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Visibility Rankings  | | #1,001 out of 6,167 lawyers in Cleveland, Ohio | | #141,885 out of 890,243 total lawyers Overall |
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| Practice Areas | Business Litigation | | | Peer Review Rating | AV
Rated.
What's this? | | | Education | Columbia University, J.D., 1991, College of Wooster, B.A., with honors, 1988; Phi Beta Kappa | | | Admitted | 1991, Ohio, U.S. District Court, Northern District of Ohio and U.S. District Court, Eastern District of Michigan; U.S. Court of Appeals, Third, Fifth, Sixth and Ninth Circuits; U.S. Supreme Court | |
| Memberships | Cleveland Metropolitan Bar Association; Ohio State Bar Association; Anthony J. Celebrezze Inn of Court (Barrister). | | | Biography | Brian is a partner in the firm's Business Litigation practice group. He has over 16 years of experience in handling complex commercial litigation. A substantial portion of Brian's practice involves fiduciary duty litigation and the defense of class actions. Brian also has significant experience representing corporations in tax disputes with the United States Government, including a week-long trial in 2008 against the Department of Justice in federal court on behalf of a national bank in a leveraged leasing case and a lengthy administrative proceeding before the IRS Appeals Office on behalf of a leading telecom company in an investment tax credit dispute. In addition, Brian has represented many companies in complex contract disputes involving asset and stock purchase agreements, marketing agreements, option agreements, service agreements and other commercial contracts. ADMITTED: Ohio, 1991; State Courts of Ohio; U.S. District Courts for the Northern District of Ohio and Eastern District of Michigan; U.S. Court of Appeals for the Third, Fifth, Sixth and Ninth Circuits; U.S. Supreme Court. REPRESENTATIVE MATTERS: FIDUCIARY LITIGATION: Won a 4-3 decision from the Ohio Supreme Court exonerating a national bank of fiduciary and respondeat superior liability in connection with an employee's conduct. Groob v. KeyBank, 108 Ohio St. 3d 348 (2006) (Syllabus 1: "A bank dealing at arm's length with a prospective borrower does not have a fiduciary duty to that prospective borrower unless special circumstances exist." Syllabus 2: "For an employer to be liable for a tortious act of its employee, that employee must be acting within the scope of employment when the employee commits the tortious act.") Successfully defended the corporate trustee of an Employee Stock Ownership Plan from breach of fiduciary duty claims under ERISA in connection with an ESOP's holdings of employer securities that suffered a precipitous drop in value. Wright v. Oregon Metallurgical Corp., 350 F.3d 1090 (9th Cir. 2004) (affirming district court order granting Rule 12(b)(6) motion to dismiss all claims against trustee). Represented a major financial institution, which acted as trustee of a large charitable split-interest trust, in defense of fiduciary duty claims brought by beneficiaries alleging millions of dollars of damages from real estate investments. Obtained confidential settlement approved by the federal court and the state attorney general. Represented a major financial institution and its board of directors in defense of putative class action fiduciary duty claims brought by a putative class asserting that the bank and its directors breached their duty of loyalty by converting the assets of two trusts into "common trust funds" in order to charge additional fees for "company owned or managed" funds. Obtained dismissal of the complaint. CLASS ACTIONS: Represented a major consumer goods manufacturer and a major retailer in defense of a putative class action alleging unfair consumer sales practices based on nationwide advertising and marketing initiatives for a highly popular washing machine. Obtained dismissal of the complaint on the grounds of forum non conveniens. Laura Green, et al. v. Sears Roebuck & Co., et al., 04-CV-537772 (Cuyahoga Cty.). Defended the corporate trustee of a publicly-traded company's 401(k) plan and ESOP from ERISA breach of fiduciary duty claims in connection with the plans' holdings of employer securities, which suffered a $200 million drop in value, and obtained federal court approval of a class action settlement, despite objections from co-defendants. Hunter v. Caliber Systems, Inc, et al., 96-CV-01186-JLG (S.D. Ohio). Represented the bank trustee of a large, World War II-era charitable trust in litigation brought by competing beneficiaries, including a class of individual claimants. Obtained state attorney general and court approval for a class action settlement after a fairness hearing, along with an award of fees to the trustee. Richard Hallman, et al. v. National City Bank, Trustee, et al., 99-CV-387410 (Cuyahoga Cty.). Represented an Ohio bank in defense of merger litigation brought by a putative class of shareholders who objected to the fairness of the merger. Obtained court approval of a class action settlement, and the bank merger went through. Sidney Tobin, et al. v. Charter One Financial, Inc., et al., 04-CV-529710 (Cuyahoga Cty.). TAX CONTROVERSIES: Represented a national bank's equipment leasing business in a week-long trial in federal court against the Department of Justice in a dispute over the proper federal income tax treatment of a sale-leaseback transaction involving a waste-to-energy facility in Germany. KSP Investments, Inc. v. United States, 07-CV-857 (N.D. Ohio). Represented one of the largest U.S. telephone companies in an IRS Appeals administrative proceeding involving the investment tax credit provisions of TRA 86 as applied to digital switching equipment. Obtained the only known settlement on the issue in the telecom industry. Wrote an amicus curiae brief on behalf of the United States Telephone Association in the Third Circuit Court of Appeals in connection with a tax controversy of industry-wide interest. Bell Atlantic v. United States, 224 F.3d 220 (3d Cir. 2000). ARBITRATIONS AND RELATED COURT PROCEEDINGS: Successfully confirmed a $68 million arbitration award in favor of our client, a major pharmaceutical company, against another major pharmaceutical company, and successfully fended off opponent's efforts to vacate the arbitration award under the Federal Arbitration Act. Solvay Pharmaceuticals, Inc. v. Duramed Pharmaceuticals, Inc., 442 F.3d 471 (6th Cir. 2006). Represented an energy business in an arbitration (and related state and federal court litigation) over an option to purchase a public utility in Akron, Ohio. Obtained from the arbitrator an award of specific performance ordering the grantor of the option to transfer ownership of the public utility to our client, as optionholder, and an award dismissing the opponent's RICO and defamation counterclaims. Obtained confirmation of the arbitration award from the common pleas court and the Ohio court of appeals under the Arbitration Act. Thermal Ventures II, L.P. v. Thermal Ventures, Inc., 2005-Ohio-3389 (Cuyahoga Cty.). In a dispute between two corporations regarding post-closing adjustments under an asset purchase agreement, obtained a court order staying an arbitration proceeding initiated by the seller where the seller's claims were outside the scope of the parties' arbitration clause. Isola Aktiengesellschaft, et al. v. Honeywell International, Inc., 730 N.Y.S.2d 709 (N.Y. App. Div. 2001). SECURITIES LITIGATION AND SIPC PROCEEDINGS: Represented a major real estate developer in defense of securities fraud complaint filed by another developer in connection with a $1 billion tender offer. Obtained complete dismissal of plaintiff's Rule 10b-5 and Rule 10b-13 securities fraud and Williams Act claims and the complete denial of plaintiff's request for injunctive relief. Also obtained award of sanctions against plaintiff's counsel under the Private Securities Litigation Reform Act of 1995 and Rule 11. Simon DeBartolo Group, L.P. v. The Richard E. Jacobs Group, 186 F.3d 157 (2d Cir. 1997). Represented a court-appointed trustee of a bankrupt broker-dealer in connection with a fraud and embezzlement investigation under the Securities Investor Protection Act and worked with the Securities Investor Protection Corporation (SIPC) to recover funds for the victims of the scheme. In re the Liquidation of NEBS Financial Services, Inc., Case No. 04-1648 (Bkrtcy. N.D. Ohio). SIGNIFICANT CONTRACT DISPUTES: Successfully represented health insurer before the Ohio Supreme Court in litigation over subrogation rights under an insurance policy. Blue Cross & Blue Shield of Ohio v. Hrenko, 72 Ohio St. 3d 120 (1995) (Syllabus: "Pursuant to the terms of an insurance contract, a health insurer that has paid medical benefits to its insured and has been subrogated to the rights of the insured may recover from the insured after the insured receives full compensation by way of a settlement with the insured's uninsured motorist carrier."). Represented an owner of an NFL franchise in a contract dispute regarding an alleged finder's fee due in connection with the transfer of ownership interests. Obtained dismissal of the complaint on the grounds of forum non conveniens and obtained dismissal of the appeal for lack of appealability. Represented a major financial institution in federal court litigation against a disaster recovery services provider over a multi-million dollar services contract. Obtained confidential settlement. Represented a tree service company in the defense of fraud claims filed by a public utility in connection with the linear footage of power lines cleared in Florida. Obtained a confidential settlement. ACCOUNTING MALPRACTICE DEFENSE: Represented a Big Four accounting firm in defense of an accounting malpractice lawsuit brought by its municipal client alleging multi-million dollar trading losses in risky interest-only and inverse interest-only securities. Obtained confidential settlement. PROFESSIONAL & CIVIC INVOLVEMENT: PROFESSIONAL ASSOCIATIONS: Cleveland Metropolitan Bar Association; Ohio State Bar Association; Anthony J. Celebrezze Inn of Court, Barrister; Federal Court Panel of Mediators/Arbitrators, Northern District of Ohio, Term 2002-2005, Member. COMMUNITY ACTIVITIES: Cleveland Bridge Builders (Leadership Organization), Member, Charter Class of 2000-01. PUBLICATIONS: "Recent Changes to Declaratory Judgment Act Should Not Affect the Award of Attorney's Fees in Fiduciary Litigation," Ohio Probate Law Journal, Sept./Oct. 2000; "Absence of Appellate Options Main Drawback to Arbitration," Crain's Cleveland Business, Aug. 13-19, 2001. PRESENTATIONS: "Women Achieving a Leadership Position at a Law Firm", LexisNexis Teleconference, May 2008; "The Art of Legal Writing in Ohio", Lorman Education Services, 2005; "Complexities in Fiduciary Litigation", Cleveland Bar Association, Business Litigation Seminar, 1999; "Litigation Update, Including Fiduciary Considerations", Network of Benefits Professionals, 2001. | | | ISLN | 901479523 | |
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