Business Litigation

Bankruptcy and Preferential Transfer/Defenses Litigation

Secured trial judgment in preference action in favor of chapter 7 bankruptcy client involving ordinary course of business defense.

Commercial Litigation – Automotive Floorplan Financing and Breach of Contract

Secured $160,000.00 trial judgment for client involving breach of automotive financing floorplan contract against defenses of commercial reasonableness and fraud. 

Breach of Lease and Article 9 Sale/Related Damages

Secured $230,000.00. trial judgment for client involving breach of lease and Article 9 sale issues.

Defective Construction Litigation and Trial Judgment

Secured trial judgment of $220,000.00  for client in defective construction case.

Success in Construction Litigation

SKO successfully obtained a complete dismissal of a client in a multi-million dollar apartment construction litigation in Ohio. After reviewing the complaint, SKO saw an early opportunity to file a motion to dismiss all claims alleged by the plaintiff against SKO’s client. The Ohio court agreed with the reasoning set forth in the briefing and granted the motion to dismiss in its entirety resulting in the complete dismissal of our client from the action, leaving the other corporate defendants to defend the against the plaintiff’s claims.

Breach of Contract

Our litigation team represents industry players in cases related to claims involving breach of contract case where our client terminated a Distribution Agreement based on multiple breaches by the distribution. We’re also defending counterclaims involving breach of contract, misappropriation of trade secrets, intentional interference of contract, and unfair competition.

Creditor Representation in Business Bankruptcy

In re Charles Deweese Construction, Inc. (Bankr. W.D. Ky. 2022):  Represents secured creditor and equipment lessor in chapter 11 bankruptcy case of paving company

In re Cineworld Group plc, et al. (Bankr. S.D. Tex. 2022):  Represents commercial landlord in chapter 11 bankruptcy cases of movie theater entities

In re Penta State, LLC, et al. (Bankr. S.D. Tex. 2022):  Represents secured creditor in chapter 11 bankruptcy cases of medical laboratory companies

In re BHCosmetics Holdings, LLC, et al. (Bankr. D. Del. 2022):  Represented principal secured creditor in chapter 11 bankruptcy cases of cosmetics companies, including in 11 U.S.C. § 363 sales and structured dismissal

In re White Stallion Energy, LLC, et al. (Bankr. D. Del. 2020):  Represents equipment lessor and secured creditor in chapter 11 bankruptcy cases of coal mining companies

In re Murray Metallurgical Coal Holdings, LLC, et al. (Bankr S.D. Ohio 2020):  Represented mechanic’s lienholder in chapter 11 bankruptcy cases of coal mining entities and related adversary proceeding

In re Hopedale Mining, LLC, et al. (Bankr. S.D. Ohio 2020):  Represented secured creditor and equipment lessor in chapter 11 bankruptcy cases of coal mining companies

In re Exide Holdings, Inc., et al. (Bankr. D. Del. 2020):  Represented supplier and preference defendant in chapter 11 bankruptcy cases of battery manufacturer and related adversary proceeding

In re OGGUSA, Inc. (f/k/a GenCanna Global USA, Inc.), et al. (Bankr. E.D. Ky. 2020):  Represented contract counterparty and administrative claimant in chapter 11 bankruptcy cases of agriculture company primarily engaged in hemp production

In re Shiloh Industries, Inc., et al. (Bankr. D. Del. 2020):  Represented equipment lessor in chapter 11 bankruptcy cases of motor vehicle component manufacturers, including in 11 U.S.C. § 363 sale and related lease assumption process

In re BJ Services, LLC, et al. (Bankr. S.D. Tex. 2020):  Represented trade creditor and member of Official Committee of Unsecured Creditors in chapter 11 bankruptcy cases of hydraulic fracturing and cementing providers

In re Americore Holdings, LLC, et al. (Bankr. E.D. Ky. 2020):  Represented principal secured creditor in multi-hospital chapter 11 bankruptcy cases, including in 11 U.S.C. § 363 sale

In re Eastern Livestock Co., LLC, et al. (Bankr. S.D. Ind. 2014):  Represented multiple livestock markets as creditors in chapter 11 bankruptcy cases, as defendants in adversary proceedings alleging preferential and fraudulent transfers, and as plaintiffs in related state and federal court civil litigation against secured creditor

Mechanic’s Lien Litigation

Murray Metallurgical Holdings, LLC, et al. v. AHR Metals, Inc., et al. (Bankr S.D. Ohio 2021):  Achieved negotiated resolution for mechanic’s lienholder in adversary proceeding regarding nature, extent, and priority of lien asserted in chapter 11 bankruptcy cases of coal mining entities

Business Contract and Tort Litigation

OGGUSA, Inc. (f/k/a GenCanna Global USA, Inc.), et al. v. Southern Tier Hemp, LLC (Bankr. E.D. Ky. 2021):  Part of SKO team that achieved negotiated resolution for corporate defendant in multi-million-dollar business tort and contract action involving complex questions about jurisdictional limits

Debtor Representation in Business Bankruptcy

In re Nurses’ Registry & Home Health Corp. and Nurses’ Registry & Home Health Corp. v. Burwell (Bankr. E.D. Ky. 2015): Represented debtor-in-possession home health provider in chapter 11 bankruptcy case and related adversary proceeding concerning use of cash collateral

In re Licking River Mining, LLC, et al. (Bankr. E.D. Ky. 2015):  Represented debtors in possession in chapter 11 bankruptcy cases of coal mining companies

In re “Marina” (Bankr. E.D. Ky. 2014):  Represented debtors in possession in chapter 11 bankruptcy cases of marina, restaurant, and lodging operator 

In re “Real Estate Company I” (Bankr. M.D. Tenn. 2013) and In re “Real Estate Company II” (Bankr. W.D. Ky. 2013):  Represented debtors in possession in chapter 11 bankruptcy cases of commercial real estate entities, including during contested evidentiary confirmation hearings

In re “Trucking Company” (Bankr. E.D. Ky. 2013):  Represented debtor in possession in chapter 11 bankruptcy case of trucking company

In re Lykins Enterprises, Inc., et al. (Bankr. E.D. Ky. 2011):  Represented debtors in possession in chapter 11 bankruptcy cases of fuel jobber and convenience store operator, including as plaintiffs in adversary proceeding concerning leases under 11 U.S.C. § 365

In re Treasure Isles, Inc. (Bankr. E.D. Ky. 2012):  Represented debtors in possession in chapter 11 bankruptcy cases of restaurant operators

Preferential and Fraudulent Transfer Litigation

In re Exide Holdings, Inc., et al. (Bankr. D. Del. 2021):  Represented supplier and preference defendant in adversary proceeding related to chapter 11 bankruptcy cases of battery manufacturer

In re Eastern Livestock Co., LLC, et al. (Bankr. S.D. Ind. 2014):  Represented multiple livestock markets as defendants in adversary proceedings involving preferential and fraudulent transfer claims

In re Appalachian Fuels, LLC, et al. (Bankr. E.D. Ky. 2011):  Represented Official Committee of Unsecured Creditors in chapter 11 bankruptcy cases of coal mining entities and as plaintiff in multiple adversary proceedings involving preferential and fraudulent transfer claims

Summary Judgment in Avoidance Action Litigation

Higgason v. Porter (In re New) (Bankr. E.D. Ky. 2013):  Obtained summary judgment that chapter 7 bankruptcy trustee could not avoid an unrecorded land sale contract between non-debtor sellers and debtor purchasers

Summary Judgment in Debt Dischargeability Litigation

Dickinson v. Fister (Bankr. E.D. Ky. 2010):  Obtained summary judgment on behalf of creditor that debtor’s debt to creditor was not dischargeable under the United States Bankruptcy Code

Representation of Potential Purchaser in Chapter 11 Bankruptcy

Represented potential purchaser in proposing competing plan of reorganization in chapter 11 bankruptcy case of hospitals in the U.S. Bankruptcy Court for the Southern District of Indiana

Intellectual Property Disputes

Trilogy Healthcare v. Camelot Leasing, LLC, Civil Action No. 3:18-cv-00307-RGJ, 2019 U.S. Dist. LEXIS 144653 (W.D. Ky. Mar. 22, 2019). In a trade name and trade dress infringement action in federal court, successfully established that his client’s unregistered trademarks were protected under the Lanham Act and, after a multi-witness injunction hearing, obtained a preliminary injunction against a competitor in the elder care industry requiring the Defendant to change its name, logo, and signage.

Breach of Contract Prosecution

Successfully prosecuted claims of claims of breach of contract, negligence, gross negligence, negligent misrepresentation, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and fraudulent misrepresentation arising out of the defendant’s failure to file business tax returns over the course of several years.

Reversal of Jury Verdict

SKO successfully obtained a renewed judgment as a matter of law, which resulted in a complete reversal of a jury verdict in excess of $100,000 in a breach of contract action in federal court

Limited Liability Company Summary Judgment in Breach of Duty

Obtained dismissal in federal district court for our publicly held, NYSE-MKT listed client on the grounds that a publicly held corporation owes no duty to monitor or control the purchase, sale, transfer, or exchange of its common stock. Derby Capital, LLC v. General Employment Enterprises, Inc., No. 3:12-cv-00850, 2013 U.S. Dist. LEXIS 73684 (W.D. Ky. May 24, 2013).

U.S. ex. rel. Griffith v. Conn et al

U.S. ex. rel. Griffith v. Conn et al., qui tam litigation arising from social security fraud resulting in $30 million dollar judgment.

U.S. ex. rel. Robinson-Hill v. Nurses Registry et al

U.S. ex. rel. Robinson-Hill v. Nurses Registry et al., qui tam litigation against home health care provider resulting in $16 million judgment.

Intellectual Property disputes

As lead counsel in a trade name and trade dress infringement action in federal court, Doug successfully established that his client’s unregistered trademarks were protected under the Lanham Act and, after a multi-witness injunction hearing, obtained a preliminary injunction against a competitor in the elder care industry requiring the Defendant to change its name, logo, and signage. See Trilogy Healthcare v. Camelot Leasing, LLC, Civil Action No. 3:18-cv-00307-RGJ, 2019 U.S. Dist. LEXIS 144653 (W.D. Ky. Mar. 22, 2019).

Lead counsel representing Kentucky Derby winning jockey in dispute with his agent over breeding rights

Lead counsel in defending claims in federal court against Kentucky Derby winning jockey regarding claims by agent for portion of yearly stud fee from the stallion, Unbridled’s Song. After briefing and argument, case was dismissed by District Court.  On appeal by opposing party, after briefing and argument, U.S. Court of Appeals for 6th Circuit affirmed in all respects.   Adika v. Smith, 466 F.3d 503 (6th Cir. 2006).

Shareholder Derivative Actions

Lead counsel defending action by single, dissident shareholder who brought both derivative claims on behalf of the corporation and direct claims against certain directors. SKO successfully argued in litigation that the dissident shareholder had no standing to assert claims and lacked the ability to bring a derivative action for failure to satisfy the statutory requirements for doing so. The litigation continued to the enforcement of a stock buy-sell agreement, upon which our client was successful in both its enforcement and the valuation of the minority member’s shares.  Conlon v. Haise, Case No. 2014-CA-001581-MR (Ky. Ct. App. 2016).

Publishing Rights

Successfully represented best-selling author of fiction works in multiple disputes, including arbitration concerning ownership, copyrights, publishing rights and royalty payments. Negotiated confidential settlement favorable to client.

Business Litigation Claims

Lead counsel representing manufacturer-supplier of equipment supplied to multi-billion dollar nuclear waste processing facility regarding claims against client for alleged latent defects in products and in related claims against prime contractor for amounts due under contract.   Case settled after multiday mediation.   CB&I Areva Mox Services, LLC v. Flanders Corporation, Civil Action No. 1:18-00052-TLW (U.S. Dist. S.C.).

Insider Trading Cases

Lead counsel in alleged insider trading cases brought by Securities and Exchange Commission. Claims involved alleged “tipper” and “tippee” liability relating to the purchase of stocks.  Successfully negotiated settlement with SEC to satisfaction of clients.   Securities and Exchange Commission v. Somers, et al., Case No. 3:11-cv-00165-JGH;  In the Matter of Monster Beverage Company, LA-4500. 

Defense of Chemical Manufacturer in claims resulting from fire on train containing boxcar full of containers of chemical

Co-counsel on case in which containers loaded with reactive chemical caught fire inside train boxcar resulting in evacuation of town into which train was traveling when fire occurred.   Multiple alleged personal injury claims from residents allegedly exposed to toxic fumes.  Those claims were settled.   After two jury trials relating to the claims between chemical manufacturer and railroad, those claims were ultimately settled after trial. 

Education/Privacy

Successfully filed and negotiated a settlement of claims against Laurel County School District under the McKinney-Vento Homeless Education Assistance Improvements Act of 2001 on behalf of a minor client (J.S. and S.S., as next friends of Q.W., a minor v. Laurel County Board of Education, U.S. District Court, Eastern District of Kentucky, Case No. 6:16-cv-00309-GFVT).

Represented college students against allegations of sexual harassment under Title IX.

Represented college students in protecting privacy rights under the Federal Education Rights and Privacy Act (FERPA).

ERISA

Defended multiple institutional and individual clients against allegations of breach of fiduciary relating to employee stock ownership plans (ESOPs) asserted by the Department of Labor and/or ERISA plan participants and negotiated settlements of the same.

Successfully prosecuted claims on behalf of ESOP trustee against previous trustee for breach of fiduciary duty and obtained a settlement favorable to plan participants.

Successfully arbitrated indemnity claims in arbitration and obtained a judgment on behalf of a former ESOP trustee.

Energy

Successfully defended Alliance Coal LLC against multiple claims of wrongful death and obtained favorable ruling from the Kentucky Supreme Court on issue of first impression relating to workers’ compensation immunity in published opinion at Falk v. Alliance Coal, LLC, 461 S.W.3d 760 (Ky. 2015).

Successfully obtained summary judgment on behalf of Alliance Coal LLC, and Hopkins County Coal, LLC, in Hopkins County Circuit Court dismissing multimillion dollar claims by Walmart, Inc., for alleged property damages based upon complex theories of mine subsidence.

Patent & Trademark Litigation

Represented animal pharmaceutical/biotech company in patent inventorship lawsuit and negotiated a multimillion dollar patent licensing agreement in client’s favor.

Represented major glass-making company in lawsuit involving claims for anti-trust, unfair competition and misrepresentation relating to a patented air pollution control technology developed by a competitor of the client and negotiated a multi-million dollar recovery for the client.

Successfully prosecuted trademark infringement suit on behalf of NAPA Auto Parts and obtained preliminary and permanent injunctive relief (National Automotive Parts Association v. Cox Enterprises LLC d/b/a NAPA Autocare, et al., U.S. District Court, Southern District of Ohio, Case No. 1:14-cv-203).

Represented Lexmark International, Inc., against claims of patent infringement filed in the Central District of California and negotiated license agreement.

Represented Nexxfield, Inc., against claims of patent infringement filed in the Northern District of Illinois and negotiated settlement agreement.

Represented major company in the liquor and spirits industry in a hotly contested trademark infringement suit and negotiated a favorable settlement agreement for the client.

Forced Buyout of a Member of an LLC

When a minority member of an LLC threatened disruptive litigation, Tom was recommended by the company’s existing counsel to handle the dispute. Within a month of being engaged, he effected a forced buyout of the dissident member on terms advantageous to the company and at a value of some one-third of the dissident’s demand even as he negotiated for significant non-competition and non-solicitation limits. In the course of these actions, he as well sidelined the dissident’s efforts to inspect the LCC's books and records.

Fair Debt Collection Practices Act and Kentucky Consumer Protection Act

SKO successfully defended a national mortgage servicer against claims that it violated the Fair Debt Collections Practices Act and the Kentucky Consumer Protection Act, in addition to claims of breach of contract and negligence. The Jefferson Circuit Court granted summary judgment in favor of the client on all claims alleged against it after several years of litigation.

U.S. Bank Trust, N.A., as Trustee for Volt Asset Holdings Trust XVI, by Caliber Home Loans, Inc., as its Attorney in Fact v. Cahoon, et al., Case No. 14-CI-400462 (Circuit Court for Jefferson County, Kentucky).

Defense of North American Steel Manufacturer

SKO successfully defended a steel processing company with operations in Mexico against claims that it, along with other suppliers located across the globe, breached a supplies contract with a manufacturer of complex electro-mechanical products. SKO defended on the basis that the federal court did not have personal jurisdiction over the client and, therefore, the client could not be haled into federal court in the United States for what would have been the first time in the company’s nearly 30 years in business. The United States District Court for the Eastern District of Washington granted the motion to dismiss for lack of personal jurisdiction in favor of the client, effectively terminating the litigation against the client. Key Tronic Corporation v. Smart Technologies, et. al., Case No.2:16-cv-00028-TOR.  

Defense of Insurance Class Action Litigation

SKO successfully resolved a complex class action litigation matter where the purported class was challenging the method by which a national insurance company calculated the Actual Cash Value (“ACV”) payments on homeowners’ insurance claims in Kentucky.

Defense of Mortgage Companies

SKO successfully defended a national mortgage servicer against claims that it breached the terms of the underlying promissory note and mortgage by violating the duty of good faith and fair dealing in its loss-mitigation efforts with the borrower. The United States District Court for the Western District of Kentucky granted the motion to dismiss in favor of the client on the breach of contract claim. Miller v. Caliber Home Loans, Inc., et. al., Case No. 3:16-cv-621-DJH-DW.

Successful Defense of Veil-Piercing Claim

Spradlin v. Beads & Steeds Inns, LLC (In re Howland), 2017 WL 24750; 2017 U.S. App. LEXIS 222, 2017 WL 24750 (6th Cir. 2017) – Adam Back successfully briefed and argued on behalf of the Appellee before the Sixth Circuit Court of Appeals. The resulting opinion affirmed judgment on the pleadings in favor of his client and an order denying the trustee’s motion to amend her complaint to include a substantive consolidation claim.  Adam argued that reverse veil piercing could not be utilized by a Chapter 7 trustee to permit fraudulent conveyance claims under the Bankruptcy Code and Kentucky law based on a transfer made by an entity wholly owned by the debtors.  He also maintained that the trustee could not rely on substantive consolidation to merge the assets and liabilities of the debtors and their wholly owned, non-debtor entity.  The Sixth Circuit affirmed both bankruptcy court decisions—516 B.R. 163 (Bankr. E.D. Ky. 2014) and 518 B.R. 408 (Bankr. E.D. Ky. 2014)—which were also affirmed by the district court—2016 WL 3176649; 2016 U.S. Dist. LEXIS 74830 (E.D. Ky. 2016).

Government and Employment Defense

Successfully obtained a full dismissal in favor of his client on claims of defamation, retaliation, and tortious interference with a business advantage.

J.S. et al. v. Laurel County Board of Education et al

Case No. 6:16-cv-00309, United States District for the Eastern District of Kentucky – Adam Back and Dana Howard represented a  homeless middle-school student who was denied the opportunity to play for his school’s basketball team based solely on a school policy that prohibited students from participating in athletics unless the students’ parents live in the district.  The plaintiff resided with temporary guardians and was deemed “homeless” under the McKinney-Vento Homeless Assistance Act. After several unsuccessful attempts to convince school officials that the policy was in direct conflict with the McKinney-Vento Act, Adam and Dana filed suit in the United States District Court for the Eastern District of Kentucky.  The parties resolved the dispute within a few days, and the plaintiff joined his teammates on the court.  As part of the settlement, the district agreed to change its policy to comply with the McKinney-Vento Act and pay the plaintiff’s attorney fees.  The case was dismissed by agreement.

In re Whitesburg Realty, LLC

Case No. 16-50721, United States Bankruptcy Court for the Eastern District of Kentucky – Adam Back and Jessica Middendorf represented the largest secured creditor ($4.22 million claim) in a Chapter 11 single asset real estate case. Adam first-chaired the plan confirmation hearing.  The court denied confirmation based on the artificial impairment of an unsecured creditor claim held by the debtor’s former law firm, and the bankruptcy case was dismissed.

Successful Defense of Breach of Contract Action

Successfully represented business against breach of contract suit by food and beverage contractor. Obtained summary judgment wherein the court applied Kentucky’s “first breach” rule, an issue of first impression within Kentucky federal court, to dismiss the contractor’s claims against the business.

Successful Enforcement of Shareholder Agreement

Successfully represented closely-held business to enforce stock-transfer restrictions in business’s Shareholder Agreement against former shareholder and other parties claiming ownership of business. Obtained summary judgment in federal court upholding validity of Shareholder Agreement’s transfer restrictions.

Construction Claim by Developer

In one of Louisville’s up and coming neighborhoods, a developer was left with a defective venue, resulting in SKO filing a lawsuit on behalf of the developer against several subcontractors and arbitration was initiated against the general contractor. Issues included improper design, failure to adhere to specifications and generally poor workmanship.  After investigation and discovery, SKO successfully settled the matter on terms that resulted in the developer recovering nearly 20% of its purchase price back from the contractors.

Construction Claim by Homeowner

After a construction remediation project left the homeowners with a terrible odor in their home, SKO filed a lawsuit on behalf of the homeowners against the general contractor and a subcontractor, among other defendants. SKO settled the lawsuit on extremely favorable terms to its client, recovering over $500,000 in their favor, which was actually greater than the appraised value of the home.

Breach of Fiduciary Duty Defense

SKO successfully lead counsel in defense of a majority business owner against claims of breach of fiduciary duty and judicial dissolution. The company was not dissolved and SKO’s client received a favorable buyout before any discovery occurred.

Successful Separation of Dentistry Practice

Mark Hurst lead counsel in navigating the separation of a dentistry practice on terms that were favorable to SKO’s client in a fiduciary dispute.

Successful Jurisdictional Defense for Manufacturing Client

SKO successfully challenged the personal jurisdictional grounds for a lawsuit brought in federal court against a larger steel supplier. After complete briefing by multiple parties, the federal court dismissed SKO’s client from the lawsuit on personal jurisdiction grounds.

Construction Litigation Pursuit

SKO successfully recovered a substantial amount of money on behalf of its client, an owner of senior care facility, in a construction defect case. SKO filed claims on behalf of its client against the general contractor, subcontractors and suppliers, ultimately settling on confidential terms that provided a net recovery close to SKO’s client’s demand for recovery.

Construction Litigation Defense

SKO defended a general contractor in claims brought by the owner relating to a multi-billion dollar project in Canada involving the construction of a hydroelectric generating facility. Litigation took three years but after multiple settlement negotiations, SKO’s client successfully settled the case for a fraction of the amount demanded by the owner.

Successful Recovery Against Family’s Personal Trustee in Breach of Fiduciary Duty Case

After two beneficiaries suspected wrongdoing by their brother-trustee, SKO pursued claims on behalf of the two beneficiaries, including misappropriation and conversion. After investigating the actions of the brother-trustee, SKO negotiated a settlement on behalf of its clients to receive over three times the amount they were set to receive under the testamentary documents.

Successful Separation of Podiatrist Practice

SKO successfully negotiated the separation of a podiatrist practice on behalf of SKO’s client on extremely favorable terms to SKO’s client who had faced allegations of breach of fiduciary duty.

Defending and Prosecuting Class Action Lawsuits

SKO was successful in multiple class action litigations on both the plaintiff and defense side. SKO oversaw multiple complex settlements with multi-thousand class member cases.  SKO's class action clients have included a national insurance carrier, a national environmental consulting service, consumers defrauded by unfair commercial practices, a regional home builder, and national agriculture companies. 

Fiduciary Litigation

In this niche area of the Business Litigation practice, SKO attorneys represent companies and owners in disputes concerning fiduciary claims and business relationship breakups. A highlight for SKO is our firm’s role in creating a new law in Kentucky, after securing an opinion from the Kentucky Court of Appeals declaring that shareholders in closely held companies do not owe one another fiduciary duties as shareholders. SKO attorneys have also overseen and litigated numerous law firm dissolutions, as well as cases involving corporate embezzlement and the separation of owners from businesses.

Derivative Litigation

SKO’s team of nationally recognized litigators has handled a number of derivative actions, typically on behalf of the company. Our team represented Kentucky Retirement Systems in a significant derivative action involving investments and fiduciary operations. SKO attorneys have also represented large and small companies in claims brought by shareholders or members related to corporate governance and fiduciary obligations.

Patent Infringement, False Advertisement & Antitrust

Static Control Components, Inc., et al. v. Lexmark International, Inc., et al., Case No. 04-84-GFVT (E.D. Ky) (multiple published decisions)

This multi-party, complex litigation involved claims for, among other things, patent infringement, antitrust violations, and false advertising.  SKO argued the issue of standing to assert false advertising claims in front of the Supreme Court on December 3, 2013.

Shareholder Class Action

Margie Elstein v. Lexmark International, Inc., et al., Civil Action No. 16-CI-02380 (Fayette Circuit Court)

SKO successfully represented Lexmark in successfully dismissing a proposed class action lawsuit claiming Lexmark’s merger was unfair to shareholders.  A mere three days before the scheduled shareholder vote, an injunction hearing was held and the Court dismissed the lawsuit.

Breach of Stock Purchase Agreement

Procured multi-million dollar arbitration award following a two week trial against a Fortune 250 company for funds due and owing under a complex Stock Purchase Agreement arising out of the acquisition of a natural gas company. Timothy T. Allen v. Constellation New Energy – Gas Division, LLC, American Arbitration Association, No. 14 489 Y 00975 08. Lead counsel for that same Fortune 250 company (Constellation New Energy) in the matter of Constellation New Energy – Gas Division, LLC v. Ohio Valley Aluminum Company, et al., Commonwealth of Kentucky, Jefferson Circuit Court, Case No. 09-CI-10510 (the “Civil Action”), which was resolved favorably before trial. (Justin has always taken pride in being hired to represent Constellation soon after being adverse to them in a contentions matter.)

Interference with Contractual Relations

Counsel to Fields Medical Corporation in complex litigation matter adverse to former sales representative. The case settled favorably to client during closing arguments of a 10 day trial. Fields Medical Corporation, et al. v. Kirkland C. Stallings, et al., Commonwealth of Kentucky, Jefferson Circuit Court, No. 07-CI-6256.

Breach of Contract

Counsel to Owensboro Grain Co. in its successful efforts to recover on a multi-million dollar contract claim. Owensboro Grain Co., LLC v. AUI Contracting, LLC, 2009 WL 650456, 72 Fed.R.Serv.3d 1342 (W.D. Ky. 2009).

Representation of Kentucky Derby Winning Jockey

Obtained and secured a complete victory for Kentucky Derby winning jockey Mike Smith against claims brought by a notable thoroughbred horse trainer and owner. Adika v. Smith, 466 F.3d 503 (6th Cir. 2006)

Constitutional Law

Jerry Jamgotchian v. Kentucky Horse Racing Commission, et al., Civil Action No. 11-CI-01047 (Franklin Circuit Court)

SKO represented the Kentucky Horse Racing Commission in a dormant commerce clause challenge filed against it by a thoroughbred owner regarding an industry-standard regulation pertaining to the purchase of horses in claiming races. SKO successfully argued the case before the Kentucky Supreme Court and the Court ruled in the Commission’s favor in a unanimous published opinion.

Oil and Natural Gas Transactions

SKO attorneys have substantial experience performing complex due diligence and preparing transaction documents related to oil and natural gas properties. A highlight of SKO’s work in this area is the acquisition of 1.46 million in oil and gas acres in Eastern U.S. (primarily Pennsylvania and West Virginia) with more than 9,000 producing wells. SKO attorneys handled a joint venture for a major oil and natural gas producer with Marcellus Shale acreage, with stipulations that the producer receive aggregate payments of $3.4 billion. In another joint venture for a major oil and natural gas producer, SKO attorneys successfully negotiated the sale of Utica Shale acreage, with the producer receiving aggregate payments of $594 million. SKO attorneys have also served as counsel in an IPO of midstream gathering services for production from the Marcellus Shale.

Interpretation of Annuity Agreement for Previously-Settled Litigation

SKO successfully defended a life insurance company against claims that it violated a structured settlement agreement and annuity agreement related to the settlement of a prior personal injury action to which it was not a party after it terminated payments as provided for in the contracts. The U.S. District Court for the Eastern District of Kentucky dismissed all claims against the client, and the decision was affirmed by the U.S. Court of Appeals for the Sixth Circuit.

Kelley v. Westfield Ins. Co., Civil Action No. 15-12-HRW, 2015 U.S. Dist. LEXIS 143627 (E.D. Ky. Oct. 22, 2015); aff’d by Kelley v. Westfield Ins. Co., 654 Fed. Appx. 778, 2016 U.S. App. LEXIS 12191 (6th Cir. Jun. 30, 2016).

Rights of Homeowners Association against Subdivision Developer

SKO successfully prosecuted an appeal to the Kentucky Supreme Court on behalf of a residential homeowners association after an adverse ruling at the trial court. It its decision reversing the Kentucky Court of Appeals, the Kentucky Supreme Court recognized for the first time that the principle of a defeasible easement exists in Kentucky, thereby stripping the subdivision’s developer of an easement it purportedly retained after the subdivision was completed.

Majestic Oaks Homeowners Association v. Majestic Oaks Farms, Inc., 530 S.W.3d 435 (Ky. 2017).

Defense of Coal Companies

Bessie Berry v. Cyprus, 989 F.2d 498, U.S. Court of Appeals for the Sixth Circuit, and Weddington v. Cyprus, Kentucky Court of Appeals. Successfully defended a series of cases involving claims that coal companies trespassed and wrongfully removed coal from 24,000 acres of property in eastern Kentucky. Successfully defended cases on appeal.

Unfair Competition/Trade Secrets Litigation

Greif, Inc. v. MacDonald, et al., U.S. District Court for the Western District of Kentucky, Case No. 3:06-CV-312-H.  Co-lead trial counsel for the plaintiff in this case against a competitor, alleging common law unfair competition, misappropriation of trade secrets, among other claims.  After obtaining a temporary injunction for the plaintiff and successfully defending the defendants’ motion to dismiss, the parties reached a settlement.

Defense of Lanham Act Claims

Rare Breed Distilling v. Jim Beam Brands Co., U.S. District Court for the Western District of Kentucky, Case No. 3:11-CV-292-H.  Lead trial counsel for the defendant in this case in which the plaintiff alleged trademark infringement and unfair competition under the Lanham Act.  In response, the defense filed counterclaims and sought injunctive relief.

Defense of Fiduciaries in ERISA/ESOP Litigation

Hilda L. Solis, Secretary of the Department of Labor, v. Mattingly, et al., U.S. District Court for the Eastern District of Kentucky, Case No. 09-CV-00207 WOB.  Lead trial counsel for five of the six main defendants in this high-profile, high-stakes litigation.  The Department of Labor claimed that the defendants breached numerous fiduciary duties under the Employee Retirement Income Security Act of 1974 (ERISA) in connection with 7 ESOP (Employee Stock Ownership Plan) stock transactions totaling over $80 Million over a 4 year period.  After nearly two years of aggressive litigation, Doug Barr successfully guided our clients to an agreed resolution of the claims.

Complex, Global Litigation Involving Failure of Patented Technologies

AGC Flat Glass North America, Inc. v. Pilkington Group Limited and Saint Gobain Ceramics and Plastics, Inc., Madison (County, Kentucky) Circuit Court, Case No. 05-CI-656.  Lead trial counsel for the plaintiff. AGC took a license to certain patented technology that promised to dramatically reduce NOx emissions from gas-fired float glass furnaces.  AGC used the technology in its Richmond, Kentucky plant and, within a short period of time, began to experience catastrophic failure of the internal ceramic material in its furnace.  AGC successfully overcame a motion to compel arbitration that would have effectively ended AGC’s chances of recovery and successfully defended that result on appeal to the Kentucky Court of Appeals and Supreme Court.  After several more years of hard-fought litigation in the U.S. and Europe, and on the eve of trial, we helped our client negotiate a favorable settlement.

Patent Inventorship and Trade Secret Defense

JBS United, Inc. v. Thorn BioScience, LLC, et al., U.S. District Court for the Southern District of Indiana, Case No. 07-CV-1241.  Lead trial counsel in the successful defense of this hotly contested, patent inventorship and trade secret litigation in which a competitor sued our clients for, among other things, failing to name the competitor as a co-inventor on a patent covering revolutionary and potentially lucrative biotechnology.  The result of the litigation allowed our client to protect its patent rights and to continue to pursue products based upon the patent.

Southern Indust., LLC v. Maxine, LLC

Southern Indust., LLC  v. Maxine, LLC, 2009 Ky. App. Unpub. LEXIS 996 (Ky. Ct. App. Nov. 25, 2009).  Successfully argued for affirmation of order finding that a mechanics lien on commercial landlord’s property for work done on tenant’s behalf was not enforceable.

Lender Liability Litigation

Successfully represented creditor in obtaining recovery of commercial development property and dismissal of claim by borrower who had alleged lender liability and sought recovery of sums in excess of $5 million.

Fiduciary Litigation

Successfully represented trustee in securing dismissal of action alleging breach of fiduciary duty seeking sums in excess of $5 million, and recovering attorney’s fees expended by trustee in defending action.

Limited Partnership Litigation

Successfully represented limited partner in recovering in excess of $1 million from general partner under limited partnership guaranty agreement related to inferior investment performance.

Complex Litigation of Superfund Cleanup Site

Louisville Industrial Park, LLC v. ExxonMobil Oil Corporation, et al., Case No. 3:14-CV-278-CRS (W.D. Ky., 2017). See also, FCBKy Holding, LLC v. Louisville Industrial Park, LLC, et al., Case No. 13-CI-402829 (Jefferson Circuit Court, 2013).

Originally presented with a foreclosure case by our bank client, the matter became further complicated when the location in question was declared a Superfund Site by the U.S. EPA. SKO negotiated a resolution that involved an acquisition under Kentucky’s brownfields regulations, protecting the bank against liability for historic contamination. The firm’s attorneys also successfully acquired the property for a subsidiary while dealing with substantial tax liens and negotiated a plan for cleanup, which proved satisfactory to state and federal regulators. Subsequently, SKO also successfully resolved lender liability claims that threatened to delay the transfer of the property and the commencement of cleanup activities. The case was settled favorably in March 2018.

Banking

Furlong Development, LLC et al. v. United Bank and Trust Company, et al., Civil Action No. 11-CI-00111 (Scott Circuit Court)

SKO defended United Bank and Trust Company, in a lender dispute liability over bond proceeds that were in place to cover public improvements.  Steven Loy argued the case before the Kentucky Supreme Court in February 2016 and won in a near unanimous, published decision.

Building Dispute/Injunctive Relief

Home Depot, U.S.A., Inc. v. Saul Subsidiary I Limited Partnership, Ky. App., 159 S.W.3d 339 (2005)

Represented owner of Lexington Mall and obtained injunction requiring Home Depot to remove its store and restore the Mall structure because Home Depot violated restrictive covenants; case settled.

Patent Infringement

Lexmark International, Inc., et al. v. Pitney Bowes Inc., et al., Case No. 001-237-JMH (E.D. Ky.)

Successful litigation involving patent infringement claims relating to print quality enhancement technology. Obtained summary judgment, dramatically limiting the products at issue on the basis of failure to mark or provide actual notice under 35 U.S.C. § 287. The case was settled after the Court’s ruling.

Patent Infringement

Lexmark International, Inc. v. Laserland, Inc., 304 F.Supp.2d 913 (E.D. Ky. 2004)

Represented Lexmark in a patent infringement lawsuit, and established new personal jurisdiction law in the Sixth Circuit relating to interactive websites; case settled.

Trademark Infringement

Staxx is Eat BBQ LLC, et al. v. Thomas Walters, Case No. 12-71-GFVT (E.D. Ky.) 
Represented Staxx BBQ, a central Kentucky restaurant, in a trademark infringement case against a former employee who alleged an ownership interest in the restaurant and trademarks. SKO obtained a preliminary injunction after a contested evidentiary hearing and the case settled.

Breach of Fiduciary Duty

James D. Duff v. David A. Duff et al., Case No. 04-345-USF (E.D. Ky.)

Obtained summary judgment on behalf of executor/trustee in a breach of fiduciary lawsuit by beneficiaries of an estate/trust where the ownership of a coal company was at issue.

Protecting Corporation’s Control of Assets from Shareholder Interference

Paul R. Plante, Jr. v. Frank D. Marcum, et al., Civil Action No. 12-CI-0040 (Fayette Circuit Court)

When minority shareholders in a closely-held corporation caused a bank to file an interpleader action regarding control of the corporation’s funds, SKO represented the corporation, and over the objection of the minority shareholders, ensured that the corporation controlled its funds, allowing the business to continue to operate.  

Warranty and Products Liability

John F. Ruggles, Jr., Inc. v. Ventex Tech., Inc., No. 09-141, 2011 U.S. Dist. LEXIS 79816 (E.D. Ky. Jul. 21, 2011)

Obtained complete defense summary judgment for client in case involving breach of warranty claims against manufacturer of electronic transformers used in commercial signage.

Breach of Commercial Sales Contract

C&M Giant Tire, LLC v. Triple S Tire Co., Inc., No. 13-162, 2014 U.S. Dist. LEXIS 158932, 85 U.C.C. Rep. Serv. 2d 187 (E.D. Ky. Nov. 10, 2014)

Obtained Plaintiff’s summary judgment for buyer’s breach of nearly $700,000 commercial sales contract for the purchase of large industrial tires.

Directed Verdict in Criminal Case

SKO obtained a directed verdict of all criminal charges filed against a client following a jury trial in Circuit Court.

Lead Trial Counsel Defending Top 10 NCAA Division One Football Coach and the University’s Athletic Association

The Coach and Athletic Association were sued by a former student-athlete who alleged improprieties in the granting of football scholarships. A decision against the Athletic Association and the Coach would have affected recruiting of college athletes at every level. Trial in this matter lasted two weeks with well-known experts from various college football programs testifying for each side. The jury returned a unanimous defense verdict on all counts and awarded no damages.

Prosecutorial Misconduct

Rogers et al v. O’Donnell et al, No. 10-00373 (E.D. Ky. 2011), aff'd 737 F.3d 1026 (6th Cir 2013). Represented state prosecutors in a case arising from a criminal prosecution of local police officers for assault, intimidating a participant in a legal process, and tampering with a witness. After the police officers were acquitted of all charges, they filed a lawsuit against the state prosecutors pursuant to 42 U.S.C. § 1983. The district court granted summary judgment based on grounds of qualified immunity. The case was affirmed by the Sixth Circuit Court of Appeals.

Defense of Alleged Breach of Fiduciary Duty in an LLC

SKO defended the majority member of a medical billing company from multiple claims of usurping corporate opportunities and breach of fiduciary duty.  Counterclaims were filed against the plaintiffs alleging breach of fiduciary. The case was quickly settled on favorable terms to SKO's client, resulting in the majority member being the sole owner of the company.

Defense of Majority Shareholder Against Breach of Fiduciary Duty Charges

SKO defended a majority shareholder against multiple claims of breach of fiduciary duty, self-dealing and fraud stemming from multiple construction and land use projects.  The case was litigated over the course of four years, with the plaintiffs eventually agreeing to settle the dispute for a small fraction of their demand.

Suit Brought on Behalf of LLC Member to Follow Operating Agreement

When a faction of an LLC purported to take control of its board notwithstanding the absence of a vote of the members, SKO represented a group of members in litigation insisting that the requirements of the operating agreement be satisfied. 

Terminated Shareholder Sued for Breach of Fiduciary Duty & Employment Agreements

A terminated shareholder/corporate officer was sued on a number of grounds, including breach of fiduciary duty and breach of an employment agreement. SKO represented the defendant corporation and its founding shareholder. SKO obtained a jury verdict substantially in favor of the defendant. 

Defending a Shareholder Derivative Action

When a single, dissident shareholder brought both derivative claims on behalf of the corporation and direct claims against certain directors, SKO successfully argued in litigation that the dissident shareholder had no standing to assert claims and lacked the ability to bring a derivative action for failure to satisfy the statutory requirements for doing so. The litigation continued to the enforcement of a stock buy-sell agreement, upon which our client was successful in both its enforcement and the valuation of the minority member’s shares.

Ending a Derivative Action by a Merger and Dissenter Rights

When a small minority of the shareholders prevailed in derivative action, SKO was brought in to advise the majority owners. A merger transaction both ended the derivative action by depriving the minority of standing and provided a means of redeeming their shares so similar suits may not be brought in the future. The minority shareholders initiated a dissenter rights action, which was resolved on a valuation favorable to our client.

Defending Against a Threatened Change in Control

When a dissident group of shareholders threatened to alter the structure of the board and thereby take control of the corporation, SKO advised the incumbent board on how to structure an asset sale to a related company that preserved existing relationships.

Kentucky Supreme Court Ruling & Selling of Interest

Successfully obtained a ruling from the Kentucky Supreme Court that enforced an oral contract between a beneficiary and the estate requiring the beneficiary to sell his interest with the estate’s interest in a bank.

Neighborhood Nuisances & Temporary Restraining Orders

Successfully defended claims for nuisance, tortious interference and negligence arising from the construction of a stormwater/wastewater retention basin by the local wastewater utility.

Claims Against Cemetery for Improper Practices

SKO represents a putative class of individuals with relatives buried in a cemetery, asserting claims against numerous former and current owners of the cemetery for improper burial practices. The case is currently pending in the U.S. District Court for the Southern District of Indiana.

Breach of Contract

SKO represented an insurance company that was being sued in the U.S. District Court for the Western District of Kentucky by a paper products manufacturer for breach of an insurance contract. The manufacturer alleged that it had proven a covered loss under an employee theft policy and the insurer disagreed and denied many elements of the claim. At the trial court level, the manufacturer willfully violated multiple discovery orders and the court dismissed the manufacturer’s claims as a sanction. After the dismissal, the trial court denied the insurer’s motion for fees incurred litigating the dispute. The manufacturer appealed the trial court’s denial to the Sixth Circuit and the insurer cross-appealed the denial of fees. After briefing on the first appeal had concluded, the parties resolved all matters amicably. While the case did not result in an appellate decision, SKO was successful in preserving an important district court opinion levying a rare dismissal sanction for discovery misconduct.

Neighborhood Nuisance & Trespass Claims

Defended claims for nuisance, trespass, negligence and strict liability by multiple property owners against the local electric utility. Successfully defeated class certification.

Constitutional Challenge to Racing Regulation

SKO represents a horse racing commission defending a lawsuit in which the plaintiff is challenging the validity of a racing regulation that places conditions on the racing of horses claimed at Kentucky race tracks. The plaintiff argues that the regulation violates the Commerce Clause of the United States Constitution. After both parties filed motions for summary judgment, the Franklin Circuit Court granted the motion of the commission, denied the motion of the Plaintiff and upheld the validity of the commission’s regulation. The time to appeal has not expired.

Assault & Battery Criminal Charges Dismissed

SKO obtained a dismissal of all criminal charges filed against a family law client following a successful a suppression hearing.

Kentucky Civil Rights Act & Disability Discrimination

Successfully represented a company and one of its executives against claims by plaintiff for alleged disability discrimination, retaliation and intentional infliction of emotional distress. SKO represented the company during investigations by the Kentucky Commission on Human Rights and Equal Employment Opportunity Commission. After the EEOC found no wrongdoing, the plaintiff filed claims in the Pulaski Circuit Court. After three years of litigation, we obtained summary judgment dismissing all claims. SKO then successfully represented the company on appeal. The Kentucky Court of Appeals affirmed the Pulaski Circuit Court's order dismissing all claims and denied the Plaintiff's petition for a rehearing.

Unfair Competition, Negligent & Intentional Misrepresentation

Successfully represented client in claims for unfair competition and intentional and negligent misrepresentation against competitor companies. The claims involved complex issues relating to a patented air pollution control technology and governmental regulations relating to the same. A favorable settlement was reached with each of the defendants resulting in a multi-million dollar recovery for our client.

Wrongful Termination

SKO represented a university that terminated one of its police officers after two episodes of misconduct that were detected through intradepartmental procedures. The employee appealed the termination through an internal appeal process, which concluded in a four-day de novo hearing before a neutral Hearing Officer from the Kentucky Attorney General’s office. The internal appeal was unsuccessful, and the employee appealed to Jefferson Circuit Court, arguing that the Hearing Officer’s recommendations were arbitrary and capricious and that the employee had been deprived of the procedural protections found within KRS 15.520, aka the Police Officer’s Bill of Rights. In response, the university explained that the Hearing Officer’s recommendations were well supported, that KRS 15.520 was only applicable when officer discipline was premised on a citizen complaint (and thus not applicable in an intradepartmental matter), and that even if the procedural protections of KRS 15.520 applied, any prejudice was cured through the four-day de novo hearing that the employee had been afforded internally. After the Circuit Court agreed with the university’s points and upheld the Hearing Officer, the employee appealed to the Kentucky Court of Appeals, where the same arguments were made. The Court of Appeals issued a 31-page opinion affirming the trial court on all points. The employee filed a motion for discretionary review which is currently pending. The case is a very meaningful one in the law enforcement community, particularly among non-unionized officers. Also, in reaching its decision, the Court of Appeals ruled as a matter of first impression that the university’s internal pre-hearing processes were constitutional.

Superfund Potentially Responsible Parties

Successfully resolved a contribution claim against alleged Potentially Responsible Party arising out of the remediation of a former scrap processing facility.

Criminal Representation Resulting in Dismissal of Five Felony Charges

SKO successfully reached a settlement with the U.S. Attorney on our client's behalf to dismiss five felony counts and prevent jail time and any associated fine.

Airline & Wrongful Death Litigation

SKO represented five families in the wrongful death litigation arising from the crash of an airliner. SKO’s team handled this litigation and was appointed by the United States District Court, Eastern District of Kentucky as Plaintiff’s Liaison Counsel.  In this role, SKO coordinated the efforts of more than 40 plaintiffs and their counsel in pursuing wrongful death claims.

Violations of Agreements and Restrictive Covenants

SKO represented a provider of specialty patient care equipment that sued a consultant and its consulting business after an agreed upon Asset Purchase Agreement and Consulting Agreement’s restrictive covenants had been violated by the consultant. The provider sued for both monetary damages and injunctive relief. The Jefferson Circuit Court granted the provider’s motion for a temporary injunction against the consultant under the Consulting Agreement, but denied the motion for a temporary injunction against the consultant under the Asset Purchase Agreement. Because the Asset Purchase Agreement provided greater injunctive protection, the provider filed an interlocutory appeal pursuant to CR 65.07. The Kentucky Court of Appeals agreed with the provider that the Jefferson Circuit Court had erred in denying injunctive relief under the Asset Purchase Agreement, and reversed the Jefferson Circuit Court’s decision on that issue. This was a notable decision because the standard of review for a party seeking interlocutory relief from a trial court’s decision to grant or deny a temporary injunction is a clear abuse of discretion.

Circle Environmental CERCLA Claim

Successfully resolved EPA cost recovery claim against multiple Potentially Responsible Parties arising out of the EPA’s cleanup of a waste oil facility.

Sixth Circuit Criminal Oral Argument

SKO successfully argued before the Sixth Circuit Court of Appeals to overturn a conviction in the lower court. We argued that prejudicial evidence substantially outweighing probative value.

Condemnation Defense

Defense of a major water company against attempted condemnation by local government in multiple proceedings, ultimately resulting in a published decision by the Kentucky Supreme Court affirming an injunction to prevent a referendum scheduled outside the regular election cycle and a public vote in favor of the water company the following year.

Workers’ Compensation Retaliation

SKO represented a manufacturer and distributor of auto supplies that was sued for workers’ compensation retaliation under the Kentucky Workers’ Compensation Act, KRS Chapter 342. The United States District Court for the Western District of Kentucky entered summary judgment in favor of the manufacturer, from which the plaintiff did not appeal.

Automobile Franchise Litigation, Breach of Franchise Agreement, Bad Faith, Fraud & Deceptive Practices

SKO successfully represented an automobile manufacturer against claims of breach of franchise agreement, bad faith, breach of contract, fraud, and deceptive practices brought by a former franchised dealer. The claims involved complex issues relating to the manufacturer’s allocation and distribution policies of new automobiles to franchised dealers, as well as claims involving oral promises of a new dealership. After achieving summary judgment in the client's favor, resolving all claims except the breach of franchise agreement claim, the jury found on our client's favor after trial.

Craig & Landreth, Inc. v. Mazda Motor of America, Inc., 744 F. Supp.2d 818 (S.D. Ind. 2010)

Craig & Landreth, Inc. v. Mazda Motor of America, Inc., 272 F.R.D. 461 (S.D. Ind. 2010).

Environmental Litigation for a University

Represented a university and its athletic association in environmental litigation against CSX related to environmental costs incurred in building and expanding the university's stadium.

Kentucky Court of Appeals Criminal Appeal

Successfully argued before the Kentucky Court of Appeals to overturn the sex offender registration requirement for a client based on constitutional violations.

Abuse of Power of Attorney & Joint Account

SKO successfully represented a trust company appointed as conservator for an individual diagnosed with dementia who had millions of dollars taken from him by his attorney-in-fact (power of attorney) who also fraudulently created joint survivorship accounts. The individual also generated a will in his favor. SKO successfully voided the will and recovered more than $16 million in assets.

Contaminated Collateral

Successfully represented local lender regarding a defaulted loan secured by collateral that was contaminated and subsequently un-archived as a Superfund site.

Criminal Charges Dismissed

Successfully obtained a dismissal of all criminal charges pending against manager for corporate client.

Rights of Nonprofit Members to Inspect Corporate Records

SKO represented certain members of a Kentucky nonprofit equine corporation in litigation against the nonprofit. When “significant deficiencies” were identified in the nonprofit’s $2 million annual budget, the organization refused to produce accounting records to the members who requested them. SKO obtained a summary judgment on behalf of its clients and defeated nonprofit’s motion for a stay of the judgment pending appeal. SKO also established that the nonprofit destroyed records, computer hard drives and backup servers during the pendency of the litigation. The Fayette Circuit Court held the nonprofit in contempt and ordered it to pay SKO’s fees. The nonprofit sought relief in the Kentucky Court of Appeals. Following the conclusion of the briefing by both parties, the nonprofit agreed to dismiss its appeals and to comply with the judgments entered in the Fayette Circuit Court action. This was a case of first impression in Kentucky. The Court held that, under Kentucky law, all Kentucky nonprofit corporations must allow their members to inspect and copy all of the corporation’s books and records.

Class Action, Telecommunications and Consumer Protection

SKO acted as counsel for a 175,000-member plaintiff class in U.S. District Court to challenge sales tax collection on broadband Internet access services provided by incumbent local exchange carrier. The Court approved settlement agreement in August 2007 that provided class members full refunds of overpayments plus interest, totaling $8.2 million. Clark v. BellSouth Telecommunications, Inc., 461 F.Supp.2d 541 (W.D. Ky. 2006).

Landowner Defense

Represented numerous individual, agricultural, commercial and industrial landowners in negotiations and litigation against the Commonwealth of Kentucky, Department of Highways, in connection with acquisitions of right-of-way for road projects and other assorted road and highway issues.

USEF Administrative Proceeding

SKO represented four American Saddlebred horse show officials in an administrative hearing conducted by the United States Equestrian Federation (USEF), the United States' governing body for equestrian sports. In the hearing, the owner of a fallen horse filed multiple charges against the show’s officials when his horse died after becoming excited and striking its head as medical crew were attempting to assist an injured rider at the show. The horse owner alleged that show officials violated several safety rules that contributed to the death of the horse. If the owner prevailed, officials would face suspensions, fines and the potential for additional civil litigation. The USEF found in favor of SKO’s clients on all charges and acknowledged that while the incident was tragic, SKO’s clients acted appropriately and complied with all applicable rules.

Renunciation of a Will

We successfully defended the renunciation of a will related to an estate involving more than $25 million in assets. In litigation spanning several years, SKO’s client ultimately prevailed at the trial court level and was upheld on appeal.

Major Electric Transmission Project

Collaborated with a longtime electric utility client to plan and coordinate the acquisition of more than 100 parcels of real estate in three counties for a 41-mile electric transmission line.  Our assistance began in the early planning stages of the project and carried through agreed-upon acquisitions, challenges to the right to condemn, appeals and valuation litigation. 

Suitability Claims 

SKO successfully represented a bank acting in a fiduciary capacity in pursuing suitability claims against a securities firm. The amount recovered for our client was approximately $10,000,000.

Breach of Fiduciary Duty Claim

SKO represented a client in a federal action in California involving claims of fraud and civil conspiracy in connection with a multi-million dollar equine transaction.  SKO obtained a Rule 12 dismissal of the claims against its client, but the Court granted leave to amend.  After amendment of the claims by the Plaintiff, SKO was successful in obtaining another dismissal, with prejudice.

Probate of Holographic Will

Successfully settled a case on behalf of beneficiaries to a holographic will for a $4.5 million estate where the probate court had originally declined to admit the will to probate.

Major Water Pipeline Project

Worked with a water utility client that was acquiring right-of-way access. We assisted with negotiations and, where necessary, litigation to secure rights to construct a much needed 42” water main to transport water from the Kentucky River to Lexington and surrounding communities, securing a new and dependable water source for Central Kentucky for years to come.

Securities Fraud

SKO’s client was one of several defendants sued by a group of disappointed investors alleging securities law violations. SKO mounted an aggressive defense, and while the plaintiffs settled with other defendants, they agreed to simply dismiss their claims against SKO’s client.

Breach of Contract Prosecution

Successfully prosecuted a breach of contract claim under the indemnity provisions of a purchase and sale agreement.

Reversal of Jury Verdict

SKO was retained after an estate suffered a jury verdict of $3.5 million based on alleged testamentary promises. SKO successfully obtained a complete reversal of the verdict in approximately six months.

Drafting Form Construction Contracts & Documents

SKO has assisted a governmental client with revising its construction contract forms and documents to update them to current standards and circumstances.

Superfund Site Guidance, Superfund Investigation

Advised client in negotiations with Potentially Responsible Parties, EPA and Kentucky state regulatory authorities in major Superfund investigation.

Defense of Nonprofit as Beneficiary

Represented a charitable organization in defending a will contest in a multimillion dollar estate where the charitable organization was the primary beneficiary. After aggressively defending the action, SKO obtained a favorable settlement that involved dozens of contesting family members.

Franchise Dispute, Lanham Act Violations & Personal Guarantees

This complex franchise dispute included claims that certain franchisees were in violation of their franchise agreements based on the management structure of the franchisees. The franchisor sought to terminate the franchises and recover monetary damages from the franchisees and personal guarantors. SKO successfully argued against the lawsuit taking place in the franchisor's home state. All claims, including claims against both the franchisee and the personal guarantors, were transferred to the home state of the franchisee and guarantors.

Distributorship Agreement; Substantial & Common Law Damages

SKO represented an international manufacturer of construction equipment in a lawsuit concerning a challenge by a distributor to a termination of a distributorship agreement and claims for substantial statutory and common law damages as well as injunctive relief to require rescission of the termination. At the outset of the dispute, SKO was successful in having an action filed by the distributor dismissed and allowing the litigation to proceed in federal court in Kentucky. SKO later obtained a summary judgment ruling in the manufacturer’s favor on all counts. This federal action involved potential major implications for the manufacturer and its relationship with its distributors around the world.

Dismissal of RCRA Citizen Suit

Obtained dismissal of a RCRA Citizen Suit under the Burford Abstention doctrine by arguing that existing state administrative proceedings covered the same issues

Enforcement of Prohibited Substance Regulations

SKO represented a horse racing commission in connection with proceedings imposing penalties against a Thoroughbred horse trainer and a veterinarian for the possession of prohibited substances, including cobra venom and Carbidopa/Levodopa, on the premises of a race track. The trainer was suspended one year for the cobra venom violation and served his suspension. The veterinarian was suspended for five years for the cobra venom and Carbidopa/Levodopa violations and appealed the suspension to the Franklin Circuit Court. The Franklin Circuit Court affirmed the four-year cobra venom suspension and reversed the one-year Carbidopa/Levodopa suspension. Both the veterinarian and the commission appealed the order to the Kentucky Court of Appeals which reversed the cobra venom suspension. 

Patent Infringement

Fire King v. Tidel Engineering, U.S. District Court for Northern District of Texas 2009.  Lead trial counsel for the plaintiff in patent infringement case.

Reversal of a Default Judgment

Krowtoh II v. ExCelsius Int'l Ltd., U.S. Court of Appeals for the Sixth Circuit, May 19, 2009.  Lead trial counsel for a German company, against whom a default judgment had been entered.  Successfully obtained a reversal of the default judgment on appeal to the Sixth Circuit and later negotiated a successful settlement for our client.

Breach of Contract

Langley v. Prudential Mortgage Capital, U.S. District Court for Eastern District of Kentucky, 2007, U.S. Dist. LEXIS 27710.  Lead trial counsel for the plaintiff in business dispute involving alleged breach of contract in financing agreement.

Constitutional Law

Latter-Day Saints v. Lexington-Fayette Urban County Government, Civil Action No. 98-CI-1888 19 (Fayette Circuit Court). Obtained ruling that Board of Adjustment violated Equal Protection, Free Exercise and Due Process rights of church and violated 42 U.S.C. 1983 by denying conditional use permit; case settled.

Defense of Patent Infringement in Artificial Racetrack Surfaces

Michael W. Dickinson v. Keeneland Association, U.S. District Court, District of Maryland 2005, and Martin Collins Surfaces and Footings v. Michael W. Dickinson, U.S. District Court, Eastern District of Kentucky.  Lead trial counsel for the defendants in this case involving claims of patent infringement in connection with construction of artificial surface for Thoroughbred horse racing. Successfully defended our clients and successfully negotiated settlement/license between the parties.

MCSF v. Equestrian Surfaces, U.S. District Court for Middle District of California.  Lead trial counsel for the plaintiff in this case involving claims of patent infringement in connection with artificial track surface at several California Thoroughbred horse racing tracks. We successfully obtained settlement involving license arrangements.

Defense of Patent Infringement, Unfair Competition and Lanham Act Claims against Artificial Turf Manufacturer

FieldTurf, Inc. v. Turf USA, U.S. District Court for the Western District of Kentucky, Case No. 04-CV-505.  Lead trial counsel for the defendant.  Our client was sued for patent infringement and unfair competition under the Lanham Act by a highly aggressive competitor.  After filing counterclaims against the plaintiff and engaging in intense discovery and motion practice, SKO successfully negotiated a settlement for our client.

FieldTurf v. Southwest Recreational Industries, Inc., 235 F.Supp.2d 708 (E.D. Ky. 2002), and FieldTurf v. Southwest Recreational Industries, Inc., 357 F.3d 1266 (Fed. Cir. 2004) U.S. Dist. LEXIS 92224.  Lead trial counsel for the defendant in this complex business dispute between two competing manufacturers of artificial turf.  The plaintiff claimed patent infringement, unlawful monopolization and attempted monopolization under federal antitrust laws, Lanham Act (false advertising) violations, and other business torts.  The District Court granted summary judgment to the defendant on all claims and, further, awarded the defendants $4.3 Million in attorney fees and costs for its defense.  On appeal, the Court of Appeals for the Federal Circuit went further, holding that the plaintiff lacked standing to assert its patent infringement claims in the first place and remanded to the District Court with instructions to dismiss for that reason.  While further appeals were pending, the parties reached a settlement favorable to the defendant.

Additional Published Cases

UMWA v. Cyprus Mountain Coals Corp., 171 L.R.R.M. 2512 (6th Cir. 2002)
Combs v. Ret. Plan for Hourly Employees of RAG AM Coal, 42 Fed. Appx. 776 2002 U.S. App. LEXIS 16411 (6th Cir. 2002)
UMWA v. Cyprus Mountain Coals Corp., 130 F.Supp.2d 873 (E.D. Ky. 2001)
Mayo v. Owen Healthcare, Inc., 200 U.S. App. LEXIS 22257 (6th Cir. 2000)
Saylor v. Parker Seal Co., 975 F.2d 252
Cyprus Mountain Coal v. Brewer, 828 S.W.2d 642

Class Action, Telecommunications, Public Utility, Taxation & Consumer Protection

SKO represented a class of more than 450,000 members in U.S. District Court challenge to overcharges/tariff violations by regulated telecommunications carrier. SKO obtained summary judgment on federal overcharge claims for class members and protected class certification by defeating an interlocutory appeal to the U.S. Sixth Circuit Court of Appeals. SKO also prevailed for class members in a collateral state utility commission proceeding on issues referred by the District Court. Settlement approved by District Court in November 2013 included cash refunds to all class members. Bowers v. Windstream Ky. East, LLC, 2013 U.S. Dist. LEXIS 157242 (W.D. Ky. 2013).

Injunctive Relief, State Insurance Regulation

Obtained injunctive relief for major retailer of vision care products against major insurer of vision care for violation of state “any willing provider” law.  Dr. Mark Lynn & Assocs., PLLC v. Vision Service Plan Ins. Co., 2005 U.S. Dist. LEXIS 24820 (U.S.D.C. W.D. Ky. 2005).

Competing Venture by an LLC Member

When a minority member of an LLC organized a competing venture, SKO brought suit and obtained injunctive relief on behalf of our client based upon minority member’s breach of his statutory duty of loyalty. After a two-week jury trial, obtained favorable settlement for client.

LLC Member’s “Salary”

When a terminated member argued that he was still entitled to his “salary,” SKO prevailed in the lawsuit, demonstrating that the “salary” was a distribution and that under state law the LLC was prohibited from making a distribution under existing circumstances.