Representative Matters
The firm performs legal services in many sectors of the economy throughout the country, and internationally. We are especially proud of the firm's success in assisting its clients in avoiding and/or overcoming obstacles that, unfortunately, too often impede desirable — and appropriate — results. Such outcomes depend heavily on unyielding investigatory efforts and resourceful development of the facts and legal theories to support these objectives. These efforts resulted in some of those outcomes recounted here.
Bringing Equality to Public Contracting
When the firm was asked to recover nearly a million dollars in overhead and profit distributed among several dozen line items in a contractor’s bridge contract with the State — items that the State had arbitrarily deleted rather than pay for a change in their design — the firm relied upon principles of equity and fairness to overcome contract mechanics that the State had intended to use to hold back payment for all of those items. The firm prevailed at trial and, later, at the State’s Supreme Court, by convincing the Courts to recognize a seldom-used but venerated doctrine to trump the literal — and routinely-applied application — construction of the contract's payment and modification provisions. The State insisted that reducing the work units to zero meant it could reduce the payments to zero and further contended that deleting these payments was an appropriate penalty for the contractor’s unbalancing the bid. But the firm convinced the trial court and, ultimately, the State Supreme Court, that, in contrast to earlier precedent, the method of calculation should be “equitably adjusted”, even though this State’s contract had been carefully crafted to conspicuously omit such an adjustment. In the end, the court held that, despite its inclination to protect the public purse, when the issue was viewed from both sides, as the firm had demonstrated at trial, it was clear that the contractor would be unjustly punished and the State unjustly enriched if an equitable adjustment was not decreed. The Court allowed the contractor to recover all of its overhead and profit that had been distributed to the deleted items.
Telling the Whole Story
It was also the firm's resourcefulness that spurred successful resolution for a subcontractor of a particularly troublesome encounter with the design-builder on a $60 million project for construction of a water treatment plant. The firm obtained a multimillion dollar settlement by overcoming the design-builder’s allegations that its claim for compensation for extra work and delay resulting from a realignment of intake pipe was nothing more than an attempt to offset a "bid bust." The firm demonstrated that the allegation took the estimators’ cautionary remarks completely out of context while, on the other hand, intentionally misleading those bidding for the work, including this subcontractor by concealing the design-builder’s defective plans. It was those defects that caused the design builder to realign the elevation in which the subcontractor was to install the pipe, positioning it in soil materials that, if the subcontractor had proceeded as originally ordered by the design-builder, would have jeopardized the 50-foot levee through which the pipe had to be bored. With aggressive use of a number of electronic discovery methods, the firm demonstrated that this was no contractor’s “bid bust” but, instead, a major “design bust". The firm developed written and oral evidence — that the design builder had privately acknowledged during its design, but never disclosed to its subcontractor — that it had dropped the ball in its design of the plant when it had failed to factor in the planned removal of a dam that would lower the river elevation.
Crafting the Deal
The firm has translated its forensic skills into significant transactional results as well. With a great deal of industry and fortitude it was able to establish a robust EBITDA number and ratio when it represented a medium-sized graphic arts company in negotiating the sale of its business in a leveraged buyout with a NYSE conglomerate. It shepherded the company through the challenges of due diligence, securities regulations, Justice Department compliance and the legal and price negotiations, to achieve this formidable sale. And it stuck its course with the company because, when things soured with the acquiring conglomerate, it also counseled and represented that same seller in the repurchase of its business from the buyer at a price that was a fraction of the price at which it was sold.
Keeping Clients in Business
When called upon to represent a NYSE Fortune 500 manufacturer in a series of lawsuits by a number of “hi-tech” research and development employees against the client company for purported violations of the Employment Retirement Income Security Act (ERISA), the firm guided the company all the way to the United States Supreme Court in a successful defense of its position. The technicians had collaborated to protest, and reject, the company's decision to relocate its research lab and headquarters to a distant state. Despite the plaintiffs’ well-orchestrated pleas that they were being shackled with a veritable “16 tons” by the “company store”, the firm convinced the Federal Court of Appeals and the Supreme Court it would be prejudicial to the welfare of the Company's employees and its stockholders to issue severance payments to these highly coveted technical product managers and engineers, payments that had been offered to virtually all other employees in the organization. The Supreme Court upheld the Court of Appeals' ruling that, contrary to plaintiffs’ recital of a long list of precedent, the Company was not bound by fiduciary standards under ERISA. Instead, it found, as the firm had insisted, that authority to make this determination had been pre-established by the Company’s “design” of its plan to entrust to the Company management discretion to grant this kind of benefit. Like other cases listed here, the firm was able to demonstrate that the result was fair and appropriate so long as the Court viewed the situation from both sides; that, in this case, offering severance would induce departures rather than retentions, thereby impacting the welfare of the company and its employees. The Court accepted the argument, acknowledging the company's effort to keep its valued employees so as to benefit all the employees was perfectly appropriate when viewed from “the correct perspective”.
Representation without Boundaries
The firm represented a leading American electrical and electronic manufacturer in recovering damages from an Austrian conglomerate for which it was its exclusive distributor in the Orient. The conglomerate had hired away the American company's Malaysian branch manager in order to usurp their knowledge and the Pan-Asian network it had developed for these products, so as to establish their own competitive branch. The defendant manufacturer supplied a major line of electronic equipment sold through the client's Singapore branch and sought to undermine the American organization's exclusive distributorship arrangement with a series of behind-the-back moves, including personnel raids and cutthroat pricing. The firm initiated arbitration in the International Court of Arbitration and, following extensive discovery and depositions in Singapore and Seoul and a trial in Paris, obtained a judgment awarding damages, including direct costs, lost profits and attorneys' fees. This successful outcome occurred only after the firm had overcome stringent civil code procedures, complex attorneys fees formulas, the client's loss of cost records and a host of contractual disclaimers.
Restoring the Balance
The firm frequently goes to bat for the underdog. When a family sought legal representation to right the wrongs of a physician and his hospital for withholding information concerning the implications and consequences of surgery on patients of advanced age, the firm took up their cause. Faced with the prospect that the surgery at the time and place was an "accepted procedure in the eyes of the medical profession — and universal precedent for using the reasonably objective patient as the yardstick — the firm took on the profession and its carriers and turned the law on its heels, convincing the Appellate Court and the State Supreme Court that the objective test for informed consent had to be trashed, making it the first state in the country to adopt what is now a more widely-followed standard.