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OVERVIEW

Appeals and Critical Motions WHEN IT COUNTS

Appellate advocacy requires a set of distinct skills, including researching cases and legislative history to creatively address issues; framing the issues on appeal to capture the attention and respect of appellate judges and justices; writing concise and trenchant briefs that inform and educate the court and its clerks; and responding to the court’s questions at oral argument in a way that clarifies and reinforces the key issues.

The attorneys in Barnes & Thornburg’s Appeals and Critical Motions Practice Group are seasoned litigators who have the experience necessary to advise clients on all phases of appeals.

Our attorneys litigate dozens of appeals each year before state and federal appellate courts across the country, including the U.S. Supreme Court; they are skilled attorneys who devote a significant portion of their legal practice to appellate work. Many were judicial clerks in the federal Circuit Courts of Appeal and other federal and state courts.

An appellate decision has business implications beyond any single case. The firm’s appellate attorneys tackle a broad range of issues in complex appeals arising from Barnes & Thornburg’s numerous practice groups, including commercial litigation, intellectual property, labor and employment law, insurance, finance, energy, tax, healthcare, transportation, construction, environmental regulation, bankruptcy and white collar crime.

We work with the trial team before and during trial to write briefs, preserve issues and position the case for appeal. Once judgment has been entered, appellate attorneys assist with post-trial motions and handle appeals in collaboration with the trial team.

We also advise clients on the impact of recently decided and impending cases and draft amicus curiae briefs in critical cases in state and federal courts and the U.S. Supreme Court.

Practice Leaders

Brian Casey

Brian E. Casey

Partner
Appeals and Critical Motions Co-Chair

South Bend

P 574-237-1285

F 574-237-1125

Mark Crandley

Mark J. Crandley

Partner
Appeals and Critical Motions Co-Chair

Indianapolis

P 317-261-7924

F 317-231-7433

Rachel Lerman

L. Rachel Lerman

Partner
Appeals and Critical Motions Co-Chair

Los Angeles

P 310-284-3871

F 310-284-3894

Peter Rusthoven

Peter J. Rusthoven

Partner
Appeals and Critical Motions Co-Chair

Indianapolis

P 317-231-7299

F 317-231-7433

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EXPERIENCE
  • A Barnes & Thornburg attorney has served as lead arbitration counsel in defense of a $30 million dealer-distributor termination brought against an electronics company. The claimant alleged breach of contract and conspiracy to terminate its national distributorship of surge suppression products. Claimant was awarded nothing and ordered to pay on EFI's trademark infringement counterclaim.
  • A Barnes & Thornburg attorney represented a cash advance lender in a putative class action, obtaining an order compelling arbitration of the claims despite a challenge that the arbitration clauses were illegal, unconscionable and unenforceable. Furgason v. McKenzie Check Advance of Indiana, Inc., 2001 U.S. Dist. LEXIS 2725 (S.D. Ind. 2001).
  • A Barnes & Thornburg attorney represented a coal mining company in an action under Federal Act to compel defendant to international arbitration in coal supply contract dispute. PT Kaltim Prima Coal v. Intergen Servs., No. 1:03cv10573 (D. Mass., filed Mar. 28, 2003).
  • A Barnes & Thornburg attorney represented a computer leasing company in an arbitration resulting in substantial payment under private company directors and officers (D&O) policy liability for litigation costs arising from underlying business dispute. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney represented a former executive in a million-dollar breach of contract action. The Court of Appeals affirmed the trial court’s judgment in the amount of $1.3 million for breach of employment contract. In addition, the Court of Appeals affirmed the trial court’s finding that the former employer waived its right to arbitrate the claim under the employment agreement. Stoll v. United Magazine Co., 2004 WL 1109718, 2004-Ohio-2523, Ohio App., 10th Dist. (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney represented a large auction house in the arbitration of a breach of contract dispute with the owner of a company acquired by the auction house. The arbitrator issued an award in favor of the client and the Barnes & Thornburg attorney successfully argued in the Fifth Circuit that the award should be confirmed. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney represented a large technology and defense contractor in a breach of contract arbitration with a food irradiation company. The issue boiled down to the defense contractor’s expertise and ability to create a cutting edge nuclear technology, which the food irradiation company claimed could not be done. After a week-long arbitration hearing, including detailed testimony on nuclear technology, the client received an award for the full amount it was seeking. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney represented a major retailer in arbitration involving consumer complaints. The Court of Appeals affirmed the trial court’s judgment referring consumer complaints to arbitration and holding that consumers were not entitled to a jury trial on the issues of making the arbitration agreement or failure to perform it. Cheney v. Sears Roebuck & Co., 2005 WL 1515388, 2005-Ohio-3283, Ohio App. 10th Dist. (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney represented an educational institution in a multiple plaintiff federal lawsuit, obtaining an order compelling arbitration of claims over a challenge that the arbitration clauses were not executed and unenforceable.
  • A Barnes & Thornburg attorney represented appellant NFL Management Council, which challenged the ruling of a New York district court interpreting the terms of a collective bargaining agreement. The Court of Appeals reversed the New York district court’s ruling, holding that the court had improperly exceeded the scope of its jurisdiction. NFL Players Association v. NFL Management Council, 2013 WL 1693951 (2d Cir. April 19, 2013). (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney represented appellee management council of a national sports league in a case challenging an arbitration award on public policy grounds. The district court affirmed arbitration award in favor of council, holding that choice of law clause in retired professional football player’s contract with team barred player from pursuing workmen’s compensation benefits under California law and did not violate state or federal policy. Atlanta Falcons Football Club, Inc. v. NFL Players’ Ass’n, 906 F. Supp. 2d 1278 (N.D. Ga. 2012). (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney represented appellee management council of a national sports league in an appeal challenging an arbitration award on public policy grounds. The Court of Appeals affirmed award in favor of management, holding that choice of law clause in professional athlete’s contract with sports team barred player from pursuing workmen’s compensation benefits under California law and did not violate state or federal policy. Matthews v. NFL Management Council, 688 F.3d 1107 (9th Cir. 2012). (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney represented customers in arbitration. An arbitration award of $368,000 was granted to investors against broker and broker-dealer based upon claims of suitability, churning, negligence, and breach of fiduciary duty.Collins v. SG Cowan Securites Corp., NASD Case No. 01-01873. (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney represents real estate clients, including Real Estate Investment Trusts (REIT), real estate developers, contractors, architects, commercial landlords, property owners and homebuilders, in wide-ranging complex commercial litigation, dispute resolution and counseling.  The attorney’s experience includes litigating, arbitrating and advising real estate clients in construction disputes, real-estate related disputes, development agreements, joint venture arrangements, operating agreements, lease agreements and tenant/landlord disputes.

    An example of the attorney’s experience includes representing a commercial real estate company and obtaining preliminary injunction preventing tenants from ceasing operations at a shopping center. Glendale Centre, LLC v. The Limited, Inc. et al., Cause No. 49D11-0206-PL-000994 (Marion Superior Court, Indiana).
  • A Barnes & Thornburg attorney served as counsel in a $20 million health care arbitration dispute concerning breach of contract and various business tort claims. (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney served as lead counsel in defense of an electrical product manufacturer in a multi-week arbitration brought by a former distributor alleging conspiracy in violation of the Sherman Act, price discrimination, violation of the Robinson¬Patman Act, wrongful termination of the distributorship, deceptive conduct in violation of Illinois and Tennessee Consumer Protection Statutes, and other common law tort claims. The claimant sought more than $10 million in damages, was awarded nothing, and was ordered to pay all costs of the arbitration.
  • Barnes & Thornburg attorneys represent a steel manufacturer in a breach of contract matter involving the destruction of a bridge crane at Severstal Steel. On behalf of the plaintiff, we are seeking in excess of $25,000,000 for defendant’s negligence, which caused the collapse and destruction of a crane during a heavy wind event. Severstal Sparrows Point, LLC v. Kinder Morgan Bulk Terminals, Inc., No. 1:09cv1668 (Maryland, June 24,2009).
  • Barnes & Thornburg attorneys represented a capital management company in a dispute concerning the enforceability of an arbitration clause that required arbitration to occur in Guernsey. The district court granted judgment in the client’s favor, enforcing the arbitration clause and requiring arbitration. The Fifth Circuit then affirmed. 2011 U.S. Dist. LEXIS 24621.
  • Barnes & Thornburg attorneys represented a debt collection company in a dispute involving Plaintiffs claims that our client violated the Fair Debt Collection Practices Act and committed Indiana state law torts for the manner in which they were contacted in attempting to collect a debt. The federal district court granted a motion to compel arbitration and no arbitration was filed.
  • Barnes & Thornburg attorneys represented a Global Recruiting Concern in the successful bet the company international arbitration of a commercial dispute which was on fast track with streamlined discovery and included a full factual hearing on dispositive issue 3 months after initial filing of arbitration demand. (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • Barnes & Thornburg attorneys represented a national home builder in multi-form litigation arising from a joint venture to develop a $1.2 billion residential community in southern Las Vegas, including suits filed in arbitration among the joint venture members and suits filed in federal court and federal bankruptcy court by the lenders. In arbitration, one of the joint venture members sought specific performance of obligations totaling more than $300 million and asked, in the alternative, for more than $300 million in damages. After two weeks of arbitration, the arbitration panel rejected the claim for specific performance and rejected nearly all of the damages claim. The lenders’ claims were ultimately resolved favorably.
  • Barnes & Thornburg attorneys represented a subcontractor defendant in a construction accident case, including a third-party claim against the general contractor for contractual defense and indemnity. The client appealed the case to the United States Court of Appeals for the Seventh Circuit, where the client won complete indemnification and attorneys’ fees.
  • Barnes & Thornburg attorneys represented client in three NASD arbitrations which involved allegations of securities fraud and damages of over $4.25 million. The claims were dismissed prior to hearing and the motion to vacate those dismissals was denied by the district court. Berkley v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 2008 U.S. Dist. LEXIS 27107 (S.D. Ohio 2008).
  • Barnes & Thornburg attorneys represented Kendrion N.V., a global electronics manufacturer, in a recent victory in the Northern District of Illinois. This victory came on the heels of an arbitration conducted by Deloitte LLP. In the arbitration, the large private equity firm from which Kendrion had purchased a manufacturing company argued that Kendrion owed an "earnout" under the terms of the asset purchase agreement between the parties. Deloitte ruled in Kendrion's favor, finding no earnout was merited.

    Upon receiving the favorable arbitration award, Kendrion moved for summary judgment in a parallel federal case that the private equity seller had also filed. In its motion, Kendrion argued that further litigation was barred by the principles of claim and issue preclusion. Ultimately, the court agreed with Kendrion and granted its motion for summary judgment. In doing so, the court created favorable precedent for similar post-closing merger disputes, holding that, even though the arbitrator could not have decided the legal issue underlying the federal cause of action (an alleged breach of a covenant separate from the earnout provision), it had necessarily decided the factual question underpinning that dispute.
  • Barnes & Thornburg attorneys represented MetLife Securities in a case that involved a claim that the insured was misinformed that a whole life insurance policy he purchased included a rider that would waive premiums if he became disabled. He subsequently suffered a disabling injury. He brought an arbitration before the National Association of Securities Dealers (NASD) claiming fraud and breach of contract. The panel unanimously rejected all of his claims.
  • Barnes & Thornburg attorneys represented the State of Ohio and received a favorable arbitration award from a panel of three retired federal judges in a matter known as the 2003 NPM Adjustment Proceedings Under the Master Settlement Agreement. The arbitration proceedings began in 2010 and initially involved 52 states and territories and 17 tobacco companies. After various dismissals and settlements, individual state hearings were conducted by the panel for 15 states. Ohio was one of nine states which prevailed in the individual state hearings. As a result of the award, Ohio will retain approximately $290 million in payments previously received and were subject to forfeiture in the event of an adverse result. Ohio will receive an additional $36.5 million currently held in escrow. This arbitration concludes disputes between the states and the tobacco industry for the year 2003. The firm is about to embark on a similar arbitration for the year 2004, which involves approximately $1.1 billion in disputed payments.
  • Barnes & Thornburg represented a homebuilder in a consumer class arbitration relating to down payment assistance transactions. The arbitrator denied the petitioner's request for class certification. Bezaury v. Arbor Homes, LLC, No. 11 148 02161 04 (Am. Arb. Ass'n, June 30, 2006).
  • Barnes & Thornburg represented XM Satellite Radio in a class action relating to whether the plaintiff and purported class members were misled with respect to the equipment that would have to be purchased for a new car to allow the use of satellite radio. The contract between the plaintiff and the car dealer had a mandatory arbitration clause that barred class arbitration. In an attempt to avoid the arbitration clause, the plaintiff voluntarily dismissed the dealer. XM Satellite Radio, along with the Honda manufacturer and distributor, obtained an order compelling arbitration based on the doctrine of equitable estoppel. This ruling defeated the class allegations. The parties then settled the plaintiff’s individual claim. Agnew v. Honda Motor Co, Ltd., 2009 U.S. Dist. LEXIS 53914 (S.D. Ind. 2009).
  • The Barnes & Thornburg Construction Law Practice Group represented a Florida contractor that designs and installs window-wall products on high-rise buildings. The complex case involved breach of contract, acceleration and disruption claims arising out of the construction of a 28-story apartment building in downtown Chicago. The matter also involved insurance coverage disputes related to these claims, including litigation filed by on of the insurance carriers in Florida.

    With respect to the construction claims, two separate lawsuits were filed and after resolving complex procedural hurdles before the courts, the matter proceeded to arbitration involving the project owner, general contractor and our client before the American Arbitration Association. During those proceedings, we were able to negotiate a favorable settlement for our client, including a significant payment. We then also resolved the insurance litigation pending in Florida on favorable terms for our client.
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