Quinn Emanuel has an extensive nationwide appellate practice that focuses on briefing and arguing significant cases before the Supreme Court of the United States and the federal courts of appeals (particularly the Second, Ninth, and Federal Circuits), and also maintains an extensive practice before the appellate courts of California, New York and other states. Our appellate experience spans all areas of our practice, from copyright, patent, trademark and trade secret law to antitrust, arbitration, business torts, commercial contracts, financial products, insurance and reinsurance, media, securities, bankruptcy, products liability and white-collar criminal defense. Our appellate group has received numerous accolades, including being named to The National Law Journal’s prestigious “Appellate Hot List” in 2017—the seventh time in the last eight years it has received that honor.
Our appellate practice is headed by Kathleen M. Sullivan, who joined Quinn Emanuel in 2005 after a storied career as a professor at Harvard and Stanford Law Schools and as Dean of Stanford Law School. The author of leading casebooks on constitutional law and the First Amendment (as well as numerous articles published in both the academic and the popular press), Ms. Sullivan became the first and only woman name partner of an AmLaw 100 firm in 2010, when the firm became Quinn Emanuel Urquhart & Sullivan, LLP. Ms. Sullivan is one of the nation’s most renowned appellate litigators, and has been named repeatedly to The National Law Journal (ALM)’s list of “The 100 Most Influential Lawyers in America” (2016, 2013). Chambers recognized Ms. Sullivan for her Outstanding Contribution to the Legal Profession in 2018, and Chambers USA has described her as a “brilliant appellate lawyer” and “a consummate practitioner before any appeal court,” who wins clients’ approval as a “tremendously agile and a fabulous advocate.” Benchmark Litigation named Ms. Sullivan a Top 10 Female Litigator for 2016 and a Top 10 Appellate Star for 2017, and Law360 has named her an Appellate MVP three times (2015, 2014, 2011). The American Lawyer awarded Ms. Sullivan Litigator of the Week honors for the third time in 2016, after having profiled her in a 2013 cover story entitled “The Golden Touch.” The New York Law Journal (ALM) conferred on her a Lifetime Achievement award in 2015, and in 2017 Legal 500 named her to “The Hall of Fame.” Ms. Sullivan was elected to the American Academy of Appellate Lawyers in 2014.
Quinn Emanuel’s immensely talented appellate team also includes Christopher Landau, who clerked for both U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas and has argued 9 cases in that Court, as well as every one of the federal courts of appeals and many state appellate courts; Daniel H. Bromberg, a skilled Supreme Court advocate with experience at every level of appellate litigation and special expertise in California appellate courts; Sanford (“Sandy”) I. Weisburst, first in his class at University of Chicago Law School and a former law clerk to Justice Clarence Thomas; Derek L. Shaffer, first in his class at Stanford Law School and a former clerk on the D.C. Circuit; William B. Adams, also a former clerk on the D.C. Circuit with a wide range of appellate experience; and David M. Cooper, first in his class at Stanford Law School and former law clerk to Justice Anthony Kennedy.
Quinn Emanuel’s appellate practice is also uniquely intertwined with its trial practice; the firm’s leading trial lawyers, such as founder John B. Quinn, Richard I. Werder, Jr., Michael B. Carlinsky, Robert L. Raskopf, Adam M. Abensohn and Christopher Tayback, regularly argue and win significant appeals. Among our patent lawyers, Charles K. Verhoeven, Raymond N. Nimrod, Victoria F. Maroulis, David A. Perlson, Brian C. Cannon, Peter J. Armenio, P.C., and Kevin P.B. Johnson routinely score important Federal Circuit wins.
On behalf of our client Samsung, we obtained a landmark victory in Samsung Electronics Co., Ltd. v. Apple Inc., the first design-patent case to reach the Supreme Court in over a century. A federal jury had awarded Apple $399 million—the entire profits on Samsung’s accused Galaxy phones—for supposed design-patent infringement of certain narrow portions of an iPhone’s appearance. After successfully petitioning for certiorari, we obtained a stunning 8-0 reversal vacating that award and adopting Samsung’s argument that, in a multicomponent device, infringer’s profits under Section 289 of the Patent Act are limited to profits from the component to which the patented design is applied. The high court win was one of the last chapters of the “smartphone wars” between Apple and Samsung, in which our firm represented Samsung in all trials and appeals. Earlier in this case, we overturned a different $382 million portion of the initial judgment, convincing the Federal Circuit to reverse all trade-dress dilution awards and to invalidate Apple’s iPhone trade dresses.
We successfully challenged a federal statute that made it harder for unwed U.S.-citizen fathers than unwed U.S.-citizen mothers to pass citizenship to a child born abroad, which the Supreme Court held unconstitutional under the Fifth Amendment’s principle of equal protection in Sessions v. Morales-Santana.
In a case The New York Times called “the most important business decision” of its Term, we won a landmark unanimous victory for Shell Oil in Kiobel v. Royal Dutch Petroleum, which held that the Alien Tort Statute (ATS), enacted by the First Congress in 1789, does not provide a cause of action in U.S. courts for alleged violations of international law that take place in foreign countries. The decision greatly curtails the availability of the ATS as a vehicle to sue corporations in U.S. courts for supposedly aiding and abetting foreign governments’ wrongdoing.
We obtained a 7-2 victory in the Supreme Court for Roche in Bd. of Trustees of Leland Stanford University v. Roche Molecular Systems, Inc., which arose from a suit involving patents related to HIV treatment that had been developed in a collaboration between Stanford and Roche’s predecessor. The Court sided with Roche, holding that it was a co-owner of the patents-in-suit and rejected Stanford’s effort to void its contracts based on its receipt of federal funding, reasoning that the statute governing federal research funding does not give universities automatic ownership of patents.
We secured a 6-2 victory for Wyeth LLC (part of Pfizer Inc.) in Bruesewitz v. Wyeth, which held that the National Childhood Vaccine Injury Act preempts state-law claims based on theories of defective design in governmentally-approved child vaccines. The decision has significant implications for public health, as it removes design-defect claims that would have increased manufacturers’ costs and depressed vaccine supply and development.
We won an 8-1 victory for Shell Oil in the Supreme Court in Burlington Northern & Santa Fe Railway v. United States, which greatly limited “arranger” liability under CERCLA and held that Shell could not be held liable as an arranger for shipping useful chemicals. The decision also clarified the standards for apportionment under CERCLA.
We obtained a Supreme Court victory for Japanese ocean carrier “K” Line in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., which unanimously held that ocean carriers are not subject to regulation under the Carmack Amendment when they make intermodal shipments that travel both by sea and by land.
In Granholm v. Heald, our lawyers obtained a 5-4 victory in the Supreme Court on behalf of California vintners and Michigan consumers challenging state laws imposing discriminatory restrictions on interstate shipments of wine. The Court held that the Twenty-First Amendment does not give states license to interfere with the national market in a way that violates the Dormant Commerce Clause.
We have filed numerous amicus curiae briefs in Supreme Court business cases on behalf of such clients as the Chamber of Commerce, the New York Stock Exchange and NASDAQ, and, in patent cases, such clients as Google, Cisco, Oracle, Red Hat, Symantec, Xilinx, Time Warner, AOL, Xerox, IAC/Interactive, Infineon, Chevron, Shell, and Affymetrix.
We have also filed amicus briefs pro bono in the Supreme Court on behalf of such clients as former members of Congress; the American Association of University Professors; the Anti-Defamation League; former Secretary of State Madeleine Albright; four former Secretaries of the Interior; the Attorneys General of twenty-seven States and the District of Columbia; and the Conference of Chief Justices.
We obtained a 5-0 decision from the New York Court of Appeals for an association of reinsurers vacating a summary judgment in a $400 million reinsurance case and holding that the “follow the fortunes” doctrine does not bar review of whether an insurer’s allocation of a settlement to its reinsurers has an objectively reasonable basis.
We represented then-New York Governor David Paterson and then-Lieutenant Governor Richard Ravitch in a victory The New York Times called “stunning,” obtaining a 4-3 victory in the New York Court of Appeals holding that Mr. Paterson had the authority to appoint Mr. Ravitch Lieutenant Governor to fill a vacancy in that office created when Mr. Paterson assumed the Governorship.
We represented the National Resources Defense Council and the Public Utility Law Project as amici curiae in the New York Court of Appeals in an action where a group of landlords challenged the New York City Water Board’s ability to set rates for water usage. The Court adopted the argument that we (but neither of the parties) advanced, ruling that the Water Board had acted within its authority to set rates in ways that would aid low-income households, incentivize water conservation, and reduce stormwater runoff, an emerging and important environmental issue.
We secured a 7-0 victory in the California Supreme Court for the University of Southern California in a decision holding that state trial courts have a duty to act as “gatekeepers” in excluding speculative and unreliable expert testimony, a decision that moves the California courts closer to the Daubert standard used in the federal courts—thereby reducing incentives for forum-shopping in cases involving expert testimony.
We secured a unanimous win in the Delaware Supreme Court, which affirmed a complete defense verdict that we had obtained for Athilon Capital and its board of directors. In this bet-the-company case, Quadrant Structured Products (owned by Magnetar) had sought not only hundreds of millions of dollars and findings of breach of fiduciary duty against the members of the board as individuals, but also an order requiring Athilon to liquidate its assets and shut down its business. After our repeated victories, they obtained neither.
We obtained a unanimous victory for AIG in the Delaware Supreme Court, which affirmed dismissal of a suit in which eight plaintiffs alleged AIG breached guaranteed investment contracts by triggering the contracts’ event of default provisions.
Representing AIG in a rare win for an insurer in the Supreme Judicial Court of Massachusetts, we successfully petitioned for review of, and then succeeded in reversing, an intermediate appellate court’s decision that a “judgment” for purposes of a treble-damages statute includes not only the amount of a judgment but also accrued interest. The court unanimously adopted our interpretation of the statute and thus eliminated over a third of the judgment.
We obtained a unanimous victory for AIG in the West Virginia Supreme Court, which vacated all that was left of a $58 million jury verdict in an environmental insurance coverage dispute. We had first challenged the underlying punitive damages and successfully reduced that verdict by $28 million on post-trial motions. Then, in a unanimous decision, the West Virginia Supreme Court zeroed out the judgment, rejecting plaintiffs’ argument that they were entitled to the remaining $30 million for alleged injuries to a corporation’s shareholders. We thus made new law in West Virginia reinforcing the doctrine of corporate separateness.
Acting for a group of plaintiffs including the City of Philadelphia and Prudential, we played a leading role in obtaining a victory in the Second Circuit in antitrust litigation over financial institutions’ manipulation of the U.S. Dollar London Interbank Offered Rate (“Libor”). The Second Circuit reversed a district court’s dismissal of plaintiffs’ antitrust claims, adopting our arguments and holding that even though the Libor-setting process was cooperative, Libor manipulation still constitutes horizontal price-fixing (a per se antitrust violation).
Acting for The Home Depot, we had a central role in persuading the Second Circuit to overturn a $7.25 billion antitrust class-action settlement that had required more than 12 million merchants to release all current and future claims against Visa and MasterCard—without permitting merchants to opt out of that release. We convinced the Second Circuit that the class had been inadequately represented and that the insufficient relief and inability to opt out meant the settlement violated class members’ due process rights.
We obtained a unanimous win for Samsung in the Ninth Circuit in a case making significant new law on the antitrust statute of limitations. We took over the case after the district court had dismissed Samsung’s antitrust claims as untimely. On appeal, the Ninth Circuit reversed and reinstated the claims, holding that the imposition of new anticompetitive royalties restarted the statute of limitations under the “continuing conspiracy” doctrine even if other anticompetitive royalties had been imposed outside the limitations period.
We represented Wellquest International, Inc. in an appeal from an order denying a motion to compel arbitration. The arbitration provision at issue covered only claims “arising out of or related to” plaintiff’s contractual right to an audit for unpaid royalties, and because plaintiff had never initiated an audit, the trial court denied arbitration for claims for unpaid royalties. We persuaded the California Court of Appeal to reverse, holding that the claims were still “related to” the audit clause and had to be arbitrated.
We represented the Abu Dhabi Investment Authority in an arbitration arising from a $7.5 billion investment in Citigroup. While Citigroup asked the district court to enjoin the arbitration on res judicata grounds, both that court and the Second Circuit on appeal rejected Citigroup’s arguments—siding with us and ADIA and holding that the preclusion issue must be decided by the arbitrators in the first instance.
We represented Ortho-McNeil, a subsidiary of Johnson & Johnson, in a unanimous Seventh Circuit victory that made new law narrowing “manifest disregard of the law” as a ground for district court vacatur of arbitral awards and reversed a partial vacatur of an award that had favored Ortho in a patent dispute.
We obtained a victory for Sequus Pharmaceuticals, another subsidiary of Johnson & Johnson, persuading the Ninth Circuit to issue a decision that strengthened protection of foreign arbitral awards by holding that the removal provision of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards should be construed broadly to prevent state-court end runs around foreign arbitration.
We represented Koch Industries’ INVISTA subsidiaries in obtaining dismissal of an appeal by French chemicals firm Rhodia S.A, which had attempted to obtain a stay of litigation in favor of a foreign arbitration involving two Rhodia affiliates and one of the three INVISTA plaintiffs. The Third Circuit’s decision allowed INVISTA’s claims against Rhodia over rights to an important nylon process to move forward in Delaware state court while the foreign arbitration proceeded.
We achieved a remarkable across-the-board victory for the Federal Housing Finance Agency, as Conservator for Fannie Mae and Freddie Mac, in the Second Circuit, which affirmed our $800+ million trial win against Nomura and RBS. In an exhaustive, 147-page opinion, the court found “no merit in any of Defendants’ arguments.” Because FHFA had settled related cases, the decision vindicated our years-long litigation strategy as precedent, helping set important standards for securities markets.
We represented Financial Guaranty Insurance Company in a case relating to a $900 million insurance policy on a credit default swap referencing a $1.5 billion collateralized debt obligation. We obtained a complete reversal from the Second Circuit of the district court’s order dismissing the complaint for failure to state a claim, protecting our client’s right to pursue its claims for fraud, negligent misrepresentation, and negligence.
We obtained a complete reversal of a $115 million judgment entered against our client Samsung before we were retained for the appeal. We persuaded a unanimous New York Appellate Division, First Department, that the contracts at issue unambiguously permitted Samsung to terminate its participation in a patent pool when it did, which led the court to vacate the award and dismiss all of the patent pool administrator’s claims.
We won a Second Circuit victory for Allegheny Energy that not only overturned a $158 million judgment against Allegheny but also reinstated $350 million in counterclaims that Allegheny had asserted against Merrill Lynch. On remand, we took over as trial counsel for Allegheny and secured a favorable settlement.
We obtained a $70 million post-trial victory, affirmed on appeal to the Federal Circuit, in a fraud case based on allegations that our client Cisco had delayed telling plaintiff XpertUniverse that a partnership application had been denied. After a jury awarded $70 million in damages, Cisco retained us for post-trial motions and appeal. We persuaded both the district court and the Federal Circuit that the evidence had been insufficient to support the award, and thus to enter and affirm judgment as a matter of law for Cisco.
We represented Cointer Chile and Azvi Chile in its appeal of the dismissal of a breach of contract claim seeking over $80 million in damages based on Scotiabank’s alleged gross negligence in preparing a financial model, and persuaded the New York Appellate Division, First Department to reverse the trial court’s decision and reinstate the claim.
We represented Dr. Enrico Bondi (Extraordinary Administrator for the former Parmalat companies) in a case involving accounting malpractice by former auditor Grant Thornton. After the case, which was originally filed in Illinois state court but was removed to federal court, initially resulted in a summary judgment in favor of Grant Thornton, we persuaded the Second Circuit to reverse, and to order that the case be remanded on abstention grounds. When the federal district court in Illinois declined to follow that instruction, we again successfully appealed—this time to the Seventh Circuit, which reversed and definitively ordered remand to state court for the proceedings to restart on a clean slate.
We obtained a unanimous victory for AIG in the U.S. Court of Appeals for the Second Circuit in a suit against Bank of America and other banks for fraudulent RMBS practices. The defendants had removed AIG’s state-court claims to federal court, basing federal jurisdiction on the fact that a few underlying mortgages had been executed in Guam and other insular territories. The Second Circuit reversed, holding in a case of first impression that the Edge Act confers federal jurisdiction only in suits that arise out of offshore banking or foreign financial transactions by a federal banking corporation that is party to the suit. The cases thus returned to state court and were ultimately successfully settled.
The New York Appellate Division affirmed our win on a motion to dismiss a complaint brought by actor Harvey Keitel against firm client E*TRADE. Keitel had sued E*TRADE for $1.5 million because it decided not to use him in an ad campaign after its ad agency had sent his agent a term sheet, which it referred to as a “binding offer.” We convinced both the trial and appellate courts that no valid and binding contract was ever formed.
We obtained a win for GFI Group on an appeal to the New York Appellate Division, First Department in an employment action that involved breaches of restrictive covenants in a former senior manager’s employment agreement. The trial court granted the manager summary judgment both on his claims and on GFI’s counterclaims, but after GFI retained us to lead its appeal we persuaded the First Department to vacate the summary judgments and to remand for trial.
We obtained a unanimous victory for our client Pinterest in the New York Appellate Division, First Department, which affirmed the dismissal of all claims asserted against Pinterest in its very first lawsuit, a trade-secret case in which the plaintiff alleged that he had come up with the idea for the wildly successful Pinterest website only to have it misappropriated by Pinterest’s first investor. The decision adopted our arguments in explaining that the plaintiff failed to state claims for aiding and abetting breach of fiduciary duty, trade-secret misappropriation, unjust enrichment and unfair competition.
We obtained a victory in the Second Circuit for EQUATE Petrochemical Company, a Kuwaiti firm, in a contract dispute filed by Continental Industries Group. The district court dismissed the case on the pleadings for lack of personal jurisdiction. The Second Circuit unanimously affirmed, finding no general or specific jurisdiction over EQUATE and holding that Continental was not entitled to jurisdictional discovery.
We represented the Kamehameha Schools, the world’s largest private K-12 educational trust, obtaining an 8-7 en banc victory in the Ninth Circuit that held that the schools do not engage in “race discrimination in contracting” in violation of 42 U.S.C. § 1981 by giving an admissions preference to the Native Hawaiian schoolchildren for whose benefit they were founded by one of Hawaii’s last monarchs.
In a pro bono case representing Latino plaintiffs who alleged that the mobile home park in which they live violated the Fair Housing Act ban on race discrimination by requiring occupants to prove their legal status, we persuaded the Fourth Circuit to reverse both the district court’s dismissal of one theory and its grant of summary judgment to the park’s owner on another. The Fourth Circuit held that because the documentation policy threatened a disproportionate number of Latino tenants with eviction, our clients had stated a claim for an FHA violation, rejecting the district court’s “grievous error” of ruling that there could be no violation because the policy targeted residency status instead of our clients’ identity as Latinos.
We obtained a unanimous Second Circuit win for Vimeo, a video-hosting website, in major record labels’ suit for copyright infringement based on music in user-uploaded videos. After the district court granted Vimeo only partial summary judgment based on its ruling that the safe harbor provisions of the Digital Millennium Copyright Act do not apply to pre-1972 sound recordings and that questions of fact remained about Vimeo’s knowledge, we successfully petitioned for a rare interlocutory appeal. We then convinced the Second Circuit that the DMCA safe harbor does apply to pre-1972 sound recordings, that mere awareness of a “famous” song in a video cannot confer “red flag” knowledge, and that Vimeo was not willfully blind to the alleged infringement.
We represented the Baltimore Ravens and the NFL in a copyright case filed by the designer of the Ravens’ inaugural but since-changed “Flying B” logo. We persuaded both the district court and a unanimous Fourth Circuit that the challenged documentaries and photographic displays used the logo “as part of the historical record” and therefore constituted fair use regardless of any commerciality, market usurpation, or other factors that might have supported the plaintiff’s position. The court also provided a strong defense of the First Amendment value of the fair use doctrine.
We obtained reversal in the Second Circuit of our client’s individual white-collar conviction on charges of violating the Iranian trade embargo and operating an unlicensed money transmitting business based on his receipt of family funds sent from Iran through an informal money transfer system called a hawala. The court held that the ITR do not unambiguously prohibit non-commercial remittances, including family remittances, between the United States and Iran, and that the district court had erred by improperly equating operation of a hawala with operation of a money transmitting business. On remand, we convinced the Government to dismiss the remaining charges.
We represented Adam Miranda, an inmate who had been on death row since 1982. After two decades of post-judgment litigation, we persuaded the California Supreme Court to grant a writ of habeas corpus vacating the death penalty imposed on Mr. Miranda based on exculpatory evidence that the prosecution failed to produce. Although the Court ordered a new penalty phase, the State declined to again seek the death penalty.
We convinced the Fourth Circuit to affirm the dismissal of three consumer class and mass actions against Hyundai Motor America, Inc. and a number of Virginia-based Hyundai dealerships arising from facts relating to the Environmental Protection Agency’s imposition of civil fines on Hyundai for asserted Clean Air Act violations involving the method used to calculate vehicle mileage estimates for Elantra model years for 2011-2013.
We won a major federal preemption decision for Entergy in the Second Circuit, which held that the Atomic Energy Act barred Vermont’s effort to prevent continued operation of the Vermont Yankee plant for reasons of nuclear safety. After prevailing in a bench trial by demonstrating that state lawmakers had acted with a purpose to regulate nuclear safety (a field reserved to the federal government), we successfully defended that victory on Vermont’s appeal to the Second Circuit, securing a unanimous affirmance.
We also represented Entergy before the Vermont Supreme Court, obtaining dismissal of an original complaint seeking a shutdown of the Vermont Yankee Nuclear Power Station, on grounds that no equitable grounds for relief existed.
We obtained five significant Ninth Circuit victories for Shell, defeating petitions for review challenging the Bureau of Ocean Energy Management’s approvals of Shell’s plans for gas and oil exploration in Alaska’s Camden Bay and Chukchi Sea and related challenges to EPA’s issuance of Clean Air Act permits. The court held, among other things, that the agencies were entitled to significant deference when interpreting the relevant statutes, interpreting their own regulations, and making technical and scientific assessments.
We represented the Alliance of Automobile Manufacturers in one of the highest-stakes appellate and environmental litigation matters in years, helping to obtain a ruling in the D.C. Circuit that nationwide greenhouse gas emission standards for automobiles, on which our client had already relied in constructing their 2012 model year fleet, would survive a challenge from a host of states and other industry groups.
We represented the Metropolitan Water District of Southern California in a successful appeal of a decision invalidating its rates for the conveyance of water and awarding the rate challenger, the San Diego County Water Authority, more than $235 million in damages for breach of a contract to charge a lawful conveyance rate. On the central issue in dispute, we obtained a complete reversal in a decision upholding key components of Metropolitan’s rate structure and reducing the monetary judgment by 85%.
In a major victory for PG&E in the California Court of Appeal for the Third District, we greatly limited California utilities’ litigation exposure from wildfires by eliminating the threat of punitive damages for the 2015 Butte Fire. The court held that, in light of PG&E’s extensive vegetation management program along its 135,000 miles of powerlines, PG&E could not possibly be found to have consciously disregarded the risk of tree-related wildfires. In addition to saving PG&E from potentially billions of dollars in punitive damages, the decision creates important new California law protecting companies that institute risk management programs from the threat of such damages.
In a significant win for our client, Postmates Inc., we convinced the New York Appellate Division, Third Department, to hold that its couriers are independent contractors rather than employees. This issue—independent contractor vs. employee status—has particular significance to individuals and companies that are part of the “gig economy” and rely on the flexibility and efficiencies offered by the independent contractor model.
We represented subsidiaries of AIG in successfully persuading the U.S. Court of Appeals for the Second Circuit to reverse a $34 million judgment after jury trial in a reinsurance dispute. After a jury had found AIG liable for fraudulently inducing the plaintiff to enter into six reinsurance agreements, the district court had rescinded the agreements and ordered AIG to pay over $34 million, including $5.75 million in punitive damages. Taking the unusual step of overturning a jury verdict, the Second Circuit unanimously reversed, holding that the claims were barred by the statute of limitations because the plaintiff reinsurer was on notice of key facts from which it could have inferred its claims years prior to filing suit—including from the terms of a contract it had signed but claimed not to have read.
We obtained a win in the California Court of Appeal for QBE Insurance (Europe) Limited and Beazley Syndicate 2623/623 at Lloyd’s, securing reversal of a $12 million judgment. The two insurers had issued policies that were initially found to cover losses to restaurants related to feared contamination of fresh spinach; we persuaded the Court of Appeal that the plaintiffs had not shown that the losses were caused by conduct covered by the policies, as opposed to market-wide events.
We obtained an important victory for The Broad Institute, Inc. in a patent interference suggested by the University of California and Emmanuelle Charpentier challenging key Broad patents directed to use of CRISPR in eukaryotic cells, humans, other mammals, and plants. CRISPR technology has been widely hailed in the press as one of the most important scientific breakthroughs of this century. We first prevailed in the PTAB, which declared there was no interference in fact and dismissed the interference with our client’s patents. We then prevailed in the Federal Circuit, which unanimously affirmed the PTAB’s ruling. The court held that patents and applications of Broad Institute and the University of California are about different subjects and do not interfere with each other. This significant win helps protect the Broad’s patents and allows it to continue its groundbreaking research in this critically important area.
We achieved a significant appellate victory for our long-time client Merck (US) in connection with its NuvaRing® contraceptive product, convincing the Federal Circuit to reverse the district court’s finding that Merck’s patent covering NuvaRing® was obvious. The decision prevents generic competition for NuvaRing® until after the patent expires.
We represent Olaplex in a patent infringement case against the cosmetic conglomerate, L’Oreal. On a motion for preliminary injunction, the district court misconstrued a critical claim term and denied Olaplex’s preliminary injunction. On appeal, the Federal Circuit entirely agreed with Olaplex’s construction of the claim term, vacated the denial of the preliminary injunction, and remanded the case for further proceedings.
For our client IBM, we obtained a complete affirmance in the Federal Circuit of favorable claim construction rulings that resulted in a stipulated judgement of invalidity of all patent claims plaintiff Twin Peaks Software Inc. had asserted against IBM’s newest distributed storage products.
We represented Marvell Technology Group in its appeal from the largest patent infringement verdict in U.S. history. The Federal Circuit sided with Marvell in reversing the district court’s finding of willful infringement, and vacating $1.25 billion in damages based on the rule against extraterritorial application of U.S. law.
We obtained a complete reversal in the Federal Circuit of an $85 million judgment of patent infringement against Google. Plaintiff SimpleAir, Inc. had sued Google, Microsoft, and numerous other providers of smartphones and software, claiming its patents covered the technology used to send notifications to mobile devices. Google, while represented by previous counsel, had been found by two juries to infringe and to owe $85 million in royalties. On our successful appeal, the Federal Circuit reversed the district court’s key claim construction ruling.
We represented Google, AOL, IAC, Target, and Gannett in litigation accusing Google’s AdWords and AdSense systems of patent infringement. We obtained reversal of a jury verdict of infringement and validity and an award of $30.5 million in damages. The Federal Circuit held that all of the asserted patent claims invalid for obviousness.
We represented TransWeb in obtaining a unanimous and full Federal Circuit affirmance of our successful defense of patent infringement claims asserted by 3M and pursuit of antitrust counterclaims. We had previously obtained a unanimous jury verdict that 3M’s patent claims were invalid, not infringed, and (in an advisory verdict the district court adopted) unenforceable due to inequitable conduct. The jury also found, and the Federal Circuit affirmed, that 3M violated the antitrust laws by attempting to enforce fraudulently obtained patents, awarding approximately $26 million in lost profits and trebled attorneys’ fees as antitrust damages.
We represented Motorola in a suit against Apple in which each party accused the other of infringing patents considered essential to the practice of cellular and wifi standards. Sitting by designation in the district court, Seventh Circuit Judge Richard Posner granted summary judgment concerning some patents and dismissed the remaining claims on the ground that both sides’ damages experts had been excluded and that injunctive relief was not available. On appeal, the Federal Circuit affirmed several favorable claim constructions, reversed the exclusion of Motorola’s primary damages expert, and held (in accord with our legal argument) that there is no per se rule barring injunctions for standards essential patents.
We secured a key victory in the Federal Circuit for our client Avanir Pharmaceuticals, Inc., an innovator pharmaceutical company, in a “bet-the-company” Hatch-Waxman patent litigation relating to Avanir’s flagship Nuedexta® product. The district court ruled in Avanir’s favor, which allowed patent protection for Nuedexta® until 2026. Our adversary appealed, but we persuaded the Federal Circuit to affirm the judgment—in a summary Rule 36 order issued on the next business day after oral argument.
We represented The Dow Chemical Company in a Federal Circuit appeal of a jury verdict we obtained in Dow’s favor in a patent infringement litigation against Nova Chemicals Corp. and Nova Chemicals Inc. Including prejudgment interest, Dow was awarded $76 million in damages. The Federal Circuit affirmed the judgment in Dow’s favor, and the Supreme Court denied Nova’s petition for a writ of certiorari.
We also represented Dow in a separate but related action, in which Nova raised allegations of perjury and falsified evidence in order to accuse Dow and its counsel of obtaining the earlier infringement judgment through fraud. We convinced the district court to dismiss Nova’s complaint with prejudice, and persuaded the Federal Circuit to issue a summary Rule 36 affirmance. We subsequently convinced the Federal Circuit to affirm an award of attorneys’ fees against Nova under Section 285 of the Patent Act.
We convinced an appellate court to affirm summary judgment for our client Coty, a former Pfizer division, in an asbestos-related personal injury case. The court’s ruling that plaintiff’s expert’s test results were properly excluded because the plaintiff failed to establish an adequate chain of custody for the talc sample tested, which might have been contaminated when used around other products alleged to contain asbestos, makes it more difficult for plaintiffs to present direct evidence of exposure in asbestos contamination cases. Similar cases that have proceeded to trial have resulted in 8-figure verdicts.
We represented Colgate-Palmolive Co. in an appeal to the Fourth Circuit challenging the denial of Colgate’s motions to vacate orders remanding two asbestos-related cases to state court. The Fourth Circuit, sitting en banc, agreed with our argument that 28 U.S.C. 1447(d)’s prohibition on “review” of remand orders does not preclude “vacatur” of a remand order pursuant to Fed. R. Civ. P. 60(b)(3) due to fraud or other misconduct in procuring that order. This ground-breaking decision provides a powerful new tool for the defense bar and ensures that federal courts are not impotent when plaintiffs and their counsel employ misconduct to avoid federal jurisdiction.
We represented The Dow Chemical Company and Rohm and Haas against Turkish chemical company Organik Kimya in the International Trade Commission, alleging infringement of two patents and misappropriation of numerous trade secrets. After we uncovered evidence of massive spoliation, including the intentional destruction of up to 600,000 files in violation of the ALJ’s orders, the ITC entered default judgment in favor of a claimant based on a respondent’s spoliation for the first time in its history. We also obtained an unprecedented 25-year exclusion order and recovery of almost $2 million in sanctions. The Federal Circuit affirmed, holding that the Commission can issue default judgment sanctions as a penalty and to deter future parties from repeating such conduct.
We represent a Russian government agency, Federal Treasury Enterprise Sojuzplodoimport (FTE), which seeks to establish that it is rightful owner of the world-famous Stolichnaya trademarks. After the district court ruled that the Russian Government’s assignment of its ownership interests to FTE violated Russian law and therefore dismissed FTE’s trademark infringement claims for lack of standing, we obtained unanimous reversal and reinstatement from the Second Circuit, which held that the district court violated principles of international comity and the act of state doctrine by even considering the validity of the Russian Government’s actions under its own law.
We obtained a significant victory for Moldex-Metric, Inc. in a trademark dispute over lime-green colored ear plugs, convincing the Ninth Circuit to vacate the grant of summary judgment to McKeon Products and holding that functionality of the lime green color must be resolved at trial. This was our second Ninth Circuit victory in this case, having previously convinced the court of appeals to vacate an earlier summary judgment ruling on functionality as well.
We obtained a victory in for our clients Len Blavatnik and Access Industries in the Southern District of New York, which overwhelmingly affirmed the bankruptcy court’s trial decision in a case where a Litigation Trustee had sought billions of dollars from our clients relating to the 2009 bankruptcy of LyondellBasell Industries, Inc. The bankruptcy court dismissed some of the Trustee’s claims before the multi-week trial, after which it again ruled in our clients’ favor, awarding the Trustee only about $7 million. On appeal, we convinced the district court to largely affirm the bankruptcy court’s pre- and post-trial decisions.
On behalf of our client, G-I Holdings, we won affirmance in the Third Circuit of the bankruptcy court’s dismissal of an adversary proceeding filed by the New York City Housing Authority (“NYCHA”). The complaint sought to compel G-I to remove asbestos-containing materials from NYCHA’s buildings, a $500-$600 million task. NYCHA sought to circumvent G-I’s bankruptcy reorganization plan by arguing that its injunction claim was for equitable relief and not discharged under the bankruptcy code or G-I’s plan. But we persuaded the Bankruptcy Court, the District Court, and finally the Third Circuit that NYCHA’s claim was ineligible for any exception to the discharge.


In American States Insurance Company v. Travelers Property Casualty Company of America, 2014 Cal. App. LEXIS 74 (January 27, 2014), California’s Second Appellate District had occasion to consider whether a food truck constituted mobile equipment under a general liability policy.
The underlying injury in American States involved a food truck that collided with another truck. At the time, one of the food truck workers was standing in the back of the truck, nearby the on-board deep fryer. The worker was burned by oil that splashed out of the deep fryer as a result of the collision. The worker was standing at the rear of the truck while it was moving because a non-employee guest was occupying the truck’s passenger seat at the time. All three persons brought suit against the company (“Royal”) that leased the truck to the food truck operator (“Gomez”).
At the time of the accident, Royal was insured under a primary and excess auto liability policy issued by American States Insurance Company (“American States”). Royal also had primary and excess general liability coverage through Travelers. American States agreed to defend Royal, but Travelers declined. The underlying matter proceeded to binding arbitration, and Royal was found 40% liability based on a theory of products liability; namely, its defective deep fryer. A stipulated judgment against Royal for $2,428.577.34 was entered into based on the arbitration award.
American States subsequently brought an action against Travelers, and Travelers cross-complained back against American States, each seeking to establish coverage for Royal under the other’s policy. Each filed motions for summary judgment, with the trial court granting Traveler’s motion, finding that the truck was an “auto” and not “mobile equipment,” and not within the exception to the Traveler’s policy’s auto exclusion.
The appellate court looked at that part of the Traveler’s policy’s definition of “mobile equipment” that included vehicles “maintained primarily for purposes other than transportation of persons or cargo.” The appellate court concluded that under a plain reading of the Traveler’s policy, the food truck was “mobile equipment” as its primary purpose was to serve as a mobile kitchen and not to transport persons or cargo. The court also noted that the omission of a food truck from the list of special use vehicles with permanently attached equipment considered “autos” under the definition of “mobile equipment,” supported this finding. The court further concluded that coverage was unavailable under the American States’ policy as a result of a “completed operations” exclusion.
In its recent decision in Embroidme.Com, Inc. v. Travelers Prop. Cas. Co. of Am., 2014 U.S. Dist. LEXIS 7715 (S.D. Fla. Jan. 23, 2014), the United States District Court for the Southern District of Florida had occasion to consider an insurer’s obligation to reimburse its insured for pre-tender defense costs under Florida law, and whether its disclaimer of such costs is governed by Florida Claims Administration Statute, Fla. Stat. § 627.426(2).
Travelers insured Embroidme.com under a general liability policy with web site injury protection. Embroidme.com was named as a defendant in an underlying copyright infringement lawsuit in April 2010. On June 28, 2010, Embroidme.com retained counsel to defend it in the lawsuit. Embroidme.com, however, did not tender the matter to Travelers until October 2011. Travelers subsequently agreed to provide its insured with a defense, but disclaimed any coverage obligation with respect to Embroidme.com’s pre-tender defense costs. Embroidme.com challenged Travelers’ disclaimer of coverage on the basis that the policy did not expressly bar coverage for pre-tender costs and that Travelers’ disclaimer of coverage for such amounts was untimely and thus in violation of Florida Claims Administration Statute, § 627.426(2).
In considering the statute, the court found that Traveler’s coverage correspondence to Embroidme.com was late under the statute: its initial reservation of rights letter was issued forty-two (42) days after Embroidme.com’s initial tender, and Travelers did not actually retain counsel until another ninety-one (91) days later. Thus, reasoned the court, if coverage for pre-tender defense costs could be considered a “coverage defense” for the purpose of the statute, then Travelers’ failure to issue its letters in a timely fashion would result in an estoppel of its right with respect to this defense.
The court nevertheless concluded that the pre-tender defense issue was not a “coverage defense,” but instead a policy condition. In particular, the policy precluded the insured from “voluntarily assuming any obligation or incurring any expense without Travelers' consent.” Thus, reasoned the court, “under the plain language of the Policy there is no coverage for the defense costs incurred without Travelers' knowledge and not at Travelers' request.” This was not a “coverage defense,” but instead a precondition to coverage not subject to statutory estoppel under § 627.426(2). As such, the court held in Travelers’ favor, concluding that its denial of coverage for pre-tender defense costs was appropriate and that Travelers’ delay in issuing coverage correspondence did not result in statutory estoppel.
In its recent decision in Ewing Constr. Co. v. Amerisure Ins. Co., 2014 Tex. LEXIS 39 (Tex. Feb. 27, 2013), the Supreme Court of Texas addressed certified questions from the United States Court of Appeals for the Fifth Circuit regarding the scope of the Contractual Liability exclusion in the context of a construction defect claim. The court was asked to determine whether a general contractor that enters into a contract agreeing to perform its work in a good and workmanlike manner “assumes liability” for damages arising out of the contractor’s defective work, thereby triggering the Contractual Liability exclusion.
Ewing Construction Company (“Ewing”) entered into a contract with Tuluso-Midway Independent School district (“TMISD”) to serve as the general contractor for a construction project at a school in Corpus Christi, Texas. Among other things, Ewing was to renovate and build additions to a tennis court, which Ewing did through its subcontractors. The contract required Ewing to perform that work in a “good and workmanlike manner.” Not long after construction was complete, cracking and flaking problems began and TMISD filed suit against Ewing asserting claims for breach of contract and negligence.
Ewing filed suit against Amerisure in the U.S. District Court for the Southern District of Texas, seeking a declaration that Amerisure breached its duties to defend and indemnify Ewing for any damages awarded to TMISD. Amerisure counterclaimed, seeking a declaration that it owed Ewing neither a duty to defend nor a duty to indemnify. Although Amerisure conceded that Ewing established coverage under the policy’s insuring agreements, it took the position that policy exclusions, in particular the Contractual Liability exclusion, precluded coverage and negated its duties to defend and indemnify.
The district court relied on Gilbert Texas Constr. Co. v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010) in holding that no coverage was owed under the policy. The district court determined that Gilbert stood for the proposition that the Contractual Liability exclusion applies when an insured enters into a contract and assumes liability for its own performance under that contract. The district court concluded that TMISD’s pleadings established that pursuant to the contract between TMISD and Ewing, Ewing agreed to be liable for failing to perform under the contract if the work was deficient. The district court therefore concluded that the Contractual Liability exclusion applied to preclude coverage.
1. Does a general contractor that enters into a contract in which it agrees to perform its construction work in a good an workmanlike manner, without more specific provisions enlarging this obligation, “assume liability” for damages arising out of the contractor’s defective work so as to trigger the Contractual Liability Exclusion.
The Texas Supreme Court carefully examined Gilbert and concluded that “assumption of liability” in the context of the exclusion meant that the insured had assumed a liability for damages that exceeded the liability it would have under general law. The Court defined “good and workmanlike” and “negligence” as having the same substantive meaning. The Court acknowledged that Ewing had a common law duty to perform its contract with skill and care. Reasoning that the claims asserted by TMISD did not seek recovery for damages that exceeded the liability Ewing would have under general law, the Court concluded that the exclusion did not apply to preclude coverage.
The Court also rejected the notion that its holding would have the effect of transforming CGL policies into performance bonds. The Court observed that because the policy contained other exclusions that may apply to bar coverage in a case for breach of contract due to faulty workmanship, its ruling was consistent with the view that CGL policies are not performance bonds.
In its recent decision in Transport Insurance Company v. Superior Court of Los Angeles County, No. B249470, slip op. (2nd Dist. Cal. Jan. 13, 2014), the California Court of Appeal for the Second District had occasion to consider whether the reasonable expectations of coverage of an insured under an excess or umbrella general liability policy is relevant to whether it is entitled to a defense.
Transport Insurance Company (“TIC”) issued a commercial excess and umbrella liability insurance policy to Vulcan Materials Company (“Vulcan”), under which R.R. Street & Co., Inc. (“Street”) was named as an additional insured. The TIC policy agreed to defend the insured if “the limits of liability of the underlying insurance are exhausted … .” The underlying action alleged that Vulcan manufactured perchloroethylene (“PCE”) which was sold by Street to dry cleaners, and ultimately resulted environmental contamination.
TIC had previously sought a declaratory order in a related case, Legacy Vulcan Corp. v. Superior Court (2010) 185 Cal.App.4th 677, that “underlying insurance” referred to all primary policies issued to Vulcan as opposed to only those listed in the TIC policy’s Schedule of Underlying Insurance. The court in that related case concluded that the term “underlying insurance” as used in the TIC policy was ambiguous, and therefore had to be interpreted to mean only those policies specifically identified in the Schedule. Central to the court’s reasoning was Vulcan’s reasonable expectations to coverage.
TIC subsequently brought suit against Street and Vulcan’s primary general liability insurer, National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“National Union”), seeking a declaration regarding its duty to defend Street, as an additional insured, in various underlying actions. National Union and Street moved for summary judgment, arguing that TIC was collaterally estopped by the related decision from arguing that “underlying insurance” referred to anything other than the policies identified in the Schedule of Underlying Insurance. The trial court granted the summary judgment motion, and a petition for writ of mandate followed.
TIC argued that the trial court erred when it based its ruling on Vulcan’s “objectively reasonable expectations of coverage” and not those of Street, the party seeking coverage. The Court of Appeals agreed, holding that since it was Street - the additional insured – ratherVulcan – the policy’s named insured – that was seeking coverage, Vulcan’s reasonable expectations were not relevant. The appellate court agreed that since the issue of Street’s reasonable expectations were not addressed in the earlier decision, the earlier decision did not collaterally estop TIC from making its arguments concerning underlying insurance.
In its recent decision in American Construction Benefits Group, LLC v. Zurich Am. Ins. Co., 2014 U.S. Dist. LEXIS 5147 (N.D. Tex. Jan. 15, 2014), the United States District Court for the Northern District of Texas had occasion to consider whether a D&O insurer’s coverage obligations were triggered by a threatened, but not yet filed, derivative action lawsuit.
Zurich insured ACBG under a directors and officers policy. ACBG procured reinsurance for its member company, J.D. Abrams, L.P., through a third company. While negotiating a renewal of the reinsurance, ACBG’s president agreed to an exclusion for a specific medical procedure that had been performed on a child of an Abrams employee. The reinsurer subsequently denied coverage for the $1.2 million in costs associated with the procedure. ACBG later sought coverage for this amount from Zurich, claiming that its president committed a wrongful act when it agreed to the exclusion in the reinsurance contract. While Zurich acknowledged ACBG’s claim, it never formally asserted a coverage position.
ACBG members later filed a declaratory judgment action against Zurich. Zurich, in turn, moved to dismiss the complaint, asserting that the suit was premature since no claim had yet been asserted against ACBG that could trigger Zurich’s duties to defend or indemnify. In response, ACBG members acknowledged that while no derivative suit had yet been filed, they were contemplating one and it therefore was imminent.
ACBG's complaint is devoid of any allegation that it will be harmed if this court withholds declaratory relief. Because there is no underlying suit, ACBG faces no immediate risk that it will be forced to contribute to a settlement agreement or face a bad-faith suit. And ACBG does not allege that its members have threatened to sue unless ACBG relinquishes its rights.
The court also rejected ACBG’s claim against Zurich for violation of Texas’ claims handling statute based on Zurich’s failure to promptly affirm or deny coverage. Because there was no underlying suit that could trigger Zurich’s duty to defend or indemnify, explained the court, it necessarily followed that it could not be held to have improperly delayed its decision with respect to such duties.
In its recent decision in Cox Operating v. St. Paul Surplus Lines Ins. Co., 2014 U.S. Dist. LEXIS 3140 (S.D. Tex. Jan. 10, 2014), the United States District Court for the Southern District of Texas had occasion to consider when the statutory interest penalty begins accruing for the purpose of Texas’ Prompt Payment of Claims Act (“TPPCA”) TEX. INS. CODE § 542.051, et seq.
St. Paul was the excess pollution liability insurer of Cox, and was found to have breached its coverage obligations following a lengthy jury trial. Among other things, the jury determined that St. Paul violated the TPPCA by not requesting information from Cox in a timely fashion. Following the jury verdict, the court assessed a statutory penalty against St. Paul for its violation of the TPPCA, running from October 16, 2006, which the court determined was seventy-five (75) days after July 31, 2006, the date on which the jury concluded that St. Paul was provided with all of the information necessary to make payment on Cox’s claim. On motion for reconsideration, Cox argued that the statutory penalty should have begun running from an earlier date. Specifically, Cox argued that the statutory penalty should have begun running from November 17, 2005, which is the date on which the jury determined that St. Paul was in violation of § 542.055 of the Texas Insurance Law, concerning an insurer’s duty to acknowledge and investigate a claim. Thus, Cox argued that statutory interest period should run from the date that St. Paul breached its duty to investigate rather than the date that it breached its duty to pay.
… the insurer shall: (1) acknowledge receipt of the claim; (2) commence any investigation of the claim; and (3) request from the claimant all items, statements, and forms that the insurer reasonably believes, at that time, will be required from the claimant.
… if an insurer, after receiving all items, statements, and forms reasonably requested and required under Section 542.055 delays payment of the claim for more than 60 days, then the "insurer shall pay damages and other items as provided by Section 542.060.
§ 542.060, in turn, sets forth the statutory penalty interest rate at 18% per year.
The court, therefore, determined that the proper accrual date for the sixty-day payment window under § 542.058 was October 17, 2005, meaning that payment was due on December 16, 2005, and that interest should be calculated from that date.
In its recent decision in Two Farms, Inc. v. Greenwich Ins. Co., 2014 U.S. Dist. LEXIS 1629 (S.D.N.Y. Jan. 7, 2014), the United States District Court for the Southern District of New York had occasion to consider the whether the phrase “underground storage tank(s) and associated piping” as used in a pollution liability policy was ambiguous.
During the policy period, Greenwich discovered that thousands of gallons of gasoline had been discharged into the soils of its facility. It was later determined that the source of the leak was a defective “O-Ring,” which is a component of a pump that drew gas from the insured UST. The gas leaked into a containment sump, but ultimately was discharged directly into the ground. The remediation costs associated with the leak were alleged to exceed $5 million. Greenwich paid $1 million toward the loss, asserting that this was the maximum recovery permitted under the policy as a result of the UST sublimit.
… the term "underground storage tanks and associated piping" can refer either to underground storage tanks and associated piping alone, or to underground storage tanks, associated piping, and other equipment that comprises the UST system. Two Farms therefore argues that the term "underground storage tanks and associated piping" is ambiguous as used in the UST Sublimit, and concludes that this ambiguity must be construed against Greenwich, the insurer.
Two Farms argued that because the sublimit endorsement was ambiguous, the $1 million sublimit set forth therein should not apply to the underlying loss. Rather, it claimed entitlement to remediation cost coverage up to the policy’s $5 million limit of liability.
The term "underground storage tanks and associated piping" must be interpreted broadly in order to effectuate the parties' intent that Two Farms receive coverage for losses incurred because of the Discharge; namely, losses that result from defects in the UST system. This interpretation of the term "underground storage tanks and associated piping" is appropriately applied across provisions of the Policy because "a word used by the parties in one sense will be given the same meaning throughout the contract in the absence of countervailing reasons," and no countervailing reasons are apparent in this case.
Notably, the court found no indication that the parties intended the phrase “underground storage tanks and associated piping” to have different meanings in different sections of the policy. It therefore concluded that Two Farm’s arguments concerning ambiguity unduly strained the policy language beyond its reasonable and ordinary meaning. While the court found the language plain and unambiguous, it noted in passing that extrinsic evidence, including testimony of the insured’s broker, supported the conclusion that the sublimit was intended to apply to all USTs on the schedule.
In its recent decision in YKK USA, Inc., v. Safety Nat’l Cas. Corp., 727 F.3d 782 (7th. Cir. 2013), the United States Court of Appeals for the Seventh Circuit had occasion to consider whether an employee’s common law claim for negligence against its employer qualified as a claim under “Employers’ Liability Laws” in order to satisfy an excess workers’ compensation policy’s insuring agreement.
TKK USA was named as a defendant in an underlying suit alleging negligence brought on behalf of a former employee who became ill and eventually died from mesothelioma. TKK gave timely notice of the lawsuit to its excess workers’ compensation carrier, Safety National. TKK retained primary responsibility for defending, settling, or paying claims up to $275,000 per occurrence. TKK incurred more than $400,000 in legal fees before it settled with the plaintiff in the underlying suit. Safety National denied coverage to TKK, taking the position that the claim of negligence in the underlying suit was not brought under “Workers’ Compensation or Employers’ Liability Laws,” but instead was a common law claim not covered under its policy.
Interest upon awards and judgments and the reasonable costs of investigation, adjustment, defense, and appeal…of claims, suits or other proceedings brought against the EMPLOYER under the Workers’ Compensation or Employers’ Liability Laws [of Illinois] … for bodily injury or occupational disease … even though such claims, suits, proceedings or demands are wholly groundless, false, or fraudulent … .
The Safety National policy did not define the phrase “Workers’ Compensation or Employers’ Liability Laws”. Also relevant to the issue before the Court was the Illinois Workers’ Occupational Disease Act (“ODA”), a statute that provides the exclusive remedy for employees who contract workplace diseases (or suffered workplace injury), but bars common law claims. The ODA thus provided a complete defense for the common law negligence claims by the plaintiff. For reasons unknown, TKK failed to assert the affirmative defense in response to the claim.
Thus, whether a common law claim for negligence fell within the meaning of “Employers’ Liability Laws” was central to the Court’s analysis. The Seventh Circuit recognized that the ODA did not cover all potential common law claims. Because of these gaps, the Court concluded that “Employers’ Liability Laws” should not be restricted solely to statutory claims under the ODA. The Court noted also that to interpret the policy term “Employers’ Liability Laws” so that it only applied to statutes was too narrow of a construction absent language in the policy suggesting that the definition was intended to be limited in such a way. Therefore, the Court affirmed the determinations of the district court, holding that “Employers’ Liability Laws” was broad enough to include claims brought under common law, even “groundless claims” for which the employer appeared to have an affirmative defense.
In its recent decision in Cincinnati Ins. Co. v. William F. Braun Milk Hauling, Inc., 2013 U.S. Dist. LEXIS 150665 (S.D. Ill. Oct. 21, 2013), the United States District Court for the Southern District of Illinois had occasion to consider whether there was coverage under a commercial general liability policy for injuries that arose out of the use of an auto.
Cincinnati’s insured, Braun Milk, was a freight shipping and trucking company. One of its trucks was involved in an automobile accident that caused a fuel spill. Braun Milk was ordered by the Environmental Protection Agency to clean the spill, so it hired a contractor, which in turn subcontracted another company to handle those duties.
“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operate by or rented or loaned to any insured.
This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the “occurrence” which caused the “bodily injury” or “property damage” involved the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft that is owned or operated by or rented or loaned to any insured.
Northland agreed to defend Braun Milk and Stephen Braun against four of Fasig’s claims. Braun Milk and Stephen Braun tendered its defense for counts three and four of Fasig’s complaint to Cincinnati; counts three and four alleged that Braun Milk was negligent in handling the clean-up and that Braun Milk violated the Road Construction Injuries Act. Cincinnati filed a declaratory judgment action and a subsequent motion for summary judgment seeking a declaration that it had no duty to defend or indemnify Braun Milk or Stephen Braun.
Relying on Northbrook Prop. And Cas. Co. v. Transp. Joint Agreement, 194 Ill. 2d.96 (Ill. 2000), Cincinnati argued that auto exclusion barred coverage because claims three and four did not arise from events wholly independent of Stephen Braun’s negligent driving. Cincinnati argued that the claims were “inextricably intertwined” with excluded claims. Braun Milk and Stephen Braun argued that there was coverage because counts three and four arose out of a “separate and distinct occurrence of alleged negligence”, relying on Louis Marsch, Inc. v. Pekin Ins. Co., 140 Ill. App. 3d 1079 (1985) and State Farm v. Abesamis, 2012 IL App (1st) 120541-U (2012).
The Court granted Cincinnati’s motion for summary judgment, holding that the claims arose from an excluded injury. The Court declined to follow Marsch’s reasoning as it related to the argument that Fasig’s injuries could have arisen from causes other than Stephen Braun’s use of the truck. The Court noted that the Seventh Circuit considered the issues presented in Marsch when it analyzed Northbrook in Nautilus Ins. Co. v. 1452-4 N. Milwaukee Avenue, LLC, 562 F.3d 818 (7th Cir. 2009). The Court concluded that Northbrook and Nautilus “provide the indication that the Illinois Supreme Court may decide the issues in Marsch differently.” The Court noted, referring to claims three and four: “While these are different theories of recover [sic], the fact remains that the bodily injury arose from Braun Milk’s use of an automobile which is clearly excluded from coverage.” Consequently, Cincinnati owed no duty to defend or indemnify Braun Milk or Stephen Braun.


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the best care for your commercial vehicle!
In the field of and trucks and commercial vehicles, especially of Mercedes, the name Kousioris and the TRUCKSERVICE company has, for over six decades, been synonymous with quality. But how did a notable group of companies, with a particularly upward trend in today’s extremely adverse conditions, emerge from small beginnings? The short answer is found in two words: revolutionary and reliability. It is indeed worthwhile to know how a business that has been honoring the Greek market for over 60 years developed; a business that does not treat you simply as customers but as associates.
Konstantinos Kousioris, recognized as an excellent mechanic since 1956, was hired in 1960 by the Avrasoglou Company, which specialized in the repair and maintenance of Hanomag commercial vehicles. He shone, going by the nickname KOSTAKIS, to become renowned all over Greece. In 1963, his brother Vasilis Kousioris was employed by the same company as assistant mechanic.
In 1965, the brothers set up TruckService KOSTAKIS in the Rouf area opposite the military camp, with Konstantinos as head. The company employed 7 staff and thanks to its expertise excelled in servicing Hanomag. In 1967, they relocated to bigger premises at 3 Karyon and Konstantinoupoleos Streets, Athens and four years later to self owned property at 102 Iera Odos, next to Ieras Elias, Athens.
In 1974, with the merger of Hanomag and Mercedes, TruckService) KOSTAKIS became increasingly involved with Mercedes. At the same time, the company’s activities extended to the import of spare parts, commercial vehicles and the issue of public licenses, with remarkable growth. To cope with its rapid development and the increasing number of Mercedes commercial vehicles, in 1979 the company transferred to a self owned 2.500 m2 plot at 95 Ieras Odos, to establish the most state-of-the-art garage of that era, fully equipped to meet Mercedes approved standards.
In 1995, Thomas Kousioris, son of Konstantinos, entered the company, ushering in a new dynamic. In 1997 Thomas Kousioris, son of Vasilis, commenced his studies at the Department of Electrical and Electronic Engineering of the University of London, to complete his postgraduate studies in Scotland in 2001. From 2001 to 2004 he essentially dealt with the Service of Commercial Vehicles and attended seminars relating to Mercedes commercial vehicles.
In 2004, Konstantinos Kousioris retired and the company name changed to V. Kousioris& Son OE (General Partnership) – TruckService, by the trade name KOSTAKIS, in honor of Konstantinos.
V. Kousioris& Son OE – TruckService KOSTAKIS: Record sales by Vasilis Kousioris!
Since 2004, the company V. Kousioris& Son OE – TruckService with trade name KOSTAKIS, has followed an upward trajectory. It initiated a 24-hour telephone centre exclusively for its associates i.e. customers, upgrading the quality of its services. Vasilis Kousioris took over the management and proceeded vigorously. He enlarged the company’s circle of associates thanks to his expertise in the field of mechanical engineering, breaking every sales record in the commercial vehicle division of the Mercedes-Benz brand! At the same time, he undertook the issue of public vehicle licenses.
In collaboration with the pioneering and top diagnostician of the time, the German mechanical engineer Dieter, son Thomas Kousioris attended seminars focusing on electronic troubleshooting of Mercedes commercial vehicles. He distinguished himself as one of the best in the field and became known by the nickname KOUS, a shortening of his surname during his military service. The new KOUSgroup brand started to appear in adverts and printed on tarpaulins of many commercial vehicles on the roads of Attica and further afield.
2005 saw collaboration with the distinguished surveyor, Mr. Lambros I. Mylonas, to consolidate and safeguard the company’s interests. Ever since, Mr. Lambros I. Mylonas has advised on company related issues. Meanwhile, Mr. Kyriakos I. Pahadiroglou becomes the manager of TRUCKSERVICE vehicle support area.
2008 was the start of ongoing renovations in all areas. Warehouses, offices, garage, restrooms, staff changing rooms with lockers, equipment etc. were some of the areas renovated or formed and kept up to standard. In 2010, with the aim of complete transparency, the company was the first in Greece to implement the system whereby the replaced spare parts (in environmentally friendly bags) are handed over to the customer. Moreover, being environmentally conscious, it adhered to the applicable recycling procedures in all fields of operation and continues to do so.
In 2011, after years of advertising in the general press and industry magazines, internet advertising took off in Facebook, Google, etc. A year later, V. Kousioris& Son OE – TruckService, with the trade name KOSTAKIS, was awarded ISO 9001 certification by ACM Limited for Service and Trade of Spare Parts and Vehicles. Since then, the ISO standard has been applied and renewed in line with the latest developments. In that year, a barrier to manage vehicle entry and exit was installed.
2013 marked the founding of KOUSgroup and the dynamic start of the new company V. Kousioris& T. Kousioris OE under the tradename KOUSgroup. Besides maintenance and service, checks for KTEO (Centre for the Technical Inspection of Vehicles) and import of commercial vehicles, it sought to extend its services to armored cars and other special vehicles. Also, Private Service for commercial and professional vehicles was set up in fully-equipped covered premises. These state-of-the-art facilities at 4 Markoni Street, Athens operate strictly by appointment. Training seminars on armored vehicles are conducted here, as well as in the diagnosis and repair of special vehicles in cooperation with the world’s leading armor-plating companies.
2014 was when the covered services at the premises of V. Kousioris& Son OE – TruckService, with the trade name KOSTAKIS were divided off by special innovative partitions. These modern structures, from frameworks to sliding panels, were the most inventive purposeful way of configuring work areas, adapting to needs as they arose. At the same time, equipment was renewed with new lifting machines and oil extraction and refilling pumps while the repair pits were modernized. Lighting was overhauled by fitting new bulbs and next generation halogen lamps.
To be in direct contact with our associates, the offices of the supervisor and general manager of the service department were relocated in the same space, well-designed with a/c, laptop, internet, telephone, etc. to regulate and monitor work on the vehicles. A new generation server was installed to better systematize service for our associates. The method for receipt and delivery of spare parts was updated. New jobs were created, and personnel responsibilities were allotted is such a way as to improve service further.
Overall renewals to our fleet of 24-hour service vehicles were undertaken. The fleet’s capacity was enlarged with the acquisition of a new, fully equipped truck to exclusively service our associates. Mercedes training seminars became a central priority, with our personnel attending them monthly at the German manufacturer’s facilities. In parallel, other in-house specialized seminars were, and continue to be, held to correctly diagnose and maintain our associates’ vehicles.
We launched collaboration with a distinguished law firm to safeguard KOUSgroup’s business dealings in Greece and Europe. The role of the distinguished topographer Mr. Lambros I. Mylonas was expanded to KOUSgroup advisor.
From being known from way back as Garage – Truck Service – KOSTAKIS, in honor of Konstantinos Kousioris, in time the company became widely recognized as TRUCKSERVICE. Thus it was inevitable for the name to be officially changed. This occurred in 2015. However, the KOSTAKIS tradename is a visible characteristic of TruckService that continues to show in internationally registered distinctive features of the KOUSgroup. After all, everything developed from TruckService KOSTAKIS and the titular acknowledgement of founder Konstantinos Kousioris by his successors, is a noteworthy paradigm of appreciation and ethos. Thus, in 2015 the distinctive title TruckService was established as a company of KOUSgroup.
At its facilities at 95 Iera Odos, TruckService has diagnostic equipment for all commercial vehicle manufacturers and offers service to others alongside Mercedes.
The frontage of the Iera Odos showroom has been refurbished and illuminated with the latest Led lighting. To better support our associates, the spare parts department raises efficiency and actively imports. The effect is to reduce the likelihood of a shortage of spare parts in the domestic market. The body shop and armoring division are staffed with extra specialized personnel.
Emulating European groups, our financial transactions are online (e-banking), underscoring the transparency that characterizes our dealings with our associates and saving them precious time. POS terminals ensure faster and secure monetary transactions. We possess modern banknote and coin counters to detect counterfeit notes and coins. Authentications take place in front of our associates and out of public view.
We look upon your commercial vehicle as our own, valuable and deserving of complete care. For that reason, advanced security systems and 24hour surveillance cameras, operate at all companies.
In 2016 KOUSgroup was licensed for LPG (Liquefied Petroleum Gas) conversions. The electrical division was upgraded with machinery of the latest technology. The bodywork shop began using quality 3M products. KTEO equipment and associated gear such as brake-meters, exhaust analyzers, oscilloscopes, alignment and balancing indicators etc were renewed. A special certificate for the delivery of vehicles for sale was created, and quality control of these vehicles was greatly improved. A new, fully equipped 24-hour service vehicle joined the fleet for faster and even more efficient response. The IT team and the Group’s ERP program were upgraded with next generation special-purpose technological systems. All KOUSgroup’s logos and slogans were registered in line with European Union procedures.
In 2017 the specialization of “TruckService” has been extended to Mitsubishi commercial vehicles with investments in new diagnostic equipment and a stockpile of Mitsubishi spare parts. We acquired special, new generation battery chargers. We created a preparation space and next generation paint shop, launching an exclusive collaboration with the German company MIPA, with state-of-the-art color generation machines for all types of vehicles. Ventilation was completely overhauled. In addition, we installed new security lighting for the grounds and perimeter.
With regard to financial transactions, we brought in tablets and electronic signatures for the quick, efficient and secure receipt of handwritten signatures. We broadened our collaboration with the biggest Greek banks while the group’s account sheets were posted on the Internet. We have placed a new telephone center in order to support and deal with partners faster and effectively.
We dynamically project our companies in the media, advertising on radio, television and press. We enhance our presence in the social media (Facebook etc) and on the Internet to bring KOUSgroup’s two companies closer to their target audience. Our websites www.truckservice.gr, www.trucker.gr and www.kousgroup.gr are continuously updated with contact information, vehicle presentations, installations and service facilities. We participate in the Hellenic Organization for Company Sport & Health – HOCSH.
Meticulous implementation of ISO 9001 for Provision of Vehicle Service and Spare Parts to continuously improve all KOUSgroup’s companies.
Such as our harmonization with the General Data Protection Regulation (GDPR).
Guaranteed speedy and reliable service thanks to our national collaboration and support network which promises you solutions to whatever problems may crop up with your vehicle. It is no coincidence that our motto is: service beyond your wildest dreams!
The innovative Service Evaluation Device at our facilities allows you to appraise our group and services. It takes little time, is anonymous and paperless. We pay keen attention to our associates’ opinion, considering it exceedingly important in our efforts to improve.
Our specialized Mercedes-Benz Service by our group’s TruckService is the NUMBER ONE independent garage for Mercedes commercial vehicles, with a history of experience dating to 1956! We reflect the quality standards of the German representative, without delays and unnecessary red tape.
We inspect your vehicle in conformity with KTEO specifications and inform you clearly about what is required and how urgently.
At each service, all necessary checks are carried out according to the card we hand to you based on Mercedes standards. Thus, you are alerted to upcoming necessary and optional services and their cost.
Before receipt – delivery of your vehicle, it is run through a special checklist devised by our company and advised on its condition by the relevant diagnostician-mechanic.
Free visual inspection according to Mercedes-Benz specifications.
Free KTEO inspections (on agreement).
Free fleet inspections (on agreement).
Oil Change without labor charge.
Vehicle Service (oils, filters, valves, injection, general vehicle checks) from €30 + VAT.
Our commercial vehicle import and exchange service supplies commercial vehicles for sale in excellent condition. Our plus to you is their quality and affordable prices. We are upfront with every professional, looking after his interests and meeting his needs. Mindful of the economically difficult times, we offer affordable payment options. At the same time, we will discuss exchanges, offering our associates opportunities to upgrade their fleet of commercial vehicles. Finally, we cover with a six-month warranty (basic mechanical parts) the vehicles we import or exchange.
We represent armored vehicle companies and specialize in related electronic systems.
KOUSgroup’s innovative FleetReminder online service is a novel online facility for our associates and beyond. Enquire at www.KOUSgroup.gr about our company activities, vehicle sales, book a service or, in the event of your commercial vehicle having been previously serviced by us, check when the next service is due.
The go4more rewards program which enables you to pay with the National Bank of Greece’s synonymous card. The first and only reward program which benefits you through your banking transactions by earning you points which you can redeem as you prefer. Find information at https://www.nbg.gr/go4more/ and reap rewards in your professional relationship with NBG and KOUSgroup.
We possess state-of-the-art electromechanical equipment that is regularly upgraded, such as KTEO measuring devices, brake meter, play detector, alignment, balancing, dashboard and light adjustment instruments, aircon and climate control, refinishing, exhaust fume check card, analogue and digital tachometer inspections and certifications as well as authentic Mercedes diagnostic equipment. We retrofit ABS and certify vehicles that have it.
Our comprehensively equipped toolboxes contain all necessary tools for new generation vehicles and support any special conversions e.g. air suspension systems.
In our vertically-integrated facilities which, amongst others, house a pump and fuel injection workshop, electrical repair workshop, body shop, paint shop, fitting section and hydraulic doors service, we have reception and waiting rooms with a canteen, as well as a seminar room for our associates.
Such as the creation of a specially designed seminar and training room with state-of-the-art machinery and special spacers adapted to needs.
Such as the creation of a newsletter (e-mail).
Such as creating a special automated payment system for our partners.
Such as the provision of a customer service vehicle (by appointment).
Our skilled workforce is expert in the full range of mechanical, electrical, electronic, mechanical issues and bodywork.
Training is mandatory. Only highly trained garage personnel with a deep knowledge of leading automotive technologies can provide the best service. That’s why it is of paramount importance to us that our mechanics have access to the latest workshop literature for accurate diagnosis and maintenance, as well as to regularly attend courses for further instruction and development. Our workforce in all KOUSgroup companies is qualified and informed on Mercedes standards and keep regularly up to date through specialized seminars focusing on every aspect of Mercedes commercial vehicles and more.
Employee and employer rights under current legislation.
Creating a safe workplace and protective measures.
Provision and use of Personal Protective Means.
Use of chemicals and materials.
Bearing in mind that physical fitness is crucial to optimal general performance, our personnel takes part in several sports activities. In fact, KOUSgroup has its own table tennis team! At the same time it supports and promotes windsurfing and our country worldwide (www.gre78.gr).
Now you know the secret of our success: we consistently put you at the forefront and we always offer the best value for money!
Below are some of our group’s distinctive trademarks. Noteworthy is the number of entries and visibility especially of TruckService, in print and on-line (sites, facebook, LinkedIn, google) as well as in the media and press.
KOUSgroup group of companies follows the General Data Protection Regulation (GDPR).

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