Overview

For over twenty years, Brian has represented major business clients in complex, high-stakes litigation, guiding them through their most difficult legal challenges and consistently achieving successful results for them in courts throughout the country. He is experienced in shareholder, securities, corporate governance, competition, contract, business tort, mass tort, intellectual property, and consumer fraud and banking litigation. He has defended corporations, financial institutions, and individual defendants in putative class actions under virtually all the major federal securities laws, including Sections 10 and 14 of the 1934 Act and Sections 11 and 12 of the 1933 Act, and many state securities and corporation laws, including obtaining dismissal of the Rule 10b-5 claims against Lehman Brothers in the Enron litigation. He leads the firm’s practice defending clients in class actions and multidistrict litigation. He has successfully defended class actions of virtually every kind, including defeating class certification in difficult cases ranging from bondholder claims against an indenture trustee governed by the Trust Indenture Act, to claims by consumers and users of business services, to claims for medical monitoring. Among his many other successes for clients, he 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.

Brian has extensive experience litigating FDA regulatory issues such as drug approvals and preemption. He served for eight years as national coordinating and trial counsel for a pharmaceutical company in thousands of cases filed against it as well as in defending it against a series of payer and consumer class actions. He has represented clients in a broad range of other litigation including 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.

Experience

The following is a sample of Brian's experience.

Securities, Shareholder & D&O Litigation
  • Serving as lead counsel defending one of the country’s largest banks in putative class and individual actions by bondholders alleging breach of a trust indenture by failing to give timely notice of default and accelerate payment. The Court denied plaintiffs’ motions for class certification and to compel production of privileged documents under a fiduciary-exception theory. The Court granted our client’s motion to overrule Plaintiffs’ confidentiality designations. The putative class plaintiffs withdrew their motion for reconsideration and declined to petition for interlocutory appeal, accepting nominal settlements of their individual claims. Summary judgment was granted against the separate individual plaintiff and affirmed by the Fourth Circuit. Gresser et al. v. Wells Fargo Bank, N.A., 2014 U.S. Dist. LEXIS 43302 (D. Md. March 31, 2014); Willes v. Wells Fargo Bank, N.A., Case 1:12-cv-00137-CCB (D. Md.).
  • Serving as lead counsel to director and officer witnesses in an enforcement action by the Ohio Division of Securities for alleged offers and sales of unregistered securities and securities fraud.
  • Serving as lead counsel in defense of directors of a dissolved corporation in alleged creditor’s action for breaches of fiduciary duties (Delaware).
  • Defending outside directors of a closely held corporation in an action for alleged breaches of fiduciary duty and oppression of minority shareholders (Alabama).
  • Defending outside director in consolidated options backdating shareholder class actions (Eastern District of Louisiana).
  • Serving as lead counsel in defense of venture capital funds in shareholder litigation arising from an alleged squeeze-out transaction (Ohio).
  • Obtaining dismissal of Rule 10b-5 claims against a large commercial and investment banking institution in one of the largest securities fraud class actions in history (Enron).
  • Defending a media company in a tender offer class action under Section 14(d)(7) of the Williams Act and Rule 14d-10 (the “best-price/all-holders” rule) (Southern District of New York).
  • Defending a privately held company in a shareholder action for breach of contract, breach of fiduciary duty and fraud (Northern District of Ohio).
  • Representing 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).
  • Defending one of the country’s leading banking organizations in retail securities fraud class actions in federal and state courts in various states throughout the country.
  • Defending a major telecommunications company in federal securities litigation arising from introduction of a new communications technology (D.C. District).
  • Defending outside directors of a publicly traded company in federal securities and derivative shareholder suits (Ohio).
  • Defending a publicly traded corporation in an action under Rule 10b-5 arising from the introduction of a new consumer product (Northern District of Ohio).
Consumer, Economic Loss, Financial Services & Other Class Action Defense
  • Serving as lead counsel defending a manufacturer of wood-plastic composite (WPC) decking products in a proposed nationwide class action on behalf of owners an estimated more than 20,000 decks, as well as individual actions and related contract and intellectual property disputes. Brian developed and led the strategy resulting in denial of class certification after extensive discovery, expert discovery, briefing, and hearing, and persuaded the Court to deny the plaintiffs’ motion to compel production of joint-defense communications and their Daubert motion to exclude Deceuninck’s WPC expert. This was the first reported ruling on a contested motion for class certification in a WPC decking case, setting an important precedent in the WPC industry and the broader building products industry.  Pagliaroni et al. v. Mastic Home Exteriors, Inc., and Deceuninck North America, LLC, 2015 U.S. Dist. LEXIS 126543,  (D. Mass. Sept. 22, 2015). The decision denying class certification was selected by the prominent blog Class Action Countermeasures as one of the ten most significant class action decisions of 2015. Brian also led the Thompson Hine team in drafting the defendants’ answer to the plaintiffs’ Rule 23(f) petition for interlocutory review; the First Circuit denied the petition in 2016.
  • Serving as lead counsel defending one of the country’s largest banks in a $40 million-dollar putative class action by bondholders for alleged breach of a trust indenture and negligence. Class certification denied.
  • Defeating Rule 23 certification of a proposed Fair Labor Standards Act class of freight dispatchers and obtained decertification of collective action (Northern District of California).
  • Defending a pharmaceutical company in statewide (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).
  • Defeating 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). Cerdant, Inc.  v. DHL Express (USA), Inc., 2010 U.S. Dist. LEXIS 95087  (S.D. Ohio Aug. 25, 2010).
  • Obtaining an 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).
  • Providing 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).
  • Defending a specialty metal manufacturer in putative class actions for medical monitoring recovery in federal and state courts.
  • Obtaining dismissal of one putative nationwide product liability class action filed in Northern District of Ohio, 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.
  • Obtaining 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).
  • Defending 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).
  • Defending a large telecommunications company in putative class actions in various states relating to its late fee policies and practices.
  • Representing 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).
  • Defending a large retailer in class actions and state enforcement proceedings in various states involving claims of false advertising
Other Business, Intellectual Property & Competition Litigation
  • Pre-litigation counseling of a major industrial client regarding a dispute with a utility provider with value in the tens of millions of dollars. An aggressive and legally creative approach resulted in the withdrawal of the utility provider’s financial demand and a resolution favorable to the client without the need to file the federal lawsuit and motion for temporary restraining order that were fully prepared to back up and enforce the strategy.
  • Defending 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 large pharmaceutical company seeking tens of millions of dollars in compensatory damages, plus punitive damages and attorney fees. The plaintiff aggressively obstructed discovery while also pursuing expansive theories of damage. After nearly two years of intensive litigation, the plaintiff was compelled to produce properly prepared deposition witnesses, and the Court granted our motion to refer the matter to the FDA. Before the referral occurred, vigorous discovery uncovered still further evidence that had been withheld and that contradicted the deposition testimony of the plaintiff’s highest executives. Within six months, the plaintiff was forced to voluntarily dismiss all claims with prejudice rather than face continued sanctions proceedings and summary judgment. Our client paid nothing. Purdue Pharma, LLP v. Solvay Pharmaceuticals, Inc., 1:02-cv-3162-JEC (N.D. Ga.).
  • Representing a large manufacturing company in post-trial and appellate proceedings in a major CERCLA action.
  • Representing a private company in a group of complex lawsuits arising from the purchase and sale of several groups of businesses.
  • Prosecuting a multimillion-dollar contract and business tort action involving an international joint venture, leading to a favorable settlement.
  • Representing a manufacturing client in an international arbitration arising from construction of an overseas manufacturing plant, leading to a favorable settlement.
  • Obtaining 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.
  • Representing a large company in all trial court and appellate phases of constitutional tax litigation.
  • Representing a manufacturing company in multiple actions for breach of covenants not to compete and theft of trade secrets.
  • Representing a manufacturing company in an action to recover insurance under lost general liability policies, leading to settlement for full recovery and admission of coverage.
  • Obtaining summary judgment and numerous other victories, including dismissal of counterclaims, in one of the most notable foreclosure cases 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 zealous pro se defendant who was unconstrained by court rules. Davet was a case in Cuyahoga County, Ohio in which the defendant resisted foreclosure and filed counterclaims based upon alleged procedural deficiencies involving title assignment, recording, and standing, but it preceded the foreclosure crisis by over a decade. The defendant's tactics included serial appeals, shareholder activism, ethics complaints, motions to disqualify, and filing of repeated affidavits of prejudice seeking recusal and removal of judges.
Other Drug, Medical Device & Mass Tort Litigation
  • Serving as lead counsel in defense of the first suit for Chronic Beryllium Disease (CBD) against a major industrial client following the Missouri Supreme Court’s holding that the workers’ compensation statute does not bar occupational disease claims of employees; summary judgment granted. Francis v. Noranda Aluminum, Inc., 2013 U.S. Dist. LEXIS 35933, 2013 WL 1090300 (E.D. Mo. Mar. 15, 2013).
  • Serving as lead national coordinating and trial counsel and as a member of MDL Defendants' Steering Committee in defense of thousands of product liability actions brought against Solvay Pharmaceuticals, Inc., a manufacturer of hormone replacement therapy (HRT) drugs, including a leading product sold for forty years without an FDA-approved NDA or ANDA. Thousands of the cases against Solvay Pharmaceuticals, Inc., were filed in, or removed to, federal courts and transferred by the JPML to the hormone therapy MDL In re Prempro Products Liability Litigation, 4:03-cv-01507 (E.D. Ark). Many others remained in the District of Minnesota under CAFA’s mass action exception to MDL transfer, and still others remained in state court mass tort programs. All cases remaining after years of litigation were settled on highly favorable terms.
  • Representing a manufacturer in occupational disease actions brought by contractor employees.
  • Participating in the successful defense of a manufacturer of orthopedic implants used for spinal fixation in various courts across the country.
Publications
Presentations
  • "Statistics in Class Certification and at Trial:  Leveraging and Attacking Statistical Evidence in Class Actions," Strafford, 2016 
  • "Recent Developments and Strategies to Strengthen Your Class Action Defense," 20th Annual ACI Drug & Medical Device Litigation Conference, December 2015
  • Panelist, 2015 ABA National Class Action Institute, “When the Supreme Court Speaks, Does Anyone Listen?”
  • "Statistics in Class Certification and at Trial: Leveraging and Attacking Statistical Evidence in Class Actions," 2015 Strafford Webinar
  • "Defending Your Company Against Class Action Litigation: What You Need to Know to Best Position Your Company for A Successful Defense," 2015 Thompson Hine Premier Client Summit
  • "Mitigating Risk With Whistleblower Activity On The Rise," 2014 Thompson Hine Premier Client Summit
  • "Seven Habits of Highly Ineffective Lawyers: How Bad Lawyers Lose Cases and Good Lawyers Beat Them," Northeast Ohio Association of Corporate Counsel of America (2013, author and lead presenter)
  • "Statistics in Class Action Litigation:  Admissibility, Expert Witnesses, and the Impact of Comcast v. Behrend (Leveraging Statistical Evidence to Obtain or Defeat Class Certification)," Strafford Webinar 2013
  • Panelist, "Class Action Trends and Innovations: Emerging Theories of Liability, Certification, and New Developments," Tactics for Presenting Effective Economic Analyses for Defendants in Economic Loss Class Actions, 17th Annual ACI Drug and Medical Device Litigation Conference 2012
  • "False Advertising Consumer Class Actions: Latest Developments – Best Practices for Bringing of Defending Misleading Advertisement Litigation," Strafford Webinar, 2012
  • "Statistics in Class Action Litigation: Admissibility, Expert Witnesses and Impact of Wal-Mart v. Dukes," Strafford Webinar, 2012
  • Invited panelist and conference co-chair, "Assessing the Dodd-Frank Whistle-Blower Provision and Uncovering Its Impact on the Life Sciences Industry," 7th Marcus Evans Drug and Medical Device Litigation Conference, 2012
  • "Insights from Recent Developments for Defending Class Actions," 16th Annual ACI Drug and Medical Device Litigation Conference, 2011
  • Invited speaker, "Best Practices for Managing Multi-Forum Litigation," 2011 Lorman Seminar
  • Invited speaker, "Statistics in Class Actions," 2011 Strafford Seminar
  • Invited panel moderator, Pharmaceutical/Medical Device Litigation Regional Seminar, 2011 ABA Conference
  • Invited speaker on defense strategies in "False Advertising Consumer Class Actions: Latest Developments," 2011 Strafford Seminar
  • "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
Distinctions
  • Listed in The Best Lawyers in America, 2018
  • AV® Preeminent Rated by Martindale-Hubbell
  • Selected for inclusion in Super Lawyers by Ohio Super Lawyers magazine, 2015 to 2017
  • Euromoney/LMG Life Sciences, Life Sciences Star, 2012 to 2016
  • Benchmark Litigation Star, 2012 to 2017
Professional and Civic

Professional Associations

  • American Bar Association
  • Federal Bar Association
  • Defense Research Institute
  • Cleveland Metro Bar Association

Community Activities

  • Elevate NEO, board member
  • DGWM, chairman
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