Banking Litigation

• Representing bank in connection with $172 million check-kiting scheme perpetrated by the owner of a payroll-processing business, including defending claims by other victims of the scheme who tried to blame the bank; pursuing the perpetrator and those who abetted him, resulting in, among other things, a Sotheby’s auction of vintage automobiles and related collectibles grossing over $44 million; and assisting the U.S. Attorneys’ office and FBI forensic investigators in the prosecution, plea negotiations, and sentencing of the perpetrator. United States v. Najeeb Khan, 22-CR-00696 (N.D. Ohio)
• Representing bank in defense of a putative class action in federal court arising out of a failed cryptocurrency Ponzi scheme in Oregon in which plaintiff claims several banks “participated or materially aided” in the unlawful sale of securities under the Oregon state securities statute. Fatnani v. JPMorgan Chase, et al, 3:23-cv-0712 (D. Ore.)
• Representing bank in defense of claims of securities fraud and Computer Fraud and Abuse Act claims brought by non-customer. Orji v. Citadel Securities, LLC, et al., 8:23-cv-2986 (D. Md.)
• Representing bank in connection with a customer’s multimillion-dollar Ponzi scheme.
• Represented investment bank in dispute over whether contingent fees were earned under engagement agreement. KeyBanc Capital Markets, Inc. v. Tandem Mgmt., Inc., 21-cv-02939 (S.D.N.Y)
• Represented investment bank in dispute over whether contingent fees were earned under engagement agreement. Cain Brothers v. DeKalb Medical Center, No. 19-cv-05057 (N.D. Ga.)
• Represented client of investment bank in defense of bank’s claim for a $2.5 million contingent fee; won summary judgment. Alantra v. Apex Industrial Technologies LLC, Case No. 1:20-cv-10852 (D. Mass.)
• Represented a national bank in a week-long trial in federal court against the Department of Justice and Internal Revenue Service in a dispute over the proper federal income tax treatment of a sale-leaseback transaction involving a waste-to-energy facility in Germany. KSP Investments, Inc. v. United States, 07-CV-857 (N.D. Ohio).
• Represented bank, as insured, in suit against title insurance company, challenging denial of over 200 claims made under hybrid title insurance policy, sometimes called lien protection insurance, after real estate market collapse. KeyBank National Association v. First American Title Ins. Co., Case No. 1:10 CV 2143 (N.D. Ohio).
• Won a 4-3 decision from the Ohio Supreme Court exonerating a bank of fiduciary and respondeat superior liability in connection with an employee’s conduct. Groob v. KeyBank, 108 Ohio St. 3d 348 (2006).
• Represented the bank trustee of a large, World War II-era charitable trust in litigation brought by competing beneficiaries, including a class of individual claimants. Richard Hallman, et al. v. National City Bank, Trustee, et al., 99-CV-387410 (Cuyahoga Cty.).
• Represented bank and its board of directors in defense of putative class action asserting breach of the duty of loyalty by converting the assets of two trusts into “common trust funds” in order to charge additional fees for “company owned or managed” funds. Beller v. KeyBank.
• Represented bank that acted as trustee of a large charitable split-interest trust, in defense of fiduciary duty claims brought by beneficiaries alleging millions of dollars of damages from real estate investments. Roush, et al v. Society National Bank.
• Represented a major financial institution in federal court litigation against a disaster recovery services provider over a multimillion-dollar services contract.

ERISA Litigation

• Represented taste and nutrition company and its fiduciary committee in defense of ERISA class action alleging payment of excessive recordkeeping and managed account fees. Walter v. Kerry Inc., No. 21-cv-00539 (E.D. Wisc.)
• Ongoing representation of ESOP investment banking advisors and ESOP valuation firms in connection with depositions and trials involving their work when challenged by the Department of Labor or ESOP participants.
• Obtained dismissal of participant’s claim against a bank for benefits allegedly owed under its pension plan based on plan’s determination that participant was not eligible for benefits because her employment before reaching age 22 did not count toward the plan’s 10-year vesting requirement. Lumm v. KeyBank, No. 3:20-cv-01884 (N.D. Ohio, March 30, 2021).
• Brought declaratory judgment claims on behalf of self-funded plan against a state medical plan for coordination of benefits. Employee Benefits Committee of NorthWestern Energy Plan v. AlaskaCare, No. 4:21-cv-4119 (D. S. Dakota).
• Obtained dismissal of participant’s claim against company for lump sum benefits allegedly owed in connection with a plan termination. Dye v. Formica, No. 1:18-cv-00155 (S.D. Ohio, Feb. 22, 2019).
• Represented Fortune 500 retailer in defending multimillion-dollar ERISA claims brought by the PBGC arising from purchase of an alleged “controlled group” member and pursuing indemnification and fraud claims against the seller and its law firm for failing to disclose the PBGC’s claim before the closing of the purchase transaction. Pension Benefit Guaranty Corporation v. Uforma/Shelby Business Forms, Inc., et al., (S.D. Ohio).
• Represented plan administrator in defense of civil penalty proceedings under Section 502(c)(2) of ERISA in connection with alleged deficiencies in report of independent auditor. In the Matter of U.S. Department of Labor v. Plan Administrator, Next 15 Communications Group Retirement Plan, Case No. 2018-RIS-000032 (U.S. Dept. of Labor Office of Administrative Law Judges).
• Represented plan sponsor/plan administrator in defense of breach of fiduciary duty claims brought by the Department of Labor in connection the plan’s health screening wellness program. Alexander Acosta v. Chemstation International, Inc., No. 3:18-cv-00338 (S.D. Ohio) (Consent Order and Judgment, Oct. 19, 2018).
• Represented an Irish public company and its U.S. affiliate, as buyer, in a post-closing dispute regarding contractual indemnification and withdrawal liability under ERISA.
• Successfully defended the corporate trustee of an Employee Stock Ownership Plan from breach of fiduciary duty claims under ERISA in connection with an ESOP’s holdings of employer securities that suffered a precipitous drop in value. Wright v. Oregon Metallurgical Corp., 350 F.3d 1090 (9th Cir. 2004) (affirming district court order granting Rule 12(b)(6) motion to dismiss all claims against trustee).
• Defended the corporate trustee of a publicly traded company’s 401(k) plan and ESOP from ERISA breach of fiduciary duty claims in connection with the plans’ holdings of employer securities, which suffered a $200 million drop in value, and obtained federal court approval of a class action settlement, despite objections from co-defendants. Hunter v. Caliber Systems, Inc., et al., 96-CV-01186-JLG (S.D. Ohio).
• Represented bank-trustee of a pension plan regarding participant’s claims arising out of the trustee’s alleged failure to distribute assets upon termination of the plan.
• Successfully represented health insurer before the Ohio Supreme Court in litigation over subrogation rights under an insurance policy. Blue Cross & Blue Shield of Ohio v. Hrenko, 72 Ohio St. 3d 120 (1995)
• Regularly representing plan sponsors and fiduciaries on:
  • claims for plan benefits
  • out-of-network reimbursement disputes
  • issues involving employer securities and proprietary funds

Securities & Shareholder Litigation

• Representing public company in defense of 13 stockholder demands, including three federal securities lawsuits in D. Del. and S.D.NY. and one Delaware Section 220 stockholder demand for books and records in connection with two-step merger under Section 251(h) of the DGCL. (Science 37 Holdings/eMed, LLC)
• Represented company in defense of shareholder lawsuit challenging proxy disclosures and seeking emergency injunctive relief under federal securities laws in connection with a $6.9 billion merger (over $11 billion including debt). Less than 48 hours before a scheduled stockholder vote, plaintiff sought an injunction to delay or potentially derail the merger. After a hearing, the shareholder’s request for injunctive relief was denied and the shareholder vote proceeded on time. Ratner v. Forest City Realty Trust, Inc., 1:18-cv-2605 (N.D. Ohio, Nov. 26, 2018).
• Represented company and its board in defense of shareholder lawsuits challenging the proxy disclosures under federal securities laws in connection with a $4.2 billion public company merger (AdvancePierre/Tyson Foods)
• Represented acquirer in defense of shareholder lawsuits in Maryland and Delaware challenging the proxy disclosures under federal securities laws in connection with a public company merger (Intrexon/GenVec).
• Represented board of publicly traded company in response to a shareholder demand letter alleging the board breached its fiduciary duties in awarding stock options in excess of authorized sub-limits in the plan documents. (Confidential).
• Represented the company and two board members in defense of a shareholder challenge to the fairness of a $300 million merger. (National Interstate/Great American Insurance)
• Obtained dismissal of securities claims against various market-makers under Section 12(a)(1) of the Securities Act of 1933 and various state law theories, resulting from an alleged pump-and-dump scheme in Biozoom Securities via motion to dismiss (three clients) and summary judgment (four clients). In re Biozoom, Inc. Securities Litigation, Case No. 1:14-CV-01087.
• Represented syndicate of underwriters in class action litigation brought by shareholders of a public company asserting strict liability under Sections 11 and 12(a)(2) of the Securities Act of 1933 for allegedly false and misleading statements in a registration statement and prospectus for depositary shares. Rosenberg v. Cliffs Natural Resources Inc., CV-14-828-140 (Cuyahoga County, Ohio)
• Represented a bank and its board of directors in defense of two shareholder derivative and class action complaints challenging the fairness of a $111 million bank merger. (Cheviot Financial Group/MainSource)
• Represented the members of the board of directors in defense of three shareholder derivative and class action complaints in Ohio and Texas challenging the fairness of a $2.5 billion merger transaction. (Robbins & Myers/National Oilwell Varco)
• Represented an insurance company in defense of three expedited shareholder injunction actions in three different cities involving an unsolicited tender offer made by the company’s majority shareholder and also involving the applicability of Ohio’s Control Share Acquisition Act. (National Interstate/AFG)
• Represented the acquiring company in defense of federal and state shareholder derivative and class action complaints challenging the fairness of a $2.5 billion merger. (Brookfield/Associated Estates)
• Represented the members of the board of directors in defense of two shareholder derivative and class action complaints challenging the fairness of a $1.6 billion going private merger transaction. (Jo-Ann Stores/Leonard Green)
• Represented the members of the board of directors of an Ohio bank in defense of shareholder complaints challenging the fairness of a $10 billion merger. (Charter One Financial/RBS)
• Represented financial advisor in a dispute arising out of a going private transaction. (American Greetings)
• Represented a court-appointed trustee of a bankrupt broker-dealer in connection with a fraud and embezzlement investigation under the Securities Investor Protection Act and worked with the Securities Investor Protection Corporation (SIPC) to recover funds for the victims of the scheme. In re the Liquidation of NEBS Financial Services, Inc., Case No. 04-1648 (Bkrtcy. N.D. Ohio).
• Represented a corrugated packaging company in litigation with former CEO and majority shareholder over his departure.
• Represented the Richard E. Jacobs Group in defense against a securities fraud action in connection with a billion-dollar transaction. Obtained the first reported fee award under the mandatory Rule 11 review of the Private Securities Litigation Reform Act of 1995. The Second Circuit affirmed the award against the plaintiff’s attorneys.

Post-Closing Disputes

• Represented a buyer in a post-closing, working capital adjustment dispute. Obtained arbitration award in full amount requested.
• Represented seller of a business being accused of breaching post-closing non-competition provisions of purchase agreement by a Fortune 500 company in AAA arbitration.
• Represented Fortune 500 retailer in multimillion-dollar earnout and indemnification dispute involving former shareholders of a business acquired by client.
• Represented Irish pharma company in multimillion-dollar earnout and indemnification dispute with former shareholders of a business acquired by client.
• Represented an energy business in an arbitration proceeding (and related state and federal court litigation) over an option to purchase a public utility in Akron. Obtained an award of specific performance ordering the transfer of ownership of the public utility to our client, as optionholder, and an award dismissing the opponent’s RICO and defamation counterclaims. Obtained confirmation of the arbitration award from the common pleas court and the Ohio court of appeals under the Arbitration Act. Thermal Ventures II, L.P. v. Thermal Ventures, Inc., 2005-Ohio-3389 (Cuyahoga Cty.).
• In a dispute regarding post-closing adjustments under an asset purchase agreement, obtained a court order staying an arbitration proceeding initiated by the seller where the seller’s claims were outside the scope of the parties’ arbitration clause. Isola Aktiengesellschaft, et al. v. Honeywell International, Inc., 730 N.Y.S.2d 709 (N.Y. App. Div. 2001).
• Represented a Japanese company, as seller, in a post-closing dispute in Delaware regarding contractual indemnification of environmental liabilities under a stock purchase agreement.
• Represented an Irish public company and its U.S. affiliate, as buyer, in a post-closing dispute regarding contractual indemnification and withdrawal liability under ERISA.
• Represented an energy company, as seller, in a post-closing dispute regarding contractual indemnification involving representations and warranties governing trademark matters.

Other Significant Contract Disputes

• Successfully confirmed a $68 million arbitration award in favor of our client, a major pharmaceutical company, against another major pharmaceutical company, and successfully fended off opponent’s efforts to vacate the arbitration award under the Federal Arbitration Act. Solvay Pharmaceuticals, Inc. v. Duramed Pharmaceuticals, Inc., 442 F.3d 471 (6th Cir. 2006).
• Represented an owner of an NFL franchise in a contract dispute regarding an alleged finder’s fee due in connection with the transfer of ownership interests.
• Represented a tree service company in the defense of contract and fraud claims filed by a public utility in connection with the linear footage of power lines cleared in Florida.