Judson Brown, P.C.

Recent Trials & Hearings

• Cerberus Capital Management v. Canadian Imperial Bank of Commerce (N.Y. Sup. Ct.): Lead trial counsel for Cerberus and its affiliated investment vehicles as plaintiff in breach of contract lawsuit against CIBC stemming from CIBC’s payment obligations related to cash and synthetic assets in its U.S. residential housing portfolio. After an eight-year battle including two trips to the First Department, the court held a three-week bench trial in 2022. In a reasoned decision (2022 WL 18670754), the court sided with Cerberus, granting it a top-to-bottom win on its contract claims and on CIBC’s counterclaims for mistake, fraudulent inducement, and estoppel. In 2023, the court entered an $855 million judgment for Cerberus and against CIBC. The victory was recognized as runner-up for AmLaw’s “Litigator of the Week.”
• In re Chesapeake Energy Corporation, et al. (Bankr. S.D. Tex.). Trial counsel for Chesapeake Energy Corporation and 40 of its subsidiaries in their high-profile Chapter 11 cases and related litigation proceedings. In 2021, after a three-week trial against the official committee of unsecured creditors concerning confirmation and valuation issues, the court confirmed Chesapeake’s plan of reorganization. The victory garnered recognition as runner-up for AmLaw’s “Litigator of the Week.”
• U.S. ex rel. Oberg v. Pennsylvania Higher Education Assistance Agency (E.D. Va.; 4th Cir.): Trial counsel for PHEAA securing jury verdict in its favor in a $350 million False Claims Act case brought by a former U.S. Department of Education employee. The whistleblower filed suit in the United States District Court for the Eastern District of Virginia, alleging that 10 student lending agencies, including PHEAA, defrauded the government through a student lending subsidy program. The nine other defendants settled for approximately $100 million. PHEAA, the lone defendant to go to trial, prevailed in a unanimous jury decision. The result was profiled in The American Lawyer and Law360.
• BNSF Railway Company v. FirstEnergy Corporation (AAA): Trial counsel for BNSF in its lawsuit against FirstEnergy for breach and repudiation of a long-term contract for the transportation of coal to FirstEnergy’s coal-fired power plants. FirstEnergy claimed that its failure to ship coal was excused as force majeure because a recently enacted environmental regulation prevented its performance. After a two-week trial, the panel unanimously sided with BNSF. The parties subsequently reached a settlement, with FirstEnergy agreeing to pay BNSF $109 million. The result was profiled in The American Lawyer and Law360.
• Charter Communications v. Optymyze (Del. Ch.): Lead counsel for Charter in litigation involving a software license dispute. In 2018, Kirkland obtained a TRO enjoining Optymyze from terminating the cloud-based services it provided to Charter. Following a 2019 evidentiary hearing, the court held the defendants and its CEO in contempt for violating the TRO and held them jointly and severally liable for Charter’s damages. In 2021, Kirkland won dismissal of Optymyze’s counterclaims, with prejudice, and an award of all attorneys' fees and expenses. The dispute was profiled extensively in Law360, and Kirkland’s victory was recognized as AmLaw’s “Litigator of the Week.”
• Sterling and Wilson Solar Solutions v. JP Morgan Chase, et al. (S.D.N.Y.). Lead counsel for Avangrid, defeating two motions by Sterling and Wilson to enjoin Avangrid from receiving $47 million under letters of credit (LOCs) S&W had posted. Avangrid had selected S&W as the contractor to design, engineer and construct two utility-scale solar projects in the Pacific Northwest pursuant to two separate Engineering, Procurement and Construction contracts. When Sterling defaulted on its contractual obligations, Avangrid attempted to draw on the LOCs but S&W filed two lawsuits seeking to enjoin the draws. After hearing, the court denied S&W’s injunction requests and ordered prompt payment on the LOCs.

Commercial Litigation

• Davis v. Port, et al. (N.Y. Sup. Ct.): Lead counsel representing Cerberus Capital in lawsuit brought on behalf of Scottish Re Group Limited challenging a transaction in which a Scottish Re subsidiary redeemed notes held by a Cerberus-affiliated investment vehicle.
• Compass Productions v. Charter Communications (S.D.N.Y.; 2d Cir.): Lead counsel for Charter in lawsuit claiming Charter reneged on a promise to carry Compass programming on its cable systems. Plaintiff Compass asserted claims for breach of contract, promissory estoppel, fraud and defamation arising out of failed negotiations over carriage of The Jewish Channel, and sought tens of millions in license fees and lost profits. After Kirkland removed the case to the Southern District of New York, the court granted Charter’s motion to dismiss the fraud and defamation claims. After the close of discovery, the court granted summary judgment on the remaining claims for breach of contract and promissory estoppel, adopting Kirkland’s arguments in full. On appeal, the Second Circuit affirmed for the same reasons. The win was recognized in AmLaw’s “Litigator of the Week.”
• Capital Storage Holdings v. SpareBox Self Storage (Texas State Court): Lead counsel representing SpareBox against claims for breach of contract and fraudulent inducement, arising from real estate transaction that did not close. In February 2023, Kirkland won dismissal of the contract claims.
• Tara Broadcasting v. Charter Communications (C.D. Cal.; 9th Cir.): Lead counsel for Charter in lawsuit by Tara alleging claims under California’s Unruh Civil Rights Act, False Advertising Law, Unfair Competition Law, and Business and Professions Code stemming from Charter’s decision not to distribute Tara’s programming. The court granted Charter’s motion to dismiss.
• Showtime v. Charter Communications; Univision v. Charter Communications (N.Y. Sup. Ct.): Lead counsel for Charter in lawsuits brought by Univision and Showtime concerning their respective programming agreements. Secured a temporary restraining order preventing Univision from pulling its signal —i.e., “going dark” — in a decision reported in Forbes, the L.A. Times and other news outlets. Thereafter, both lawsuits settled favorably.
• Raytheon Company: Trial counsel for Raytheon in multiple breach of contract lawsuits in the ICC International Court of Arbitration against a European defense contractor.
• Sunoco: Counsel for Sunoco in breach of contract disputes.
• Barr Laboratories: Counsel for Barr in complex multidistrict commercial litigation involving drug pricing and Medicaid/Medicare fraud.
• BASF: Counsel for BASF in international arbitration involving license and royalty fee disputes arising from the sale of agricultural products.

Class Action Litigation

• Byrne et al. v. Charter Communications (D. Conn.): Lead counsel for Charter defending putative class action alleging that Charter breached its consumer contracts and engaged in deceptive marketing regarding the price that Charter charges for cable service. Putative class plaintiffs accused Charter of a bait-and-switch scheme whereby Charter supposedly advertised a fixed rate but then added ancillary surcharges. On Charter’s motion, court compelled arbitration and stayed all other proceedings, rejecting the plaintiff’s argument that Charter’s terms of service are illusory and render the arbitration agreement unenforceable. Thereafter, the claims settled for a nominal amount. The win was recognized in AmLaw’s Litigator of the Week.
• In re ZF-TRW Airbag Control Units (C.D. Cal.): National coordinating counsel to ZF-TRW in multidistrict litigation encompassing more than two dozen nationwide class actions alleging breach of warranty, fraud, and other claims based on allegedly defective airbag control units.
• Bodet v. Charter Communications (E.D. La.): Counsel for Charter in defense of putative class action alleging tying violation of federal and state antitrust laws. Successfully defended action and case dismissed.
• Miller v. Red Bull (N.D. Ill.): Counsel for Red Bull in consumer protection and TCPA class action lawsuits.
• Hawaii Structural Ironworkers v. Calpine Corporation (Cal. Sup. Ct.): Counsel for Calpine in securities fraud class action.

False Claims Act Litigation

• U.S. ex rel. Hlywiak v. Pennsylvania Higher Education Assistance Agency (D.N.J.). Successfully dismissed False Claims Act claim against PHEAA based on alleged misallocation of voluntary loan payments made under the CARES Act. Court adopted Kirkland’s arguments on each of falsity, materiality, and scienter prongs of Act. Court also dismissed related putative class action alleging misrepresentation of payment application procedures.

Product Liability

• 3M: Trial counsel for 3M in lawsuit alleging defect in Combat Arms earplugs.
• Red Bull: Counsel for Red Bull in product liability lawsuits.
• Raytheon: Counsel for Raytheon in multidistrict litigation involving more than 50 product liability actions, which were successfully dismissed.

Bankruptcy & Valuation Litigation

• Celsius Network (Bankr. SDNY): Lead counsel for Celsius and its affiliates in various disputes and trials concerning the bankruptcy of this cryptocurrency platform.
• Houston Regional Sports Network (Bankr. S.D. Tex.): Lead trial counsel for Houston Astros in multiple trials concerning the involuntary bankruptcy commenced against the Houston Regional Sports Network, a partnership between the Astros, Comcast and the Houston Rockets. Court ruled in favor of Astros — against Comcast — after multiday valuation trial. The result was profiled in Law360 and other local and sports-related media outlets.
• Dolan Media (Bankr. D. Del.): Lead trial counsel for Dolan Media in contested valuation litigation. After three days of trial, the matter settled and the company emerged from bankruptcy days later.

• Residential Capital (Bankr. S.D.N.Y.): Trial counsel for Ally Financial and Ally Bank in connection with the bankruptcy proceedings of Ally’s mortgage subsidiary, Residential Capital, the fifth-largest servicer of residential mortgage loans in the United States, including a nine-day confirmation trial that resulted in approval of ResCap’s plan of reorganization and a third-party release for Ally.

• Extended Stay America (Bankr. S.D.N.Y.): Counsel for Blackstone Group in an $8 billion fraudulent conveyance lawsuit concerning the sale of Extended Stay America — a lawsuit identified in The American Lawyer as “one of the largest claims ever filed over a failed LBO,” and the case most closely watched by litigators across the country.

• Calpine Corporation (Bankr. S.D.N.Y.): Trial counsel for Calpine in breach of contract, restructuring and fraudulent transfer matters, including $5 billion refinancing litigation, $19 billion valuation litigation more than $1 billion fraudulent transfer litigation.

• Visteon Corporation (Bankr. S.D.N.Y.): Trial counsel for Visteon in $3 billion valuation litigation, and in contested — and approved — confirmation hearing. 

Government, Employment & Data Privacy Matters

• Counsel for public and private companies in various employment-related disputes.
• Counsel for Fortune 100 company in SEC investigation.
• Counsel for Fortune 500 company in FTC investigation.
• Counsel for financial services company concerning data security breach involving customers' personal information — leading to successful resolution with CFTC.