Peter Espey (Of Counsel-Madison, NJ) and Brianna Cyr (Associate-Madison, NJ) successfully defended their client, a car dealership, in a putative class action.

The plaintiff alleged, on behalf of herself and others similarly situated, that the dealership was overcharging its customers for registration fees. She also brought individual claims related to alleged malfunctions in the vehicle she purchased. The plaintiff had signed an agreement to arbitrate and a waiver of the right to bring a class action when she bought the vehicle. In lieu of an answer, a motion to dismiss was filed.

The plaintiff vigorously opposed the motion.  She argued the arbitration agreement was invalid because it allegedly impaired her statutory rights and precluded her from bringing a class action. Peter and Brianna filed a reply, and Peter argued the motion to dismiss. The Wilson Elser team maintained that the arbitration clause was unambiguous and easily located, rather than buried in the fine print. We also argued that the plaintiff's claims lacked merit, since she was charged the exact amount set by the State.

The Court agreed that the arbitration agreement and class action waiver were enforceable and concurred with Peter and Brianna’s arguments highlighting the strong public policy favoring arbitration. The plaintiff had a duty to read the contract she signed, and the statutes and case law required enforcement of the arbitration clause and class action waiver. The case was dismissed in favor of arbitration. This dismissal also means that the plaintiff cannot pursue her proposed class action.
 

​Joseph Francoeur (Partner–New York) and Eve Mouzouris (Of Counsel–New York) obtained dismissal of an amended complaint asserting violations of the Fair Debt Collection Practices Act, N.Y. General Business Law § 349, N.Y. Judiciary Law § 487, RICO, negligence, gross negligence, legal malpractice, unjust enrichment, prima facie tort, and conversion. The complaint, filed in the United States District Court for the Eastern District of New York, arose out of an underlying 2009 foreclosure action that was litigated over a ten-year period. Plaintiff brought the federal action on behalf of herself and a purported class of similarly situated New York residents. Our client represented the bank in the underlying foreclosure action, involving a mortgage held by the plaintiff on a property in Queens, New York. At the crux of plaintiff's suit were allegations that our client and the bank were engaged in a fraudulent scheme to miscalculate interest due and owing on a residential mortgage to obtain vastly inflated payouts from court-ordered foreclosure sales. Contrary to plaintiff's claims, the methodology utilized by our client for applying interest in the underlying foreclosure action was consistent with long-standing practices in the legal community and had been approved by referees and judges in a myriad of cases. Indeed, the methodology was approved in the underlying action and was not challenged by plaintiff or her counsel, despite multiple opportunities to do so.

We filed a pre-answer motion to dismiss, arguing that plaintiff's claims should be dismissed in their entirety on various procedural and substantive grounds. The Court issued a comprehensive decision addressing plaintiff's claims and concluded, as we had asserted, that all of them were time-barred. Critically, the Court credited our position that plaintiff herself conceded all causes of action began accruing on September 12, 2019 – the filing date of the Referee's Report of Sale – yet she did not commence this action until April 3, 2025, well beyond the applicable limitation periods for each claim. The Court further rejected plaintiff's equitable tolling arguments, finding that she failed to plead any affirmative acts of concealment by the law firm, that the interest calculations she challenged were publicly filed and disclosed on the record, and that she failed to allege any steps she took to exercise reasonable diligence in discovering her claims.
 
The Court also adopted our position that collateral estoppel independently barred plaintiff's various claims, holding that they rested entirely on allegations that the law firm filed fraudulent or deceptive documentation containing interest miscalculations in the underlying state court foreclosure action – issues the state court had already resolved against plaintiff when it determined the interest calculations and foreclosure were valid. Although the Court found that plaintiff's Judiciary Law § 487 claim was not barred by collateral estoppel because the question of the law firm's intent to deceive had not been previously litigated, that claim was nevertheless dismissed as time-barred.

Kammann S. Cole (Partner-San Diego) secured a jury defense verdict in favor of an insured dentist in the Los Angeles Superior Court following a two-week trial. The dental malpractice case proceeded to trial after a codefendant settled shortly beforehand for a significant sum. The matter came down to a quintessential battle of the experts, with the plaintiff’s counsel seeking high six-figures as compensation. Despite the challenging posture of the case, Kammann successfully persuaded the jury to return a defense verdict, delivering an excellent result for the firm’s institutional client.

Denise M. Motta (Of Counsel-Louisville) and Samuel E.T. Jones (Associate-Louisville) obtained a favorable decision from the United States District Court, Southern District of Indiana, granting a motion for preliminary injunction on behalf of their geotechnical engineering client. The client had provided geotechnical services for an interstate construction project that later became the subject of an arbitration proceeding. After being joined to the arbitration over objection, the client filed suit in federal court seeking a declaratory judgment that the claims asserted against it were not subject to arbitration. The court granted the preliminary injunction, finding that the dispute resolution clause in the upstream contract was not binding on the engineering client, nor did it delegate authority to the arbitrator to determine arbitrability. The court further concluded that the client was likely to succeed on the merits of the declaratory judgment action. As a result, the court enjoined and stayed the arbitration proceedings as to the geotechnical engineer. The court also denied a motion to dismiss based on forum non conveniens for the same reasons.

Erik Connell (Of Counsel-Seattle, WA) successfully defended an enterprise workplace solutions client that had its employees incorrectly classified as warehouse operations workers by the Washington State Department of Labor and Industries. Erik appealed the decision, arguing that the workers were properly classified as letter service shops employees, a risk classification with a significantly lower premium. The revenue agent that heard the appeal agreed, reducing the premiums from $1,667,509.31 to $476,238.63. Erik even convinced the Washington State Department of Labor and Industries to waive the assessed $333,499.00 in penalties and $284,072.54 in interest, saving the client a total of $1,781,833.70.

Joshua Cash (Partner-New York, NY) and Mark Ledwin (Partner-White Plains, NY) commenced an action in 2023 on behalf of the National Credit Union Administration (NCUA) against the ex-CEO of a Credit Union, under New York’s Faithless Servant Doctrine. The NCUA argued that the ex-CEO should forfeit $7,323,557 in compensation and a $1.5 million collateral assignment split-dollar insurance policy because of his criminal convictions, alleged financial improprieties, and policy violations. The ex-CEO’s misconduct began during the height of the taxicab industry and ultimately led to his conviction in 2021, after the Credit Union was liquidated by the NCUA. As a result of the criminal trial, the ex-CEO was sentenced to 46 months in prison and was ordered to pay $2 million in restitution (he currently remains incarcerated in Otisville, NY). The improprieties included accepting illegal gratuities from taxi medallion owners and brokers, approving tens of millions of dollars in the Credit Union’s loans to its detriment, and accepting luxury vacations and gifts without the approval of the Credit Union’s board.

Judge Nina R. Morrison of the U.S. District Court for the Eastern District of New York approved the final judgment based on the Federal Magistrate’s report and recommendation after the NCUA was successful on its motion for partial summary judgment on liability. The final money judgment amounts to $7,323,557.15, which is the total amount of the ex-CEO’s salary from February 10, 2011, until his termination of employment in 2016 (and provides for an equitable lien on the ex-CEO’s interest in his life insurance policy, up to the amount of the money judgment). Together with an early settlement obtained from the Credit Union’s ex-General Counsel for nearly $1 million, the NCUA stands to recover more than $8 million.

Joshua Cash (Partner-New York, NY) and David Santana (Associate-New York, NY) secured a unanimous defense verdict in Kings County Supreme Court on behalf of New York City’s only casino in alleged claims of false imprisonment, assault, and battery perpetrated by the security staff. The plaintiff demanded $150,000 for the indignity of having been detained for 15 minutes and 18 seconds and submitted to unsubstantiated threats and assault. The plaintiff was abusing the casino’s rewards program to capitalize on the “free play” feature by using rewards cards belonging to other individuals, insisting he had permission to use the cards, but could not tell the jury who they were or where he got the cards. The casino is operated by a gaming agent for the State of New York’s Lottery Division (which owns and benefits from the revenue from the casino). The gaming agent is always sued as a private actor possessor and operator of the casino. Under the NY State Gaming Commission Rules and Regulations, the gaming agent is authorized to exclude anyone deemed to be engaging in conduct detrimental to the interests of the casino, and to reasonably detain that person to duly process the exclusion. The plaintiff received a lifetime ban and exclusion as a result of his egregious conduct and was detained incident to the exclusion process. The jury was presented with five questions in the verdict sheet regarding the gaming agent’s conduct, all five of which needed to be answered in favor of the agent for it to prevail. The jury deliberated for approximately 22 minutes to answer these five questions against the plaintiff.

William Cook (Partner- Detroit) and Paula Opalewski (Associate-Detroit) secured the dismissal of all claims in Mecosta County Circuit Court, Michigan, on behalf of a condominium association and its president. This case stemmed from a dispute at a residential condominium development site. The plaintiffs, owners of two properties with houses, brought claims against the condominium association, its president, the developer, and several neighbors in the development. The plaintiffs asserted three counts against the association: violation of the Michigan Nonprofit Corporation Act/Michigan Condominium Act (MCA), including alleged failure to permit inspection of the books and recds of the association; breach of the condominium bylaws; and claims of membership oppression. Following a bench trial that began in June 2024, the court granted Bill and Paula’s motions for involuntary dismissal of two counts at the close of the plaintiffs’ proofs in January 2025. The remaining count was dismissed in the judge’s written opinion and order regarding the bench trial, issued on September 25, 2025, resulting in a complete defense victory for Wilson Elser’s clients. 

Peter Lauricella (Partner-Albany, NY) and Kadeem Wolliaston (Associate-Albany, NY) defended a complex commercial matter involving allegations of fraud, disputed ownership interests, and an attempted clawback of nearly $1 million in sale proceeds from a merger agreement. Our client, a private consulting and investment firm, was sued by two individuals who claimed they were each entitled to a 10% ownership interest in the subject company, which was later sold for $9.75 million. The parties had drafted and signed an “Agreement and Mutual Release,” which clearly and unambiguously released our client and its members from any and all claims, rights, causes of action, debts, shares, stock, interests, sums of money, and liabilities, whether known or unknown. Plaintiffs acknowledged they were represented by independent counsel and had entered into the agreement of their own free will. Six weeks after the release was executed and funds returned, our client sold the company to a third party for $9.75 million. The plaintiffs later obtained documentation indicating that negotiations for the sale may have begun prior to the execution of the release, and they filed suit against our client and its principals, seeking to set aside the release on the grounds of fraudulent inducement. In response, Peter and Kadeem moved to dismiss the complaint, arguing that the plaintiffs’ claims were barred by the plain language of the release and emphasized that the release explicitly covered all potential claims relating to stock, interests, and sums of money, including those that were unknown at the time. Importantly, under established law, a claim for fraudulent inducement cannot survive a broad release unless the plaintiff can allege that the release itself was induced by a separate fraud – something the plaintiffs failed to do. The court agreed and granted our motion to dismiss in full. The ruling reinforces the critical importance of well-drafted releases in commercial transactions and the strong protections they can offer against post-closing disputes. 

John Domaszek (Of Counsel-Houston, TX) and Servando Rivas (Associate-Houston, TX) prevailed on a Motion to Dismiss pursuant to Tex. Civ. P. 91a that tossed a plaintiff’s claims against one of the firm’s major global technology clients. The plaintiff asserted negligence claims against the client and contended that the client implemented a business operation that systematically creates distractions entitling the plaintiff to more than $1 million in damages for significant injuries arising from an incident. On behalf of the global technology client, we argued that such a claim is not recognized under Texas law, thus the plaintiff was not entitled to relief and the claim must be dismissed. The Travis County District Court agreed and dismissed the plaintiff’s claims in their entirety, and ordered that the plaintiff take nothing from our client.

Mark Ledwin (Partner-NY), Valeria Granata (Partner-Los Angeles), and Natalia Duque (Of Counsel-Los Angeles) prevailed on a motion for summary judgment in the Superior Court of California, Los Angeles County, on behalf of the firm’s insurance company client. In this heavily litigated breach of contract case, the Wilson Elser team argued that while the workers' compensation insurance policy in question was enforceable, the defendant had breached the insurance contract by failing to pay our client the required premiums. Despite the defense counsel’s disputing the premium payment failure, Valeria’s lengthy and persuasive oral argument resulted in the court granting Wilson Elser’s motion for summary judgment, alleviating the need for trial, slated to start in just a few weeks.

Edward M. O’Brien (Partner-Louisville, KY), John H. Dwyer (Of Counsel-Louisville, KY), and AJ Bokeno (Associate-Louisville, KY) secured a significant victory in the U.S. District Court for the Southern District of Indiana for the firm’s client, the owner of a manufactured home community, obtaining an Order of Dismissal against all claims brought by more than 30 plaintiffs seeking over $15 million in damages. The plaintiffs, tenants in the client’s community, brought individual and class action claims against the client, alleging multiple theories of liability related to payments under lease agreements and the physical property on which the community sat. The plaintiffs’ allegations included breach of lease, statutory violations, negligence, and fraud. Eddie, John, and AJ responded with an extensively briefed motion to dismiss under Rule 12(b)(6), arguing that none of the claims met the required legal standards under Indiana law and Seventh Circuit precedent. The court agreed, dismissing all of the plaintiffs’ claims against the client with prejudice, while adopting a majority of the legal arguments and theories advanced by the defense. The Louisville team’s securing a total dismissal of the matter, disposing of more than thirty plaintiffs’ multiple claims, delivered a complete defense win for the firm’s client. 

Christopher Yvars (Partner, Denver, CO) Kimberly Viergever (Of Counsel-Denver, CO), and Michael McCloskey (Senior Counsel-San Diego, CA)  secured a complete defense victory for a national health care client in a commercial arbitration where the claimant sought more than $50 million in damages. The dispute centered on long-term services and nondisclosure agreements involving an alleged proprietary software platform, which claimant developed to streamline and enhance health care outcomes management for large-scale providers. The claimant alleged breach of contract and theft of trade secrets, asserting that the firm’s client had improperly used and disclosed confidential processes, data integration methods, and reporting functionalities unique to the claimant’s product. After a multi-day evidentiary hearing featuring testimony from technical experts and company executives, as well as extensive written submissions, the AAA Arbitration, Denver, Colorado, issued a final award denying all claims and dismissing the case in its entirety.

Lindsay Powell (Of Counsel-McLean, VA) and Hariton Wilson (Associate-McLean, VA) secured a significant win for our title and settlement company client in a dispute over an alleged undiscovered title defect that caused the plaintiff (re)seller to miss out on a potential subsequent sale. The plaintiff brought an action in the Campbell County Circuit Court against our client alleging claims of negligence and breach of contract, seeking $179,000 in damages plus attorney’s fees. The case was received in default approximately one year ago, necessitating the preparation and filing of expedited responsive pleadings, which were resolved in our client’s favor. Lindsay and Hariton promptly moved for leave to file a motion to produce the contract to the breach of contract count, which was granted. The plaintiff could never produce the document, leading to a subsequent motion to strike the breach of contract count. The initial demurrer argued that the negligence claim was barred under the economic loss doctrine and that the breach of contract claim did not sufficiently allege the elements of the contract. The court sustained the demurrer to negligence with prejudice, finding that the economic loss doctrine applied. The judge sustained the motion to strike the breach of contract claim in part, dismissing it without prejudice, for failure to comply with the court’s order resulting from the motion to produce the document. 

Kammann Cole (Partner-San Diego, CA) and Katharine Burlington (Associate-San Diego, CA) secured summary judgment on behalf of a commercial trucking company resulting in full dismissal. Three minor successors in interest had asserted negligence claims and issued a policy-limits settlement demand following a motor vehicle accident involving the decedent and the client’s big rig. At the time of the collision, the decedent was under the influence, unlicensed, and had a prior felony conviction for unsafe vehicle operation. Kammann and Katharine successfully negotiated voluntary dismissals from two of the plaintiffs, while the third refused. They then moved for summary judgment in Riverside County Superior Court, which was granted in full, eliminating all claims against the client.

Thomas (T.J.) Tutone (Associate-Mclean, VA) won affirmance from the Fourth Circuit of a complaint in the United States District Court for the Eastern District of Virginia, Richmond Division. The plaintiff alleged that our client violated section 1018 of Title X, also known as the Residential Lead-Based Paint Hazard Reduction Act of 1992 (the Act), causing alleged injuries. The plaintiff alleged she did not receive a “Lead-Based Disclosure” pamphlet despite the fact that the unit was constructed prior to 1978. Appellant went on to allege that Appellee’s “failure to provide lead-based disclosures to the plaintiff during the tenancy period constitutes a violation.” As a result, the plaintiff alleged that she was exposed to “potential lead-based paint hazards … which have resulted in her having adverse health effects.” In response, T.J. filed a Motion to Dismiss alleging that the plaintiff failed to state a claim for a knowing violation, which was granted without leave to amend. The plaintiff subsequently filed a Motion for Reconsideration, which T.J. opposed, and was denied. However, given that the plaintiff was pro se, the court granted her leave to file an amended complaint. Despite the Judge’s ruling, the plaintiff chose to proceed with an appeal to the Fourth Circuit. We filed a brief in opposition, which argued that the district court’s decision should be affirmed given the complaint failed to present facts that are sufficient to establish the mens rea requirement of the Act. Specifically, the complaint explicitly alleged that our client acted negligently, not knowingly. The Fourth Circuit agreed, affirmed the lower court’s decision, and upheld the dismissal of the plaintiff’s complaint.

Edward O’Brien (Partner-Louisville, KY), Geoffrey Belzer (Partner-Chicago, IL), and Andrew-John Bokeno (Associate-Louisville, KY) recently succeeded in securing an affirmance of summary judgment in the Ohio Court of Appeals in a multi-claim civil lawsuit brought against the firm’s client, a manufactured home community. Plaintiffs, who were tenants in the client’s community, brought a civil action in Cuyahoga County Court of Common Pleas alleging the community failed to render cosmetic repairs to the plaintiff’s home, breached certain state statutes, and misrepresented certain aspects of the community and manufactured homes to the plaintiffs. The complaint set forth multiple legal theories of liability, including breach of contract, fraud and misrepresentation, breach of R.C. 5321.04, and violations of the Ohio Consumer Sales Practices Act. After the trial court granted our motion for summary judgment on all the above theories, the plaintiffs appealed the decision to the Ohio Court of Appeals’ Eighth Appellate District, which affirmed the trial court’s order granting summary judgment on each and every claim asserted against the client, finding no genuine dispute of material fact and entitling the community to judgment as a matter of law. As such, the Court of Appeals disposed of all of the plaintiffs’ causes of action against the firm’s client. 

​Sean Monks (Partner-San Diego, CA), Richard Bortnick (Of Counsel-Philadelphia, PA), and Natalie Lakosil (Associate-San Diego, CA) represented a corporation diluted in violation of a Stock Purchase and Subscription Agreement in Arbitration. Though not usually on the plaintiff’s side of the “v.” the team got an outstanding result. Through its former CEO, our client enjoyed a long business relationship with the company in which he was a shareholder (the Respondent). Throughout the relationship, our client contributed to the Respondent’s ongoing business in the form of various short-term loans as needed, each of which were promptly repaid. This relationship stemmed from the original share ownership of our client in the Respondent. However, when the former CEO left, the Respondent embarked on a campaign to dilute our client’s percentage of ownership, which was protected in the Stock Purchase and Subscription Agreement. Unfortunately, under the leadership of the new CEO, the stock was reduced in value to fractions of a penny. Getting the shares “trued up” was going to provide no relief for our client. Through creative argument, Sean, Rick, and Natalie persuaded the arbitrator to rescind the contract to our client, leaving the contract intact for the other signatories. Including costs of the arbitration, our client was received nearly $700,000 in the form of an award.

​Matthew Lee (Partner-McLean, VA) and Haley Mathis (Associate-McLean, VA) represented a media client located in Washington, D.C. The client wrote articles on the alleged retaliation against two whistleblowers by the Office of Inspector General for the Social Security Administration. The plaintiff, chief counsel for the OIG, sued the firm’s client for defamation, false light, and infliction of emotional distress. The lawsuit was ultimately transferred to the U.S. District Court for the District of Columbia and assigned to District Judge Mehta. On behalf of the firm’s client, Haley and Matt moved to dismiss all claims under Rule 12(b)(6), specifically arguing that the plaintiff’s defamation claims were not actionable under Pennsylvania’s fair report privilege (the case was originally filed in the Middle District of Pennsylvania); and to the extent that the privilege did not apply to a specific statement, that the plaintiff had failed to plead sufficient facts to support an allegation of actual falsehood (the statements touched on matters of public concern); and, lastly, that the amended complaint failed to allege actual or NY Times malice, which is required for an action by a public official – the plaintiff was, as chief counsel for the SSA OIG, clearly such an official. Further, they argued that the plaintiff’s claims for false light and infliction of emotional distress were not actionable for the same reasons that the defamation claims were not actionable. In a March 26, 2025, Order, Judge Mehta granted our client’s motion to dismiss in all respects. The order was accompanied by a 64-page memorandum opinion setting forth in detail the Judge’s reasoning for granting our client’s and the other defendants’ motions to dismiss. The entire case was dismissed, and the defendants are waiting to see if the plaintiff will appeal to the U.S. Court of Appeals for the District of Columbia.

Lee Washburn (Partner-Atlanta, GA) and Vonnetta Benjamin (Of Counsel-Atlanta, GA) defended an international operator of governmental transit systems in a case in which the plaintiff alleged the firm's client violated the ADA's requirements for reasonable accommodations and discriminated against him on the basis of his disability by allegedly denying him the use of his service animal while riding aboard a local transit bus. The plaintiff alleged multiple instances of discrimination and ADA violations, and sued the firm's client and its employee as well as the local governmental transit authority on whose behalf the firm's client was operating. Lee and Vonnetta filed Motions to Dismiss on behalf of all the defendants asserting that the client had not denied the plaintiff a reasonable accommodation and in fact was in compliance with the ADA's requirements for service animals. The court agreed and granted the Motions to Dismiss, dismissing all of the plaintiff's claims with prejudice.

Sean Monks (Partner-San Diego, CA), Michael McCloskey (Senior Counsel-San Diego, CA), and Anne Potiker (Associate-San Diego, CA) prevailed in a recent Order on a Motion for Summary Judgment in a sticky and highly personal trade secret case in the 3D printing industry – a publicly traded $3 billion cap company against five individuals and their small startup. Also participating in the defense were outside co-counsel. Initially, there were seven causes of action. Four were jettisoned by virtue of 12(b)(6) litigation. What remained was a breach of contract claim and claims under DTSA and CUTSA. The plaintiff sought about $30 million in damages and attorneys’ fees. 

In discerning their remaining claims, our team focused hard on pushing for proper identification of the trade secret and pigeon-holed the plaintiff into a definition of their 12 trade secrets supposedly misappropriated, which they refused to amend. Almost three years ago we got the magistrate judge to hold them to these disclosures and ROG responses, and he indicated their refusal to provide further detail would preclude them from amending and could be used against them in summary judgment. Fast forward to the present, and we have an Order finding it was more than past time for the plaintiff to “put up or shut up” at summary judgment. Having been stuck with their meagre disclosures, the judge latched onto the deficiencies and summarily dismissed all trade secret claims. 

The breach of contract claim required a bit of creative analysis. Our clients were supposedly precluded from using their skills in future work that could overlap in the 3D printing industry. We assessed the provision at issue and determined it violated section 16600 of the CCP. In California, “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” Cal. Bus. & Prof. Code § 16600(a). In fact, we filed an amended counterclaim alleging this issue, among other violations by the plaintiff related to our clients’ trade secrets. The U.S. District Court for the Southern District of California specifically found, “The defense has the better argument.” Heading into summary judgment, the plaintiffs were expecting to recoup up to $40 million in a windfall through damages and fees, or at the very least, grind their competition into the dust. Instead, their entire case is gone and they are facing the pointy end of the spear of our own counterclaims and potential motion for fees related to bad faith. 
 

Marty Ready (Partner-San Diego | San Francisco, CA) and Sarena Kustic (Partner-San Diego, CA) secured a defense verdict in a two-week jury trial in San Diego Superior Court. The case involved a disgruntled shareholder seeking recovery of his $1 million investment lost due to a failed startup. The plaintiff alleged fraud, breach of fiduciary duty, and rescission against our clients, the former chairman of the board and the failed startup. Although the claims in this trial were based on fraud in the inducement, the plaintiff sought to insert derivative issues (currently the subject of a derivative lawsuit pending in Delaware Chancery Court) in an effort to confuse the jury in the hopes of obtaining a favorable verdict. Fortunately, Marty and Sarena and their team were able to keep the record clean, and the jury focused on only the issues in this case. The jury deliberated for less than three hours and returned a verdict in favor of our clients, never getting past the first question for each cause of action. After the verdict was rendered, the jurors advised counsel that our cross-examination of plaintiff’s witnesses was very effective in demonstrating their lack of credibility and our trial presentation was highly persuasive and professional. 

Edward M. O'Brien (Partner-Louisville, KY) and Andrew-John Bokeno (Associate-Louisville, KY) succeeded in enforcing a forum selection clause in the Indiana Supreme Court in Indianapolis in a multimillion-dollar commercial litigation case brought against Wilson Elser’s client, a security company. A large poultry company sued our client, alleging that the security company's negligence led to a chemical accident at a poultry processing plant, causing millions of dollars in damages. The client moved to compel enforcement of a forum selection clause contained in the parties' contract, which the trial court granted. However, a divided panel of the Indiana Court of Appeals reversed the trial court, finding that enforcing the forum selection clause would unduly prejudice the plaintiff. The Indiana Supreme Court granted a review of the case. It reversed the Court of Appeals' decision, finding that the forum selection clause was valid and enforceable. Specifically, the Indiana Supreme Court rejected the plaintiff's argument that forum selection clauses cannot be enforced where some of the defendants in a case are parties to the clause but others are not, which was an issue of first impression for the court.

Edward M. O'Brien (Partner-Indianapolis, IN) and Andrew-John Bokeno (Associate-Louisville. KY) obtained summary judgment in a federal court case arising from a public university's adjudication of a sexual assault allegation made by a female student against a male student. The firm's client is a Title IX consulting company that served as the third-party tribunal that heard evidence, found that the male student more likely than not committed the alleged acts, and recommended he be suspended for three semesters. The male student sued the university and the firm's client, alleging that they discriminated against him on the basis of sex in violation of Title IX. The plaintiff also asserted claims for intentional infliction of emotional distress. Following extensive litigation, the Southern District of Indiana granted summary judgment in favor of the firm's client. The plaintiff had demanded $3 million from the defendants to settle the case prior to the ruling.

Kevin Farrell (Partner-Washington, DC) and Daniel Coffman (Associate-Washington, DC) prevailed on a motion to dismiss on behalf of a United States military defense contractor after a plaintiff attempted to add the contractor to a suit regarding the loss of plaintiff’s security clearance. The motion to dismiss demonstrated that the tortious interference and other claims against Wilson Elser’s client were barred by the statute of limitations. The plaintiff argued that several exceptions applied, including that his claims were timely because the D.C. Superior Court’s COVID-19 orders tolled the statute of limitations. While noting that the relevant orders were not a model of clarity, the U.S. District Court for the District of Columbia agreed with Dan and Kevin’s concise analysis of the D.C. Superior Court’s COVID-19 orders, and found that the claims were time-barred. The court further determined that (1) the continuous tort doctrine does not apply to the plaintiff’s claims, (2) the Federal Rules of Civil Procedure’s joinder rules have no bearing on whether the plaintiff’s claims are timely, and (3) under Federal Rule of Civil Procedure 15 the plaintiff’s claims did not “relate back” to his first complaint because his failure to timely add the contractor as a defendant was not the type of mistake Rule 15 was meant to remedy. All claims against Wilson Elser’s client were dismissed with prejudice. 

Washington, D.C. partners Ryan Duffy and Kathleen Warin and associate Nate Lefko obtained summary judgment in the District of Columbia Superior Court on behalf of the Financial Industry Regulatory Authority (FINRA). The plaintiff sought to expunge decades-old customer complaints from his registration records and requested wide-ranging equitable relief, including equitable expungement, declaratory judgment, and a permanent injunction. The Wilson Elser team successfully demonstrated that the doctrine of laches barred all the plaintiff’s claims. In granting summary judgment, the Superior Court found that the plaintiff delayed in bringing his claims and material evidence had been lost, which resulted in prejudice to FINRA.  

Stephen J. Barrett (Partner-New York, NY) and Gabriela Rios (Associate-New York, NY) recently prevailed on behalf of a manufacturer client on a motion to dismiss in the Southern District of New York on a trade dress case. Plaintiff brought claims under the Lanham Act for trade dress infringement and trade dress dilution, along with state law claims, related to a unique piece of farming equipment that previously enjoyed patent protection. The plaintiff sought to prevent competitors from using the design of the previously patented product under the theory that the product’s non-patented elements were separately protectable under trademark law. In their motion to dismiss, Stephen and Gabriela argued that the alleged trade dress is functional and therefore not protectable, and that the trade dress is not famous, which is a separate requirement necessary for trade dress dilution. The court agreed with their arguments, stating that the complaint only offered conclusory statements that did not sufficiently plead non-functionality or the trade dress’s requisite level of fame. Plaintiff attempted to bolster its arguments by referencing an expired design patent, to which the court responded that the assertion of a legal presumption of non-functionality stemming from a design patent is not supported in the caselaw.

Erik Connell (Of Counsel-Seattle, WA) won summary judgment for our client storage unit company that discovered more than a thousand pounds of suspected marijuana when it entered the plaintiff’s storage unit after he failed to pay rent. It notified police, and the contents of the unit were confiscated and destroyed. The plaintiff sued our client for breaching its contract with him by entering his storage unit and turning over what he alleged to be $26 million worth of hemp to police. The plaintiff further alleged that our client failed to comply with both Washington’s preliminary lien notice and final notice of lien sale statutes when notifying him of his unpaid rent, alleging technical violations of both statutes. Erik moved for summary judgment. The court held that whether our client complied with these statutes was of no consequence, as it did not sell the contents of the unit; it turned them over to the police. The court held that storage unit company employees were reasonably concerned that storing 1,387 pounds of what they suspected to be marijuana would open them up to criminal liability. The standard in the contract was that the company could not act with gross negligence, but the court went further to hold that company employees did not even act with ordinary negligence in turning over the alleged hemp to police.

John H. Dwyer Jr. (Of Counsel-Louisville, KY) represented an estate administrator in a matter arising from allegations of breach of fiduciary duties and statutory obligations of good faith and fair dealing. The appellant, our client’s former business partner, alleged that the firm’s client conducted nine improper transactions, and sought compensatory and punitive damages. The trial court dismissed all nine transactions through three separate orders, two based on summary judgment and the third after a bench trial. On the appellant’s appeal, John argued that all the transactions were properly recorded in the business’s records, all the parties had equal access to those records, and the appellant chose not to view those records until 2014 and assumed, without proof, that those payments were improper. The Kentucky Court of Appeals addressed each order in turn and affirmed all three orders of the trial court.