Experience
University athletic director convicted of embezzlement following independent investigation
Defended an Equipment Supplier Against Anti-trust Allegations
We represented a national equipment supplier suspected of anti-trust violations. The government’s anti-trust division believed the company was colluding with competitors to pre-determine bids for certain opportunities. We conducted a three year investigation, interviewing more than 60 sales personnel across the country and reviewing thousands of emails. Ultimately, our report to the Department of Justice resulted in the end of the investigation.
Housing Agency Director Cleared of Mismanaging Funds
We represented a metropolitan housing agency whose executive director was alleged to have improperly used public funds for his own benefit. We interviewed agency employees and examined records for evidence that the director had shown favoritism to any of his employees or used public money for personal use. The allegations and investigations were heavily covered in the local press. Although there were no findings of impropriety by the executive director, we recommended stricter financial controls for the future.
Proved Allegations That A Construction Manager Created False Invoices
We represented a national assisted living company that suspected a construction manager of creating false invoices for work that was never completed throughout the south and Midwest. We conducted a six month investigation that included witness interviews and analysis of bank deposits, invoices and other documents to prove that the construction manager, who was ultimately prosecuted, had created the false invoices.
Health Care Services Cleared of False Claims Allegations
We represented a health care services business that provided billing services to physicians groups and emergency rooms after a false claims act (FCA) suit was filed alleging the company had improperly coded and overcharged government health care services, including Medicare and Medicaid, by millions of dollars. We did our own analysis of the company’s records while working closely with the U.S. attorney’s office as well as the U.S. Department of Health and Human Services and found an explanation for the company’s coding and charges. As a result of our investigation no criminal charges were filed and the civil suit was not pursued.
Obtained Dismissal of False Claims Act Case
Obtained Dismissal under False Claims Act’s First-to-File Rule
Obtained Summary Judgment on False Claims Act Case Against NASA Contractor
Obtained Dismissal of False Claims Act Lawsuit Under Rule 9(b)
Dismissal and Enforcement of Release in False Claims Act Case
Our attorneys represented a government contractor in a qui tam suit brought by two relators alleging fraud and mismanagement in connection with several federal programs. The district court dismissed the complaint in its entirety without any discovery. The court also enforced a release signed by one of the relators while the case was pending under seal.
Obtained Favorable Settlement for Home Health Care Provider
Our attorneys represented a home health care provider in a qui tam lawsuit alleging fraudulent inducement of a contract to provide respiratory therapy equipment, supplies, and services to VA patients. Our client retained us after the court denied a motion to dismiss and costly discovery was underway. Our attorneys were able to obtain a fast and favorable settlement that allowed our client to continue its business.
Represented Department of Defense Contractor in Litigation about the Scope of the pre- and post-FERA False Claims Act
Obtained Dismissal of False Claims Act Case Alleging Fraudulent Inducement of Department of Energy Contract
Obtained Dismissal of False Claims Act Case Regarding Employee Overtime
Our attorneys represented a defense contractor in a qui tam suit alleging fraudulent government billings relating to unearned employee overtime. The district court granted our motion to dismiss the relator’s FCA claims prior to discovery.
Subpoena and Internal Investigation in False Claims Act case Involving Medicaid Drug Rebates
Our attorneys represented a major pharmaceutical distributor in a qui tam case involving the alleged failure to pay Medicaid rebates for repackaged drugs. All of the relator’s claims were dismissed.
Obtained Summary Judgment on False Claims Act case against Small Business and Sanctions Against Relator’s Counsel
Obtained Favorable Settlement in Intervened False Claims Act Case Alleging Violation of Environmental Laws
Successfully Resolved Intervened False Claims Act Case Against Department of Defense Contractor Involving Multiple Relators
Assistance with Internal Investigations, Government Investigations and Subpoenas
Multi-party subrogation dispute as to liability for large fire losses
At the request of a large insurer, we defended an insured, commercial policyholder-tenant against subrogation claims from a landlord’s insurer who claimed our policyholder shared liability for a vehicle fire on the landlord’s premises. The fire resulted in hundreds of thousands of dollars in fire/smoke damage to the leased premises. There were actually two defendants, the second being the mechanic that our client, the policyholder-tenant, had hired to address electrical issues in the vehicle. Those electrical issues caused the fire, though the co-defendant tried to deny any fault. Accordingly, at the start of the case, we hired a fire causation expert who pinpointed the cause as faulty electrical repairs by the co-defendant. When the co-defendant still denied liability, we hired an auto mechanic expert to address the repairs that were made and the additional steps that should have been taken to prevent the fire. I then took the deposition of the co-defendant’s mechanic, using our expert input to discredit the position of the co-defendant. I also analyzed the level of damages claimed by plaintiff with the help of an adjuster-expert. Our efforts and analysis led to a favorable settlement at mediation in which we were able to effectively exonerate our client and avoid any substantial liability.
Represent Client in Contract Disputes
Seth Schwartz represents EGI in disputes concerning EGI’s contract disputes. For example, Mr. Schwartz represented EGI on two occasions when third party companies failed to deliver services related to equipment specifically designed to operate on EGI’s manufacturing process lines. Mr. Schwartz also represented EGI when a contractor failed to deliver on services related to reconstruction of certain real estate assets as promised.
Represent Clients in Multiple Matters Including Regulatory Litigation
Chuck Hertlein and Seth Schwartz have represented Vantage Financial Advisers, a financial advisory firm, in multiple matters including regulatory litigation and claims brought by clients related to investment losses outside of Vantage’s control.
Unfair Competition Litigation
We represented our client and a number of individual employees in a lawsuit filed by a competitor. The competitor asserted claims for conspiracy, misappropriation of trade secrets, breach of non-compete agreements, tortious interference with contractual and business relations, breach of fiduciary duty, unfair competition, unjust enrichment, and violations of the Computer Fraud and Abuse Act. We tried the case for approximately two weeks in federal court before the parties settled the matter.
Represent Client in Breach of Insurance Contract Matter
The firm represents a national insurance company in this case. In it, the plaintiff contends the insurer has breached the insurance contract and violated the Kentucky Motor Vehicle Reparations Act (KMVRA) by seeking an examination under oath (EUO) and delaying a decision on their no-fault claim and before paying certain claims under their Personal Injury Protection coverage of their auto policy until an EUO is taken.
The plaintiff contends that even if an EUO is authorized by a court, the insurer must still pay the PIP claim within 30 days, and if they do not, then they are obligated to pay the claim as well as statutory penalties of 18 percent prejudgment interest and attorneys fees.
Represented Client Against Allegations of Mismanaged Self-Insured Funds
In order to provide reasonable cost insurance to local Kentucky school boards, the Kentucky School Board Association (KSBA) created the Kentucky School Board Insurance Trust (KSBIT) and in particular two self-insured funds – one for workers compensation and one for property and liability claims. KSBA directly managed the funds for many years, and in later years utilized an outside entity third party administrator to handle claims. Financial examinations conducted by the Kentucky Department of Insurance from 2005 forward revealed the funds were consistently in a deficit position. Despite calls from DOI examiners, DOI did not order any assessments, and KSBA did not seek any from its members. The Kentucky League of Cities assumed management responsibilities in 2010. Despite new efficiencies and cost savings, the funds continued to be in a deficit position and KLC called for an assessment of members in 2012. Ultimately, the funds went into rehabilitation in 2013, and large assessments totaling approximately $50 million were ordered by the Franklin Circuit Court. The firm represented the Kentucky League of Cities in litigation challenging its management of the two self-insured funds, and in particular the rates charged to members and its change of TPA. The claims against the Kentucky League of Cities were settled in late 2015. The rehabilitator’ claims against KSBA and the KSBIT Board remain pending.
Represent Insurance Company in Bad Faith & Breach of Contract After Personal Injury Claim
The firm represented a national insurance company against a personal injury plaintiff who pursued his own third party bad faith claim against the company as well as first party breach of contract and bad faith claims assigned to him by the insured. The case arose from a tragic car accident. A mine employee who left work allegedly fell asleep after working a double shift, crossed the center line and collided with the accident victim. The mine employee died in the accident, and the plaintiff victim suffered other catastrophic injuries allegedly rendering him unable to work again. He filed suit and subsequently added the mine that employed the tortfeasor as a defendant. He claimed his injuries arose from their negligent supervision of the tortfeasor. The insurer for the mine denied the claim and did not provide a defense, relying upon a total auto exclusion in their CGL policy. Ultimately, the insured assigned its rights against the insurer to the plaintiff and filed suit directly against the insurer. The case ended in a voluntary settlement.
Represent Client in First Party Bad Faith Claim from Auto Accident
The firm represented a national insurance company in a first party bad faith claim arising from an auto accident. In evaluating his underinsured motorist (UIM) claim, the insurer rejected a spinal outpatient surgery he had done claiming it was controversial and not recommended by the mainstream medical community. A jury ultimately entered a verdict exceeding his UIM limits. The insured claimed the insurer had acted in bad faith in its handling and evaluation of the claim, utilizing protocols intended to maximize company profits at the expense of the insureds and claimants. The claim was settled prior to trial.
Represent Insurer in Third Party Bad Faith Claim
The firm represented the insurer of a foundation repair company that was hired to repair the foundation of Plaintiffs’ home. The home was built on an Eastern Kentucky mountaintop, which had previously been the site of a surface mine. The deed to the property declined any warranty for the condition of the soils on the property. Subsidence began to cause cracking inside and outside the home. The Plaintiff ultimately sued the insured repair company and the insurer denied the claim based on the “subsidence” and “contract” exclusions in the policy. The court ultimately concluded there was coverage under the policy. Thereafter, the insurer defended the claim against the insured and that claim was subsequently settled. The plaintiffs thereafter filed a third party bad faith claim against the insurer. The insurer defended the claim on several grounds, including that the insured’s liability for causing the damage to the home was not “reasonably clear” or “beyond dispute” and as such no bad faith claim could lie against them. The case was settled prior to trial.
Represent Client in First Party Bad Faith Claim from Auto Accident Involving Mine Worker
The firm represented a national insurance company in a first party bad faith claim by its insured. The case arose from a car accident. A mine employee, who left work, allegedly fell asleep and collided with another vehicle. The occupants of the second vehicle claimed significant injuries. These accident victims filed suit and subsequently added the mine that employed the tortfeasor as a defendant. They claimed their injuries arose from the mine’s negligent supervision of the tortfeasor. The insurer for the mine initially defended the claim but later denied the claim and withdrew a defense, relying upon a total auto exclusion in their CGL policy. After the defense was withdrawn, the mining company failed to assume their own defense and, after failing to answer requests for admission, a judgment totaling $40 million was ultimately entered against it. The insured sued the insurer, claiming there was coverage under the policy, and/or that it waived its right to deny coverage by initially defending without a written reservation of rights. It also claimed the denial was in bad faith. The state trial court ultimately ruled there was coverage under the policy, and thus the insurer was responsible to pay the $40 million judgment entered against the insured. The trial of the bad faith claim was scheduled for a later date. The court’s coverage decision was appealed, and during the appeal a global settlement was reached on all claims.
Represent Medical Malpractice Insurer in Mass Tort Matter
The firm represented a medical malpractice insurer in seeking a declaratory judgment that the relevant policies covering certain individual cardiac physicians did not cover intentional acts and that any verdict amount assigned to any of the intentional torts alleged in the complaint were outside the coverage of the policy.
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