commercial litigation

Commercial Litigation

Wherever business is done and disputes arise, Conrad O’Brien is there to facilitate the best possible resolution. Conrad O’Brien is nationally recognized for its commercial litigation practice. Year after year, our attorneys are ranked at the top of lists by Chambers USA and Best Lawyers in America.

 

Conrad O’Brien is the law firm to trust for business disputes of all sizes and complexities, including true bet-the-company problems. We are a trusted partner of Fortune 500 companies as well as mid-sized companies and startups. Our uniquely agile, collaborative approach to litigation allows us to effectively and efficiently solve clients’ problems. We assess our business clients’ goals and position them to defeat claims in court or reach a favorable settlement, often in the service of allowing real-world business transactions to go forward.

 

Drawing on our collective experience spanning a variety of industries and substantive areas of the law, we are well prepared to evaluate and prepare complex cases. Conrad O’Brien’s attorneys work hard to resolve all of their clients’ matters behind the scenes, and when that’s not possible, they take cases to trial and do what they do best—win.

Contract Litigation

Contract disputes are a major focus of Conrad O’Brien’s complex commercial litigation practice. Our experience ranges from litigating significant contract matters for our Fortune 500 clients to resolving a wide range of contract issues on behalf of the region’s entrepreneurial businesses.

 

Notable Cases

  • Represented two firms in the commercial real estate financing industry in three separate actions arising out of a contract for the sale to a developer of a parcel of real property in Center City Philadelphia. The litigation was first brought after the parties failed to reach a written extension for the developer to close on the property.  After the developer failed to close, our client filed an action seeking a declaration that the developer was in default of the agreement and that our client was entitled to liquidated damages. The parties engaged in extensive discovery and motion practice. With motions for summary judgment pending, the parties were able to reach a settlement which permitted the developer to close on the property.  

  • Represented Hewlett-Packard and HP Financial Services Company in the U.S. District Court for the Eastern District of Pennsylvania in a breach of contract and warranty action arising out of the installation of various storage-related products and software. After initial motion practice, plaintiffs voluntarily dismissed HP Financial Services Company, and the case successfully settled before HP incurred significant discovery costs.

  • Represented IBM in a lawsuit brought by a potential subcontractor under a “teaming agreement” entered into in connection with a contract between IBM and the Department of Defense. After the district court granted IBM’s motion to dismiss, the Third Circuit remanded one claim for further proceedings. On remand, the district court granted IBM’s renewed motion to dismiss. That decision was upheld on appeal.

  • Won a motion to dismiss for Lorillard Tobacco Company in a multimillion-dollar breach of contract claim. The district court found that the parties’ distributorship contract was a contract of indefinite duration and therefore terminable at-will under Pennsylvania’s Uniform Commercial Code.

  • Defended an outdoor advertising developer in a suit alleging, inter alia, fraud and misrepresentation in connection with an outdoor advertising transaction. The New Jersey state court entered judgment on the merits in favor of our client on all claims.

  • Represented the principal of a capital investment firm in a tortious interference with contract suit in federal court in the Eastern District of Pennsylvania. We obtained a voluntary dismissal of claims against our client that had been pending for four years.

  • Represented a client facing warranty claims related to industrial ice making equipment, and secured a nonsuit in a jury trial, leaving two other defendants to proceed to an unfavorable verdict.

  • Helped resolve a series of contract disputes between our client, a large regional hospital, and the region’s largest health insurer, without litigation.

Class Action

Conrad O’Brien defends class actions in a wide range of contexts, including securities, insurance, antitrust, consumer protection, property loss, and product liability claims. Our attorneys combine substantive expertise with a deep understanding of the unique problems raised by class action cases. We work with our clients to develop focused case plans, seek early resolution where possible, make every effort to defeat class certification, and assemble efficient trial teams that present complex issues simply and persuasively.

 

Notable Cases

 

  • Defended a publicly traded insurance company together with its officers and directors, in multiple shareholder class actions, filed in state and federal courts seeking to enjoin the company’s acquisition in a merger valued in excess of $220 million. Our team’s instrumental contributions to the defense team helped bring about a highly favorable global settlement that permitted the merger to close on schedule and without modification of the challenged terms.

  • Represented Progressive Insurance Company in a long-pending class action case in which a class of medical providers contended that Progressive must pay automobile accident personal injury claims within 30 days of receipt of completed standard claim forms or pay statutory interest on unpaid claims, even when Progressive had not yet completed its claims investigation. In 2003 the trial court accepted the plaintiffs’ position and certified the class. Conrad O’Brien took over the case after the trial court had certified the class, and in January 2014, the Pennsylvania Supreme Court reversed and decertified the class, effectively ending years of litigation in the insurer’s favor.

  • Obtained summary judgment for our client, Pennsylvania American Water Company, in a class action alleging $100 million of property loss from an industrial fire. The class asserted a unique claim that the water distribution system was improperly designed, causing a lack of water flow and pressure to extinguish the fire.

  • Achieved a series of wins for insurance company clients in three nationwide putative consumer class action lawsuits brought in New Mexico state court alleging breach of contract and failure to disclose premium charges. One suit was dismissed for forum non conveniens, the second suit was withdrawn in the face of threatened discovery into the putative class plaintiffs’ finances, and the third was settled for minimal attorney’s fees and a nominal settlement value based on a New Mexico–only class.

Construction Litigation

Conrad O’Brien attorneys have broad experience representing clients in construction and design-related litigation involving claims for property damage, economic loss, personal injury, and wrongful death. We represent architects, engineers, project owners, general contractors, and subcontractors. Our attorneys have prosecuted and defended clients across a broad spectrum of industries, including commercial and residential building, marine construction, pressure and other industrial vessels, and road construction.

 

Notable Cases

 

  • Represented a major steel company in a more than $80 million claim for defective construction of a coke oven. The case involved complex issues of construction law, as well as complicated scientific and technical issues.  The case was ultimately settled in a result favorable to our client.

  • Represented a major telecommunications equipment company in Superfund litigation and in construction claims arising from the design of a Superfund remediation project. The case went to arbitration and we won a verdict for our client.

  • Represented a developer that was sued by the City of Philadelphia on a claim that it was obligated to use union labor on a $40 million apartment project. As a result of the settlement reached, our client was able to complete the project with non-union labor.

  • Represented a Fortune 500 chemical company concerning the construction of large pressurized vessels. The client contended that the vessels were improperly welded, requiring extensive testing of the vessels deployed throughout the world. Demonstrating the firm’s willingness to understand its client’s business interests, the Conrad O’Brien litigation team participated in an all-day introduction to welding.

  • Represented a general contractor seeking insurance coverage for wrongful death and personal injury claims arising out of a serious construction accident at the Tropicana Casino in New Jersey. On motions for summary judgment, the court ruled that the contractor had coverage under two general liability insurance policies, each in the amount of $25 million. These rulings were instrumental in settling more than 30 cases that had been filed concerning the accident.

Insurance

Conrad O’Brien attorneys are highly experienced in complex insurance matters, with special emphasis on class actions. We successfully represented the Progressive Group of Insurance Companies and various AEGON/Transamerica companies for the past two decades in a number of class actions.

 

Notable Cases

 

  • Represented the Progressive Group of Insurance Companies, and took the lead on behalf of a group of insurer defendants, in a class action involving reimbursements for multiple MRIs conducted at a single patient session. The trial court granted defendants’ motion for summary judgment on all claims. Pending the plaintiffs’ appeal to the Second Circuit, a favorable settlement was reached.

  • Achieved dismissal of a class action on behalf of Progressive where a class of Pennsylvania massage therapists sought to recover insurance benefits. The case was dismissed on the basis that the plaintiffs were required to hold the equivalent of a physical therapist’s license in order to seek insurance benefits. That ruling was affirmed on appeal.

  • Conrad O’Brien has represented AEGON/Transamerica for more than 20 years in consumer class actions, business-to-business contract and tort litigation, ERISA litigation, and government investigations. We have appeared on behalf of AEGON/Transamerica in federal and state courts around the country, including in Florida, Georgia, Iowa, Kentucky, Missouri, New Mexico, New York, North Dakota, Pennsylvania, Wisconsin, and Wyoming.

Intellectual Property Litigation

Conrad O’Brien attorneys are active in protecting our clients’ interests in intellectual property. We handle copyright and trademark litigation, representing artists, record label distributors, technology companies, publishers, software developers, and clothing designers in litigation involving trademarks and service marks, trade dress in packaging and design, and copyright infringement.

 

Notable Cases

 

  • Represented a medical device company, which is owned by a firm ranked at the top of the Fortune 500, in a lawsuit brought by a rival company in the U.S. District Court for the Eastern District of Pennsylvania asserting patent infringement claims related to five patents. The patents cover various technological elements used in the client’s products and services, including medical devices prescribed by physicians to monitor certain cardiovascular conditions and report for clinical diagnosis. Conrad O’Brien was brought into the case following the close of discovery to act as lead trial counsel. The parties are awaiting a trial date.

  • Defended a Forbes Top 50 Celebrity faced with a $33 million Lanham Act and copyright claim against a novel claim that plaintiffs were entitled to attribution as songwriters despite having assigned their copyrights to the song.

  • Served as spinal implant litigation counsel for one of the fastest growing medical device companies in the orthopedic industry. The firm’s initial representation began when a competitor of our client, one of the largest companies in the spine industry, filed a series of lawsuits seeking in excess of $100 million based on claims that our client had misappropriated the competitor’s intellectual property. After mounting a vigorous defense, Conrad O’Brien assisted in brokering a highly favorable global settlement of the lawsuits.

  • Enjoined the construction of a $30 million high-rise hotel, protecting the architectural plans of a nationally recognized architect.

  • Secured a defense verdict for a sculptor accused of copyright infringement and secured a judgment for attorney fees and costs.

  • Successfully tried to verdict a Lanham Act claim where the client was accused of mislabeling a proprietary soil remediation product, thereby protecting the client from damages that could have exceeded $3 million.

  • Obtained a settlement for a manufacturer of continuous temperature monitoring devices used in connection with the storage of vaccines and other temperature-sensitive materials, providing it with monetary and injunctive relief in trademark, copyright, and antitrust lawsuits.

  • Represented an inventor and his companies in a patent infringement action in federal district court in Pennsylvania. Following a two-week trial, we secured a judgment in favor of our clients, and obtained an affirmance of the judgment on appeal.

Receiverships

Conrad O’Brien’s attorneys serve as or represent court-appointed federal and state receivers in actions brought by the Securities and Exchange Commission (SEC), Federal Trade Commission (FTC), and other government enforcement agencies to recover assets used to compensate nationwide victims of Ponzi schemes and other frauds.

 

In these highly complex cases, the court-appointed equity receiver is charged by the court to marshal, pursue, preserve, and maximize the recovery of receivership assets. Often this involves significant third-party litigation, clawback procedures, and court-approved settlements.

 

Notable Cases

 

  • Conrad O’Brien’s Louis C. Bechtle (a Chief Judge Emeritus of the U.S. District Court for the Eastern District of Pennsylvania) was the court-appointed receiver, with Conrad O’Brien acting as lead counsel, in an SEC enforcement action against the operator of a Ponzi-like scheme who stole tens of millions of dollars from investors in hedge funds he managed. This matter involved several litigations and claims against dozens of persons and entities, including but not limited to company insiders, investors, professional firms, brokers, nonprofit organizations, and political organizations. Through distributions of much of the recovered funds, we have recovered and restored to innocent investors more than 80% of the losses suffered. The receivership was recently closed and converted to a liquidating trust with Conrad O’Brien partner Kevin Kent serving as the liquidating trustee for certain illiquid assets that continue to be maintained for the potential benefit of victims.

  • Conrad O’Brien’s Patricia Hamill serves as the court-appointed receiver, with Conrad O’Brien attorney Kevin Kent acting as lead counsel, in an FTC action against entities in the technical support services industry alleged to have misrepresented their services to tens of thousands of customers who paid them at least $17.9 million. As receiver, Patricia was tasked with taking control of the business operations of corporate defendants, securing two separate physical locations, several virtual offices, and numerous financial accounts, websites, and phone numbers. She continues to preserve and administer the assets of the receivership estate.

  • Represented a federally-appointed receiver in an enforcement action brought by the federal government in the Eastern District of Pennsylvania against a third-party payment processing company and its principals (who were alleged to have facilitated a nationwide fraudulent telemarketing scheme). Conrad O’Brien attorneys recovered over $1 million from a national bank to fund a Consumer Restitution Program for victims of the fraud. Our efforts against the bank uncovered information that launched further government action, resulting in the recovery of more than $150 million to fund a full restitution program for the victims.

  • Conrad O’Brien’s Patricia Hamill serves as the court-appointed receiver, with Conrad O’Brien attorneys acting as lead counsel, in an action brought by the FTC in the Western District of New York against entities and individuals in the debt collections industry found to be conducting business in violation of the Fair Debt Collections Practices Act (FDCPA) and related state statutes. The FTC determined that in excess of $8 million was collected from consumers using unlawful practices. Patricia and her counsel worked in conjunction with the government to assess the nature of the defendants’ practices; halt all collection activities; manage the defendants’ remaining operations; handle a variety of employment, payroll, and tax issues; collect, analyze, and respond to a variety of claims made against the defendants; and worked with forensic accountants to recover and maximize the assets of the receivership.

  • Represented the receiver in an enforcement action brought by the FTC in the Northern District of Illinois against a number of related telemarketing businesses alleged to have been involved in the marketing of fraudulent credit cards. The case settled with the defendant business operators for more than $7.5 million, providing nearly 100% restitution to the victims.

Securities

Conrad O’Brien handles a wide range of securities-related disputes in judicial proceedings, regulatory investigations, and enforcement proceedings. Our clients include investment advisers, issuers, broker/dealers, directors and officers, and individual investors.

 

Notable Cases

 

  • Represented a former officer of a medical equipment financing company in proceedings that arose after the company filed for bankruptcy. The proceedings included lawsuits by the bankruptcy trustee, shareholders, bondholders and financial institutions, and investigations by the SEC and the Department of Justice. The DOJ declined prosecution and, after a lengthy Wells process, the SEC declined to pursue an enforcement action against our client. Two of the civil cases were settled with a minimal contribution from our client, and class action shareholder plaintiffs agreed voluntarily to dismiss our client with no monetary settlement.

  • Represented a former interim chief financial officer for a startup company that was alleged to have operated the largest green-energy Ponzi scheme in the United States. A class action and a parallel civil action filed by the receiver for the startup company asserted various claims against the former CFO along with other professionals associated with the company. In addition to defending against those actions, Conrad O’Brien also assisted the former CFO in a coverage dispute with multiple insurers. Conrad O’Brien secured coverage and obtained a global settlement agreement resolving both lawsuits without any payments from the former interim CFO.

  • Represented the chief financial officer of a bankrupt subprime lender in a federal securities class action and state court litigation in Pennsylvania. Successfully settled the federal and state cases, negotiating on our client’s behalf with the D&O insurance carrier to pay the settlement amounts.

  • Represented a securities brokerage firm affiliated with one of our insurance company clients in a putative securities class action relating to the sale of promissory notes. The case was settled for nuisance value.

  • Represented a FINRA registered representative in civil and regulatory proceedings related to his former employment. Successfully defended our client both in the civil liability proceedings and in a separate insurance coverage declaratory relief action. On the regulatory side, advised the client through all phases of the FINRA investigation, including negotiating a disposition involving no payment of restitution, disgorgement, or any fines.

Unfair Competition and Trade Secrets

Conrad O’Brien prosecutes and defends cases raising unfair competition, trade secret, and restrictive covenant issues. We have a strong reputation in federal and state courts in Pennsylvania and New Jersey, and we have also appeared in courts across the country from New Mexico to Virginia. In addition to our courtroom and administrative successes, we take pride in our ability to keep clients out of court, minimizing potential losses by settling or resolving matters early and discreetly.

 

Notable Cases

 

  • Protected a $1 billion portfolio of trade secrets for a Fortune 100 company by intervening in an action to prevent the licensee from disclosing the portfolio to competitors.  

  • Retained to be litigation counsel protecting a $950 million trade secreted recipe for a Fortune 100 company in the chemical field.  

  • Represented an entertainment center facing reputational harm through cybersquatting and false advertising initiatives. We achieved the shutdown of the offending website and use of a confusingly similar trade name by defendants.

  • Represented a national advertising firm in enjoining former employees found to have taken confidential information and secured a $30,000 discovery sanction for the destruction of evidence. The former employees and new employer were permanently enjoined. Following the injunction proceedings, Conrad O’Brien successfully pursued contempt proceedings against the former employees.

  • Represented an executive of an energy company accused of stealing government top-secret military nuclear information securing a nonsuit on the trade secret and computer fraud and abuse claims.

  • Represented a group of futures traders sued by their former employer. When they worked for a privately owned investment company, a group of futures traders executed a particular trading strategy that netted their former employer tens of millions of dollars in one year. When their contract ended, the traders left the company to set up their own firm and pursue the same strategy. Conrad O’Brien attorneys helped represent the traders when they were sued by their former employer. The traders were ultimately vindicated, defeating the claim that the trading strategy which they used was a secret owned by the former employer.

  • Prevented the disclosure of a $30 million trade secret of a privately held company.

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