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Litigation

Class Actions

Our attorneys have litigated cases on both coasts and everywhere in between, amassing an impressive record of success in some of the nation’s largest class actions, serial litigation, mass torts and various other forms of group, representative and collective actions. We understand the specialized rules and risks inherent to class action litigation, and we work closely with clients to map out case strategies to account for those risks. Equally important, we are willing and able to think outside the box, take risks and tailor our approach to meet our clients’ strategic goals.

We believe that “success” for clients is defined by both the manner in which the case is managed as well as the ultimate result. Our team has been — and continues to be — at the cutting edge of best and developing practices in case management. To this end, we employ a formal trial management strategy to optimize transparency and cost-predictability throughout the discovery and trial process. We also invest strategically in technology that allows us to process, analyze, and review large volumes of documents with the utmost efficiency and precision.

Finally, we keep close tabs on the latest judicial analysis at the state and federal levels, and as class action jurisprudence evolves, we’ll be ready and one step ahead of our competitors.

  • Alan S. Brown

    Member

    Indianapolis, IN

  • Theresa A. Canaday

    Litigation Department Chair

    Louisville, KY

Representative Experience

High stakes require highly skilled representation. Explore our litigation highlights by sector.

Product Liability

  • In Merck & Co. v. Ratliff, NO. 2011-CA-000234-MR (Ky. App. Feb. 10, 2012), Frost Brown Todd appealed for its client, Merck, a class certification order entered by the Pike County Circuit Court. The trial court had certified a class of Kentucky residents who purchased and took the drug Vioxx and who contacted or will contact physicians seeking advice regarding Vioxx. This was the first appeal that was filed with the Kentucky Court of Appeals under the new Rule 23 interlocutory appeal process that became effective Jan. 1, 2011. In an opinion written by Judge Thomas B. Wine, the Court of Appeals found that class certification was inappropriate because, in addition to his state-law statutory claim, the plaintiff alleged common law fraud, negligent misrepresentation and unjust enrichment claims. The court found that a determination of these claims would hinge on individualized issues of proof. Finding that common questions of fact would not predominate over these individualized issues, the Court found that a class action was not a superior mechanism in which to try the class members’ claims (CR 23.02(c)). The lengthy and detailed opinion demonstrates that the Court of Appeals in Kentucky will look very closely at class certification orders on interlocutory appeal and will reverse those orders if it does not think class-action status is appropriate.
  • Represented one of the nation’s largest manufacturers of a construction product in a “bet the company” class action in federal district court in California. We defeated certification four different times by undertaking a unique electronic discovery strategy and initiating a sophisticated attack on opposing experts. This was prior to the Supreme Court decision in Dukes v. Wal-Mart that led to the disqualification of those experts and directed focus on the merits that revealed the class deficiencies. The case also involved issues of first impression under the California Right to Repair Act that were resolved in favor of the construction industry.

Labor & Employment

  • Arlene Rochlin, et al. v. Cincinnati Insurance Company — Class and collective action asserting gender discrimination in promotion and wages under Title VII and the EPA filed in federal court in Indianapolis, IN. The court initially certified a Title VII class action pursuant to Rule 23 and conditionally certified an EPA collective action pursuant to Section 216(b) of the FLSA. The trial court granted CIC’s motion to decertify the Title VII class action while maintaining the “conditional certification” of the EPA collective action. The case resolved very favorably.
  • In Walker v. East Allen Community Schools  (N.D. Ind. 2010), Frost Brown Todd obtained summary judgment in a certified class action alleging disparate impact in violation of Title VII. Plaintiffs were union representatives who alleged that the East Allen County Schools violated Title VII when the School Board decided to withdraw recognition for certain bargaining units. The unions claimed that because all of the units where recognition was withdrawn were over 90% female, and the remaining units, with one exception, were overwhelmingly male, the decision to withdraw recognition violated Title VII. While the employees’ collective gender composition made it clear that school district’s decision had a disparate impact on women, the school district’s decertification of their unions was a market-based response to school’s budget crisis and, thus, was not an employment practice. As the district court explained, “[a]llowing an employer to rely on the market in making labor decisions without fear of being hit with a disparate impact claim makes sense, especially when the decisions are necessitated by an economic downturn.
  • In Palmer v. Convergys Corporation, (M.D. Ga. 2012), the district court entered an order dismissing the plaintiffs’ collective action allegations under the Fair Labor Standards Act. The court found that the named plaintiffs had executed valid and enforceable class action waivers by signing their employment applications, which contained a clause waiving the ability to lead or join their claims with other employees, and in doing so forfeited their procedural right to proceed collectively with their FLSA litigation. The decision marked the first time that a court has enforced a class action waiver that was outside of the arbitration context and was contained only in the plaintiffs’ employment applications. The decision also represented a significant victory for employers, who have struggled to find ways to protect against the ever-increasing number of wage and hour class and collective actions. The decision also highlighted the innovative — and sometimes aggressive — approaches that Frost Brown Todd attorneys take in protecting our client’s interests.

Securities

  • AK Steel Holding Corp. Securities Litigation (U.S. District Court, Southern District of Ohio) — Served as co-counsel for AK Steel in action against the company, officers and directors alleging material misstatements and omissions regarding earnings estimates, raw material costs and labor relations among other items. The putative plaintiff class consisted of purchasers of AK Steel stock and persons acquiring AK Steel stock as part of its merger with Armco, Inc.
  • Public Company Representation — We served as co-counsel in purported class action securities fraud litigation, representing the defendant company and several of its officers, in an action wherein the plaintiffs claimed that the defendants made repeated false and misleading guidance projections and engaged in false financial reporting throughout the class period.  There were also allegations of insider trading against one of the officers. The federal district court granted defendants’ motion to dismiss and the plaintiffs later voluntarily dismissed their appeal.
  • Public Company Representation — We served as co-counsel in this purported class action securities fraud litigation, representing the defendant company and several of its officers. The complaint asserted 10b-5 claims relating to alleged fraudulent financial reporting and accounting issues and the plaintiffs also asserted aggressive trading by certain insiders as the basis for scienter on behalf of the company.  The federal district court granted in part and denied in part the defendants’ motion to dismiss and the case settled after an extensive mediation.
  • Investment Company Representation — We defended an investment seminar company in a putative class action for securities fraud brought against company and co-sponsor of seminars who were alleged to have committed securities fraud. We defeated class certification and obtained dismissal of all claims against client.

Insurance

  • Franklin County, KY v. Travelers Property Casualty Co. of America — No. 3:08-52, (Eastern District of Kentucky) — Putative class action brought by municipalities in Kentucky against numerous affiliate insurance companies alleging that companies had improperly determined their liability for local government insurance premium taxes. Obtained dismissal from District Court prior to class certification phase for failure to exhaust administrative remedies, and unanimously affirmance by the U.S. Court of Appeals for the Sixth Circuit.
  • Green, et al. vs. Anthem Insurance — (U.S. District Court for Southern District of Ohio) — Defense of Fortune 500 company in a putative class action on behalf of a class of employees seeking to recover proceeds from the demutualization of Anthem Insurance paid to the employer.
  • Georgia Hensley v. Computer Services Corporation, et al. — In this case, we represented two large insurance companies. Plaintiffs sought certification of a class against virtually the entire insurance industry for alleged improper use of claims settlement software. The exposure, in this case, exceeded multiple billions of dollars. Frost Brown Todd was successful in obtaining an exceptional settlement for both clients.

Antitrust & Rico

  • Hyland v. Homeservices of America et al. — No. 3:05-cv-612 (W.D. Ky.). The plaintiffs, a class of sellers of residential real estate, alleged an antitrust conspiracy among real estate brokers and agents to fix the price of real estate commissions. Early in the case, the district court had certified a class of more than 70,000 individuals who had sold homes from October of 2001 through October of 2005 and had paid a commission to a Kentucky broker. After the certification of the class, most of the defendants named in the lawsuit had settled. Frost Brown Todd represented a Coldwell Banker franchisee that had 12 offices throughout Kentucky during the class period. In July of 2012, after extensive discovery, the district court granted summary judgment for the remaining defendants.

Mass Disasters

  • Oklahoma City Bombing Litigation — Class action filed in federal district court, Oklahoma. Served on initial defense team and participated in selection process with ICI Management. Case dismissed.

Business & Banking

We have represented financial institutions and businesses in class action litigation involving alleged securities fraud or other violations, tax payments/reductions, antitrust allegations, Medicaid issues, RICO allegations, Retail Installment Sales Act violations, FACTA, fraud regarding conversion of a mutual savings and loan to a shareholder-owned financial institution, alleged violations of state consumer protection statutes, consumer financing issues and other allegations. Importantly, we have defeated class certification in many of these instances, had a class decertified upon substituting our appearance for a client where certification had been granted and successfully defended clients after class certification was granted and remained.

  • Hubler v. General Motors (U.S. District Court for Southern District of Indiana) — Class action by Indiana GM dealers alleging franchise law violations and failure to pay marketing program funds. The case was settled favorably for the client.

Other Torts

  • Blake V. ChemLawn, USDC E. District Pennsylvania — Civil Action No. 86-3413 — Complaint filed in federal court in Philadelphia alleging a nation-wide class of customers of Chemlawn and others allegedly exposed to the chemical used by ChemLawn. Allegations of harm included multiple chemical sensitivity, brain damage, immune deficiency and other damages. The parties engaged in class-based discovery which was followed by briefing and argument of the motion for class certification. Class certification was denied. The cases of the putative class representatives were then transferred to the jurisdictions of these individual plaintiffs for trial.
  • Burkhead v. Louisville Gas & Electric Co., — No. 3:06CV-282, Western District of Kentucky — Class action brought on behalf of property owners residing near a coal-fired power plant in Kentucky, alleging property damage to their homes and personal property as a result of emissions from the plant. We successfully represented the plant owner through the class certification process, resulting in an order denying class certification. Following the denial of certification, individual cases were settled on terms favorable to the client.
  • Guy v. Lexington-Fayette Urban County Gov’t, — No. 98-431-KSF, Eastern District of Kentucky — Class action by participants in youth program administered by a non-profit corporation seeking to impose liability on local government for failing to prevent sexual abuse by program’s director. Obtained summary judgment on numerous class claims and prevailed in obtaining order denying class certification of remaining claims, which is currently pending on appeal to the Sixth Circuit.

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Strategic Solutions

Success for our clients is defined by both how the case is managed as well as the ultimate result. Our litigation team is at the cutting edge of best and developing practices in case management. Our solutions not only translate to courtroom success — they save clients time and money, allowing them to maintain their business focus.

  • We helped pioneer the use of common defense groups. This reduced, and continues to reduce, costs of litigation for our clients and furthers our clients’ strategic interests.
  • We were one of the first law firms to form a group of dedicated staff attorneys and paralegals who specialize in a high-volume review of documents, including for review of privileged or sensitive materials. Use of this in-house staff by our class action lawyers can save clients real money in discovery. It also provides comfort to clients that the documents are being reviewed by individuals with proper training and a required understanding of the case.
  • We invest strategically in technology that allows us to process, analyze, review and produce large volumes of documents and emails in an efficient and economical manner. And we have developed strategic partnerships with outside service providers to augment those services as needed.
  • We optimize transparency, efficiency and cost predictability to our clients by employing a formal project management strategy to our class and group actions.

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