of a class action securities claim made under Sections 11 and 12, arising out of the banks role as underwriter of an initial public offering. After Kelley Drye successfully argued that the class should not be certified, the matter settled on terms which were highly favorable to our client.
  
  
• Successfully represented a manufacturing conglomerate in class action securities fraud and shareholder derivative litigation in Connecticut related to the company's active participation in an international price-fixing scheme to which it plead guilty and was fined $110 million. Kelley Drye was able to secure a dismissal of the derivative action and settled all of the securities-related litigation favorably and well within insurance limits.
  
  
• Succeeded in obtaining dismissal of two lawsuits, affirmed by the Second Circuit Court of Appeals, alleging RICO, securities fraud and common law fraud claims against one of Korea's largest banking institutions. The plaintiffs in the two related actions were former shareholders of Lernout & Hauspie Speech Products N.V. ("L&H") who claimed losses of more than $600 million when L&H declared bankruptcy. Plaintiffs claimed that L&H disseminated false financial statements, based largely on a fraud committed by L&H's Korean subsidiary and various Korean Banks including our client. Kelley Drye successfully moved to dismiss the claims on behalf of our client for failure to state a claim under U.S. securities laws and to plead fraud with particularity. The Second Circuit affirmed the "bright line" test adopted in Wright v. Ernst & Young, and also confirmed that Federal Rule 9(b) applies to state law claims sounding in fraud.

Directors and Officers

• Representing a director of one of the GSE's in shareholders' derivative actions that have been consolidated in multi-district litigation in United States District Court for the District of Columbia. The case alleges violations of a number of accounting rules relating to mortgages, and arises out of an investigation into accounting practices at Fannie Mae by the federal Office of Federal Housing Enterprise Oversight, which led the Securities and Exchange Commission to direct our client to restate prior financial statements. The district court granted defendants' motion to dismiss and plaintiffs' appeal remains pending.
  
  
• Represented the former Chief Financial Officer of the owner of numerous supermarket and food service concerns worldwide, in the Royal Ahold NV Securities Litigation, one of the largest securities fraud class actions ever filed, which was consolidated in multidistrict litigation in United States District Court in Maryland. The claims related to Royal Ahold's restatement of $1.2 billion in net income as a result of vendor promotional allowance fraud at one of Royal Ahold's U.S. subsidiaries, as well as other allegations of accounting irregularities at Royal Ahold.

Financial Services

• Representing a major financial institution and certain of its officers and directors in class action securities fraud claims seeking over $2 billion for decline in value of institution’s stock. The case is pending in the United States District Court of the Southern District of New York.
  
  
• Represented a major financial institution in a class action in the District of New Jersey claiming fraud in the purchase of retirement homes in Florida. The complaint named thirty-five defendants, including some of the largest financial institutions in the world and a prestigious New York law firm, and claimed $500,000,000 in damages. We obtained dismissal of all the claims at the District Court level and prevailed in the Third Circuit.

Telecommunications and Technology

• Representing our client in defending invasion of privacy claims in Valentine, et al. v. Nebuad, et al., asserted by putative class of internet service subscribers who participated in challenged advertising service program.
  
  
• Represented India's largest conglomerates in a putative class action in the United States District Court for the Northern District of California.
  
  
• Successfully represented various financial services companies in government enforcement and class action litigation, including, for example, a credit card issuer in litigation brought by the Department of Justice alleging violations of the Equal Credit Opportunity Act ("ECOA"), and a financial services company in a class action alleging violations of RICO arising from its provision of credit card services, leading to highly favorable settlements for clients.
  
  
• Defeated class certification in a putative nationwide class action challenging one of the largest computer manufacturers' promotional rebate policies and rebate fulfillment record. Plaintiffs attempted to certify a class of all unpaid rebate applicants and represented to the court that they would move for summary judgment as soon as a class was certified. Plaintiffs were pursuing a nine-figure judgment, but we defeated class certification after an extended hearing. We established our client's rebate fulfillment record exceeds 90 percent of all rebates processed and demonstrated that the question of whether individual rebates were properly rejected requires a case-by-case investigation of each individual rebate application's history and compliance with our client's contract requirements. We did not merely argue these points. Through quantitative analysis of a representative sample of rejected rebate applications, Kelley Drye established that only individual hearings could resolve the predominating issue—whether a particular rebate application was valid or should have been rejected. With this victory, Kelley Drye built on its successful record in rebate class action certification battles.
  
  
• Represented a telecom client in a multidistrict litigation proceeding in the United States District Court for the District of Nevada in which nine purported class actions have been consolidated. Our motion to dismiss each of the complaints was granted by the district court. On appeal to the Ninth Circuit, the court upheld the majority of the trial court's decision. Although the court remanded certain state law causes of action that were asserted in a few of the consolidated cases, the court fully adopted our argument that potential damages claims, if any, would be extremely circumscribed, individualized, and limited.
  
  
• Successfully defended a web-hosting company in a putative class action in the Superior Court of New Jersey against a class seeking $150 million in statutory damages. During the course of this action, we obtained rulings barring class certification in both the trial and appellate courts. The New Jersey Supreme Court affirmed denial of class certification.
  
  
• Led the defense of more than 30 class action cases brought against one of the largest wireless companies and its affiliates. We successfully petitioned for multidistrict litigation over the objections of several noted plaintiff class action firms, transferring over twenty cases to the Western District of Missouri. Once there, we entered a nationwide settlement with the original class plaintiff and ushered that agreement through the Western District of Missouri over the objections of several large plaintiff class action firms, and won an order staying all the remaining state cases pending final approval of the settlement. The transfer and resulting settlement was described by RCA Wireless, the industry publication, as a "major victory." In the past year, the class action settlement was affirmed by the Eighth Circuit and an objector's petition to the Supreme Court was denied.
  
  
• Represented one of the largest ISP's in several class action suits filed in Florida, California, Oklahoma, Illinois, and New Jersey. Not one case advanced to class certification, let alone a decision on the merits. The California state appellate court issued an opinion in one of these cases that was especially important. That decision affirmed the LA County Superior Court decision sustaining our client's demurrer to the complaint for failure to state a cause of action for violation of the Consumer Legal Remedies Act, Unfair Competition Laws, and False and Misleading Advertising Laws. In its decision, the court adopted our reasoning in holding there was no contingent event (plaintiffs "earned and received their rebate when the purchase of the qualifying computer was consummated and the consumer signed the ISP contract") and no material omission occurred ("the law does not require defendants to offer their lowest price ISP service to its rebate applicants or to disclose the price of their other services when advertising one of them"). The decision, authored by Justice Mildred Lillie, a highly-respected jurist who has served on the court since 1958, provides favorable precedent in areas of consumer protection law that are relatively undeveloped. In fact, until this decision, there have been no prior cases under the applicable California statute (i.e., CLRA § 1770(a) (17)).
  
  
• Won an important victory for a national technology retailer when it successfully defended it against a class action complaint in the Circuit Court of Cook County, Illinois, that attacked its e-mail marketing campaign. The plaintiffs class action complaint alleged that the retailer's unsolicited e-mail advertisements sent to prospective purchasers of its products constituted unfair and deceptive business practices in violation of both the Illinois Consumer Fraud and Deceptive Business Practices Act and the Illinois Electronic Mail Act. The trial court dismissed the plaintiff's claim against the retailer because he was not actually deceived by the e-mail advertisement and because he had not purchased anything nor suffered any actual damage as a result of his receipt of the e-mail advertisement. The appellate court agreed and affirmed the trial court's dismissal of the claim against the retailer.
  
  
• Achieved a significant victory on behalf of two telecommunications carriers, dismissing eight class action suits that were filed against them in courts across the country. Each of the class action complaints were based on allegations of misleading and deceptive telemarketing and advertising practices, and asserted claims under the Federal Communications Act and state fraud law.
  
  
• Successfully defended a class action suit against a telecommunications carrier alleging claims of fraud under the Illinois Consumer Fraud Act. The District Court dismissed all of plaintiff's claims and the Court of Appeals for the Seventh Circuit affirmed. We also successfully defeated the plaintiff's petition for certiorari to the United States Supreme Court.
  
  
• Defended a telecom client in a class action brought in Washington state court.
  
  
• Represented a large telecommunications firm in an action brought in Alabama federal court on behalf of nationwide purchasers of certain equipment which was alleged to be non-complaint with industry standards. Successfully opposed class certification and the case quickly settled.

Retail and Services

• Represent a subsidiary of one of the largest media conglomerates in a large consumer class action defending claims concerning cancellation policies in U.S. District Court of New Jersey. Class certification is currently sub judice.
  
  
• Represented a worldwide footwear retailer in a consumer class action concerning gift cards, defending allegations of misleading disclosure of fees. We achieved a favorable settlement.
  
  
• Represented a luxury brand apparel company in defending class action, Korn v. Polo Ralph Lauren Corp. The Court held that the amount in controversy met CAFA's jurisdictional requirement where plaintiff explicitly sought civil penalties in the statutory maximum amount of one thousand dollars, and defendant demonstrated that there were at least 5,001 putative class claims.
  
  
• Represented national retailers in class actions alleging breaches of privacy under statutory and common law.
  
  
• Obtained summary judgment for defendant in Thomasson v. GC Services LP. Our client, a call center and debt collection company, faced putative class action challenging ordinary course of business call monitoring practices under the Fair Debt Collection Practices Act (FDCPA) and California privacy statutes (pending before 9th Circuit).
  
  
• Represented one of the largest tax preparation companies in a putative consumer class action and several individual actions in federal and state court in Louisiana. Resulted in precedent-setting ruling dismissing all but one claim, which court viewed as unlikely to survive on the merits.
  
  
• Represented a national retailer in a putative consumer class action case in state and federal court in California, resulting in one of the most favorable settlements of its kind.
  
  
• Successfully defended against class action suit brought in Maryland state court involving allegations of overcharges in violation of state law; defeated motion to certify the class and, thereafter, key discovery motions leading to highly favorable settlement and dismissal of case.

• Representing one of the largest energy companies in the world in a putative class action in the Eastern District of New York. The putative class comprises residents of Brooklyn who have been impacted by a claimed 17 million gallon spill of oil at a former refinery. ExxonMobil is a co-defendant. The case is in the class action discovery phase.
  
  
• Successfully negotiated a favorable resolution of price-fixing charges against a leading manufacturer of specialty papers, its foreign parent, and certain executives in the first joint sovereign, international criminal antitrust investigation. In related civil class actions, obtained dismissal of foreign parent on jurisdictional grounds, and defeated class certification in two state indirect purchaser cases.
  
  
• Represented a major international manufacturer of audio tape in a successful bid to qualify under the Department of Justice's amnesty program, and in related class action litigation.

• Represented one of the largest laboratory testing companies in the U.S. in a just dismissed putative class action brought by a medical professionals who tested positive for consumption of alcohol. The case was brought in the United States District Court for the District of New Jersey. In a January 2, 2008 Decision and Order, our client's motion to dismiss was granted. The case is currently on appeal to the Third Circuit.
  
  
• Successfully resolved antitrust class action claims against a major New York City hospital arising out of its alleged participation in a conspiracy to restrict the board certification of emergency medicine practitioners.
  
  
• Represent a large generic drug manufacturer in a class action that alleges violations of consumer protection statutes across the country in connection with drug sales and drug pricing (particularly as it concerns the Medicare program). Our client is one of several defendants. With the help of a mediator, we achieved a settlement of all claims against multiple defendants. The settlement was given preliminary approval recently and we hope for final approval shortly.

CONSUMER PRODUCTS

• Kelley Drye was retained by Polo Ralph Lauren (Polo) to replace Polo's existing counsel during its appeal of the lower court's decision that Polo improperly terminated a license it granted to Jones Apparel Group, Inc. (Jones) for the "Lauren" apparel line. Jones sought $550 million in damages. We successfully argued to the Appellate Division that its decision affirming the lower court's ruling should be certified to the Court of Appeals. After full briefing of the issues before the Court of the Appeals, the case settled favorably for our client, Polo.
  
  
• Represented Foot Locker, Inc. in an action commenced by its competitor, The Finish Line, in Federal Court in Indiana. Kelley Drye obtained a significant victory for our client in a case that alleged causes of action for tortious interference, unfair competition and theft of trade secrets. The Court granted Kelley Drye's motion for summary judgment on behalf of our client, Foot Locker, and dismissed the case in its entirety.
  
  
• Represented a well-known rum and spirits company and its subsidiary at trial against claims brought by a joint venture owned by the Castro regime and the French liquor giant, Pernod-Ricard, S.A. In a highly publicized decision, the Court cancelled the joint venture's federal registration of the HAVANA CLUB mark and dismissed all of plaintiffs' unfair competition claims. That decision was affirmed by the Second Circuit on appeal and a petition for certiorari was denied by the U.S. Supreme Court.
  
  
• Represented a well-known rum and spirits company in a trial before the United States District Court for the Southern District of New York defending against allegations of trademark infringement. We obtained judgment for our client on all issues.
  
  
• Represented the U.S. distributor of a French fragrance in an anti-counterfeiting case. We devised a strategy that led to the seizures of hundreds of thousands of dollars of bogus merchandise which led to a civil RICO and trademark counterfeiting suit in Miami against the foreign manufacturer of the counterfeit goods and its alleged U.S. confederates. Kelley Drye successfully obtained substantial monetary damages on behalf of our client and permanent injunctions were entered against more than a dozen defendants.
  
  
• Represented Arch Personal Care Products (Arch PCP) in obtaining a $7 million award for our client in litigation against the former president and co-owner of Brooks Industries. A jury in the U.S. District Court in New Jersey found that the defendant had breached his non-compete obligations to Arch PCP through his participation in the business activities of another company he formed. The jury found that the defendant was guilty of trademark infringement under the Lanham Act and the federal Computer Fraud and Abuse Act, and had violated New Jersey's Fraudulent Transfer Act.
  
  
• Represented Brunswick Corporation as National Coordinating Counsel with respect to claims and lawsuits asserted in connection with the company's former bicycle division. We coordinate the defense effort in cases filed in numerous jurisdictions and claims submitted to the Consumer Product Safety Commission by individuals throughout the United States.
  
  
• Represented Life Fitness, the premier worldwide manufacturer of fitness equipment, as National Coordinating Counsel with respect to lawsuits asserted in connection with the company's product lines ranging from Hammer Strength® weightlifting equipment to Life Cycle® stationary bikes to Life Fitness® treadmills.

FINANCIAL SERVICES

• Representing a major financial institution and certain of its officers and directors in class action securities fraud claims seeking over $2 billion for decline in value of institution’s stock. The case is pending in the United States District Court of the Southern District of New York.
  
  
• Kelley Drye represented an indenture trustee in four series of senior debt issued by Calpine Corporation (Calpine), in a recent action brought by Manufacturers & Traders Trust Company (M&T), the indenture trustee of junior debt issued by Calpine. M&T commenced the action in a New York state court seeking a declaratory judgment that, among other things, the holders of the senior debt were not entitled to payment of any post-petition interest prior to any payment being made to the holders of the junior debt. Kelley Drye reached a favorable settlement on behalf of our client.
  
  
• Kelley Drye is representing a major international bank as Senior Indenture Trustee for debt issued by the Bank of New England, in a dispute with the Junior Indenture Trustees over whether the holders of the senior debt are entitled to post-petition interest under the subordination provisions of the Junior Indentures.
  
  
• The Firm represents a group of JPMorgan entities in connection with the collapse of National Century Financial Services, Inc. ("NCFE"), an Ohio corporation that provided financing to health care providers through the purchase of receivables at a discount. NCFE obtained the funds to purchase such receivables through the issuance of bonds in a series of private placements to large institutional investors. NCFE's collapse spawned multiple lawsuits by such investors, seeking almost $3 billion in damages, which allege that the principals of NCFE orchestrated a fraud to misappropriate billions of dollars for their own benefit. Many of these suits named JPMorgan Chase Bank as indenture trustee under several of the bond issuances, as well as several other JPMorgan companies. Those suits were consolidated in a multi-district action pending in federal court in Ohio. Defense of the JPMorgan entities involved, among other things, management of related bankruptcy proceedings, representing JPMorgan's interests in several governmental investigations. The NCFE litigation is ongoing, but the Firm helped achieve several favorable settlements on behalf of JPMorgan and secured favorable rulings on several motions to dismiss.
  
  
• Represented JPMorgan Chase on behalf of Mahonia Limited and Mahonia Natural Gas Limited in a $1.2 billion litigation against a group of insurance companies. The defendants had issued surety bonds to Mahonia to guarantee delivery of natural gas under various pre-paid forward contracts Enron had entered into with our client which had not been paid. Kelley Drye obtained a very favorable settlement for our client, immediately after a month long jury trial and during jury deliberations.
  
  
• Represented JPMorgan Chase (JPMC) in defense of claims that the bank had breached its duties as indenture trustee on notes issued by a subsidiary of a bankrupt telecommunications company. The plaintiff-noteholders had sued JPMC for more than $200 million plus punitive damages of four times that amount. Following a month-long jury trial in state court in Houston, Kelley Drye negotiated a favorable settlement on behalf of our client.
  
  
• Represented JPMorgan Chase in an appeal before the U.S. Supreme Court on cutting edge issues of international jurisdiction. In a unanimous decision, the Court adopted the arguments set forth by Kelley Drye, ruling that companies incorporated in the British Virgin Islands and other U.K. overseas territories can resolve disputes with American firms in U.S. federal courts. This opinion has broad impact on thousands of corporations incorporated in those territories, and on the stability of commercial dealings between those corporations and American companies.
  
  
• Represented JPMorgan Chase (JPMC) in a North Carolina Supreme Court appeal to reinforce that tobacco companies will have to pay over $300 million to tobacco growers in 14 states as part of a previous settlement. JPMC was appointed as the trustee to collect the payments and distribute them to tobacco growers in all 14 states. When the tobacco companies demanded a refund in November 2004, JPMC brought suit to enforce the trust agreement.
  
  
• Represented JPMorgan Chase (JPMC) in a $20 million lawsuit brought against our client. The suit was brought in U.S. District Court of the Southern District of New York by bondholders of a complex collateralized debt obligation transaction. Kelley Drye defended our client against breach of contract, breach of fiduciary duty and negligence claims arising out of JPMC's role as indenture trustee on the deal. The Court granted JPMC's summary judgment motion. The plaintiff waived its right to appeal and the Court entered a final order of dismissal.
  
  
• Kelley Drye represented JPMorgan Securities, Inc. (JPMSI) in an NASD arbitration. The claims arose out of losses the claimant suffered which amounted to over $130 million during the time he was a JPMSI customer. The case was resolved on confidential terms.
  
  
• Kelley Drye achieved a dismissal of all claims against our client, The Manufacturers Life Insurance Company (U.S.A.) ("Manulife"), now known as John Hancock Life Insurance Company (U.S.A.), in a case originally brought by individuals asserting that Manulife made misrepresentations about the premiums required to keep high value life insurance policies in force. The Kelley Drye team secured dismissal of the entire case on a motion to dismiss and the decision was unanimously affirmed by the appeals court.
  
  
• Represented Korea's second largest financial institution in obtaining dismissal of two lawsuits, affirmed by the Second Circuit Court of Appeals, alleging RICO, securities fraud and common law fraud claims. Plaintiffs claimed losses of more than $600 million alleging that various Korean Banks including our client disseminated false financial statements for a company in which they held shares. Kelley Drye successfully moved to dismiss the claims on behalf of our client.
  
  
• Kelley Drye represented a diversified financial services company in an adversary proceeding filed by the Trustee appointed in subprime lender American Business Financial Services' (ABFS) bankruptcy proceeding. The Trustee claimed that our client, both as Indenture Trustee and individually, had, among other things, committed fraud and breached certain contracts in connection with the "Interest Only" residual interests of several mortgage securitizations done by ABFS. The Court granted our client's motion to dismiss as to certain claims and, after extensive discovery, Kelley Drye negotiated a favorable settlement resolving the remaining claims.
  
  
• Kelley Drye represents a diversified financial services company, as Indenture Trustee and Property Trustee for two series of Notes and Trust Preferred Securities, in the Chapter 11 proceedings of New Century Financial Corporation, pending in the District of Delaware. In that capacity, our client is the Co-Chair of the Official Creditors Committee appointed by the U.S. Trustee. As Co-Chair, our client and Kelley Drye have been actively involved in addressing and resolving all of the many complicated issues resulting from the melt-down of a major subprime lender.
  
  
• Represented State Street Bank and Trust Company ("State Street") in an action arising out of the financial collapse of one of its former borrowers, Sharp International. State Street was sued by Sharp's Bankruptcy Trustee, who claimed that State Street discovered fraudulent activity conducted by Sharp's owners and aided and abetted the fraud by failing to disclose its alleged knowledge. Kelley Drye's litigation team successfully demonstrated that State Street had no affirmative obligation under New York law to inform Sharp's existing or prospective creditors about its alleged discovery and that the company had a fiduciary duty to use that information to protect its shareholders, if it legally could. The Second Circuit affirmed the dismissal of Sharp's complaint by the U.S. District Court for the Eastern District of New York.
  
  
• Represented State Street Bank and Trust Company ("State Street") in a major victory in a long-running litigation relating to defaulted notes issued by one of the largest funeral home companies in North America. State Street was sued by investment and distressed debt funds for alleged breaches of contract and tort duties and violations of the Trust Indenture Act. The First Department dismissed the plaintiff note holders' complaint against State Street that sought damages, interest and costs totaling more than $90 million.
  
  
• Represented an India-based bank in a matter involving a letter of credit dispute with a Japanese corporation. Kelley Drye obtained a significant victory in the N.Y. Supreme Court, Appellate Division, in favor of our client. The successful appeal clarified an important tenet of law involving forum non conveniens analysis and overturned the New York Supreme Court’s decision, which had denied our client's motion to dismiss on those grounds.
  
  
• Kelley Drye successfully defended clients in a contested NASD arbitration commenced by Merrill Lynch Pierce Fenner and Smith Incorporated. Our clients, one being a credit derivatives broker that had brokered corporate bonds for dealer clients through the other client, faced claims that the two companies' corporate bond desk failed to deliver bonds to Merrill Lynch. Respondents moved to dismiss Merrill's claim and the panel unanimously granted the motion, effectively ending this action.
  
  
• Represented a large commercial lender in an appeal regarding a contested mortgage foreclosure action. Kelley Drye achieved a groundbreaking result for our client. The court ruled that a contract provision requiring a prepayment premium upon acceleration is valid, the N.Y. Appellate Division rejected the borrowers' arguments, overruling prior law.
  

MEDIA, ENTERTAINMENT and PUBLISHING

• Represented Imax Corporation ("Imax") in achieving a summary judgment, dismissing before trial all the claims of Muvico Entertainment LLC ("Muvico"), a major commercial theater operator throughout the southeast United States. Muvico claimed that it was wrongly induced to enter into a lease for Imax film systems.
  
  
• Kelley Drye represented The Reader's Digest Association, Inc. (or RDA) and a former subsidiary of Reader's Digest in several actions concerning RDA's acquisition of the former subsidiary. Kelley Drye brought claims in other courts alleging claims for tortious interference, breach of contract and theft of trade secrets. We resolved all the cases on confidential terms just prior to trial.
  
  
• Represented a large publishing company in a copyright infringement case. We won a landmark case in the Southern District of New York in which the publisher's Indian copyright was enforced under the Berne Convention and the bootleg U.S. importers were permanently shut down.

INDUSTRIAL, MANUFACTURING & SERVICES

• Kelley Drye represented one of the leading providers of roadside assistance to both wholesale and retail markets in a multi million dollar arbitration against a major automobile manufacturers. Our client had entered into an agreement with the manufacturer to provide customers with roadside assistance services. The agreement provided that our client would refund a portion of the manufacturer’s base fee payments to our client if the agreement were terminated. The manufacturer did not terminate the agreement; but stopped paying the client the amounts it was required to pay under the agreement for services. After the manufacturer had resorted to self help, it terminated the agreement and sought a refund under the contract. The parties disputed the amount of the refund and the amount of our client’s counterclaims for the manufacturer’s breaches of the agreement. The Arbitrator awarded our client over $4 million on its counterclaims. Subsequently, in April 2009, the parties agreed to a settlement of all claims.
  
  
• Represented Newell Rubbermaid in connection with a claim that it was responsible for the cleanup of a significant environmental site. The suit was brought under the New Jersey environmental statute. Secured a favorable settlement of the matter.
  
  
• Represented a major chemical company since 1979 in the precedent-setting Agent Orange litigation, which involved alleged injuries from exposure to a defoliant used by the U.S. military in the Vietnam war. In the most recent cases, the manufacturers of Agent Orange won two significant victories in the United States Court of Appeals for the Second Circuit. First, the Court affirmed summary judgment in favor of the manufacturers, dismissing U.S. veterans' claims, based on the government contractor defense. Second, the Court affirmed dismissal, for failure to state a claim, of an action brought by Vietnamese citizens under the Alien Tort Statute, alleging that the use of Agent Orange was a war crime.
  
  
• Kelley Drye represents BP Products North America as a co-defendant in 17 New York State Supreme Court cases and one Federal Court class action brought against ExxonMobil and BP by residents of Greenpoint, Brooklyn alleging that their properties were impacted from millions of gallons of spills from a former Mobil refinery which operated until 1964. BP purchased a ten acre parcel of the former Mobil refinery in 1968 and has used the property as a fuel terminal. The plaintiffs claim personal injuries and property damage due to the migration of oil from the former Mobil refinery and due to vapor intrusion. BP has been conducting remedial operations since 1981. The case is ongoing.
  
  
• Represented BP Energy Company in an adversary proceeding brought by Bethlehem Steel Corporation in the SDNY. Kelley Drye won summary judgment on behalf of our client. The case involved a contract dispute over a long-term gas purchase.
  
  
• Represented Honeywell International Inc. in successfully defending against an action brought in the Circuit Court of Cook County, Illinois, by former and current hospital employees whose cases were consolidated for trial. The employees claimed they had been exposed to a toxic chemical, ethylene oxide, the active ingredient in a gas mixture used to sterilize heat sensitive medical instruments. The complaint alleged negligence, product liability and conspiracy, all related to plaintiffs' allegations of various neurological injuries from exposure to this gas.
  
  
• Kelley Drye client, a major chemical company, now wholly owned by The Dow Chemical Company, won summary judgment dismissing the plaintiffs' remaining cause of action in long-pending litigation. The plaintiffs were seeking to pierce the corporate veil of their former subsidiary to hold them liable for injuries allegedly caused by ground water pollution from the subsidiary's pesticide plant in Bhopal, India. The SDNY held that the subsidiary was and remains a financially viable entity. In a related case, the United States Court of Appeals for the Second Circuit dismissed claims for environmental remediation of the former subsidiary plant site in Bhopal. Claims in that case for alleged violations of international law brought under the Alien Tort Statute were previously dismissed.
  
  
• Represented a major chemical company, now wholly owned by The Dow Chemical Company, in all aspects of its defense of the Bhopal gas disaster litigation including consolidating 147 multi-billion dollar U.S. class actions suits brought in the U.S. on behalf of over 500,000 claimants; dismissal of all of those suits to India; defending and ultimately settling all the civil litigation in India; and conducting an extensive multi-year investigation in a hostile environment which ultimately determined the cause of the disaster.
  
  
• Represented a major chemical company, now wholly owned by The Dow Chemical Company, in landmark mass tort litigation arising from alleged chemical exposure in the semiconductor industry workplace. In those cases, roughly 200 plaintiffs alleged various injuries, including birth defects and different types of cancers, allegedly caused by exposure to a wide variety of industrial chemicals in the workplace, including ethylene glycol ethers, acetone, benzene, n-butyl acetate and other chemicals.
  
  
• Represented a small marketing firm in a lawsuit against GM for breach of contract and unfair competition arising out of GM's use of the client's program in connection with the GM MasterCard program. Kelley Drye won a jury verdict with interest of $34 million after a six week trial, and the verdict was upheld on appeal.
  
  
• Represented a major foreign trading company in obtaining a defense verdict in four-month trial in Alaska against antitrust claims valued at over $1 billion. The suit alleged that prices of Bristol Bay salmon were artificially depressed over a six-year period as a result of conspiracy between Alaska processing companies and Japanese importing companies. Kelley Drye's argument that the market for salmon was depressed during the time when the alleged conspiracy took place proved successful before the jury.
  
  
• Represented a leading international provider of construction-related services, its subsidiaries and its affiliate, a large German construction conglomerate. The U.S. Supreme Court confirmed a victory secured by Kelley Drye when it denied certiorari of the case. In the Ninth Circuit Court of Appeals, after removing the California state action against our client and its affiliates to federal district court, Kelley Drye prevailed on its motion to dismiss the plaintiffs' claims with prejudice. Kelley Drye then convinced the Court of Appeals that the California statute granting plaintiffs a right of action impermissibly infringed upon the federal government's exclusive power over foreign affairs.
  
  
• Represent Millennium, the alleged successor to Glidden Paints' liability for property damage and bodily injury attributable to lead paint and lead pigment, in a comprehensive action in Ohio state court seeking insurance coverage from 34 liability insurers for the liabilities, which have been estimated to be in the billions. During the summer of 2007, we engaged in a hotly-litigated forum battle between New York and Ohio, which resulted in favorable rulings from trial courts in both states and the New York Appellate Division.
  
  
• Kelley Drye serves as insurance counsel to a major national auto parts manufacturer with respect to all insurance issues arising in connection with the company's bankruptcy proceeding, including presentation of insurance issues at the confirmation hearing, resolution of insurance disputes concerning its bankruptcy, and treatment of the insurance program under the plan of reorganization. In addition, we are prosecuting several ADR proceedings to resolve insurance coverage disputes with insurers regarding asbestos-related claims.
  
  
• Kelley Drye served as special insurance counsel to the legal representative for future asbestos bodily-injury claimants in the bankruptcy court proceeding of Combustion Engineering, Inc. and in related adversary proceedings pursuing Combustion Engineering's insurance coverage. Serving as lead trial counsel to the Combustion Engineering 524(g) Asbestos PI Trust, we successfully pursued approximately $100 million in insurance coverage in Delaware state court, during which time additional settlements were reached.
  
  
• Represented a major Brazilian farm equipment dealer,in a matter involving allegations that the client had been misled by Case Corporation in connection with a settlement agreement with Case's wholly-owned subsidiary, Case Brasil. Rendering new law and overturning a lower court's dismissal, Kelley Drye obtained a key victory in the Seventh Circuit in favor of our client.
  
  
• Represented a large fertilizer company, which is owned by the Indian government, in a fraud case. Our client was defrauded when it entered into a contract to purchase $38 million of urea fertilizer from a Turkish company. Kelley Drye, aided by an investigation conducted by the Indian Central Bureau of Investigation and the U.S. Attorney's Office, proved the fraud and won a $2.4 million verdict in a federal jury trial in Newark.
  
  
• Represented a large, Hamburg-based shipping company and obtained and enforced a $6 million judgment against the Government of Romania. The claim arose out of a French arbitration award against a Romanian company based on a shipbuilding contract and Romania had, for years, utilized many means to avoid paying the award.
  
  
• Kelley Drye won summary judgment on behalf of a state's public transportation authority in the New York Supreme Court, Kings County, dismissing an action brought by homeowners who claimed that a gas plume had lowered the property values on their residences. Kelley Drye successfully argued that the homeowners were unable to prove their property value had decreased and the Court dismissed the case.
  
  
• Represented Pactiv Corporation ("Pactiv") in achieving a summary judgment in a patent infringement case in the U.S. District Court for the Western District of New York. Tekni-Plex, a direct competitor of Pactiv, sought damages in excess of $10 million and a permanent injunction barring Pactiv from operating its packaging equipment.

PHARMACEUTICAL and HEALTHCARE

• Kelley Drye successfully obtained an extremely modest settlement in a product liability action against our client, a large pharmaceutical company, which was pending before Judge Eric N. Vitaliano in the U.S. District Court for the Eastern District of New York. The Kelley Drye defense team was successful in discrediting the facts supporting the plaintiff’s various claims early in the discovery process. The plaintiff sought $10 million in damages and pursued the action against our client as both a strict product liability (inadequate warning) claim, and as a product contamination claim.
  
  
• Kelley Drye is representing U.S. company Novartis Vaccines & Diagnostics, Inc. and several of its Indian and Swiss affiliates in an international arbitration against Indian company Aventis Pharma Limited.  The matter involves the Indian distribution rights for Rabipur, an anti-rabies vaccine that is vital to the Indian public and one of the top selling pharmaceutical products in India.
  
  
• Kelley Drye successfully achieved a dismissal of a class action lawsuit filed in the United States District Court for the District of New Jersey against its client, Laboratory Corporation of America ("LabCorp"). The suit was filed by current and former licensed heath care professionals, seeking to represent a putative nationwide class, who alleged that they were disciplined by their respective licensing boards as a result of testing performed by LabCorp and other testing laboratories. Plaintiffs alleged that, because of their history of drug or alcohol abuse, they were required by their respective state licensing boards to abstain from consuming alcoholic beverages and to submit to substance testing. Plaintiffs alleged claims of negligence, consumer fraud and common law fraud against LabCorp and its co-defendants.
  
  
• Kelley Drye defended CIBA Vision against claims by plaintiff TransCanada, Inc., a manufacturer of contact lenses, that CIBA Vision was in breach of contract and committed fraud in connection with a technology license dating back to 1986, seeking damages of up to $75 million. The Supreme Court granted summary judgment dismissing all claims.
  
  
• Kelley Drye represented CIBA Vision Corporation ("CV") in a matter brought by Medennium, Inc. seeking over $15 million in damages alleging fraud and breach of contract. After seven days of hearing, an American Arbitration Association panel ruled in favor of our client. CV was also awarded damages on its sole counterclaim and was named the uncontroverted prevailing party for purposes of requesting reimbursement of substantial costs and attorneys' fees.
  
  
• Kelley Drye obtained a significant win for Novartis Consumer Health and its employee, Walter Lehneis, in a case brought by Pfizer, Inc. Pfizer sought to prevent Novartis from hiring and employing Lehneis, a former employee of Pfizer, on the theory that he would inevitably disclose and misappropriate trade secrets. Kelley Drye defeated Pfizer's attempt to obtain a Temporary Restraining Order after full briefing and oral argument. New Jersey State Superior Court denied Pfizer's motion for a Preliminary Injunction.
  
  
• Kelley Drye represented Sandoz Inc. in an arbitration brought by Quality King Healthcare, Inc. (QK), a pharmaceutical wholesaler/distributor. QK sought reimbursement for its return of products to Sandoz but purchased from another wholesaler. Sandoz refused the reimbursement based on its contracts and its published Returns Policy. After a full hearing, the sole Arbitrator rendered a decision in favor of Sandoz, rejecting all of QK's claims, upholding Sandoz's contract language and policy, and awarding Sandoz's attorneys fees and costs.
  
  
• Represented Medjet Inc. and two individual defendants in an action brought against them by a state university claiming that it had ownership rights to a patent owned by our clients. Kelley Drye prevailed on a motion for summary judgment in the U.S. District Court for the District of New Jersey on behalf of Medjet Inc. The District Court issued an opinion which quoted extensively from Kelley Drye's oral argument.

REAL ESTATE LITIGATION

• Kelley Drye successfully represented the Episcopal Mission Society of Stamford, Inc. in a week long arbitration against RFR Properties, LLC – a significant worldwide owner of portfolio properties in the United States and Europe. The Mission Society owns a major office and residential property in the Central Business District in Stamford, Connecticut. RFR has a long term lease on the property. The dispute arose over the rent that the Mission Society could charge. The parties jointly chose three arbitrators and agreed to use the American Arbitration Association’s Commercial Arbitration Rules. The arbitration was held in Stamford, Connecticut and determined the fair market value of the property.
  
  
• Represented Pitney Bowes in successfully defending our client against a lawsuit for commissions allegedly due for consulting services rendered in connection with the sale and leaseback of a Connecticut property. The Second Circuit affirmed a decision issued by the U.S. District Court for the Southern District of New York, which had granted summary judgment for the defendants on the grounds that a fee-splitting agreement between the Union Bank of Switzerland Lease Finance LLC (UBS) and the plaintiff was illegal under the New York Real Estate Law.
  
  
• Represented a New Jersey landlord in a case against Rathe Fabrication, Inc. and Rathe Productions Incorporated (the Corporate Defendants) involving breaches of a lease and guaranty. After a bench trial, Kelley Drye obtained a multimillion dollar judgment on behalf of the commercial landlord in a "piercing the corporate veil" matter. Kelley Drye successfully obtained a judgment granting the relief sought in its entirety on behalf of the client.

TECHNOLOGY and TELECOMMUNICATIONS

• Kelley Drye represented a major IT solutions provider in jury trial in Federal District Court in Boston, Massachusetts. The plaintiff alleged copyright infringement, unfair competition and related claims concerning the use of computer source code and other proprietary information. The case settled on favourable terms to Kelley Drye's client during the cross examination of plaintiff’s second witness.
  
  
• Kelley Drye represented Advanced Interactive Sciences ("AIS") in winning the dismissal of a lawsuit brought by a former executive of the company. The former executive claimed that AIS terminated him without cause and that, as a result, AIS owed him monetary compensation, including future commissions. Kelley Drye argued that the former executive would never have been hired given facts discovered concerning his background after his termination and after he brought his lawsuit, which included a $1 million federal fraud judgment outstanding in Alabama, which Kelley Drye uncovered.
  
  
• Represented a provider of technological and personnel support solutions to government agencies in successfully securing summary judgment on False Claims Act claims brought against our client. A former employee of the company had claimed that the company committed procurement fraud by providing services that United States Agency for International Development officials had specifically requested.
  
  
• Kelley Drye is representing the U.S. subsidiaries of one of the largest Indian companies in a putative class action lawsuit pending in the U.S. District Court in San Francisco alleging claims on behalf of all employees who were deputed here based on, among other things, the way their tax refunds were processed by the company. It seeks unspecified damages. To date no class has been certified and motions to dismiss are pending.
  
  
• Kelley Drye represented a large Indian investment holding company in a successful action against domain name registrant Rajeev Kumar under the Anti-cyber-squatting Consumer Protection Act, one of several cyber-squatting trademark victories for Kelley Drye.
  
  
• Represented a leading provider of advanced technology solutions and its subsidiary in a highly-publicized intellectual property case brought by the subsidiaries' competitor, SecureInfo Corporation. The firm successfully obtained dismissal of 10 of the 13 claims asserted by SecureInfo against our client. Following the successful motion to dismiss, Kelley Drye filed an opposition to SecureInfo's motion for preliminary injunction on behalf of our client.
  
  
• Represented Lucent Technologies International Inc. in a complex international arbitration in which the claimant sought damages in excess of $42 million arising out of agreements in Brazil. Because Brazilian law governed the dispute, the Kelley Drye team worked closely with Brazilian counsel and an expert in Brazilian commercial law. The panel found for Lucent on its counterclaims and granted the petitioner only a small fraction of its alleged damages. After an attempt to obtain a rehearing was rebuffed, the matter concluded with a settlement on terms highly favorable to Lucent.
  
  
• Represented Lucent Technologies Inc. in successfully defeating a $92 million claim. The U.S. District Court in New Jersey ruled that, under governing Saudi law, a subcontractor could not recover against Lucent for the value of one of its business units engaged in telecommunications construction projects, which was allegedly harmed by Lucent's termination of a contract.
  
  
• Represented a large telecommunications carrier in confirming that the Federal Communications Act continues to govern claims by consumers regarding the rates and terms of service offered by interstate long distance carriers. Kelley Drye obtained a significant victory for the telecommunications carrier when the United States Court of Appeals for the Seventh Circuit upheld a district court decision dismissing state law claims against them.
  
  
• Kelley Drye represented a leading global IP and Ethernet solutions provider in achieving a summary judgment victory rendered by the U.S. District Court, Eastern District of Missouri. The issue was the proper access pricing to be paid by our client for the termination of wireless calls, whether interstate or intrastate.
  
  
• Represented several large telecommunications carriers in achieving dismissals of eight complaints, seven of which were class action suits filed in courts nationwide on behalf of the telecommunications carriers. Each of the complaints was based on allegations of misleading and deceptive telemarketing and advertising practices. After the U.S. District Court in Nevada refused to compel arbitration of the suits, Kelley Drye successfully moved to dismiss each of the plaintiffs' complaints, arguing that all of the claims were barred by the "filed tariff doctrine."
  
  
• Represented a wireless telecommunications provider in a very favorable decision in the U.S. District Court for Montana our client's motion to dismiss against Qwest Corporation. Quest had filed a third-party claim against our client in an attempt to reopen a suit from which our client had already been dismissed after settlement with plaintiff Mid-Rivers Telephone Cooperative.

Contact Information

William A. Escobar
Practice Chair
Email
New York
Phone: (212) 808-7771
Fax: (212) 808-7897