Reported and Representative Cases

• Led trial team at Ice (Dan Swetnam, Steve Forry, Christian Robertson, and Julie Whitney) in defeating class action challenge to the efforts of the Ohio Police and Firefighters Pension Fund to prolong the solvency of its health care fund by moving to a defined contribution plan for its retirees and beneficiaries.  First, Ice defeated an effort to obtain a temporary restraining order that would have prevented the new benefits from beginning January 1, 2019, and continue the existing benefits that was rapidly depleting the health funds.  Then after a period of expedited discovery, defeated all of the remaining claims (breach of implied contract and mandamus) after a five day trial.                                                                              
• In several different matters before the Ohio Elections Commission, successfully rebuffed claims made against PhARMA for alleged campaign finance violations on Issue 2 Drug Price Standards Initiative in 2017, and claims against the Cordray and DeWine campaigns for participating in gubernatorial debates in 2018 without minor party candidates being permitted to join in.

• In this first case against a residential mortgage-backed securities (RMBS) trustee to go to trial, won a complete defense verdict after three weeks of testimony defending BNY Mellon (with co-counsel from Mayer, Brown and Keating, Muething) against claims in excess of $100 million by Western & Southern for losses suffered from investments in RMBS. The defense team showed the trial judge that the Plaintiffs’ case was full of evidentiary holes, that the damage calculations based on flawed sampling made no sense, and that there was no evidence that the RMBS trustee was even remotely the cause of any of the damages claimed. For more info, see this article. 2017 WL 3392856 (Ohio Com.Pl.) 

• Lead trial lawyer on Ice Miller team that represented the City of Bexley and 49 other Ohio municipal corporations in a successful constitutional challenge to Senate Bill 331, enacted in December 2016. Originally known as the “Petland Bill,” SB 331 regulated dog sales from retailers such as Petland. The day SB 331 passed, however, the legislators added numerous other provisions restricting our clients' ability to regulate micro cell installation in their rights of way, prohibiting any political subdivision from adopting its own minimum wage, and prohibiting regulation by local governments over any issues related to work benefits and hours and conditions of work. Ice Miller challenged SB 331 under various provisions of the Ohio Constitution alleging violations of the Home Rule Clause, the Uniformity Clause, the Equal Protection Clause, the Takings Clause and the One-Subject Rule. Since the One-Subject challenge is based upon the text of the bill, we litigated the One-Subject challenge first and reserved the other claims. After briefing and oral argument, Judge Richard Frye ruled that there was no commonality of subject matter among the provisions of the bill, and held that the animal-related provisions were the bill’s primary purpose. Accordingly, the animal-related provisions survived, but the micro wireless, minimum wage, and other employment provisions were struck down as unconstitutional. For more information, see this article. Case No. 17-CV-2672 (Franklin Co. CP).

• Successfully defended, along with Dan Anderson, the Pharmaceutical Research and Manufacturing Association (PhARMA), a trade association representing the country’s leading biopharmaceutical research companies against claims in the Ohio Elections Commission by supporters of Issue 2 related to drug pricing in Ohio. All claims dismissed by the unanimous vote of the Ohio Elections Commission members who found, after briefing and oral argument, the allegations failed to establish a violation of Ohio law, Case Nos. 2017G-012, 2017G-013.

• Successfully compelled, with co-counsel Steve Forry, putative class representative to individually arbitrate any claim for violation of the Ohio Consumer Sales Practices Act (OCSPA) and other related tort claims.  2016 WL 4080512 (Court of Appeals of Ohio, Sixth District, Erie Co.)

• Co-Counsel defending against claims of patent infringement. Dismissed with prejudice. Case No. 2:13-cv-01215 (S.D. Ohio) 

• Co-counsel on Ice Miller team that obtained Rule 12(B)(6) dismissal of putative class action complaint alleging tort claims against defendant hospital relating to collection of medical expenses. Case No. A1205649 (Hamilton Cty. CP).

• Co-counsel with Berger Singerman, in successful defense against putative class plaintiffs alleging violations of Ohio Consumer Sales Practices Act (OCSPA), Fair Debt Collections Practices Act (FDCPA), and equitable claims on mortgage foreclosure practices. All claims dismissed pursuant to Fed. R. Civ. P. 12(b)(6). 2013 WL 2476944 (N.D. Ohio).

• Represented Big Lots, Inc., as part of the Ice Miller team that successfully defeated motion to certify a Rule 23 class action/ collective action filed in federal court in Buffalo, NY alleging violations of the Fair Labor Standards Act.

• Represented general contractor, as part of trial team with Hansel Rhee, in 30-day arbitration seeking payment for construction of large production facility. Client won over $10 Million, almost 100 percent of claim, including arbitration costs and attorney fees and defeated owner’s considerably larger counterclaim claim for alleged construction and design deficiencies.

• Won summary judgment for Mara Enterprises, affirmed unanimously on appeal by the Franklin County Court of Appeals, dismissing former company president’s claim for unlawful termination based on promissory estoppel and minority shareholder status. 2009-Ohio-5716.

• As part of Ice Miller trial team, represented Big Lots, Inc. in a collective action consisting of roughly 1,000 current and former assistant store managers alleging violations of the Fair Labor Standards Act. Successfully obtained Order from the U.S. District Court, Eastern District of Louisiana decertifying class and dismissing opt-in plaintiffs’ claims at close of trial.

• Co-counsel for successful bidder for the Ohio Lottery gaming services contract. After seven day trial in Franklin County Common Pleas Court, defeated claim by incumbent vendor/ frustrated bidder to set aside the bid award.

• Represented Board of County Commissioners of Fairfield County, Ohio. Won judgment after three-day trial upholding the authority of the Board to order residents to connect to a newly-constructed public sewer system, affirmed appeal. 5th Dist. June 30, 2008), Case No. 2007 CA00028.

• Represented manufacturer in ten day federal court trial defending against sixty-five Lanham Act false advertising claims; helped defeat vast majority of claims - no damages awarded and no corrective advertising required. In addition, defeated claims for unfair competition, tortious interference with contract and deceptive trade practices.

• Represented South-Western City School District before Ohio Supreme Court and successfully defeated claim for writ of mandamus which would have required Franklin County Board of Elections to place operating levy repeal issue on ballot where board had rejected the repeal petitions as misleading. Supreme Court Case No. 05-1725.

• Represented elections systems vendor who had been effectively terminated by Secretary of State Kenneth Blackwell as an eligible vendor of electronic voting equipment in Ohio. Obtained preliminary injunction for vendor and numerous Ohio boards of elections to extend deadlines previously imposed by Secretary of State, and negotiated new contract on behalf of vendor to allow the client to sell its elections systems in Ohio and be reimbursed under the Help America Vote Act. Case No. 05-CVH-05-4855. Also, helped defeat effort by Secretary of State to stay litigation in Ohio Supreme Court. State ex rel. Blackwell v. Crawford, 2005-Ohio-5124.

• Obtained a settlement of over $650,000 in insurance coverage dispute on behalf of flooring contractor in claims for breach of insurance policy and bad faith. Case No. 01-6412, Montgomery County Court of Common Pleas.

• Won summary judgment for KB Toys and Big Lots, Inc. (formerly known as Consolidated Stores Corp.) dismissing a class action retail redlining complaint alleging racial discrimination in which the plaintiffs challenged the check acceptance policy of KB Toys during the 1990’s in the Baltimore/Washington D.C. metropolitan area. The court dismissed all claims against Big Lots, Inc. (formerly known as Consolidated Stores) which owned KB Toys for part of the period in question. In addition, the court granted three of our Daubert motions regarding the testimony of plaintiff’s three experts, resulting in the exclusion of all of the testimony of two, and most of the testimony of the third.

• As trial counsel for the City of Dublin, won summary judgment striking down the provisions of H.B. 283 which sought to limit the power of municipalities to regulate their rights of way used by utilities and telecommunications companies. Trial court granted summary judgment to Dublin finding the Right of Way legislation in violation of Dublin’s Home Rule rights and also in violation of the Single Subject Rule in the Ohio Constitution. Case No. 99CVH-08-7007.

• Represented California distributor as lead trial counsel with co-counsel Orrick, in three week jury trial in federal court against the Scotts Company. Won jury verdict for over $12 Million in counterclaims for unpaid fees, incentives, product shipments, and product returns. Also won jury verdict on $1.5 Million of disputed accounts claimed by Scotts. Case No. 3:00CV02465.

• The Sixth Circuit Court of Appeals unanimously affirmed the issuance of a Writ of Habeas Corpus in death penalty case. Jamison v. Collins, 291 F.3d 380, (C.A.6, 2002), 2002 FED App. 0184P (6th Cir.). Writ obtained on May 10, 2000, for Derrick Jamison, wrongly convicted of murder in Hamilton County, Ohio in 1985 and sentenced to die. Derrick Jamison, Petitioner, v. Terry J. Collins, Warden, Respondent, No. C-1-94-195, U.S. District Court for the Southern District of Ohio, Western Division, 200 U.S. Dist. LEXIS 7330. Conviction and death sentence have been vacated, and Mr. Jamison has been released from custody.

• Represented Huntington National Bank as special appellate counsel and obtained reversal of summary judgment granted against Huntington where the trial court had improperly determined the priority status of mortgages under R.C. §5301.232(B). 145 Ohio App3d 745, 764 N.E. 2nd 480, 10th Dist. 2001.

• Engaged as special construction counsel on behalf of general and subcontractors and obtained damage award of $4.3 Million in AAA arbitration. Arbitration Case No.110-00070-99.

• Raymond v. Avectus Healthcare Sols., LLC, No. 1:15CV559, 2018 WL 4539446 (S.D. Ohio Sept. 21, 2018)
• Horter Investment Management, LLC v. Cutter et al., 2017 WL 2619337 (S.D.Ohio June 16, 2017)
• Raymond v. Avectus Healthcare Solutions, LLC, 859 F.3d 381 (6^th Cir. 2017)

Selected Experience

• Deputy Public Defender, Solano County and Contra Costa County, California, 1977-1980.
• Assistant Attorney General of Ohio, Antitrust Enforcement and Court of Claims Defense, 1980-1985. Represented numerous state agencies, including the Ohio Department of Transportation and the Ohio Department of Administrative Services in various contract and tort actions, including construction claims both at the administrative level and in court. Worked closely with State risk managers to resolve disputes and develop methods for claims resolution. When assigned to the antitrust section worked on enforcement of Valentine Act and federal antitrust laws in cases alleging price-fixing and illegal monopolization.