Overview

Brian represents companies and their directors and officers in complex business disputes, including ERISA litigation, securities and shareholder litigation, corporate governance and fiduciary disputes, and litigation arising out of mergers, acquisitions and tender offers, and complex contract disputes. Brian also has significant experience litigating tax controversies against the federal government.

Brian is the leader of the firm’s Business Litigation practice group, which has 80 lawyers in seven offices.  Brian has served in other leadership positions in the firm and in the community.

Experience
ERISA Litigation
  • Represented Fortune 500 retailer in defending multi-million dollar ERISA claims brought by the Pension Benefit Guaranty Corporation arising from alleged purchase of an alleged “controlled group” member and pursuing indemnification and fraud claims against the Seller and its law firm for failing to disclose the PBGC’s claim before the closing of the purchase transaction.  Pension Benefit Guaranty Corporation v. Uforma/Shelby Business Forms, Inc., et al., (S.D. Ohio).
  • Represented an Irish public company and its U.S. affiliate, as buyer, in a post-closing dispute regarding contractual indemnification and withdrawal liability under ERISA. Obtained a confidential settlement in a mediation in New York.
  • Successfully defended the corporate trustee of an Employee Stock Ownership Plan from breach of fiduciary duty claims under ERISA in connection with an ESOP's holdings of employer securities that suffered a precipitous drop in value. Wright v. Oregon Metallurgical Corp., 350 F.3d 1090 (9th Cir. 2004) (affirming district court order granting Rule 12(b)(6) motion to dismiss all claims against trustee).
  • Defended the corporate trustee of a publicly traded company's 401(k) plan and ESOP from ERISA breach of fiduciary duty claims in connection with the plans' holdings of employer securities, which suffered a $200 million drop in value, and obtained federal court approval of a class action settlement, despite objections from co-defendants. Hunter v. Caliber Systems, Inc., et al., 96-CV-01186-JLG (S.D. Ohio).
  • Represented bank-trustee of a pension plan regarding participant’s claims arising out of the trustee’s alleged failure to distribute assets upon termination of the plan.
Corporate Control, Merger and Tender Offer Litigation, Director & Officer Liability Litigation
  • Represented company and its board in defense of shareholder lawsuits challenging the proxy disclosures under federal securities laws in connection with a $4.2 billion public company merger (AdvancePierre/Tyson Foods) (S.D. Ohio).
  • Represented acquirer in defense of shareholder lawsuits in Maryland and Delaware challenging the proxy disclosures under federal securities laws in connection with a public company merger (Intrexon/GenVec).
  • Represented board of publicly traded company in response to a shareholder demand letter alleging the board breached its fiduciary duties in awarding stock options in excess of authorized sub-limits in the plan documents. (Confidential).
  • Represented the company and two board members in defense of a shareholder challenge to the fairness of a $300 million merger.  (National Interstate/Great American Insurance)
  • Represented a bank and its board of directors in defense of two shareholder derivative and class action complaints challenging the fairness of a $111 million bank merger.  (Cheviot Financial Group/MainSource)
  • Represented the members of the board of directors in defense of three shareholder derivative and class action complaints in Ohio and Texas challenging the fairness of a $2.5 billion merger transaction.  (Robbins & Myers/National Oilwell Varco)
  • Represented an insurance company in defense of three expedited shareholder injunction actions in three different cities involving an unsolicited tender offer made by the company’s majority shareholder and also involving the applicability of Ohio’s Control Share Acquisition Act.  (National Interstate/AFG)
  • Represented the acquiring company in defense of federal and state shareholder derivative and class action complaints challenging the fairness of a $2.5 billion merger.  (Brookfield/Associated Estates)
  • Represented the members of the board of directors in defense of two shareholder derivative and class action complaints challenging the fairness of a $1.6 billion going private merger transaction.  (Jo-Ann Stores/Leonard Green)
  • Represented the members of the board of directors of an Ohio bank in defense of shareholder complaints challenging the fairness of a $10 billion merger.  (Charter One Financial/RBS)
  • Represented financial advisor in a dispute arising out of a going private transaction. (American Greetings)  
Securities Litigation
  • Obtained dismissal of securities claims against various market-makers under Section 12(a)(1) of the Securities Act of 1933 and various state law theories, resulting from an alleged pump-and-dump scheme in Biozoom Securities via motion to dismiss (three clients) and summary judgment (four clients). In re Biozoom, Inc. Securities Litigation, Case No. 1:14-CV-01087.
  • Represented syndicate of underwriters in class action litigation brought by shareholders of a public company asserting strict liability under Sections 11 and 12(a)(2) of the Securities Act of 1933 for allegedly false and misleading statements in a registration statement and prospectus for depositary shares.  Rosenberg v. Cliffs Natural Resources Inc., No. CV-14-828-140 (Cuyahoga County, Ohio)
  • Represented the Richard E. Jacobs Group in defense against a securities fraud action in connection with a billion-dollar transaction. After denying the plaintiff's motion for injunctive relief, the court granted our motion to dismiss and awarded our client attorney fees as sanctions - the first reported award under the mandatory Rule 11 review section of the Private Securities Litigation Reform Act of 1995. The Second Circuit affirmed the award against the plaintiff's attorneys.
Post-Closing Disputes
  • Represented Fortune 500 retailer in multi-million dollar earnout and indemnification dispute involving former shareholders of a business acquired by client.
  • Represented Irish pharma company in multi-million dollar earnout and indemnification dispute with former shareholders of a business acquired by client.
  • Represented an energy business in an arbitration proceeding (and related state and federal court litigation) over an option to purchase a public utility in Akron, Ohio. Obtained from the arbitrator an award of specific performance ordering the transfer of ownership of the public utility to our client, as optionholder, and an award dismissing the opponent's RICO and defamation counterclaims. Obtained confirmation of the arbitration award from the common pleas court and the Ohio court of appeals under the Arbitration Act. Thermal Ventures II, L.P. v. Thermal Ventures, Inc., 2005-Ohio-3389 (Cuyahoga Cty.).
  • In a dispute between two corporations regarding post-closing adjustments under an asset purchase agreement, obtained a court order staying an arbitration proceeding initiated by the seller where the seller's claims were outside the scope of the parties' arbitration clause. Isola Aktiengesellschaft, et al. v. Honeywell International, Inc., 730 N.Y.S.2d 709 (N.Y. App. Div. 2001).
  • Represented a buyer in a post-closing, working capital adjustment dispute. Obtained arbitration award in full amount requested.
  • Represented a Japanese company, as seller, in a post-closing dispute in Delaware regarding contractual indemnification of environmental liabilities under a stock purchase agreement.
  • Represented an Irish public company and its U.S. affiliate, as buyer, in a post-closing dispute regarding contractual indemnification and withdrawal liability under ERISA. Obtained a confidential settlement in a mediation in New York.
  • Represented an energy company, as seller, in a post-closing dispute regarding contractual indemnification involving representations and warranties governing trademark matters. Obtained confidential settlement.
Fiduciary Litigation
  • Won a 4-3 decision from the Ohio Supreme Court exonerating a national bank of fiduciary and respondeat superior liability in connection with an employee's conduct. Groob v. KeyBank, 108 Ohio St. 3d 348 (2006) (Syllabus 1: "A bank dealing at arm's length with a prospective borrower does not have a fiduciary duty to that prospective borrower unless special circumstances exist." Syllabus 2: "For an employer to be liable for a tortious act of its employee, that employee must be acting within the scope of employment when the employee commits the tortious act.").
  • Represented a major financial institution, which acted as trustee of a large charitable split-interest trust, in defense of fiduciary duty claims brought by beneficiaries alleging millions of dollars of damages from real estate investments. Obtained confidential settlement approved by the federal court and the state attorney general. Roush, et al v. Society National Bank.
  • Represented a major financial institution and its board of directors in defense of putative class action fiduciary duty claims brought by a putative class asserting that the bank and its directors breached their duty of loyalty by converting the assets of two trusts into "common trust funds" in order to charge additional fees for "company owned or managed" funds. Obtained dismissal of the complaint. Beller v. KeyBank.
  • Represented a leading presenter of museum-quality touring exhibitions in litigation with former CEO over his departure.
  • Represented a corrugated packaging company in litigation with former CEO and majority shareholder over his departure.
SIPC Proceedings
  • Represented a court-appointed trustee of a bankrupt broker-dealer in connection with a fraud and embezzlement investigation under the Securities Investor Protection Act and worked with the Securities Investor Protection Corporation (SIPC) to recover funds for the victims of the scheme. In re the Liquidation of NEBS Financial Services, Inc., Case No. 04-1648 (Bkrtcy. N.D. Ohio).
Other Class Actions
  • Represented a major consumer goods manufacturer and a major retailer in defense of a putative class action alleging unfair consumer sales practices based on nationwide advertising and marketing initiatives for a highly popular washing machine. Obtained dismissal of the complaint on the grounds of forum non conveniens. Laura Green, et al. v. Sears Roebuck & Co., et al., 04-CV-537772 (Cuyahoga Cty.).
  • Represented the bank trustee of a large, World War II-era charitable trust in litigation brought by competing beneficiaries, including a class of individual claimants. Obtained state attorney general and court approval for a class action settlement after a fairness hearing, along with an award of fees to the trustee. Richard Hallman, et al. v. National City Bank, Trustee, et al., 99-CV-387410 (Cuyahoga Cty.).
Tax Controversies
  • Represented a national bank's equipment leasing business in a week-long trial in federal court against the Department of Justice and Internal Revenue Service in a dispute over the proper federal income tax treatment of a sale-leaseback transaction involving a waste-to-energy facility in Germany. KSP Investments, Inc. v. United States, 07-CV-857 (N.D. Ohio).
  • Represented one of the largest U.S. telephone companies in an IRS Appeals administrative proceeding involving the investment tax credit provisions of TRA 86 as applied to digital switching equipment. Obtained the only known settlement on the issue in the telecom industry.
  • Wrote an amicus curiae brief on behalf of the United States Telephone Association in the Third Circuit Court of Appeals in connection with a tax controversy of industry-wide interest. Bell Atlantic v. United States, 224 F.3d 220 (3d Cir. 2000).
Arbitrations and Related Court Proceedings
  • Successfully confirmed a $68 million arbitration award in favor of our client, a major pharmaceutical company, against another major pharmaceutical company, and successfully fended off opponent's efforts to vacate the arbitration award under the Federal Arbitration Act. Solvay Pharmaceuticals, Inc. v. Duramed Pharmaceuticals, Inc., 442 F.3d 471 (6th Cir. 2006).
Significant Contract Disputes
  • Represented a major financial institution, as insured, in suit against title insurance company, challenging denial of over 200 claims made under hybrid title insurance policy, sometimes called lien protection insurance, after real estate market collapse. Obtained confidential settlement after three days of mediation. KeyBank National Association v. First American Title Ins. Co., Case No. 1:10 CV 2143 (N.D. Ohio).
  • Successfully represented health insurer before the Ohio Supreme Court in litigation over subrogation rights under an insurance policy. Blue Cross & Blue Shield of Ohio v. Hrenko, 72 Ohio St. 3d 120 (1995) (Syllabus: "Pursuant to the terms of an insurance contract, a health insurer that has paid medical benefits to its insured and has been subrogated to the rights of the insured may recover from the insured after the insured receives full compensation by way of a settlement with the insured's uninsured motorist carrier.").
  • Represented an owner of an NFL franchise in a contract dispute regarding an alleged finder's fee due in connection with the transfer of ownership interests. Obtained dismissal of the complaint on the grounds of forum non conveniens and obtained dismissal of the appeal for lack of appealability.
  • Represented a major financial institution in federal court litigation against a disaster recovery services provider over a multimillion dollar services contract. Obtained confidential settlement.
  • Represented a tree service company in the defense of fraud claims filed by a public utility in connection with the linear footage of power lines cleared in Florida. Obtained a confidential settlement.
Accounting Malpractice Defense
  • Represented a Big Four accounting firm in defense of an accounting malpractice lawsuit brought by its municipal client alleging multimillion dollar trading losses in risky interest-only and inverse interest-only securities. Obtained confidential settlement.
Non-US Clients
  • Has represented public companies from Turkey, Japan and Ireland in business disputes.
Publications
Presentations
  • "Fiduciary Liability of the Board of Directors Under ERISA," Washington, DC and Cleveland, Ohio, May 2018
  • "Contract Drafting - A Litigator's Perspective," Little Rock, Arkansas, May 2018
  • "Professionalism in the Practice of Law," Little Rock, Arkansas, May 2018 
  • "2014-15 Term in Review: Notable Decisions from the U.S. Supreme Court & Supreme Court of Ohio," John M. Manos Inn of Court, 2015
  • "Director & Officer Liability Trends," Chemical Industry General Counsel Symposium, 2015
  • "Budgeting for Litigation: A Disciplined Approach," Network of Trial Law Firms, 2014
Distinctions
  • AV® Preeminent Rated by Martindale-Hubbell
  • Named as one of The Best Lawyers in America in the area of Commercial Litigation, 2010 to 2018
  • Selected for inclusion in Super Lawyers by Ohio Super Lawyers magazine, 2012 to 2018
  • Recognized as a BTI Client Service All-Star, 2011
  • Listed as a Litigation Star by Benchmark Litigation, 2014 to 2017
Professional and Civic

Professional Associations

  • Cleveland Metropolitan Bar Association
  • American Bar Association

Community Activities

  • Towards Employment (non-profit organization that supports low income individuals in their efforts to find and keep quality jobs); President, 2015-2017; Vice President, 2013-2015; Board of Trustees, 2009 to present
  • Avon Lake Lacrosse Club (high school and youth lacrosse program), president, trustee and co-founder, 2009-2014
  • Leadership Cleveland, graduate, Class of 2011
  • Cleveland Bridge Builders (Leadership Organization), member, Charter Class of 2000-2001
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