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Complex Commercial Litigation

Dow Lohnes litigators, which include two former Assistant United States Attorneys, two former United States Department of Justice attorneys, and a former Deputy Assistant General Counsel for the Department of Energy, have an active and diverse national corporate litigation practice. Our litigators represent companies and individuals throughout the United States, both as plaintiffs and defendants, in a wide variety of complex commercial litigation matters in federal and state court, before federal agencies, in domestic and international arbitration, and in mediation forums. The complex commercial cases have included, among other things, business torts, securities fraud, disputes regarding corporate governance, going private transactions, and breach of commercial contracts. A brief description of some of these areas follows.

Business Torts

Dow Lohnes litigators have represented companies and individuals in numerous business tort cases, including misappropriation of trade secrets, tortuous interference with contract, unfair competition, and fraud actions, as well as in False Claims Act and government contracts cases. Many of these contract and business tort cases relate to technology companies and include disputes over intellectual property, including the enforcement of and defense against non-competition agreements. Dow Lohnes litigators have a great deal of experience with complicated technology issues, and in applying legal concepts to disputes involving advanced technology. In representing defendants on business tort claims, Dow Lohnes litigators have been particularly successful in resolving these claims on the basis of motions to dismiss or summary judgment, thereby enabling their clients to avoid the expense and risk of trial. Representative business tort cases include:

  • Representation of broadcast company in suit seeking $300 million in damages for alleged fraud and tortuous interference in connection with Chinese business venture.

  • Representation of company in trade secret action brought in federal court in New York against former employees starting competing company.

  • Representation a manufacturer of aircraft components against allegations brought in the Western District of New York of misappropriation of confidential design and manufacturing information.

  • Representation of designer of air traffic control systems in case brought by agency of a foreign government alleging misappropriation of trade secrets.

  • Representation of company in fraud counterclaim against investment bankers seeking to force sale of approximately $70 million in assets.

  • Representation of a wireless provider in the United States Court of Appeals for the District of Columbia Circuit challenging a $67 million penalty on due process and Eighth Amendment grounds.

Securities Litigation

Dow Lohnes litigators represent companies and individuals in securities litigation throughout the United States, including cases alleging, among other things, violations of the antifraud provisions of Section 10(b) of the Securities Exchange Act of 1934, the realization of short-swing profits under Section 16(b) of that Act, and control person responsibility under Section 20(a) of that Act. These cases have involved complicated and novel issues regarding the application of securities laws to business transactions and complex factual scenarios spanning many years. As a result of this experience, Dow Lohnes litigators have an intimate knowledge of the procedural and substantive issues that may arise in such litigation, including the provisions of the Private Securities Litigation Reform Act and the Securities Litigation Uniform Standards Act. Dow Lohnes litigators also have represented clients in investigations before the SEC and NASD. Representative cases include:

  • Representation of company in largest Section 16(b) case in history, where plaintiff sought over $600 million in alleged short swing profits arising from exercise of hybrid derivative.

  • Representation of company in connection in a class action asserting Section 20(a) control person claims alleging securities fraud relating to alleged false and misleading statements of internet service provider.

  • Representation of media company asserting Section 10(b) claims against defendant seller of stock relating to allegedly false and misleading statements concerning financial statements.

  • Representation of individuals in investigations by SEC regarding, among other things, alleged Section 10(b)(5) and insider trading violations.

 

Commercial Communications and Media Litigation

Dow Lohnes litigators have unparalleled experience in complex commercial litigation relating to communications and media companies. They have represented cable, newspaper, broadcast companies and wireless companies in a wide variety of complex commercial litigation, and are very experienced in the unique business issues presented by such companies. In addition to specialized Communications Litigation that they handle for these companies, Dow Lohnes litigators handle disputes relating to the acquisition of communications and media properties, class action litigation, consumer protection litigation, and affiliation agreement disputes. Representative cases include:

  • Representation of cellular telephone company in lawsuits alleging common law fraud, tortuous interference, and securities fraud in connection with purchase of cellular telephone system, and in parallel FCC investigations.

  • Representation of the newspaper and its reporters during the various civil and criminal investigations into the failed ATF raid in Waco, as well as at the federal criminal trial of surviving Branch Davidians, in civil actions filed by over 100 ATF agents injured or involved in the raid, and in congressional investigations.

  • Representation of cellular telephone company in series of disputes relating to system swaps and associated breach of contract, tortuous interference, and fraud claims.

  • Representation of a direct broadcast satellite partnership in connection with a civil investigation conducted by the National Association of Attorneys General and the Antitrust Division of the Department of Justice.

  • Representation of cellular telephone company in consumer class action lawsuit alleging, among other things, breach of contract relating to early termination fees.

  • Representation of individuals in an FCC investigation of alleged abuses of the interactive video services auction process.

  • Representation of major communications companies (e.g., newspaper, television and radio broadcasting, cable) in Department of Justice Antitrust Division and Federal Trade Commission investigations into proposed mergers and acquisitions in the communications industry.

  • Representation of cable operators in litigation involving alleged predatory pricing of cable service, consumer protection claims, franchise renewals, cable system construction, and access to private developments.

  • Representation of television stations in disputes with networks regarding affiliation agreements.

  • Representation of company in dispute with Nielsen regarding ratings.

Class Action Litigation

Dow Lohnes litigators have represented companies in a variety of class action lawsuits in both state and federal court. These cases include alleged violations of, among other things, securities and consumer protection laws, and common law torts, employment law, and various provisions of the Communications Act and other federal statutes. Representative cases include:

  • Representation of company in multiple class action lawsuits brought in Delaware Chancery Court attacking $8 billion going-private transaction in history.

  • Representation of company in connection in a federal class action securities fraud case brought in the Southern District of New York asserting Section 20(a) control person claims relating to alleged false and misleading statements of internet service provider.

  • Represented common carrier in class action seeking over $2 trillion under the Telecommunication Consumer Protection Act allegedly for allowing others to send unsolicited fax advertisements over telecommunications facilities.

  • Representation of cable company in class action lawsuit alleging illegal telecommunications service fees for cable internet service.

  • Representation of cellular telephone company in consumer class action lawsuit alleging, among other things, breach of contract relating to early termination fees.

  • Representation of individual in state consumer class action lawsuit brought in Maryland state court attacking commercial real estate transactions.

  • Representation of cable company in multiple state class actions attacking late fees.

 

Corporate Governance and Breach of Fiduciary Duty Litigation

Dow Lohnes litigators have represented a number of clients in cases involving corporate governance and breach of fiduciary duties, including disputes regarding rights under various states' corporation laws and shareholders' agreements. In particular, Dow Lohnes litigations have developed an expertise in class action breach of fiduciary duty claims in going private transactions. Representative cases include:

  • Representation of company in multiple class action lawsuits brought in Delaware Chancery Court attacking $8 billion going-private transaction.

  • Representation of company in multiple class action lawsuits brought in Delaware Chancery Court attacking $600 million going-private transaction.

  • Representation of company in Delaware Chancery Court lawsuit attacking multi-faceted transaction on entire fairness grounds.

  • Representation of public company through committee of independent directors in dispute with controlling shareholder concerning complex corporate transactions and possible reformation of contract.

 

Commercial Disputes

Dow Lohnes litigators have represented numerous clients in major commercial disputes involving breach of contract and related claims, including quantum meruit and fraudulent inducement claims. Many of these cases involve complicated accounting issues. In addition, Dow Lohnes litigators have a particular expertise in letter of intent litigation, having represented numerous clients as both defendants and plaintiffs.

  • Representation of company in Delaware Chancery Court lawsuit seeking specific performance of letter of intent with respect to over $70 million in assets.

  • Representation of company in multi-million dollar arbitration dispute regarding post-closing adjustments.

  • Representation of health care company in connection with multi-million dollar breach of contract case brought in Ohio state court relating to alleged assumption of liabilities in connection with corporate reorganization.

  • Representation of company in multi-million dollar case brought by broker alleging breach of contract.

 

Corporate Litigation Counseling

The firm's litigation group is also involved in corporate litigation counseling, frequently providing insight and strategies to avoid litigation, including post-closing disputes counseling. Our litigators often work with our securities and corporate lawyers to counsel business executives on a variety of current issues and potential concerns. One area of expertise the group has developed in combination with lawyers from other groups involves document retention policies, including electronic document storage and retrieval, privacy issues, record-keeping policies and the like.

False Claims Act Qui Tam Actions

Dow Lohnes litigators have represented numerous companies in connection with false claims act qui tam actions, asserting that companies have violated the federal False Claims Act in connection with their contracts with the federal government. In particular, in conjunction with Dow Lohnes lawyers specializing in education law, Dow Lohnes litigators have represented numerous educational institutions in such investigations, including negotiations with the Department of Justice and various United States Attorneys Offices.

Constitutional Litigation

Dow Lohnes Litigators have represented a wide variety of clients in constitutional litigation in federal and state courts throughout the United States. These cases have involved, among other things, due process, equal protection, and excessive fines clauses of the United States Constitution. Representative cases include:

  • Representation of company in the United States Court of Appeals for the District of Columbia Circuit against whom the FCC assessed a $67 million fine on grounds that the fine violated the company’s due process, equal protection, and Eighth Amendment rights.

  • Representation of educational institution seeking injunction in the United States District Court for the District of Columbia against the Department of Education on due process grounds.

  • Representation of cable company in injunctive action in the United Sates District Court for the Central District of California against the United States on grounds that government violated its First Amendment rights.

  • Representation of company in appeal of FCC revised cross-ownership rules in the United States Court of Appeals for the Third Circuit on grounds that those rules violated the company’s First and Fifth Amendment rights.

 

Appellate Practice

Dow Lohnes litigators frequently represent companies in appellate litigation in state and federal court. Recent federal circuit cases have included intellectual property issues and Communications Act disputes. Over the years, the litigation group has developed a particular expertise in appeals of administrative actions before the United States Court of Appeals for the District of Columbia and other Circuits. Representative cases include:

  • Representation of State of Iowa in the United States Court of Appeal for the District of Columbia Circuit in connection with appeal of decision from adverse FCC ruling regarding the universal service fund.

  • Representation of company before the United States Court of Appeals for the Second Circuit and the Supreme Court in appeal of ruling dismissing securities short-swing profit claim.

  • Representation of broadcast company before the United States Court of Appeal for the Third Circuit and the Supreme Court relating to FCC revision of ownership rules.

  • Representation of company before the United States Court of Appeal for the Eleventh Circuit in appeal by the United States of the grant of injunctive relief.

  • Representation of company before the United States Court of Appeal for the Ninth Circuit and in the Supreme Court in defending the FCC’s decision on the classification of cable modem service.

  • Representation of company before the United States Court of Appeal for the Ninth Circuit in appeal of an FCC decision regarding rules governing common carrier relationships.

  • Representation of company before the United States Court of Appeal for the District of Columbia Circuit in challenge to an FCC ruling on sports network was not satellite programming.

  • Representation of company before the Oregon Court of Appeals relating to dismissal of fraud and tortuous interference claims.

  • Representation of company before the South Carolina Supreme Court relating to stay of proceeding on primary jurisdiction grounds.
 

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