Appellate

Consedine v. Penn Treaty Network Am. Ins. Co., 63 A.3d 368 (Pa. Cmwlth. 2012), aff'd In re Penn Treaty Network Am. Ins. Co. in Rehabilitation, 119 A.3d 313 (Pa. 2015). Ruling denying Pennsylvania Insurance Department's petitions to liquidate two long-term care insurance companies, the first-ever denial of liquidation petitions in Pennsylvania. In its 164-page Opinion and Order issued after a 30-day trial, the Commonwealth Court of Pennsylvania rejected the positions of the Department and its major actuarial firm and ordered appropriate rehabilitations. On the Department's appeal, we successfully briefed and argued the matter before the Supreme Court of Pennsylvania, which affirmed the Commonwealth Court's landmark decision in a 4-1 ruling. The Supreme Court held that affording deference to an administrative agency such as the Department "does not require the courts to accede to a misuse of the process."

Jones v. Jones, 2013 UT App 174, and on a writ of certiorari to the Utah Supreme Court, Jones v. Jones, 2015 UT 84. Successfully represented a client challenging the constitutionality of Utah's Grandparent Visitation Statute, as applied, from trial through appeal to the Utah Court of Appeals.

The NASDAQ OMX Group, Inc. v. UBS Securities LLC, 2014 WL 5486457 (2d Cir. 2014). We are representing NASDAQ in an injunction proceeding to prevent UBS from pursuing in arbitration, rather than the courts, its $350 million damage claims arising from NASDAQ system failures related to the Facebook IPO. The Second Circuit agreed with our position that federal subject matter jurisdiction existed over our injunction action, and that UBS's claims did not fall within the scope of the parties' arbitration clause.

Hobart Corp. v. Waste Management of Ohio, Inc., 758 F.3d 757 (6th Cir. 2014). We successfully represented GlaxoSmithKline in a major environmental case brought under the Comprehensive Environmental Response, Compensation and Liability Act concerning the apportionment of costs incurred in a remedial investigation and feasibility study related to environmental hazards at a landfill.

Berneike v. CitiMortgage, Inc., 2013 WL 657032 (10th Cir. 2013). Successfully represented defendant CitiMortgage, Inc., in a 10th Circuit appeal affirming that RESPA duties are not triggered by a qualified written request unless the borrower sends it to the exclusive address designated by the servicer pursuant to RESPA's implementing regulations, and that communication failing to meet this requirement "amounts to nothing more than general correspondence between a borrower and a servicer."

Salameh v. Tarsadia Hotel, 726 F.3d 1124 (9th Cir. 2013). In an important case concerning the scope of the securities laws, we represented a real estate broker that had been sued by a putative class of purchasers of condominiums in the Hard Rock Hotel San Diego. The Ninth Circuit affirmed the dismissal of the class action complaint, holding that the sale of a condominium does not qualify as the sale of a security under federal law.

Collins v. American Red Cross, 715 F.3d 994 (7th Cir. 2013). The Seventh Circuit affirmed the entry of summary judgment in our client's favor on claims by an employee alleging racial discrimination and retaliation in violation of Title VII.

Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir. 2013). We represent the family and estate of a woman who died after being shot by her husband, a sheriff's deputy. Our clients alleged that the sheriff's deputies who responded delayed emergency medical care and violated the family members' constitutional rights. They also alleged that the paramedics from a nearby Indian tribe provided inadequate medical care. We prevailed before the Ninth Circuit, establishing that the sheriff's deputies could not assert qualified immunity under section 1983, and that the paramedics could not claim tribal sovereign immunity for their conduct.

McCray v. Fidelity National Title Ins. Co., 682 F.3d 229 (3d Cir. 2012). The Third Circuit affirmed the dismissal of a putative class action alleging price-fixing of title insurance in violation of the Sherman Act, holding that the claims were barred by the filed rate doctrine.

State of Delaware Department of Natural Resources v. U.S. Army Corps of Engineers, 685 F.3d 259 (3d Cir. 2012). We represented the Commonwealth of Pennsylvania and Philadelphia Regional Port Authority in a case in which the Court of Appeals rejected challenges to a decades-long project to deepen the Delaware River to facilitate navigation by the newest generation of oceangoing cargo vessels.

Commonwealth Property Advocates, LLC v. Mortgage Electronic Registration Systems, Inc., and CitiMortgage, Inc., et al, 2011 UT App 232, Taylor v. CitiMortgage, Inc., 2010 WL 4683881, D. Utah 2010. Successfully represented CitiMortgage, Inc., and Mortgage Electronic Registration Systems, Inc., in a series of state and federal cases challenging the legal consequences of pooling and securitizing promissory notes.

Lamkin v. Morinda Properties Weight Parcel, LLC, Case No. 11-4022 (10th Cir. 2011). Successfully represented appellant in a case of first impression, in which the U.S. Court of Appeals for the 10th Circuit held that a defendant may file a motion to compel arbitration in lieu of an answer and that the defendant's failure to answer the plaintiff's complaint before filing the motion is not a proper ground for denying it.

Spafford v. Granite Credit Union, 2011 UT App 401. Successfully represented appellee Granite Credit Union in a case in which the Utah Court of Appeals ruled that expert testimony from a civil engineer is required to establish breach of duty and causation in a negligence action alleging injuries caused by a design or construction defect.

Capital Ventures Int'l v. Republic of Argentina, 652 F.3d 266 (2d Cir. 2011). We represented a bondholder in a successful appeal to uphold its attachments on collateral (U.S. Treasury bonds) underlying more than $270 million in Argentine “Brady bonds.”

Simmsparris v. Countrywide Home Loans, 652 F.3d 355 (3d Cir. 2011). In a case of first impression, the Third Circuit affirmed the grant of summary judgment for our client concerning Fair Credit Reporting Act claims arising out of its credit reporting of the mortgagor's late payments on a mortgage loan.

Jones v. ABN Amro Mortgage Group, 606 F.3d 119 (3d Cir. 2010). The Court of Appeals affirmed the dismissal of a putative class action by mortgagors alleging that their payments were not properly credited. The court held that our clients, who were mortgage lenders and servicers, were not liable under the Real Estate Settlement Procedures Act (RESPA) on account of the misdeeds of a mortgage broker who engaged in a mortgage loan-servicing Ponzi scheme.

Arthur v. Ticor Title Ins. Co. of Florida, 569 F.3d 154 (4th Cir. 2009). We successfully defended a major title insurance company in a class action alleging overcharges in mortgage refinance transactions. The Fourth Circuit sustained our position that plaintiffs' claims were not viable under RESPA.

Vallies v. Sky Bank, 591 F.3d 152 (3d Cir. 2009). The court affirmed the grant of summary judgment for our client in a Truth in Lending Act (TILA) class action, holding that detrimental reliance is a required element of such a claim and had not been proven.

Solers, Inc. v. John Doe, 977 A.2d 941 (D.C. 2009). We successfully represented a defense contractor in a precedent-setting case involving Internet defamation and the ability to conduct discovery to determine the identity of those who anonymously post defamatory comments online.

Garcia v. Brockway, 526 F.3d. 456 (9th Cir. 2008)(en banc). In a major decision of first impression, the Ninth Circuit, sitting en banc, adopted our position that an aggrieved person must bring a private civil action under the Fair Housing Act for a failure to properly design and construct within two years of completion of the construction phase, which concludes on the date the last certificate of occupancy is issued.

Register v. PNC Financial Services Group, Inc., 477 F.3d 56 (3d Cir. 2007). In an important ERISA class action with ramifications for employers throughout the country, we represented PNC, which was sued by a group of current and former employees who alleged that the conversion of the company's pension plan from a traditional defined benefit plan to a cash balance plan violated ERISA's provision barring age discrimination. The Third Circuit affirmed the dismissal of the complaint, finding that there was no ERISA violation.

Cosmetic Gallery Inc. v. Schoeneman Corp., 495 F.3d 46 (3d Cir. 2007). We represented a major wholesale distributor that had been accused of violating the antitrust laws by allegedly acting as the ringleader of a group boycott of a discount retailer. The Third Circuit affirmed the grant of summary judgment for our client, finding that the evidence showed only parallel conduct, not an unlawful conspiracy.

Wirth v. Aetna U.S. Healthcare, 904 A.2d 858 (Pa. 2006); Wirth v. Aetna U.S. Healthcare, 469 F.3d 305 (3d Cir. 2006). In an important case of first impression with far-reaching ramifications for not only our client, Aetna U.S. Healthcare, but all HMOs in Pennsylvania, the Pennsylvania Supreme Court held that the Pennsylvania HMO Act exempts HMOs from complying with the anti-subrogation provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law. The question had been certified to the Pennsylvania Supreme Court by the Third Circuit.

Delta Funding Corp. v. Harris, 189 N.J. 28, 912 A.2d 104 (2006), Delta Funding Corp. v. Harris, 466 F.3d 273 (3d Cir. 2006). We represented a mortgage lender in a case that presented the issue of whether an arbitration provision that waived the borrower's right to assert claims on behalf of a class was enforceable under New Jersey law. The Third Circuit certified the question to the New Jersey Supreme Court, which held that the provision was enforceable.

Highlands Ins. Co. v. Hobbs Group, LLC, 373 F.3d 347 (3d Cir. 2004). We represented an insurance company that had been harmed by a commercial bond broker's failure to obtain a surety bond on which the insurer would be an obligee. The district court had granted summary judgment against our client, finding that, under New Jersey law, the surety bond broker did not owe a duty of care to diligently and carefully procure the bond. The Third Circuit reversed, holding that the New Jersey Supreme Court would recognize such a duty.

Huggins v. Citibank, 355 S.C. 329, 585 S.E.2d 275 (2003). In a case of first impression in which we represented two of the country's leading credit card issuers, the South Carolina Supreme Court, responding to a certified question from the federal district court, held that a credit card issuer cannot be sued for the “negligent enablement of impostor fraud.” The court declared that the growing problem of identity theft is a matter most appropriately addressed by federal and state legislative action, rather than the creation of new torts.

Baez v. Banc One Leasing Corp., 348 F.3d 972 (11th Cir. 2003). Numerous class actions were filed around the country attacking the most widely used formula for calculating automobile lease early termination charges. In this appeal, we represented Banc One Credit Company and obtained the first precedential federal appellate decision holding that the early termination formula was reasonably related to the harm caused by early termination. This determination was made under both the federal Consumer Leasing Act and Georgia state law.

Household Bank v. JFS Group, 320 F.3d 1249 (11th Cir. 2003). We represented a bank that, after settling a nationwide class action, was confronted with the prospect of hundreds of lawsuits in Alabama state court by borrowers who had opted out of the settlement class. The bank filed a declaratory judgment action in federal court against all of those persons, seeking a declaration that their threatened (but not yet filed) state law claims were subject to arbitration. The Eleventh Circuit held that federal subject matter jurisdiction existed over the lawsuit, even though the borrowers had disclaimed any intent to file federal claims against the bank.

Turner v. Beneficial Corp., 242 F.3d 1023 (11th Cir. 2001)(en banc). We represented a bank that had been named as a defendant in a nationwide class action alleging violations of TILA. The Eleventh Circuit, sitting en banc, unanimously overruled its prior precedent and held that detrimental reliance is an essential element of a claim for actual damages under TILA. Because such claims require individualized proof, the Eleventh Circuit held that class certification was properly denied.