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Litigation

Whether you or your business has been wronged—or accused of wrongdoing—being involved in litigation can be its own form of punishment. At Kaye Scholer, our experienced litigators know how to minimize the pain and maximize the outcome for clients. Across all conflict resolution and litigation settings, and in any state, federal or international forum, we always bear in mind that the goal is to produce results that justify the means. Keeping that end in mind means you and your business will always come out first.

We are a proactive team, combining abundant courtroom experience with  proven risk assessment/management skills and leading-edge case and project management to provide efficient outcomes in complex domestic and international commercial disputes and arbitrations. (See “Capabilities” below for more details.)

In the Market

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The Numbers: Our Accomplishments

  • $1.28 Billion Dollar amount of largest fraud and breach of contract claims we successfully got dismissed for our client
  • 220+ Number of claims we successfully settled as lead counsel in a 165-case MDL
  • 21 Number of Litigation partners recognized nationally by US News–Best Lawyers 2015
  • 6 Number of Litigation Practices recognized as “Tier 1” in US News-Best Lawyers's national rankings
  • 20 Litigation partners who have previously held state and/or federal government prosecution positions

Capabilities: How We Do It

  • Proven risk assessment and management skills: Trying a case in which the jury finds for our client is a wonderful outcome—and one at which we excel—but going to trial in the first place might not the best way to go. We carefully weigh the potential costs in time, dollars and risk to the client when developing an effective, cost-efficient legal strategy. Our assessment experience enables us to proactively develop a customized plan that best serves the client’s unique needs
  • Effective case and project management: Having served as national coordinating counsel for many multijurisdictional litigation cases, we know how to work closely with both the client and its other firms to develop sophisticated strategies. Our litigation team emphasizes problem solving and cooperation rather than competition, seamlessly merging multiple moving parts into singular success for the client.
  • Proactivity: We prepare for, minimize and avoid potential problems long before they arise. Close collaboration with our nationally recognized M&A teams on diligence and contract issues in advance of major transactions gives us unparalleled insight into complex deal terms. Knowing what is—and is not—enforceable, enables us to help strategically resolve countless disputes outside of a courtroom.
  • Abundant courtroom experience: When a trial is unavoidable, we litigate aggressively on our clients' behalf before state and federal judges at both the trial and appellate levels. Our vast experience defending clients in product liability cases puts our lawyers in the courtroom more often than the usual corporate litigator. This access and constancy leads to our unmatched skills—from preparing witnesses and experts for depositions and cross-examination, to crafting winning arguments in pleadings, motions and appellate briefs, to trying the case to verdict if the circumstances require that.
  • Complex international commercial disputes and arbitration experience: We have unparalleled experience directing a vast network of litigators, maximizing efficiency in jurisdictions across several states and countries. Our lawyers deftly manage the entire process of building a robust network known as a "virtual law firm," from developing a guiding strategy to recruiting accomplished local counsel and jury consultants around the globe.

Consumer Products

  • The Body Shop: Favorably settled a nationwide class action brought by employees seeking overtime wages under the Fair Labor Standards Act and involving the application of the overtime exemption requirements for store managers at 350 retail locations throughout the US.
  • Kenneth Cole Productions Inc.: Favorably resolved for the company and its CEO a shareholder class action suit filed in New York State Court alleging breaches of fiduciary duty and aiding and abetting breaches of fiduciary duty, as well as an insider trading inquiry by FINRA.
  • Lutron Electronics: Secured a favorable settlement in a case in which we alleged infringement of several patents and a copyright, and also sought damages for acts of unfair competition, false advertising and misappropriation of several Lutron trade secrets. Lutron was awarded royalties on the defendant's past and future sales of all products using Lutron patents.

Energy

  • ExxonMobil: Won a motion to dismiss, on the pleadings, regarding a putative class action in the Central District of California seeking damages and other relief against several major oil companies under California consumer protection statutes and common law. The Ninth Circuit upheld the judgment.
  • Irving Oil (owner and operator of Canada’s largest refinery, eight major distribution terminals and over 800 retail locations in Canada and the US): Counsel in litigation involving alleged contamination of the groundwater in the State of Vermont from gasoline containing methyl tertiary butyl ether (MTBE). The case, brought by the State of Vermont, is one of several recent highly publicized lawsuits by state and local governments alleging MTBE contamination. The complaint names 29 defendants, including ExxonMobil, Chevron, BP, Conoco Phillips and Shell.

Financial Services

  • HSH Nordbank AG: Multidistrict litigation first brought by Fontainebleau, a debtor in Chapter 11, in an action in the Federal District Court in Miami. We successfully defended HSH against Fontainebleau’s motion for partial summary judgment and order directing the turnover of funds for $656.52 million. The court agreed with the bank’s interpretation of the credit agreement and dismissed Fontainebleau’s claim for turnover of funds without prejudice.
  • RBS Greenwich Capital, Goldman Sachs and Citibank: Successfully settled—our clients paid nothing while other defendants paid in excess of $166 million—an adversary proceeding in the Federal Bankruptcy Court for the District of Delaware brought by retail department store Mervyn’s, a debtor in Chapter 11. Mervyn’s alleged that a series of transactions that affected its $1.175 billion sale to a group of private equity firms were fraudulent transfers that resulted in its bankruptcy filing.
  • Smith, Howard I. (former CFO of AIG and current Vice Chairman of C. V. Starr & Co., Inc.), and C. V. Starr (the entity): Several civil litigation matters arising out of the highly publicized alleged insurance industry-wide bid-rigging practice and undisclosed contingent commissions paid to insurance brokers, and AIG’s 2005 restatement of its financial statements, which implicated accounting and regulatory issues concerning finite reinsurance and general reinsurance transactions, life settlements, workers compensation, structured financial products and non-US financial vehicles, as well as other matters.

Life Sciences

  • AstraZeneca: Secured a summary order from the US Court of Appeals for the Second Circuit, affirming the district court's decision to grant our motion to dismiss all nine claims against the client, in litigation brought by Verus Pharmaceuticals seeking $1.28 billion in damages for fraud and breach of contract.
  • Boston Scientific: In a matter that resolved with a significant settlement in 2013, we acted as national counsel to our client in litigation involving “late stent thrombosis” relative to coronary stents. We argued and won dismissal of several suits on federal preemption grounds, and served as lead counsel in coordinated proceedings in Massachusetts State Court that involved over 165 cases.
  • King Pharmaceuticals: In a cluster of class actions brought on behalf of direct purchasers, indirect purchasers for resale and end-payor purchasers of Skelaxin®, a brand name prescription drug in which the plaintiffs alleged that King and co-defendant Mutual Pharmaceuticals conspired to prevent or delay generic competition for Skelaxin®. On January 30, 2014, the US District Court for the Eastern District of Tennessee ruled in favor of King and Mutual Pharmaceutical Company, Inc., denying motions to certify two classes as well as a motion for partial summary judgment.
  • Novartis Pharmaceuticals Corporation: defending the client in multiple qui tam actions brought under the False Claims Act by the US Attorney’s Office for the Southern District of New York and various other state Attorneys General offices.
  • Pfizer (and subsidiaries Wyeth, Pharmacia and Upjohn): in serving as global strategy counsel, trial counsel and national coordinating counsel for more than 10,000 hormone therapy litigation claims since 2004, including our 2012 defense victory in a wrongful death suit in US District Court in Connecticut.

Publishing

  • Random House Inc.: Persuaded counsel for the private class action plaintiffs in In re Electronic Books Antitrust Litigation—in which purchasers of electronic books filed a number of complaints, claiming to have overpaid as a result of an alleged conspiracy among five major publishers and Apple—to withdraw their claims against Random House when filing their consolidated amended complaint in the action.

Technology

  • CA Inc.: Secured the full exoneration of the founder and former CEO who faced more than $1 billion in claims and a series of securities class action and derivative cases, dating back more than a decade, for alleged accounting fraud after CA restated its financial records. Our client received true vindication when the courts ruled that he did not have to pay any legal fees or damage claims asserted against him.

Transportation

  • Norfolk Southern Corporation: Serve as co-counsel in several nationwide class action antitrust law suits alleging collusion to fix fuel surcharges on freight shipments in violation of the Sherman Act. The Legal Times notes In Re Rail Freight Fuel Surcharge Antitrust Litigation as “one of the largest antitrust class actions in Washington federal district court.” We led the defense group’s fight against class certification in the trial court and worked closely with appellate counsel on the defendants’ appeal from class certification.