Consumer Class Action Defense
With a particular focus on developing creative arguments to dismiss or limit claims and defeat class certification, Brad defends clients in actions under the federal securities laws, state false advertising statutes, and various federal and state consumer protection laws, including the Telephone Consumer Protection Act (TCPA). Clients value his strong record of minimizing their financial exposure through reduced and nominal settlements or, in a number of cases, convincing the plaintiffs to walk away with no settlement payment at all.
In class actions around the country, Brad’s clients have included one of the nation’s largest drug store chains, major retailers, a large automobile manufacturer, large pharmaceutical firms, and major insurance companies. Brad has successfully defended several “bet the company” class actions where the potential monetary exposure was more than a billion dollars. In addition to his courtroom work, Brad advises clients on ways to minimize exposure to class actions and writes and speaks on class action issues. He is a frequent contributor to the firm’s TCPA Blog.
- Recently represented a large insurance company in a jury trial of class claims challenging cost of insurance charges for universal life insurance. We were retained shortly before trial in a case with significant ramifications for the industry; secured dismissal of all punitive damages claims and obtained verdict for reduced compensatory damages while presenting evidence and arguments to preserve and develop issues for appeal.
- Currently representing a major automobile manufacturer in consumer class actions throughout the country alleging the existence of an undisclosed defect in the transmissions of certain automobile models.
- Recently acted as lead counsel in defending one of the country’s largest pharmacy chains in TCPA class action litigation regarding prescription notification calls to more than 10 million customers; strong defense led to a settlement for a tiny fraction of potential exposure. Currently defending other major companies in TCPA class actions and advising clients regarding TCPA compliance and risk mitigation strategies.
- Recently acted as lead counsel in defending several of the nation’s largest retailers in consumer class actions across the country challenging the efficacy of a popular nutritional supplement; obtained court approval of a global settlement of less than $3 million (including attorneys’ fees and notice costs) where product sales amounted to hundreds of millions of dollars.
- Recently acted as lead counsel in defending a motion picture and entertainment company in defending a FACTA class action; case settled for nominal amount. Recently led the defense of a health care provider in another FACTA class action and obtained court approval of a settlement of less than 0.25 percent of potential exposure.
- In separate cases, acted as lead counsel for two manufacturers of consumer products in the same industry in defending purported national class actions challenging warranty practices and disclosures. Both cases settled for nominal amounts without a class being certified.
- Acted as lead counsel for an automobile rental company in defending a purported national class action challenging certain standard charges in the consumer rental contract. Case settled for nominal amount without a class being certified.
- Represented an automobile insurer in successful defense of purported nationwide class action challenging the specification of generic replacement parts for repairs (rather than the more expensive parts offered by the car makers); role included acting as “issue preservation” counsel during lengthy jury trial, arguing directed verdict motions, acting as lead counsel at jury instruction conference and as an appellate counsel in obtaining reversal of a billion-dollar judgment. Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100 (2005).
- Represented an automobile insurer in defeating certification of a purported nationwide class action in Madison County, Ill. challenging medical reimbursement policies for millions of policyholders.
- Obtained voluntary dismissal in a TCPA fax class action case on behalf of nationwide automotive lender. The plaintiff agreed to dismiss with prejudice and without settlement payment from the defendants based on evidence refuting the plaintiff’s standing to pursue the claim.
Securities Litigation and Accountants’ Defense
Brad represents public companies, their directors and officers, investment funds and auditors in the defense of shareholder class actions and derivative actions at trial and on appeal. Brad defended an investment company in one of the largest mutual fund collapses in recent history. He often defends challenges to financial statements and disclosures, and he has demonstrated an ability to distill complex accounting issues into themes and arguments that persuade judges and juries. Brad also represents securities issuers in matters before the Securities and Exchange Commission, advises companies conducting internal investigations and presents a coordinated defense of parallel government and private-party civil proceedings.
- Currently defending the issuer and its officers in litigation arising from the largest mutual fund collapse in recent history; the fund lost 80% of net asset value during a spike in market volatility over two days in February 2018. Defending federal securities law claims in class actions in federal and state court as well as shareholder derivative claims.
- Currently defending the trustees of an investment company in a purported shareholder derivative suit alleging breach of fiduciary duty related to investments by one mutual fund that allegedly "bailed out" a related, failing mutual fund.
- Acted as lead counsel for a pharmaceutical company in defending a securities fraud shareholder class action challenging the company’s valuation of auction rate securities; obtained court approval of a classwide settlement of less than $2 million (including attorneys’ fees and notice costs) in a case involving a single day, $600 million market drop. Also won dismissal of related shareholder derivative suit.
- Represented a major fashion and apparel chain in defending a securities fraud shareholder class action challenging the company’s inventory reserves and other issues; plaintiff dismissed claim without any settlement payment.
- Acted as lead counsel for tender offer target in defending a shareholder class action in Delaware Chancery Court. Won important decision setting tough standards for fee awards to class counsel. In re Sauer-Danfoss, Inc. Shareholders Litig., 2011 Del. Ch. LEXIS 64 (Apr. 29, 2011). See “Delaware’s Laster Slashes Plaintiffs’ Fee Request by 95 Percent in Sauer-Danfoss Case,” American Lawyer Litigation Daily (May 5, 2011).
- Represented an accounting firm in obtaining reversal on appeal of a multimillion-dollar judgment awarded to the former president of an insolvent bank, who claimed to have relied on a negligently prepared audit opinion in deciding to accept the position. The appellate court agreed that the auditor owed no duty to the audit client’s employee. Ellis v. Grant Thornton LLP, 530 F.3d 280 (4th Cir. 2008).
- Represented an accounting firm in successfully arguing motion to dismiss securities fraud complaint arising from a leveraged recapitalization of a major supermarket chain and in successfully arguing to uphold the dismissal on appeal.
- Represented an accounting firm in a leading case establishing the standard for pleading scienter against an auditor. Fidel v. Ernst & Young, 392 F.3d 220 (6th Cir. 2004).
- Represented an accounting firm during bench trial of negligence and fraud claims, resulting in defense verdict on loss causation grounds, and on appeal where judgment for the accountant was affirmed. AUSA Life Ins. Co. v. Ernst & Young, 991 F. Supp. 2d 234 (S.D.N.Y. 1997), aff’d, 2002 U.S. App. LEXIS 13845 (2d Cir. July 8, 2002).
- As part of the team defending an accounting firm in one of the largest and most complex securities fraud litigations in U.S. history, acted as lead counsel in taking the depositions of the audited company’s outside directors, including former Canadian Prime Minister Brian Mulroney, and represented the auditor in various trial and appellate proceedings, including an appeal reversing an order compelling the auditor to produce work product notes and tapes of jury consultant Dr. Phil McGraw’s discussions with witnesses. In re Cendant Corp. Sec. Litig., 343 F.3d 658 (3d Cir. 2003).
- Represented a Special Committee of the Board of a Fortune 50 company in conducting an internal investigation of insider trading allegations regarding the CEO made by an in-house lawyer. SEC accepted the investigation’s findings and did not take enforcement action.
- Represented a consumer products manufacturer in an SEC investigation of insider trading allegations. SEC closed investigation without taking enforcement action.
- Represented the former CFO of a publicly traded home construction company in an SEC investigation of the company’s impairment charges. No action was taken against our client.
- Represented an issuer with offshore operating subsidiaries in successfully defending an SEC investigation of the subsidiaries’ offshore tax status. SEC rejected “whistleblower” allegations and closed investigation without taking enforcement action.
- Represented a telecommunications company in conducting an internal investigation of compliance with government funding regulations. Drafted report submitted to Congress.
- Represented a large public utility in coordinated defense of securities fraud class action, SEC and regulatory challenges to accounting practices by which the utility determined gas prices.
- Represented the independent trustees of a mutual fund in connection with an SEC investigation of certain activities of the investment advisor.
- Represented mutual fund in connection with an SEC investigation of statements made about socially responsible investment criteria used to screen potential investments.
- Represented investment advisor in connection with suit brought by SEC to liquidate fund to preserve assets.
- Represented operator of website containing database of video presentations regarding various hedge funds in connection with SEC investigation of whether the videos constituted an unlawful general solicitation or public offering of the funds; SEC agreed to drop investigation with no enforcement action taken.
Brad’s notable appellate engagements include a death penalty case won before the U.S. Supreme Court and significant commercial cases before most of the U.S. Courts of Appeals, as well as appellate courts in various states, including the Illinois Supreme Court. In addition to briefing and arguing appeals, Brad advises trial counsel on how to create, preserve and enhance issues for appeal. In one case, Brad’s work to focus the trial for a successful appeal contributed to the reversal by the Illinois Supreme Court of a judgment of more than $1 billion, at the time the largest judgment in Illinois history.
International Sports Litigation
Brad has represented sports governing bodies and professional athletes in litigation and international arbitration, including in trials before the international Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, and in trials in London, Athens and Monte Carlo, among other venues. Brad successfully defended top-ranked tennis players against doping charges and assisted a sports-governing body in developing a policy to address eligibility of transgender athletes.
- Led the team that tried several cases before CAS’s ad hoc tribunal for resolution of disputes at the 2004 Summer Olympic Games in Athens, Greece
- Successfully defended several top-ranked professional tennis players against doping charges where investigation showed that the prosecuting tennis federation may have distributed contaminated nutritional supplements to the players
- Successfully defended a sport national governing body against claims brought by the sport’s international governing body in trial before CAS
- Assisted a sport governing body in developing a gender policy addressing when athletes who have undergone gender reassignment surgery would be eligible to compete in women’s competitions
- Tried the first case involving use of Isotope Ratio Mass Spectrometry (IRMS) drug testing technology, before the IAAF Anti-Doping Tribunal in Monte Carlo, Monaco
- Successfully prosecuted shot-put champion C.J. Hunter on doping charges in a case where Hunter was represented by attorney Johnnie L. Cochran, Jr.
- Member of the team that defended the National Collegiate Athletic Association (NCAA) in a jury trial of antitrust claims arising from the NCAA’s rule-making activities
- Represented a university in conducting an internal investigation of the athletic department’s compliance with student athlete recruiting and eligibility rules
When not litigating cases, Brad enjoys spending time with his family, including wife Joan (a former IP and advertising lawyer he met when they defended a case together), their children, grandchildren Josh and Gabe, as well as the family beagle, Declan, who elevates chasing a tennis ball to an art form.