James D. Herschlein is co-chair of the Complex Commercial Litigation Department and recently completed two terms as a member of the firm’s Executive Committee. Jim is a nationally known litigator who has represented some of the world’s largest organizations in a multitude of cases before judges, juries and arbitral or governmental bodies throughout the United States. His broad range of trial and litigation experience includes cases involving complex contractual disputes, product liability litigation, and intellectual property matters.
Jim is nationally recognized as a leader in litigation by Chambers USA 2016 and was named a “New York Local Litigation Star” by Benchmark Litigation (2015) for his product liability and commercial litigation experience. He is also recognized for his work by numerous other publications, including, most recently, Euromoney’s Expert Guides (2016), Best Lawyers (2016), Legal 500 (2013) and Law360 (2012), in which he was listed as a Product Liability MVP. In September 2014, Jim’s representation of Boston Scientific Corporation in litigation involving late stent thrombosis was named an Impact Case of the Year: Product Liability by LMG Life Sciences.
Additionally, Jim serves as an integral member of both the firm’s Life Sciences Group and Product Liability Group. In 2014, the Life Sciences Group was recognized as practice group of the year by Law360. Similarly, the Product Liability Group was recognized in 2013 as Product Liability Practice Group of the Year by Law360 and was one of eight practice groups to be shortlisted for Product Liability Firm of the Year at the 2013 Chambers USA Awards for Excellence.
Jim has substantial experience representing manufacturers in product liability lawsuits in state and federal courts, including the trial of individual claims and the coordination of the nationwide defense and multidistrict litigation proceedings of hundreds of cases arising from the recall of medical devices, pharmaceutical products and consumer products, among others.
Representative Complex Commercial Litigation Matters
- Lutron Electronics Co., Inc. in litigations in multiple US District Courts, and in the International Trade Commission, on claims that various defendants misappropriated trade secrets, and infringed patents, copyrights and trademarks, owned by Lutron.
- Group of lenders in defeating the efforts of another lender to impose, by court order, a restructuring of Arch Coal Inc.’s multibillion dollar debt over their objection. The New York State Supreme Court denied a request by an affiliate of GSO Capital Partners for a temporary restraining order that would have prevented our clients from exercising their rights in regard to a debt exchange proposed by Arch Coal, one of the world’s largest coal producers. The case was voluntarily dismissed in November 2015.
- Zentis, a German food-processing company, as lead counsel for disputes arising from an asset purchase agreement.
- 50 percent owners of a portfolio of 11 real property holding companies, valued at approximately a quarter-billion dollars, in a multi-forum dispute over the management and ownership of the properties, including corporate governance, injunction and corporate dissolution proceedings.
- Merrill Lynch Capital Services, Inc. in lawsuits seeking recovery for breaches of several interest rate swap agreements.
- I.B.C. Oppenheimer Corp. in connection with multi-state litigation following a $100 million debt offering.
- Rawlings, sports equipment manufacturer, in two lawsuits arising from professional baseball. One case, involving a professional player who suffered a head injury after being struck by a pitch, was resolved without any finding of liability. The other matter was brought by a spectator at a New York Mets game when he was hit by a broken bat that flew into the stands. That case was dismissed without prejudice.
- Various clients in counseling, and potential litigation, regarding employee/partner non-compete and non-solicitation agreements.
- Carestream Health, Inc., the purchaser of a US$2.5 billion health group, in litigation regarding whether approximately US$50 million in Value Added Tax receivables were included as assets in the Asset Purchase Agreement.
- Carestream Health, Inc., the manufacturer of medical films, in litigation against its raw materials supplier over whether the materials complied with the specifications of the Supply Agreement and whether the manufacturer acted in good faith.
- Vintage Pharmaceuticals LLC, d/b/a Qualitest Pharmaceuticals on claims for indemnification under the terms of a Manufacturing Agreement against the company responsible for packaging the product, following a packaging error that led to a major recall of the product.
- George Steinbrenner in disputes with Major League Baseball.
- Leona and Harry Helmsley in connection with partnership and real property ownership litigation, including a 50-plus day arbitration regarding the shareholder agreement for, and an option to purchase, Helmsley Spear, Inc.; and multiple New York state court litigations regarding partnership disputes.
- Contractors and subcontractors in disputes regarding construction projects.
Representative Product Liability Matters
- Lutron Electronics Co., Inc. as national counsel on all product liability claims against any of the company’s many products. In December 2014, won a directed verdict in a products liability trial in Los Angeles County Superior Court concerning a widely used dimmer switch.
- Irving Oil, Canada’s largest refinery, as lead counsel in a suit brought by the State of Vermont seeking statewide remediation of groundwater.
- Boston Scientific Corporation as national counsel in litigation involving coronary stents. Argued and won dismissal of several suits on federal preemption grounds, and served as lead counsel in coordinated proceedings in Massachusetts state court. (Named an Impact Case of the Year: Product Liability by LMG Life Sciences in 2014.)
- Novartis Consumer Health, Inc. in three jury trials in connection with plaintiffs who claimed injuries from cough/cold or diet products. Conducted all direct and cross-examinations of neurology and other scientific experts. Obtained two defense verdicts in New Jersey state courts and a hung jury in Arizona federal court.
- Pfizer as national counsel in litigation regarding a prescription contraceptive injection. Obtained forum non conveniens dismissals of 98 percent of the cases in a coordinated proceeding, leading to a favorable global settlement.
- Pfizer as national counsel in litigation involving a prescription antibiotic.
- Boston Scientific Corporation as national counsel in litigation regarding a recalled urinary incontinence device. Was co-lead MDL counsel in proceedings involving approximately 750 cases; tried and obtained a jury verdict in favor of our client.
Memberships & Honors
- Association of the Bar of the City of New York: Vice President (2012–2013); Chair, Product Liability Committee (2011–2014); Secretary (2000–2003); Chair, Young Lawyers Committee (1991–1993); Member, Judiciary Committee (multiple terms since 1995)
- The Legal Aid Society, Board of Directors, Member (2012–Present)
- John’s Law Alumni Association, Board of Directors, Member (2010–Present)
- International Association of Defense Counsel, Member
- American Bar Foundation, Fellow
- American Bar Association, Member
- Federal Bar Council, Member
- Chaminade High School Alumni Lawyers Association, President (2005–2007)
- Thurgood Marshall Award (1998)
- Legal Aid Pro Bono Publico Award for Affirmative Litigation (2001)
- Named in New York Lawyer (January 2001) as one of the “Fifteen Lawyers 40 and Under Shaping the Law for the 21st Century”
Publications and Presentations
- Co-Author, “DTSA Could Provide Trade Secret Owners with Important New Remedies,” May 11, 2016.
- Co-Author, “Excluding or Limiting FDA Regulatory Expert Opinion,” January 27, 2016.
- Moderator and Panelist, “Getting to Yes, Practically and Ethically: Settlement Agreements in Product Liability Cases,” New York City Bar Association, April 24, 2014.
- “Can a Plaintiff Thread the Preemption Needle by Alleging Off-Label Promotion?” Med City News, August 12, 2013.
- Panelist: “The Key Steps to Managing Risks, Resources & Costs: What to Analyze When Considering Litigation” on NYLJ and Pangea3’s webinar, May 6, 2013.
- Presentation: “The Deposition of the Treating Physician: The Trial Lawyer’s Perspective on Taking Treating Physician Depositions” at DRI’s Drug and Medical Device Conference, May 11, 2012.
- Panelist: “The Art of Pleading in a Post-Twombley/Iqbal World: Parallel Claims and More” at ABA’s Current Issues in Pharmaceutical and Medical Device Litigation Seminar, November 17, 2011.
In The Market
- Benchmark Litigation Recognizes Kaye Scholer Practices and Partners Nationwide October 24, 2016 • Auszeichnungen
- Kaye Scholer Clients Achieve Nearly Full Recovery in Arch Coal Chapter 11 Proceeding October 14, 2016 • Pressemitteilungen
- Best Lawyers 2017 Recognizes 41 Kaye Scholer Lawyers August 15, 2016 • Auszeichnungen