Melissa A. Murphy-Petros

Melissa Murphy-Petros (Of Counsel-Chicago, IL), Brigitte Smith (Partner-Baltimore, MD), and Zachary Miller (Associate-Baltimore, MD) represented a provider of public transportation services in Baltimore City to those with physical disabilities. The legally blind plaintiff, a regular rider, filed suit after he suffered a severe fracture when he fell on ice while walking from his front door to our client’s bus. The plaintiff claimed that our driver was negligent in not assisting him while he walked to the bus as the driver was required to do, but admitted that he did not wait for the driver to help him on the day of his injury. The case was tried to a defense verdict by Brigitte and Zak and Melissa handled the appeal. The appellate court affirmed the judgment on the jury’s verdict. The only issue plaintiff raised on appeal was the trial court’s order denying his motion to strike a supplemental medical expert opinion that we disclosed approximately 10 days before trial. It was plaintiff’s position that this testimony at trial was the basis for the jury’s defense verdict and it should not have been allowed, so he was entitled to a new trial. In the end, the court agreed with our argument that plaintiff’s own dilatory conduct in discovery led to the late timing of our supplemental disclosure in the first place, so the trial judge did not abuse her discretion in denying plaintiff’s motion to strike. 

Melissa Murphy-Petros (Of Counsel-Chicago, IL) and James Thurston (Partner-Chicago, IL) obtained affirmance in Paraco Gas Corp. v. Ironshore Indemnity, Inc., No. 23-1069-cv. U.S. App., Second Circuit (June 17, 2024) for the firm’s specialty insurance client, Ironshore. The plaintiff, a closely held family corporation that distributes propane fuel and equipment, sought coverage under its D&O policy for a shareholder dispute involving share transfers. The Second Circuit affirmed the dismissal of the plaintiff's complaint on the ground that its declaratory judgment action seeking enforcement of the shareholder agreement's stock transfer provisions is excluded from coverage under the policy's contract exclusion as an action arising out of the insured's contractual obligations under the shareholder agreement. This litigation was covered by Law360 extensively and reported on five times, most recently after the Second Circuit's decision was handed down. 

Jim Thurston (Partner-Chicago, IL), Melissa Murphy-Petros (Partner-Chicago, IL) and Jonathan Meer (Partner-New York, NY) prevailed on behalf of the firm’s insurance client in a case involving an insured closely held family corporation that sought coverage under its D&O policy for a declaratory judgment action seeking enforcement of the stock transfer provisions in its shareholders’ agreements. The Second Circuit affirmed dismissal of the plaintiff’s complaint on the ground that the policy’s contract exclusion precluded coverage because the declaratory judgment action – although not an action for breach of contract – arose out of the insured’s contractual obligations under the shareholder agreements. Jim and Jonathan secured the dismissal in the U.S. District Court for the Southern District of New York; Jim and Melissa handled the Second Circuit briefing, and Melissa presented oral argument.  Jim and Melissa are now 8-1 before the U.S. Court of Appeals, where they have handled matters in the First, Second, and Ninth Circuits.

The appeal was covered by Law360 in their June 22, 2023, December 5, 2023, March 22, 2024, March 27, 2024, June 17, 2024 articles.

John Loringer (Partner-Milwaukee, WI), Melissa Murphy-Petros (Of Counsel-Chicago, IL) and Brian Del Gatto (Partner-Phoenix, AZ) successfully defended the dismissal of a Canadian manufacturer of farm equipment before the Minnesota Court of Appeals. The plaintiff, a Minnesota dairy farmer, alleged that our client's product was the cause of a decrease in milk production over numerous years. The settlement demand throughout discovery was in excess of $3 million for the loss of production and untimely death of some of the cows. After having the case dismissed at the trial court by demonstrating the lack of foundational reliability with the plaintiff's expert witness theories regarding causation, the plaintiff appealed and the appellate court issued an order affirming dismissal by the trial court and securing a complete victory for the client. The result here solidifies appropriate rules of disclosure for expert opinions.

Constantina Mirabile (Of Counsel-West Palm Beach, FL), Melissa Murphy-Petros (Of Counsel-Chicago, IL) and Anjali Das (Partner-Chicago, IL) represented an educational technology company that provides subscribers with access to online educational courses in a Video Privacy Protection Act (VPPA) class action filed in the U.S. District Court for the Southern District of Florida. The plaintiff, a subscriber, allegedly viewed online course content offered by our client, and filed a putative class action on behalf of herself and all other subscribers for violations of the VPPA. The plaintiff alleged that Meta Pixel (a snippet of JavaScript code that tracks visitor activity on a website) was installed on our client’s website, which resulted in the disclosure of her personal information to Facebook, including the content she viewed, without her consent. Wilson Elser filed a Motion to Compel Arbitration, noting that the plaintiff (like all subscribers) was required to accept defendant’s Terms of Use, which included a mandatory binding arbitration provision. Moreover, the Terms of Use explicitly stated that all parties waived the right to participate in a class action or representative proceeding with respect to any claim. The court promptly granted Wilson Elser’s motion pursuant to the Terms of Service agreement. The ruling underscores the importance of arbitration and class action waiver language in Terms of Use agreements.

NOTE: The Video Privacy Protection Act (VPPA), enacted in 1998, sought to preserve personal privacy with respect to the rental, purchase or delivery of video tapes or similar audio visual materials. Plaintiffs have sought to resuscitate the statute by bringing VPPA claims into the 21st century based on the premise that organizations that offer prerecorded, online audio visual content are “video tape service providers” within the meaning of the statute, the draw being VPPA class actions include statutory damages of up to $2,500 per violation.
 

Melissa Murphy-Petros (Of Counsel-Chicago, IL) Jim Thurston (Partner-Chicago, IL), Daniel Tranen (Partner-St. Louis, MO), and Chad Butterfield (Partner-Las Vegas, NV) convinced the Nevada District Court that coverage was not available under a $5 million D&O policy for the putative claims by a bankruptcy litigation trustee against a former officer (Kay). Kay allegedly breached his fiduciary duties to an insured entity when he failed to uncover the criminal fraud of its former CEO (Rogas). The Court followed Wilson Elser’s arguments that Kay’s breaches were “arising from” Rogas’s prior fraud and, therefore, fell within the purview of the exclusionary language of a warranty letter executed by Rogas, wherein he represented that “no insured” (including Rogas) had knowledge or information of any act or error that might give rise to a claim. Following briefing and oral argument by Melissa, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that despite two non-imputation clauses in the policy and allegations of wrongdoing by Rogas after the warranty letter, “the broad language excluding any claim ‘arising from’ pre-execution knowledge” was sufficient to bar any coverage to Kay under the policy. This three-office victory evidences the successful collaboration between Wilson Elser’s coverage, litigation and appellate attorneys on an economical basis without having to use additional local counsel.