Kyle C. Bisceglie maintains a national practice counseling domestic and foreign corporations, partnerships and individuals with respect to complex commercial litigation, ediscovery, contracts, risk analysis, litigation avoidance and business advice.
Mr. Bisceglie has significant courtroom experience. As lead counsel, he has:
· tried 16 cases to juries and judges winning both plaintiff and defense verdicts.
· served as lead counsel in more than 10 arbitrations before JAMS, AAA and FINRA.
· represented clients seeking or facing injunctions in plenary hearings 7 times: obtaining TROs and/or preliminary injunctions 5times and twice defeating such motions; and
· been cited as lead counsel in 47 federal and state decisions reported in official reporters, LexisNexis and Westlaw. He has many additional unreported decisions.
Mr. Bisceglie has obtained great results for his clients. Notable highlights include:
· winning a $44 million breach of contract and Unfair Trade Practices verdict in a three week jury trial for a privately-owned endodontic supply company.
· winning a complete and unanimous defense verdict on claims arising from the acquisition of a foreign company after a two-week jury trial for a publicly-traded biotechnology client in which the plaintiff received nothing and the firm obtained a judgment against the plaintiff for a portion of its clients' fees.
· obtaining a preliminary injunction and $9 million settlement for two investors and directors after a year of litigation.
· successfully defending a teeth products company in a three-day preliminary injunction hearing in which a competitor's request for an injunction was decisively denied in a 30 page decision; and
· obtaining a decisive defense award for a bulge-bracket investment bank after a three-day FINRA arbitration where 11 witnesses testified to a three member panel involving a disputed bond trade.
Mr. Bisceglie has a broad client base. His clients include investment banks; hedge and private equity funds; Directors & Officers; merchant, credit card and check processors; software developers and publishers; owners and licensors of famous intellectual property; health, medical and dental companies; advertising firms; chemical distributors; professional services firms, consulting companies; entrepreneurs, investors and high net worth individuals. Mr. Bisceglie represents or recently represented among others: Marvel Entertainment, Atari, First Data Corporation, Credit Suisse Securities, UBS Securities, DTE Energy, GE Commercial Finance, Inovio Biomedical Corporation, TV Tokyo, Asatsu-DK, Toei Animation, Media Square, Guidance Endodontics, Appzero, Distinctive Systems, Biddle Sawyer Corporation and 3M.
Mr. Bisceglie has been involved in many high stakes commercial cases. He has extensive experience in shareholder and investor disputes, breaches of major and complex contracts, securities litigation, fights over famous and valuable intellectual property, art and high-profile media properties. He won a series of litigations and arbitrations for a Fortune 50 company including obtaining in arbitration an eight figure payment from a regional bank for breach of guaranteed minimum provisions; rescinding an ex parte TRO obtained by a counterparty in a dispute over continuation of credit card processing and having the case dismissed within two days of filing; successfully navigating resolution of a check fraud case involving multiple banks and resolving a substantial merchant processing dispute at de minimis cost to his client. Mr. Bisceglie has litigated many disputes involving well known entertainment and media properties and brands including Ghost Rider, Iron Man, Spider-Man, the Incredible Hulk, Dungeons & Dragons, Yu-Gi-Oh!, Scotchgard, Thinsulate and Captain Morgan's Spice Rum. He has participated in the worldwide investigation of a bank's derivatives trading practices, litigated for U.S. policyholders of the then-largest insurance insolvency in North American history and represented two global investment banks in approximately 12 matters over the last few years.. A number of his cases have been widely reported in the press.
His cases often involve large amounts of ediscovery. Mr. Bisceglie has led cases involving data collections across the United States, in Europe and in Asia. Mr. Bisceglie also has published and frequently lectured on the topic to industry groups, clients and bar associations. In 2010, LexisNexis published Mr. Bisceglie's 900 page practice guide entitled "New York e-Discovery and Evidence," which has been updated annually. Order a copy of the book here.
Mr. Bisceglie is Martindale-Hubbell AV ("Preeminent") rated by his peers for Legal Abilities and Ethics, and has been named annually to the New York Super Lawyers list, a Thomson Reuters lawyer rating service, as a top business litigator in New York. He serves as a member of the LexisNexis six-person New York Advisory Board, which, among other responsibilities, provides the publisher with guidance and expertise on New York law, practice and procedure. Prior to Olshan, Mr. Bisceglie began his legal career as a law clerk for Alfred M. Wolin, U.S. District Court for the District of New Jersey; served as a prosecutor and practiced at Cadwalader, Wickersham & Taft.
Recent Publicly-Filed Matters
· TV Tokyo and Nihon Ad Systems v. 4Kids Entertainment (S.D.Bankr. 2011) - prosecuting claims for breach of exclusive licensing agreement for U.S. and European rights to Yu-Gi-Oh! and seeking expedited confirmation of termination. Plaintiffs undertook large collection and production of ESI from two publicly-traded clients in Tokyo, Japan in July 2011 and conducted 16 depositions and prepared 3 experts in August 2011 for trial beginning in the same month.
· Atari v. Carlyle Trading (Commercial Division, NY County 2011) - prosecuting dispute involving trade in kind of excess inventory for advertising trade credits.
· Atari v. Zoo (S.D.N.Y. 2011) - prosecuted and settled claims under software contract against publisher of Nintendo games.
· GoSMILE v. Levine (S.D.N.Y. 2010) - defeated both a request for a TRO and preliminary injunction against use of the mark "GLO" on behalf of well-known aesthetic dentist, prosthodontist and inventor in trademark and cybersquatting claims brought by leading teeth whitening products. After a month of full-scale expedited electronic discovery and three days of plenary hearing over a multi-week period including the examination of half a dozen witnesses and survey expert, the Court ruled for Dr. Levine on every issue in a thirty page decision denying GoSmile's claims for relief and sealing various documents used in GoSmile's motion.
· Lehman Bros. v. Knutson (S.D.N.Y. 2010) - defending guaranty lawsuit arising from largest residential multi-family real estate development deal in Arizona state history.
· Richard T. Gerstner and Marshall C. Phelps, Jr. v. D&SCI and Steven A. De Chiaro (D.N.J. 2009) - obtained on behalf of two minority shareholder plaintiffs, a restraining order, expedited discovery, and, then, a second order enjoining a defense software contractor and its CEO from certain actions, and requiring plaintiff's Board representation and restoration of their rights as shareholders. Defendants settled in less than one year from plaintffs' filing of the lawsuit paying nearly three times defendants' original multi-million dollar offer to purchase plaintiffs' shares.
· Hasbro v. Atari (D.R.I. 2009) - Defended Atari and prosecuted counterclaims seeking $100 million for wrongful termination of a multi-year global license for the on-line rights to the role-playing game "Dungeons & Dragons." The case was resolved approximately twenty months after Hasbro initially filed suit.
· Turbine v. Atari (Commercial Division, NY County 2009) - successfully defended Atari in lawsuit filed by Turbine, the developer and host of the Massively-Multiple Online Role-Playing Game "Dungeons & Dragons Online." Atari counterclaimed in consolidated lawsuits against, and won motion to dismiss all non-contract claims and counterclaims. The case was resolved shortly after decision.
· Frelinghuysen Morris Foundation v. Carroll (Commercial Division, NY County 2009) - won dismissal of plaintiff's entire case establishing precedent under New York's Art & Cultural Affairs Law on behalf of museum curator, philanthropist and private art dealer sued by a foundation involving purchases from now defunct Salander-O'Reilly Galleries LLC.
· Five Mile Capital v. Knutson (Commercial Division, NY County 2009) - defended lawsuit involving guaranties by mezzanine lenders arising from real estate development project.
· Anthracite BOFA v. Knutson (S.D.N.Y. 2009) - successfully defended lawsuit involving guarantees of $60 million to mezzanine lenders arising from real estate development project. Defeated Plaintiff's motion for summary judgment to establish multiple legally viable theories for trial under Second Circuit precedent for treatment of unconditional guarantees. The case was resolved shortly after the decision.
· LaSalle Bank National Associates v. Knutson (S.D.N.Y. 2009) - defending three lawsuits involving guaranties arising from a real estate development project. Successfully resolved two of the three lawsuits to date.
· Arbor Realty v. Knutson (S.D.N.Y. 2009) - successfully resolved guaranty lawsuit against real estate investor.
· zSlide v. Atari (S.D.N.Y. 2009) - successfully resolved claims arising from a software development project.
· Marvel Entertainment and Marvel Characters, Inc. v. MGA Entertainment, Inc. (Commercial Division, NY County 2009) and Spider-Man Merchandising, L.P. v. MGA Entertainment, Inc. (Commercial Division, NY County 2009) - successfully asserted breach of contract and unjust enrichment claims related to various Marvel characters including Spider-Man 2 and Spider-Man 3 movie properties, Spider-Man Classic, and Ghost Rider and certain MGA produced games including Marvel Insane Darts, Spider-Man Web Crawl and Ghost Rider Walkie Talkie Combo. Successfully launched multi-million dollar contract and common law claims arising from license of Spider-Man 2 and Spider-Man 3 movie properties.
· 3M v. EBL, et al. (D.N.J. 2008) - obtained favorable settlement of trademark and copyright claims against infringer of multiple 3M brands including Thinsulate™ and Scotchguard™.
· Phillips v. Hedge Fund X (Commercial Division, NY County, 2008) - successfully defended hedge fund and principal from contractual, tort, fraud and other claims made by disgruntled limited partner. Won dismissal of seven of eight claims on pre-discovery motion. Subsequently obtained dismissal of entire case as sanction for violation of confidentiality stipulation and order.
· Guidance Endodontics v. Dentsply International and Tulsa Dental (D.N.M. 2008) - obtained TRO and then preliminary injunction to enforce key provision of a manufacturing and supply agreement against the world's largest dental and endodontic company. In October 2009, won $44 million verdict in 3 1/2 week jury trial. At trial, the jury heard more than two dozen witnesses (some of whom testified multiple times over multiple days) and saw in excess of 300 exhibits. The jury deliberated for approximately 24 hours before delivering what was at the time the largest verdict in New Mexico history. According to the National Law Journal, it was also the 40th largest verdict in the USA, third largest verdict involving a breach of contract and second largest involving a medical device during 2009.
· R.W. Carol, LLC v. Byron Associates, Inc. (Commercial Division, NY County 2008) - obtained preliminary injunction for national executive placement agency against competitor business and its client principals arising from an asset purchase agreement.
· Marvel Entertainment, Inv. and Marvel Characters, Inc. v. Kellytoy (USA), Inc. (S.D.N.Y. 2008) - prosecuting breach of licensing agreement, copyright, trademark and related state law claims involving various animation and film properties. Court granted summary judgment on multiple claims and awarded attorneys fees.
· twentysix New York v. Sporn (Commercial Division, NY County 2007) - successfully settled a breach of contract matter arising from a enterprise software development project.
· Dev v. Inovio (Cal. Sup. Ct., San Diego 2007) - successfully defended alleged discrimination claim by a former employee.
· Pyrce v. Inovio (Cal. Sup. Ct., San Diego 2007) - won complete and unanimous defense verdict in May 2009 after two week jury trial for a publicly-traded biotechnology company in a lawsuit for fees allegedly due as a result of stock purchase agreement involving a Norwegian biotech company. The twelve person jury deliberated for less than two hours.
· Ernst & Young - Canada, as Trustee for HIP Interactive, Inc. v. Atari, Inc. f/k/a Infogrames, Inc. (Commercial Division, NY County, 2006) - successfully defended Atari for breach of contract and accounting arising from distribution agreement to distribute software, computer programs and video games in the U.S. and Canada.
· Integrated Payment Systems, Inc. v. Citibank, N.A. and the Bank of New York (S.D.N.Y. 2006) - successful representation of formerly publicly-traded company's subsidiary in a declaratory action involving contract and UCC issues arising from Citibank's acceptance of a fraudulently altered check.
· MMZ Associates v. GELCO and Wachovia (S.D.N.Y. 2006) - successfully defended fleet leasing subsidiary of publicly-traded company arising from terminated insurance brokerage relationship.
· Marvel v. Motorsport Collectibles (S.D.N.Y. 2006) - successfully prosecuted licensing dispute arising under animation and movie licensing agreements for the Incredible Hulk, X-Men and Spider-Man.
· Faith Popcorn Brainreserve v. Impact (S.D.N.Y. 2006) - successfully defended contract dispute involving marketing, branding and event production for Fortune 100 company.
· Fieldman v. Smartchoice Communications (Commercial Division, NY County, 2006) - settled contract and NY Labor Law claims involving sales commissions of telecommunications company.
· Marvel v. Naki (Commercial Division, NY County, 2005) - favorably resolved licensing dispute over various comic book characters including Spider-Man, the Incredible Hulk and Fantastic Four.
· Byrne v. Salerno (D.N.J. 2005) - successfully resolved claims of fraud, breach of fiduciary duty and related claims against employer trustee in an ERISA litigation with no liability to client.
· Marvel v. Johnny Blaze (S.D.N.Y. 2004) - obtained preliminary injunction against defendant in licensing dispute involving comic book character Ghost Rider.
· JSMS v. GMG Capital Partners (S.D.N.Y. 2004) - won dismissal of all securities claims in July 2006 against private equity fund specializing in early stage technology investments.
· Ectaco v. Cardservice (E.D.N.Y. 2004) - achieved de minimus settlement in defense of merchant processing dispute.
· iBill v. FDMS (Supreme Court, Queens County, 2004) - favorably defended merchant processing dispute.
· Girard v. VNU (Supreme Court, NY County, 2004) - settled employment dispute arising from terminations at leading trade journal on third day of jury selection in June 2006.
Member
American Bar Association
New York State Bar Association
Commercial and Federal Litigation Section of New York State Bar
Association of the Bar of the City of New York
New York County Inn of Court
New York County Bar Association
News
April 23, 2012
NLJ Names Olshan to 2012 Midsize Hot List
October 31, 2011
LexisNexis Newsletter Highlights Bisceglie's e-Discovery Guide
October 12, 2011
Bisceglie and Feinberg Speak at IACC Conference
September 21, 2011
Sixteen Olshan Lawyers Selected by Super Lawyers®
August 29, 2011
Bisceglie's Opening Quoted in Law 360 on Yu-Gi-Oh! Trial
August 15, 2011
Bisceglie Leads Atari Settlement
August 4, 2011
Bisceglie Represents Atari in Lawsuit
May 18, 2011
Bisceglie and Fox Represent Yu-Gi-Oh! in Bankruptcy Dispute
March 29, 2011
Bisceglie Represents Yu-Gi-Oh! in Lawsuit
March 11, 2011
Bisceglie Leads GLO's Team to Victory
My Publications / Speeches
March 2012
Co-Author, Client Alert, Federal Court Endorses Computer-Assisted Review in E-Discovery, March 2012
LexisNexis Webinar, "2010 Developments in New York e-Discovery," (December 15, 2010)
Presenter, The City Bar Center for CLE, New York, New York, "New York e-Discovery & Evidence: An Overview." (September 22, 2010)
"Zubulake Revisited: Six Years Later - Pension Committee and the Duty to Preserve in 2010 and Beyond" LexisNexis Emerging Issues Commentary, 2010 Emerging Issues 5137 (June 2010)
Presenter, LexisNexis Podcast, "Seeking Disclosure from Non-Parties In New York," March 2010 (23 minutes)
Co-Author, Client Alert, Preservation and Production of Electronically Stored Information,February 2010
Bisceglie, LexisNexis Practice Guide: New York e-Discovery and Evidence(2010 Edition) (900 pages)
LexisNexis Webinar, "How the Emerging Area of e-Discovery Impacts You and Your Clients," (January 21, 2010)
"Electronic Discovery, Evidence and Claims in New York" LexisNexis Emerging Issues Commentary, 2008 Emerging Issues 2938 (October 1, 2008)
"Pleading Fraud against Individual Corporate Officers under New York Law after Pludeman v. Northern Leasing Systems" LexisNexis Expert Commentary, 2008 Emerging Issues 2924 (September 23, 2008)
"Privilege Issues in E-discovery under New York Law in Scott v. Beth Israel Medical Center Inc. " LexisNexis Expert Commentary August 2008, LexisNexis, 2008 Emerging Issues 2112 (August 2008)
"New York Court of Appeals Okays Claim for Conversion of Electronic Data", July 14, 2008, Lexis Nexis Expert Commentaries
"New York Legislature Extends Limits of New York's Personal Jurisdiction Statute to Permit Declaratory Actions in New York of Enforcement of Foreign Libel Judgments", July 2008, Lexis Nexis Expert Commentaries
"Application of New York's Long Arm Statute to Professional Fee Disputes.", May 2008, Lexis Nexis Expert Commentaries
"New York Does Not Recognize an Independent Tort of Third-Party Negligent Spoliation of Evidence, but Exceptions May Exist", March 2008,Lexis Nexis Expert Commentaries
"No Waiver of Right to Arbitrate in New York State Court Even When Both Parties File Legal Actions", February 2008, Lexis Nexis Expert Commentaries
"New York Court of Appeal's Prohibition of Secret High-Low Agreements in Multi-Defendant Cases", December 2007, Lexis Nexis Expert Commentaries
"Absolute Immunity Applied to Broker's Statements on NASD Form U-5", November 2007, Lexis Nexis Expert Commentaries
"Annual Audits Alone Will Not Support Application of Continuous Representation Doctrine", September 2007, Lexis Nexis Expert Commentaries
"Case Filings: Marvel Targets Accessories", August 2007, Hollywood Reporter
"Billboard Settles With Ousted Editors", June 2006, The New York Times
"Sex Discrimination Suit Against Billboard Magazine Settles During Jury Selection", June 2006, Court TV
"VNU Averts Trial With Suit Settlement", June 2006, Variety
"Suit Claims Billboard's Bias Was Off The Charts", April 2005, New York Daily News
"New Motion Details Racial Profiling Claims Against Billboard Magazine", April 2005, CNN
"Lawsuit Is Latest In List Of Tough Hits For Billboard", August 2004, Boston Globe