Brian A. Troyer

Practices

• Business Litigation
• Life Sciences
• Product Liability Litigation

Professional Experience

Brian is a partner in the Business Litigation, Product Liability Litigation and Life Sciences practice groups and chairs the firm's Drug and Medical Device practice and its interdisciplinary Class Action and Multijurisdictional Litigation team. He represents clients in complex litigation in courts throughout the country and has extensive experience in areas including securities litigation and other shareholder disputes, competition, toxic torts, product liability actions, and consumer and banking litigation. Much of his practice involves defense of clients in class actions and multijurisdictional litigation. He has represented both public and private companies and their officers and directors in many cases under federal and state securities laws, and he has in-depth experience in defending clients in medical monitoring litigation and coordinating nationwide product liability defense.

Brian obtained dismissal of Rule 10b-5 claims against Lehman Brothers in the Enron litigation and was architect of the successful opposition to class certification in Wilson v. Brush Wellman Inc.,102 Ohio St. 3d 538 (2004), a medical monitoring case of first impression in Ohio, in which the Ohio Supreme Court reversed the Court of Appeals and reinstated the trial court's decision denying class certification. He has also represented clients in a broad range of litigation including contract and business tort disputes, manufacturer-dealer disputes, CERCLA, insurance coverage, construction, bankruptcy and constitutional tax challenges. He has conducted internal investigations for public and private companies and served as outside general counsel for litigation for a publicly traded corporation.

Brian frequently speaks and writes on class action defense, securities and shareholder litigation, and other areas of complex litigation.

Education

• Harvard Law School, J.D., 1992, magna cum laude
• College of Wooster, B.A., 1989, with honors, Phi Beta Kappa

• Securities, Shareholder and D&O Litigation
• Represented directors of a dissolved corporation in alleged creditors’ action for breaches of fiduciary duties (Delaware).
• Counsel to defendant outside directors of a closely held corporation in an action for alleged breaches of fiduciary duty and oppression of minority shareholders (Alabama).
• Represented outside directors in consolidated options backdating shareholder actions (Eastern District of Louisiana).
• Represented venture capital funds in shareholder litigation arising from an alleged squeeze-out transaction (Ohio).
• Obtained dismissal of Rule 10b-5 claims against a large commercial and investment banking institution in one of the largest securities fraud actions in history (Enron).
• Represented a media company in tender offer litigation under Section 14(d)(7) of the Williams Act and Rule 14d-10 (the “best-price/all-holders” rule) (Southern District of New York).
• Successfully defended a privately held company in a shareholder action for breach of contract, breach of fiduciary duty and fraud (Northern District of Ohio).
• Represented a publicly held company in multijurisdictional federal securities litigation before, during and after the company’s bankruptcy, obtaining dismissal of claims (Eastern District of Pennsylvania).
• Represented one of the country’s leading banking organizations in retail securities fraud actions in federal and state courts in various states.
• Represented a major telecommunications company in federal securities litigation arising from introduction of a new communications technology (D.C. District).
• Represented a publicly traded corporation in an action under Rule 10b-5 arising from the introduction of a new consumer product (Northern District of Ohio).
• Represented outside directors of a publicly traded company in federal securities and derivative shareholder suits (Ohio).
  
  
• Class Action Defense
• Defeated Rule 23 certification of a proposed Fair Labor Standards Act class of freight dispatchers and obtained decertification of collective action (Northern District of California).
• Successfully defended a pharmaceutical company in state-wide (previously certified) and nationwide (putative) consumer and payor class actions for alleged economic losses in connection with marketing of a prescription drug unapproved by the FDA. We mounted an aggressive plan of discovery, expert preparation, motion practice and trial preparation after assuming defense of these cases six months before scheduled trials, leading to a favorable settlement when plaintiffs were ordered to answer a mandamus petition and faced imminent denial of nationwide class certification (California and Minnesota).
• Defeated certification of a proposed nationwide consumer class action against a package delivery company for allegedly improper charges for packages not tendered for delivery (Southern District of Ohio).
• Obtained order vacating MDL transfer of a putative nationwide pharmaceutical consumer class action for marketing of an unapproved prescription drug, followed dismissal and denial of a motion to amend the complaint, on grounds that plaintiffs’ claims were preempted by the Food, Drug and Cosmetics Act and raised questions subject to the FDA’s primary jurisdiction (Eastern District of Tennessee).
• Provided emergency reformulation and redrafting of opposition to class certification for a large national bank in a putative class action for breach of contract brought on behalf of commercial borrowers (Northern District of Illinois).
• Successfully defended a specialty metal manufacturer in putative class actions for medical monitoring recovery in federal and state courts. Obtained dismissal of one putative nationwide product liability class action filed in federal court in Tennessee, and denial of class certification of a premises liability class action, later affirmed by the Ohio Supreme Court in a case of first impression. A second putative nationwide class action filed in the Eastern District of Pennsylvania was voluntarily dismissed before trial.
• Obtained dismissal of, or summary judgment on, all claims in a putative nationwide class action against a nationally prominent banking organization relating to its billing and late fee practices (Northern District of Ohio).
• Successfully defended a nationally prominent banking institution against a putative nationwide class action relating to loans made by failed savings institutions and later resold to other lenders (Northern District of Ohio).
• Successfully defended a large telecommunications company in putative class actions in various states relating to its late fee policies and practices.
• Successfully represented a large retail client against a putative nationwide class action for allegedly false advertising involving a consumer technology product, leading to a favorable settlement (Northern District of Ohio).
• Defended a large retailer in class actions and state enforcement proceedings in various states involving claims of false advertising.
  
  
• Other Business, Intellectual Property and Competition Litigation
• Led the successful defense of a large pharmaceutical company in complex fraud and breach of contract litigation involving issues arising from the FDA’s Application Integrity Policy. This action was filed by another pharmaceutical company seeking tens of millions of dollars in compensatory damages, plus punitive damages and attorney fees. After two years of intensive litigation, the plaintiff was forced to voluntarily dismiss all claims with prejudice rather than face continued sanctions proceedings and summary judgment. Our client paid nothing.
• Represented a large manufacturing company in post-trial and appellate proceedings in a major CERCLA action.
• Represented a private company in a group of complex lawsuits arising from the purchase and sale of several groups of businesses.
• Successfully prosecuted a multimillion-dollar contract and business tort action involving an international joint venture, leading to a favorable settlement.
• Represented a manufacturing client in an international arbitration arising from construction of an overseas manufacturing plant, leading to a favorable settlement.
• Obtained dismissal of, or summary judgment on, all claims against a public corporation and its director in a contract and tort action arising from a municipal airport dispute.
• Represented a large company in all trial court and appellate phases of constitutional tax litigation.
• Represented a manufacturing company in multiple actions for breach of covenants not to compete and theft of trade secrets.
• Successfully represented a manufacturing company in an action to recover insurance under lost general liability policies, leading to settlement for full recovery and admission of coverage.
• Obtained summary judgment and numerous other victories, including dismissal of counterclaims, in perhaps the most notorious foreclosure case in U.S. history, NationsBanc Mortgage Corp. v. Davet, a case later profiled in the Wall Street Journal and newspapers around the country, after being retained several years into the litigation against a determined pro se defendant.
  
  
• Other Drug, Medical Device and Mass Tort Litigation
• Serve as national coordinating and trial counsel and member of MDL Defendants’ Steering Committee in defense of thousands of product liability actions brought against a manufacturer of hormone replacement therapy (HRT) drugs.
• Represented a manufacturer in occupational disease actions brought by contractor employees.
• Participated in the successful defense of a manufacturer of orthopedic implants used for spinal fixation in various courts across the country.

• Quoted in "Head of the Class" (discussing trends in securities litigation related to mergers and acquisitions) · Columbus C.E.O., June 2011
• "Off-Label Issues in Drug and Medical Device Product Liability Litigation" · (2006 ACI Conference paper), Co-authored with Elizabeth Wright, Elizabeth Gobeil and Anthony Rospert

• Insights from Recent Developments for Defending Class Actions (16th Annual ACI Drug and Medical Device Litigation Conference, 2011)
• Best Practices for Managing Multi-Forum Litigation (2011 Lorman Seminar, Invited Speaker)
• Statistics in Class Actions (2011 Strafford Seminar, Invited Speaker)
• Pharmaceutical/Medical Device Litigation Regional Seminar (2011 ABA Conference, Invited Panel Moderator)
• False Advertising Consumer Class Actions: Latest Developments (2011 Strafford Seminar, Invited Speaker on Defense Strategies)
• Trends and Strategies in Consumer and Payor Class Actions (6th Annual Marcus Evans Drug and Medical Device Litigation Conference)
• Consumer Class Action Developments (2009 CLE for Federal Bar Association)
• Ten Years After: Today's Litigation Environment (2005 CLE presentation)
• Securities Litigation Developments and Strategies (2005 CLE presentation)
• Securities Class Action Defense: A Practical Introduction and Current Developments (2004 CLE presentation)
• Electronic Data Discovery (1999 CLE presentation)

• French