Overview

Tom is a partner in the firm's Business Litigation practice group. Tom has devoted over thirty years of practice to litigating complex business matters. He focuses his practice on commercial disputes, officer/director litigation, trade secret cases, trademark and copyright disputes, environmental litigation, probate litigation, fiduciary litigation, product liability, health care litigation, insurance law, bad faith cases, ERISA disputes, covenants not to compete disputes, and appeals.

Experience

 Corporate Director/Officer Litigation

  • Defended outside directors against breach-of-fiduciary-duty claims arising out of corporation’s bankruptcy.
  • Defended both majority and minority shareholders in cases alleging breach of fiduciary duty by majority shareholder in freezing-out minority shareholder.
  • Defended company accused of security law violations involving the sale of viatical settlements.
  • Defended business owner against claims by large competitor that business owner had conspired with others in violation of Ohio's RICO statute.

Intellectual Property Litigation

  • Represented parties asserting or defending claims of misappropriation of trade secrets.
  • Represented parties in trademark disputes in federal court and before the Trademark Trial and Appeal Board.
  • Represented both employers and employees in disputes over the enforceability of covenants not to compete.
  • Represented author of software asserting claims of copyright infringement.
  • Defended wholesaler against claims of copyright infringement of jewelry designs.
  • Represented business forms manufacturer asserting copyright infringement claims.

Health Care Litigation

  • Represented both hospitals and physicians in litigation involving the contractual and medical staff relationships between hospitals and physicians and litigation involving restrictions or termination of hospital privileges.
  • Defended physicians in disputes regarding whether a non-compete covenant was enforceable.
  • Defended hospitals and doctors in medical malpractice cases.
  • Defended managed care companies against claims that their practices and procedures provided incentives to medical providers to restrict care to patients.
  • Defended medical practice against claims brought by discharged physician.
  • Defended blood bank and tissue bank against claims that donated blood and tissue were tainted with the Hepatitis C virus.
  • Represented medical entity in claims against architect who designed inpatient facility that failed to obtain approval from the Ohio Department of Health and the Centers for Medicare and Medicaid Services.
  • Represented plaintiffs in serious medical malpractice cases.

Environmental Litigation

  • Represented various entities in environmental disputes, including claims on behalf of or against operators or potentially responsible persons in Superfund litigation.
  • Defended owner/operator against claims in citizen suit under the Clean Air Act.
  • Represented parties involving claims seeking indemnification relating to environmental warranties in asset purchase agreement.
  • Defended city against claims challenging the constitutionality of its wellfield protection ordinance.

Real Estate Litigation

  • Represented clients involved in real estate disputes, including disputes involving real estate developments, zoning, and commercial leases.
  • Defended guarantor of multi-million dollar commercial lease that involved the appointment of a receiver for the lessee.
  • Defended putative class action concerning the legality of collecting attorneys' fees in connection with mortgage loan reinstatements.
  • Represented contractors, designers, and engineers in disputes involving the interpretation of construction contracts and performance under those contracts, including contracts with state and local governments.
  • Defended development against claims alleging improper maintenance of the development’s water drainage system.

Probate/Fiduciary Litigation

  • Defended against a will contest on behalf of sole beneficiary of $2.7 million estate.
  • Representing trust beneficiary asserting undue influence claims and breach-of-fiduciary-duty claims against successor trustees.
  • Defended against claim to terminate a bank as trustee of testamentary trusts.
  • Defended trustee against a fraud claim involving the sale of commercial property.
  • Defended claim that certain transfers of properties to a trust were invalid based upon claims of undue influence and a claim that the attorney preparing the trust documents operated under a conflict of interest.

Product Liability/Tort Litigation

  • Defended manufacturers and suppliers against product liability claims.
  • Defended employers against claims brought by injured workers seeking benefits outside the Ohio workers compensation system by asserting that the employer intentionally intended to injure the employee.

Insurance Litigation

  • Defended insurers in insurance coverage disputes.
  • Defended various types of ERISA claims on behalf of life and health insurance companies.
  • Represented parties asserting claims for benefits under various insurance plans, including claims for disability benefits.
  • Represented policyholders in insurance coverage disputes.
  • Defended companies being sued under fronting agreements for uninsured/underinsured motorist coverage.

Financial Institution Litigation

  • Defended banks, automobile finance companies, agricultural lenders, and other lenders against lender liability claims, federal RICO claims, and claims of unfair trade practices.
  • Defended against claims asserted under the Federal Fair Debt Collection Practices Act.
  • Defended putative class action claiming that the leasing practices of an automobile lender violated consumer laws.

Miscellaneous Litigation

  • Defended various companies in disputes involving government contracts, including a company in a federal debarment action and a company in a dispute with another bidder on a federal contract.
  • Defended telecommunications company in putative class action pertaining to the reasonableness of charges to recipients of collect calls from prisoners incarcerated in several counties in Ohio.
  • Represented clients in bankruptcy litigation.
  • Defended various professionals (such as physicians and a surveyor) against charges brought by state licensing boards.
  • Defended companies against claims brought by persons alleging that they had won sweepstakes or other promotional contests.
  • Represented parties in divorce actions pertaining to the valuation of certain business assets as part of the marital estate.

Representative Reported Cases

  • Remy, Inc. v. Tecnomatic, S.P.A., 2014 U.S. Dist. LEXIS 75220 (S.D. Ind. June 24, 2014) (dismissing claims under Italian copyright law)
  • Antioch Company Litigation Trust v. Morgan, 2014 U.S. Dist. 47740 (S.D. Ohio, April 7, 2014) (dismissing breach-of-fiduciary-duty claims against outside directors involving attempts to sell corporation)
  • Tecnomatic, S.p.A. v. Remy, Inc., 954 F. Supp. 2d 860 (S.D. Ind., 2013) (dismissing unjust enrichment claim based on preemption under the Indiana Uniform Trade Secrets Act)
  • Antioch Company Litigation Trust v. Morgan, 2013 U.S. Dist. LEXIS 46777 (S.D. Ohio, April 1, 2013) (dismissing breach-of-fiduciary-duty claims against outside directors involving transaction to convert corporation into an entity owned entirely by ESOP)
  • Antioch Company Litigation Trust v. Morgan, 2012 U.S. Dist. LEXIS 182997 (S.D. Ohio, Dec. 31, 2012) (dismissing claim against outside directors, alleging that they aided and abetted the breaches of fiduciary duty by other persons)
  • Boomershine v. Lifetime Capital, Inc., 182 Ohio App. 3d 495, 913 N.E.2d 520 (2d Dist. June 5, 2009) (recoverable costs include deposition transcripts used in successful summary judgment motion)
  • Witt v. Saybrook Investment Corp., 2008-Ohio-2188, 2008 Ohio App. LEXIS 1870 (8th Dist. May 8, 2008) (successfully defended personal injury claim for premises liability based on inadequate outdoor lighting against commercial lessee)
  • Boomershine v. Lifetime Capital, Inc., 2008-Ohio-14, 2008 Ohio App. LEXIS 7 (2d Dist. January 4, 2008) (affirmed summary judgment to company servicing viatical settlements on conspiracy claims asserting liability for sale of unregistered securities)
  • Nightlight Systems, Inc. v. Nitelites Franchise Systems, Inc., 2007 U.S. Dist. LEXIS 95565 (N.D. Ga. July 17, 2007) (defeating Daubert motion seeking to exclude expert's testimony regarding survey in trademark infringement action)
  • Nightlight Systems, Inc. v. Nitelites Franchise Systems, Inc., 2007 U.S. Dist. LEXIS 95538 (N.D. Ga. May 11, 2007) (trademark infringement case)
  • Fisher v. Perma-Fix of Dayton, Inc., 2006 U.S. Dist. LEXIS 5389 (S.D. Ohio January 27, 2006) (Clean Air Act)
  • Scott v. Fairbanks Capital Corp., 284 F. Supp. 2d 880 (S.D. Ohio 2003) (Fair Debt Collection Practices Act)
  • Metropolitan Life Insurance Co. v. Cronenwett, 162 F. Supp. 2d 889 (S.D. Ohio 2001) (ERISA)
  • Schiff v. Rice Mazda Motor of America, Inc., 102 F. Supp. 2d 891 (S.D. Ohio 2000) (punitive class action involving lending practices of automobile lender)
  • Rittenhouse v. Professional Micro Systems, Inc., 1999 U.S. Dist. LEXIS 21695 (S.D. Ohio July 21, 1999) (ERISA)
  • Elaine's Cleaning Service v. United States Dept. of Labor, 1995 U.S. Dist. LEXIS 22170 (S.D. Ohio Sept. 29, 1995), aff'd, 106 F.3d 726 (6th Cir. 1997) (successfully obtained reversal of debarment of government contractor by U.S. Department of Labor)
  • Joyce/Dayton Corp. v Manchester Tank & Equipment Co., 1996 Ohio App. LEXIS 5435 (2d Dist. December 6, 1996) (requirements for notice of commercial lease renewal)
  • Allied Paper v. H. M. Holdings, 86 Ohio App. 3d 8, 619 N.E.2d 1121 (2d Dist. 1993) (indemnification provisions for environmental claims)
  • Premier Mortgage Co. v. Fetter, 1992 Ohio App. LEXIS 642 (2d Dist. February 12, 1992) (foreclosure and certificates of lien)
  • Mote v. Garrison, 1991 Ohio App. LEXIS 5747 (3d Dist. December 2, 1991)
  • Mote & Associates, Inc. v. Village of St. Henry, 1991 Ohio App. LEXIS 5742 (3d Dist. December 2, 1991) (affirming judgment confirming arbitration award against village for breach of engineering contract)
  • Joe Becks & Associates, Inc. v. City of Dayton, 1991 Ohio App. LEXIS 2679 (2d Dist. June 3, 1991) (construction contract with municipality)
  • Nationwide Roofing & Sheet Metals, Inc. v. Cincinnati Insurance Co., 1991 Ohio App. LEXIS 2105 (2d Dist. May 9, 1991) (insurance coverage/bad faith claim)
  • Fortune v. Fortune, 1991 Ohio App. LEXIS 1967 (2d Dist. May 3, 1991) (real estate contract)
  • In re Nationwide Roofing & Sheet Metal, Inc., 130 B.R. 768 (S.D. Ohio 1991) (bankruptcy court abstains from hearing insurance coverage/bad faith denial claims)
  • Holt v. Good Samaritan Hospital & Health Center, 69 Ohio App. 3d 439, 590 N.E.2d 1318 (1990) (emergency room doctor could not exercise privileges if he was not employed by the group with the exclusive contract to staff emergency room)
  • Garrison v. Mote & Associates, Inc., 1990 Ohio App. LEXIS 727 (2d Dist. February 28, 1990) (remaining/controlling shareholder is not personally liable for corporation's obligation to purchase departing shareholder's shares under buy-sell agreement)
  • Phillabaum v. Monsanto Research Corp., 1987 Ohio App. LEXIS 10165 (2d Dist. December 14, 1987) (successful defense of premises liability claim against operator of property)
  • Kendall v. Kendall, 1987 Ohio App. LEXIS 5801 (2d Dist. February 3, 1987) (valuation of interest in closely-held corporation)
  • Kahn v. Kahn, 42 Ohio App. 3d 61, 536 N.E.2d 678 (1987) (valuation of professional goodwill of physician)
  • Issaacs v. Humphrey, 1987 Ohio App. LEXIS 5761 (2d Dist. February 3, 1987) (affirming summary judgment in favor of manufacturer and retailer on product liability claims)
  • United Virginia Bank v. Air Lift Associates, 79 N.C. App. 315, 339 S.E.2d 90 (1986) (unfair trade practices and breach of fiduciary duty)
Presentations
  • "Anatomy of a Great Oral Argument," presentation to the Dayton Bar Association Appellate Practice Committee, 2010
  • "Pitfalls in Third Party Service Agreements," seminar, 2006
  • Moderator, "Appellate Practice," CLE Seminar, 1996
  • "Insured Benefits Law," CLE Seminar, 1996
  • "How to Prepare and Maintain Business Records That Will Give You the Edge," CLE Seminar, 1994
Distinctions
  • Listed in Best Lawyers in America, Commercial Litigation (2015-2019), Insurance Law (2016-2019), Litigation – ERISA (2018 and 2019), Litigation – Intellectual Property (2018 and2019), Litigation – Real Estate (2018 and 2019); and Litigation – Securities (2018 and 2019); named the 2018 Lawyer of the Year (Dayton) in Insurance Law
  • Ohio Super Lawyers, Business Litigation (2007, 2017, 2018)
  • Litigation Counsel of America, Fellow
  • AV® Preeminent Rating by Martindale-Hubbell
Professional and Civic

Professional Associations

  • Ohio State Bar Association
  • North Carolina State Bar Association
  • Dayton Bar Association, Board of Trustees (1999 to 2001); Appellate Court Practice Committee (past Chair); Committee on the Judiciary (past Secretary); Member, Federal Practice Committee and Civil Trial Practices Committee
  • Carl D. Kessler Inn of Court, Master

Professional Activities

  • Ohio State Bar Foundation, Fellow
  • Dayton Bar Association, Fellow
  • Montgomery County Republican Party, former member, Central Committee
  • Greater Dayton Area Volunteer Lawyers Project

Community Activities

  • YMCA of Greater Dayton, Board of Directors (2013 to present)
  • Holy Angels Catholic Church, former youth basketball coach
  • Oakwood Select Basketball, former youth basketball coach