Practice/Industry Group Overview
Long recognized for excellence in complex business and commercial litigation, Liskow & Lewis successfully litigates significant cases throughout the region and the country.
While much of our work is preventive and designed to avoid costly trials, we aggressively litigate an entire range of business matters involving class actions, multidistrict proceedings and other multi-party litigation, including:
Antitrust and Trade Regulation Litigation
In cases involving federal and state antitrust laws, our attorneys advise clients in a diverse range of industries, including manufacturing, distributing, oil, petrochemical and health care.
We routinely and successfully litigate antitrust claims of conspiracy, monopolization, tying, concerted refusal to deal, price fixing, price discrimination and other restraint of trade allegations. Our attorneys defend business entities in criminal antitrust investigations brought by federal and state authorities, and we defend allegations made under Louisiana’s Unfair Trade Practices Act.
- Developed a successful legal theory for removal to federal court of state attorney general suits against industry as disguised "class" and "mass" actions subject to the Class Action Fairness Act. A case of first impression. See State of Louisiana, ex. rel., James D. Caldwell v. Allstate Insurance Co., et. al., 2008 U.S. App. Lexis 15275 (5th Cir. July 18, 2008).
- Obtained early dismissal of a parens patriae antitrust suit brought against Amgen, Inc. by the Louisiana Attorney General.
- Obtained a dismissal for Tenet Corporation and Meadowcrest Hospital of alleged attempted monopolization and general restraint of trade claims brought by a parish government in the aftermath of Hurricane Katrina.
- Obtained pretrial dismissal of an antitrust suit brought by the Louisiana Attorney General against BASF, Inc.
- Defended Pennzoil in an antitrust suit brought by Louisiana Power and Light. The suit alleged monopolization in the sale of natural gas and a conspiracy to create an artificial shortage of gas.
- Obtained the dismissal of Sherman Act claims against a division of Baker Hughes for lack of antitrust standing.
- Successfully represented two defendants in the Plywood antitrust litigation, a private treble damages antitrust class action brought by purchasers of plywood against the product’s manufacturers and sellers. The case, based on an alleged price fixing conspiracy, was settled after the U.S. Supreme Court granted writs of review from a decision of the Fifth Circuit Court of Appeals.
Our business litigators frequently represent clients in a broad range of disputes involving business tort claims. These matters include fraud, negligent misrepresentation, tortious interference with contract or business relations, misappropriation of trade secrets, libel, slander, abuse of rights, breach of fiduciary duty, breach of the implied duties of good faith and fair dealing, unjust enrichment and detrimental reliance.
We handle disputes between franchiser and franchisee, employer and employee, creditor and debtor and disputes between competitors either asserting or defending claims made by their business rivals. Our firm also has considerable success defending business tort claims by motion practice, and we have obtained numerous pre-trial dismissals of these cases.
Director and Officer Liability Litigation
Our litigation group is recognized for its representation of major banks and corporations, as well as their executives, in complicated director and officer liability litigation. We have handled numerous complex matters involving liability insurance, disputes relating to “claims made” policies, issues of “insured vs. insured” exclusions, complex coverage issues and fidelity bonds. Among our notable cases are:
- Secured the dismissal of federal RICO claims filed against former management executives of one of Louisiana’s largest health maintenance organizations in 2003.
- Successfully defended the former president of one of Louisiana's largest health maintenance organizations against multiple civil actions brought by the company's Receiver, and settled the case on terms highly favorable to the client. (2006)
- Secured a reversal and remand of an award of $72 million in sanctions against a federal banking agency in a director and officer liability case arising out one of the largest bank failures in U.S. history. The firm was hired to handle the matter on appeal from the sanctions award. FDIC v. Maxxam, Inc., et. al., 523 F.3d 566 (5th Cir. 2008).
- In a director and officer liability case for a federal banking agency, secured an important victory in the United States Fifth Circuit involving the failure of Louisiana’s largest thrift institution. FDIC v. Barton , 233 F.3d 859 (5th Cir. 2000).
- Represented federal banking agencies in major directors’ and officers’ liability cases arising from the failure of federally insured financial institutions, and achieved settlements exceeding $75 million in some cases.
- Secured dismissal of a major class action brought against a federal banking agency and credit card bank challenging the insured status of the bank. (2005)
Intellectual Property Litigation
Our attorneys work with a diverse group of multinational corporations, public interest organizations, sole proprietors, authors, public figures and other clients to assure the safety of their intellectual property. In addition to conducting audits and registering trademarks, we aggressively and successfully litigate a broad range of cases in state and federal court, including trademark, trade dress, copyright and trade secrets litigation.
Successful matters in this area include:
- defense of a suit involving the right of a local publication to use its name;
- a trade dress infringement suit that forced a competitor to redesign its packaging, protecting the goodwill and brand value of our client;
- “debranding” of numerous gas service stations across the State of Louisiana for a major oil and gas company;
- advising clients on the creation of click-through, or online electronic agreements;
- licensing of intellectual property rights of public figures to museums, television production companies and authors; and prosecuting right of publicity actions in cybersquatting disputes.
Professional Liability Defense
Liskow & Lewis has successfully defended national malpractice carriers and their insureds for more than 20 years.
Our litigators regularly handle complex professional liability litigation, including legal malpractice, accountant, appraiser and trustee liability cases. We also litigate professional liability insurance matters, including disputes relating to “claims made” policies, notice issues, fraud, prior acts and related exclusions, “omnibus” and extended coverage clauses and other coverage issues.
Frequently, the professional liability cases that we handle are significant to pending and future cases. Representative matters include:
- Successfully represented a national financial institution in its capacity as trustee of one of the largest trusts in the New Orleans area in a case against the predecessor trustee, resolving the case on terms highly favorable to the firm’s client.
- Defended a major national accounting firm against professional liability claims arising from the audit of a publicly traded energy company, resolving the case on terms favorable to the client.
- Secured the dismissal of malpractice claims against a major national law firm arising from a corporate merger transaction.
- Obtained a reversal by the Louisiana Supreme Court of a large malpractice judgment entered against a leading law firm and a national malpractice carrier. The firm was retained to handle the appeal after the adverse judgment was rendered by the district court. Hendrick v. ABC Ins. Co., 00-CC-2403 (La. 5/15/01), 787 So.2d 283.
- In a landmark case, successfully argued on behalf of an Arkansas law firm and its malpractice carrier before the United States Fifth Circuit Court of Appeals. The cased involved the duties of underwriters’ counsel in the private placement of securities. Abell v. Potomac Ins. Co. , 858 F.2d 1104 (5th Cir. 1988).
Our firm has a long tradition of litigating securities fraud and other securities claims, and our lawyers play a significant role in shaping securities law in the Fifth Circuit Court of Appeals.
We regularly represent clients in matters involving securities fraud suits, derivative claims, shareholder and proxy litigation, breach of fiduciary duty claims, churning and unsuitability claims, underwriting disputes, employment and broker raiding disputes, Trust Indenture Act matters and merger and acquisitions disputes.
Our lawyers have successfully defended broker-dealers, issuers, corporate officers and directors, corporate trustees, syndicators, professionals and lenders in substantial securities fraud cases. We also have prosecuted claims on behalf of purchasers of securities in state and federal courts, as well as arbitral forums such as the NASD and AAA. Our experience encompasses a broad range of multi-district and class action litigation. Successful case examples include:
- Defeated class certification in a nationwide securities fraud class action on an interlocutory appeal based on the plaintiffs’ failure to establish the prerequisites for the fraud-on-the-market presumption. Unger v. Amedisys Inc.
- Defended and prosecuted claims for violations of Section 14(a) of the Securities Exchange Act of 1934 in connection with a proxy contest to replace the board of directors. Senetek, PLC v. Heiko Thieme, et al.
- Successfully defended a $76 million claim against a bond disbursement agent for a high-yield debt offering used to finance casino development. The claim was dismissed after a summary judgment was granted. First Trust National Association v. First National Bank of Commerce
- Successfully defended a $75 million claim for a failed high-yield bond offering, which included compelling the claim to arbitration. The matter was settled on a walk-away basis. NOVA Oilfield Services, Inc. et al. v. Dain, Rauscher Wessels, a Division of Dain Rauscher, Inc. et al
Liskow & Lewis is recognized for our exceptional track record in lessening or eliminating tax liability for our clients at the local, state and federal levels. In the area of tax increment financing, commonly known as TIFs, we have successfully litigated the only two TIF challenges to reach the Louisiana Supreme Court.
Our sophisticated tax group has handled a number of successful cases recently, including:
- A challenge to the use of tax increment financing to fund the construction of a sporting goods retail store with public funds in Livingston Parish. The Louisiana Supreme Court unanimously ruled in favor of our client, holding that the financing structure at issue violated the Louisiana Constitution. Denham Springs Economic Dev. Dist. v. All Taxpayers, et. al.
- A tax increment financing challenge involving its use to fund the developer’s cost of constructing a hotel in the existing World Trade Center in New Orleans.The Louisiana Fourth Circuit Court of Appeal ruled that the TIF statute at issue violated the Louisiana Constitution on multiple grounds World Trade Center Taxing Dist. v. All Taxpayers, et al.
- A Louisiana Supreme Court decision in our client’s favor that involved a challenge to an ad valorem tax dispute over whether a wholesale power plant could be assessed as public service property. Cleco Evangeline, LLC v. Louisiana Tax Commission
- Defense of a major oil company with regard to a state and parish use tax assessment where the overall tax claims asserted exceeded $40 million. The Louisiana Supreme Court decision supported our client’s position. State v. BP Exploration & Oil, Inc.
- Representation of a pipeline company in a dispute with the Louisiana Department of Revenue over whether income from an out-of-state partnership should be allocated or apportioned for Louisiana corporation income tax purposes. Unocal Pipeline Co. v. Kennedy
- In a franchise tax dispute, we represented Entergy Louisiana. At issue was whether lease obligations under sale-leaseback arrangements were includable in franchise tax base as borrowed capital. Entergy Louisiana, Inc. v. Kennedy
- Representation of System Fuels in a franchise tax dispute over whether capitalized lease obligations were includable in franchise tax base as borrowed capital. System Fuels, Inc. v. Kennedy
- First Circuit Court of Appeals decision favoring our client, Calcasieu Refining. The case involved an income tax dispute over whether cash deposits made by suppliers were properly classified as interest income. Secretary, Dep’t of Revenue v. Calcasieu Refining Company
- Representation of a hotel-motel association in a dispute over action of transit authority attempting to have the court declare an exemption unconstitutional. Regional Transit Authority v. Kahn
We also represent numerous other companies in litigation against various federal, state and local taxing authorities. Representative matters include issues involving:
- Attempts to impose Louisiana sales and use tax on the use of compressor fuel or plant fuel at natural gas processing plants in Louisiana.
- Disputes over the attempted imposition of Louisiana lease tax on service contracts between an out-of-state company and numerous casinos located in Louisiana.
- Attempts to impose Louisiana sales and use tax on the purchase of “pad gas” or “cushion gas” for a Louisiana natural gas storage facility.
- Disputes over whether sales of a plant can be considered a sale in the ordinary course of business for Louisiana corporation income tax purposes.
- Conflicts concerning the Louisiana Department of Revenue’s attempt to force an out-of-state service provider to use separate accounting for Louisiana corporation income tax purposes.
- Disputes over the value of a refinery for local ad valorem tax purposes.
- Attempts by a local jurisdiction to impose sales tax on the installation of immovable property at homeowner locations in Louisiana.
- Disputes over Louisiana severance tax on the severance of crude oil.
Although we routinely handle transactional disputes of all kinds, our attorneys regularly obtain pre-trial relief for our clients to avoid the time and expense of unnecessary trials. For example, recently team members obtained summary judgment in favor of a client that had been sued by its construction contractor for a variety of claims, including breach of contract and fraud. Summary judgment was affirmed in full on appeal to the Fifth Circuit Court of Appeals.
We have successfully represented plaintiffs and defendants in numerous complex contractual disputes at trial, on appeal, in settlement negotiations and before administrative agencies. These matters include employment and indemnity contracts, insurance coverage, equipment leases, real estate transactions, supply and service contracts, franchisee disputes, manufacturing issues and commercial lending agreements.
Disaster Recovery Issues
After years of handling many of the region's important contractual cases, the firm's commercial litigation group is well positioned to enforce and defend breach of contract cases and to address the complex contractual questions that arise out of these catastrophes. Unique and unforeseen matters result from the emergency-response actions of responsible parties, such as corporate directors and officers and even attorneys. The section's history of handling Louisiana’s major professional liability cases qualifies it to pursue difficult claims and defenses of this type.