Results

Having formed Kennedy Berg with more than 40 years of commercial trial experience between them, Kennedy and Berg have continued to build on an enviable track record of past results. The following are illustrative results that Kennedy Berg has achieved since its formation in May 2011.

Recent

Crossroads ABL, LLC v. Canaras Capital Management, LLC, et. al.

After taking over for prior counsel, won, on behalf of the plaintiffs, an order enjoining the defendants from enforcing non-competition and non-solicitation provisions contained in the parties’ operating agreement (reported at 33 Misc.3d 1218(A)); won partial summary judgment requiring defendant limited liability company to advance the plaintiffs; legal fees during the pendency of the action (reported at 35 Misc.3d 1238(A)), and affirmed by New York’s Appellate Division (reported at 105 A.D.3d 645, 963 N.Y.S.2d 645); and defeated a defendant’s motion for partial summary judgment seeking $700,000 in immediate damages from the plaintiffs (not reported). The matter has settled.

NFP Property & Casualty, Inc. v. Lefkowitz and Onecap Services LLC

Defended a property and casualty insurance broker and his new firm against claims of unfair competition, trade secret misappropriation and related torts in connection with the broker’s departure from a major P&C brokerage house and the formation of a competition insurance firm.  The matter, initially brought in New York State Court settled following removal of the case to federal district court, depositions of the plaintiff’s key executives and court-supervised mediation.

Pensmore Investments, LLC v. Gruppo, Levey Holdings, Inc. 

Won summary judgment in lieu of complaint in a New York state court action for recovery on certain promissory notes, and obtained an award of about $1.6 million following a damages proceeding before a Special Referee.

MTA v. Con Edison, et. al

Represented Fisher Brothers in a complex, multi-party action by which the Metropolitan Transportation Authority sought to hold commercial building owners and Con Edison responsible for the condition of utility vaults located in the Grand Central railroad yard, and played a lead role in resolving the matter through a JAMS mediation.

Vincent Crepy v. Reckitt Benckiser, LLC 

Defeated the defendant’s motion to dismiss the plaintiff’s claims, brought in a New Jersey federal district court, alleging fraud, breach of contract and other related causes of action (reported at 2013 WL 85272).  Following jurisdictional dismissal of the action based on defendant’s failure to disclose a complete corporate disclosure statement, Crepy asserted his claims in a first-filed action in Superior Court, Orange County, California.  KB defeated RB’s attempt to enjoin Crepy in a second-filed action, in Chancery Court New Jersey. The case is still pending.

Parties Confidential

Commenced an arbitration proceeding on behalf of an international medical service provider seeking about $20 million in unpaid service fees from a major insurance carrier, and favorably settled the matter, through mediation, following document discovery.

Parties Confidential

Avoided potentially costly litigation by privately asserting claims against a major U.S. law firm arising from its handling of an international arbitration, and negotiated a substantial reduction in the fees the law firm had billed to our client.

Littman v. Rohdie

Defeated the defendants’ motion to dismiss claims to share in an oral partnership’s profits arising from the development of real estate projects in the Southeastern United States, and settled the matter through mediation prior to any deposition discovery.

Cornerstone Resources Inc. v. G.K. Las Vegas Limited Partnership, et. al., 

Settled the plaintiff’s claim for non-payment of services rendered by an expert witness resource provider after successfully moving to dismiss the plaintiff’s claims to pierce the veil of a limited liability company and to impose direct liability upon its managing member.

The Setai Group v. 400 Fifth Avenue

Defeated the defendant’s motion to dismiss the plaintiff’s claim that a luxury hotel operator had improperly used the plaintiff’s name and mark, in breach of a licensing agreement requiring the plaintiff’s consent, in referring on its website to the name of a competitor who had been selected as the successor manager of the property. The case is pending.

Parties Confidential

Avoided costly litigation on behalf of a corporate client and individual by serving a courtesy copy of the complaint on potential defendants in a fraud and breach of contract matter.

Past

Trials and Arbitrations

MidAmerican Energy Holdings Co., et al. v. San Lorenzo Ruiz Builders & Developers Group, Inc.

Won a directed verdict for the counterclaim plaintiff worth over $100 million in past and future stock dividends against a Berkshire Hathaway affiliate in an Omaha, Nebraska trial court. Before closing arguments in a two-week jury trial, the trial judge ruled that SLR, a minority stockholder in a Philippine water and energy project, had conclusively proven that MidAmerican, the project’s majority stockholder, had deliberately manipulated key inputs in an accounting formula in order to destroy the value of SLR’s valuable stock options and prevent SLR from exercising the options, thereby eliminating SLR’s minority interest. The parties later settled the matter pending appeal.

LaPrairie Group Contractors (International), Ltd. v. CE Casecnan, Ltd. and MidAmerican Energy Holdings Co.

Won a judgment for the plaintiff worth over $100 million in past and future stock dividends against a Berkshire Hathaway affiliate following a five-week Bench trial in the complex part of the San Francisco Superior Court. In this predecessor lawsuit to MidAmerican v. SLR, the Court held that the majority stockholder had improperly eliminated a minority stockholder’s ownership interest in a Philippine water and energy project by miscalculating its projected return on investment under a contractual stockholder “dilution” provision. The case settled following appeals.

Sarnoff Corporation v. Broadcom Corporation

Won a judgment in favor of Broadcom, following a week-long Bench trial before a New Jersey state court judge. The court rejected claims of trade secret misappropriation and employee piracy arising out of Broadcom’s simultaneous recruitment and hiring of six employees who had spearheaded Sarnoff Corporation’s development of certain QAM cable modem technology.

Honeywell, Inc. v. Minolta Corp.

Won a split jury verdict following a four-month trial in a New Jersey federal district court, finding defendant Minolta not liable to Honeywell for misappropriation of trade secrets in the development of Minolta’s MAXXUM autofocus camera.

Fleisher v. Miller

Won a jury verdict of $4.6 million on a breach of fiduciary duty claim tried before the New York Supreme Court on behalf of National Basketball Association player agent, Eric Fleisher. The jury found that defendant Miller had unlawfully lured Kevin Garnett and other NBA players to Miller’s new agency. See New York Times, “A $4.6 Million Judgment In a Battle of Sports Agents,” October 17, 2002.

SAFA v. Gianni Versace s.P.a

Won an arbitral award, following a ten-day evidentiary hearing, permanently enjoining Gianni Versace s.P.a. from selling certain Gianni Versace secondary label clothing, using the Versace name from a Versace Jeans Couture boutique in Beverly Hills. The arbitration panel found that the boutique’s sale of only Versace brand clothing violated the rights of another Beverly Hills franchise to be the sole “Gianni Versace” store in Los Angeles County.

Smith Kline Beecham v. Colgate Palmolive Co.

Served on a trial team that won a judgment, following an evidentiary hearing, in a Philadelphia federal district court denying plaintiff’s motion to preliminarily enjoin Colgate’s U.S. introduction of the NAVIGATOR flexible toothbrush, on grounds of alleged patent infringement, and granting Colgate’s cross motion for summary judgment dismissing the complaint.

Semiconductor Energy Lab, Co. v. Samsung Electronics Co.

Served on the defense trial team that won an eight-day “inequitable conduct” hearing before a Virginia federal district court to determine if Semiconductor Energy had fraudulently obtained a U.S patent covering liquid crystal displays in laptop computers. The federal judge dismissed the action, finding the plaintiff had brought it in bad faith.

Emergent Biosolutions, Inc. v. Protein Sciences Corp

Served on a litigation team that defended a biopharmaceutical company against four lawsuits stemming from a battle for corporate control of the company following the stockholders’ rejection of a target acquisition by Emergent. The company defeated an involuntary bankruptcy action in Delaware following a trial and, through motion practice, defeated a fraud action in a Connecticut federal court, a replevin action in a Connecticut state court and a breach of contract action in New York Supreme Court. The matter settled favorably for defendant.

Summary Judgment and Dismissals

Bidland Systems, Inc. v. Telephonica, S.A. et al.

Defeated defendant’s motion for summary judgment in a California federal court seeking dismissal of plaintiff’s claims for $120 million in damages based on fraud and misappropriation, and negotiated a favorable settlement before trial. See Order, Bidland Systems, Inc. v. Telephonica, S.A., S.D. Cal., February 25, 2004, 3:01-CV-00157.

Financial Security Assurance Co. v. Bay View Bank

Won summary judgment for plaintiff in a New York federal district court, which declared that numerous loans contained in mortgage-backed securitized loan pools breached various contractual warranties and representations, and negotiated a favorable settlement before trial.

U.S. East Ltd. v. JP Morgan Chase

Defeated defendant bank’s motion for summary judgment on claims of employee piracy arising from an alleged raid on IT vendor’s at-will employees, and successfully negotiated a settlement, days before the start of trial, on behalf of the IT vendor.

Parties Confidential

Served on a a team that obtained a summary judgment order for specific performance of a real estate contract, on behalf of plaintiffs in the Eastern District of New York.

Melendres v. KILT-AM

Won dismissal by a Texas federal district court of a defamation action for a radio affiliate of CBS, by conclusively proving that the radio skit at issue was a parody, protected by the First Amendment.

Parties Confidential

Won defense dismissal in a Texas state court of a multi-million dollar fraud, conspiracy and breach of contract suit against a temporary employment services company.

Appellate Rulings

On-Line, Technologies v. Perkin-Elmer, Corp., et al.

Won appeal on behalf of the plaintiff patentee before the Court of Appeals for the Federal Circuit, which reestablished the validity of On-Line’s gas cell patent covering technology used, for example, to measure smoke stack emissions. See On-Line, Technologies v. Bodenseewerk Perkin-Elmer, GmbH, 386 F. 3d 1133, 73 U.S.P.Q 2d 1116, Fed Cir. (Conn.), October 13, 2004.

Littman v. Magee,

Won reversal on an appeal before an intermediate New York appellate court of a judgment dismissing a complaint for breach of fiduciary duties, which had been brought by another law firm on behalf of a minority partner in a real estate development company.

Settlements

Anatar v. Hamilton

Negotiated a favorable settlement before trial of investor claims against a former trustee for breach of fiduciary duty in the alleged mismanagement of Anatar’s interests in, among other things, The French Culinary Institute.

Tricon Global Restaurants v. Minor International Plc

Defeated a motion in the New York federal court to shut down Thailand’s largest pizza business following the franchisor’s refusal to renew its Pizza Hut franchise, and negotiated a favorable settlement that permitted the Pizza Hut franchisee to rebrand its business and maintain its 90% market share.

ING (U.S.) Financial Holdings v. Fisher Brothers

Successfully negotiated a favorable monetary settlement, following extensive discovery, in favor of the landlord of a Park Avenue office tower who alleged in the New York Supreme Court that the sale of a tenant’s business constituted the unauthorized transfer of a valuable leasehold interest in the building.

State of Brunei Darussalam v. Rieger

Successfully defended a former outside director of a prominent New York hotel against claims in the New York state and federal courts of breach of fiduciary duties and alleged RICO violations and negotiating, several months after his appearance in the matter, a global settlement involving hundreds of millions of claims and counterclaims brought by multiple parties located in diverse jurisdictions throughout the world.

Gan v. Maynard

Defended the general partner of several limited partnerships against claims in the New York Supreme Court of breach of fiduciary in managing real estate investments and sustained, through motion practice and settlement during trial, the general partner’s interest in certain sale proceeds, as well as reimbursement of his legal fees.

Performance Trailers, Inc. v. Harold’s Welding Shop of Largo, Inc.

Secured an early trial date in a Florida trial court, less than 10 months after filing the complaint, and negotiated a favorable settlement just weeks prior to the start of trial in an action for enforcement of a purchase price adjustment based on the seller’s breached warranties and representations to the buyer of a boat trailer business.