Brian A. Troyer

Experience

• As General Counsel, oversaw the legal affairs of a rapidly growing, global manufacturing company with thousands of employees and manufacturing, distribution and administrative operations in dozens of locations on five continents. This role included management of numerous post-acquisition disputes and issues as well as participation in several new, large corporate acquisitions.

Class Action Defense

• Won complete victory for a building products manufacturer in a putative nationwide product defect and false advertising class action by consumers whose product installations had failed within a short time. With tens of thousands of product installations, a significant and growing failure rate and thousands in damages per failure, potential liability was enormous. Brian developed and led his team through execution of a comprehensive defense plan, including collection of critical absent class member evidence, compelling cross-examinations of the plaintiffs and their expert witnesses and development of a powerful affirmative expert case. After a hearing, the federal court denied class certification. In addition, although most of the named plaintiffs had suffered real product failures, the court granted the client’s summary judgment motions on all claims as to all plaintiffs. Brian also successfully opposed interlocutory appeal, and the plaintiffs did not pursue post-judgment appeal.
• Defeated a putative nationwide class action to recover alleged economic losses consisting of billions of dollars paid by consumers and third-party payers for a prescription hormone drug marketed for 40 years without FDA approval on the basis that it was generally recognized as safe and effective (GRASE) and thus not a “new drug.” The plaintiffs claimed that the drug was marketed illegally and through false advertising that misled them to believe it was approved. Asked to take over the defense months after filing, Brian successfully moved to vacate an order of the Judicial Panel on Multidistrict Litigation (JPML), transferring the case to a product liability MDL (In re Prempro MDL 1507), amended the answer to plead new defenses, successfully moved to dismiss the case with prejudice on grounds of primary jurisdiction and preemption and successfully opposed reconsideration.
• Brian was later asked to take over the defense of two more putative false-advertising class actions seeking recovery of billions of dollars paid for the client’s unapproved hormone drug product during the 40 years of its marketing. A California court had already granted class certification on liability under the UCL, FAL and CLRA in one case, and class briefing was due in 30 days in a second putative nationwide case. Minimal discovery had been conducted, the client had retained no experts and trials were scheduled in six and seven months, respectively. Brian immediately restructured the defense strategy, retained and prepared medical and economics experts and launched an aggressive plan of party and absent-class-member discovery and motion practice to defeat class certification and establish merits defenses. Key to the strategy was forcing the plaintiffs to admit that they necessarily were seeking a court ruling on GRASE status, contrary to Supreme Court precedent, because payor class members were well aware of the application status. When the California appellate court ordered the California plaintiffs to answer a mandamus petition aimed at liability class decertification, they withdrew their nine-figure settlement demand and requested mediation, at which both cases were successfully settled on a nationwide basis for a small fraction of the prior demand.
• Successfully resolved a putative nationwide Fair Credit Reporting Act class action resulting from a mistaken request for credit information on nearly 100,000 former customers for a large national bank. Two years into the case, with the defense foundering, the client engaged Brian to take the lead. Within days, he developed a completely new, multi-pronged merits and class certification strategy, reversed momentum through new discovery and motions and successfully mediated settlement for 1-2% of the potential nine-figure liability.
• In a case of first impression in Ohio, Brian developed the defense, conducted all the discovery, retained the necessary experts and developed their testimony and briefed the successful opposition to class certification in a putative class action for “medical monitoring” relief brought by employees of contractors who had worked at a client’s industrial plant, where they were allegedly exposed to material associated with a potentially fatal pulmonary disease. Brian also successfully moved to dismiss a related product-based putative nationwide class action in federal court.
• As co-counsel providing legal merits and class action experience, provided the legal strategy and briefing resulting in denial of class certification in a putative nationwide class action filed by small businesses against a global package delivery company to recover, under unjust enrichment theories, all sums paid by customers for packages for which labels were printed but that were not shipped because, e.g., orders were canceled, a frequent occurrence resulting in enormous potential liability.
• Similarly, with 30 days from referral of the case to the filing deadline, provided legal strategy, direction and briefing in a wage-and-hour action under the Fair Labor Standards Act and California law resulting in denial of class certification and decertification of the conditionally certified collective action.
• Obtained dismissal of, or summary judgment on, all claims against one of the nation’s largest banks in a putative nationwide TILA and RICO class action by plaintiffs seeking recovery of allegedly excessive late fees charged by the client.
• Successfully defended one of the nation’s largest banks in a putative nationwide class action to recover and cancel interest charges on loans purchased from failed S&Ls. Following briefing and argument of the motion for summary judgment, the court advised the plaintiff to settle, because summary judgment likely would be granted. An individual nuisance settlement disposed of the case.
• Won summary judgment and/or denial of class certification in several putative class actions against a national cable service company seeking recovery of allegedly excessive and unlawful late fees.
• Achieved a nuisance settlement in a putative nationwide class action claiming false advertising in connection with a consumer technology product, with alleged class-wide liability of over $150 million.
• Successfully defended a major retailer in putative class actions and state enforcement actions for alleged false advertising of sales.

Securities, Shareholder and Governance Litigation

• Defeated an adversary proceeding filed by a litigation trustee against private equity clients, alleging that the defendants had received improper payments and used their voting power to force a public company into a $250 million corporate acquisition that caused its bankruptcy, and that resulting derivative suits had been collusively settled. The trustee filed a detailed 85-page complaint seeking to avoid the corporate transactions and releases of derivative suits as fraudulent transfers under Sections 544 and 548 of the Bankruptcy Code and sought recovery of hundreds of millions in alleged losses. Brian led the defense team and crafted a comprehensive defense strategy starting with a motion to dismiss the case prior to discovery. Remarking on the exceptional strength of the briefing, the court dismissed all counts with prejudice.
• Defeated a $50 million bondholder class action against one of the nation’s largest banks in its capacity as an indenture trustee under the Trust Indenture Act. Brian led a team that first crafted a successful motion to transfer venue from the plaintiff’s counsel’s home court and then defeated class certification by proving the filing plaintiffs’ complicity in fraud and non-membership in the class and then conducting expedited investigation and discovery to establish equivalent defenses against three new sets of plaintiffs who joined the case to try to save it. The federal court also denied plaintiffs’ motion to compel discovery of privileged documents under the “fiduciary exception” and granted a motion to overrule plaintiffs’ own confidentiality designations.
• Successfully represented four officers and directors of a corporation subject to a state securities investigation and enforcement action, who retained Brian on an emergency basis when their responses to AG subpoenas were overdue. Brian negotiated a new timeline with the AG and securities division, mobilized resources, gathered and produced requested documents and presented the four for Examinations under Oath, all in less than two weeks, averting adverse consequences, and represented one of the clients at the administrative trial, where he was called as a witness several weeks later. All four clients avoided any enforcement action or sanctions.
• Successfully defended venture capital clients in an action by minority shareholders for alleged oppression and “freeze out” by majority shareholders. Favorable settlement reached after briefing of motion to dismiss.
• Successfully moved to dismiss claims against a major investment bank under Section 11 of the Securities Act of 1933 in the Enron litigation.
• Defended a variety of securities and shareholder class actions under Sections 11, 12 and 15 of the Securities Act of 1933 and Sections 10, 14, 16 and 20 of the Securities Exchange Act of 1934 and the Investment Company Act of 1940, ranging from claims for fraud on the market to options back-dating to claims for violation of the All Holders/Best Price Rule to claims of fraud and unsuitability in retail brokerage sales, as well as derivative suits. Among them, for example, crafted and drafted the successful motion to dismiss a “stock drop” claim under Rule 10b-5 against a major telecommunications company.

Commercial Litigation

• Forced the voluntary dismissal of an action against a drug manufacturer seeking nine-figure damages for alleged fraud and breach of warranty. The client had sold rights to a drug to a major drug company. Subsequently, an audit under the FDA's Application Integrity Policy concluded with findings that the Abbreviated New Drug Application (ANDA) had been subject to data fraud and manipulation, leading to the lawsuit. Taking over the defense months after the case had been filed, Brian first amended the answer to plead new defenses. Fighting through a year of ensuing discovery obstruction by the plaintiff, Brian’s team then persuaded the federal court to grant a motion for sanctions and to compel new Rule 30(b)(6) depositions, as well a motion to refer the matter to the FDA. The new depositions forced the disclosure of “smoking gun” documents proving that the plaintiff had concealed key evidence gutting its claimed damages and had presented false deposition testimony by its CEO. This in turn led to a cascade of additional motions, favorable rulings, and thousands of additional pages of evidence that had been concealed, despite multiple sworn attorney affidavits attesting to complete disclosure. When the court granted a motion for still further discovery into this misconduct, The plaintiff finally agreed to withdraw its settlement demand of $30 million and dismiss its claims in exchange for termination of sanctions proceedings.
• Achieved complete pre-litigation victory for a major aluminum producer on the brink of insolvency in an enterprise-threatening dispute with its electricity supplier over a rate increase and demand for payment of a large security deposit. The client engaged Brian to find a solution after its outside energy counsel could not find one. In less than a week, Brian developed a new legal strategy based on thorough analysis of overlooked regulations and rules and prepared a lawsuit and a motion for a temporary restraining order. The electric company withdrew its demands when presented with the new analysis and TRO papers.
• Won complete victory for an industrial client and its officers in an action by a former employee who had contracted a fatal, “fingerprint” disease associated with processing of the primary material produced by the client. The state Supreme Court had eliminated the workers’ compensation bar for employee claims for occupational diseases, opening the door for a potential wave of new claims. Brian obtained voluntary dismissal of the claims against the officers, negotiated a stay of discovery pending filing and resolution of a threshold summary judgment motion, then won a precedent-setting summary judgment on grounds of election of remedies. Costs were minimized by the stay strategy.
• Successfully represented an industrial manufacturer in multiple actions for breaches of covenants not to compete and theft of trade secrets.
• Won summary judgment on all claims against a Fortune 500 company and one of its officers in an action by an airport Fixed Based Operator (FBO) for alleged tortious interference.
• Successfully represented a manufacturer in an action to establish the existence and scope of insurance coverage under lost policies in the 1950s and 1960s, obtaining settlement for full amount of loss. As part of this representation, located and took the deposition of the agent who sold the lost policies to preserve his testimony for future use as needed against the insurer.
• Successfully represented a manufacturer in an action to recover business interruption insurance coverage for losses incurred as a result of a plant fire caused by an exothermic reaction. Obtained a settlement for 100% of claimed losses the day before trial.
• Assuming lead counsel responsibility midstream, represented a major Japanese company in complex commercial and environmental litigation against a Fortune 100 company, resulting in favorable settlement.
• Represented buyers of several groups of nursing homes in complex litigation against sellers, resulting in favorable settlement.
• Representing a mining company in an arbitration of millions of dollars in cost overruns in construction of an overseas coal processing plant.

Drug, Medical Device and Toxic Mass Torts

• Served as lead national coordinating and trial counsel (and member of the defendants’ MDL Steering Committee) for a pharmaceutical manufacturer faced with more than 7,000 cases in federal and state courts involving a combination hormone drug. The drug had been marketed for 40 years without FDA approval on the basis that it was Generally Recognized as Safe and Effective (GRASE), as evidenced by a relevant Drug Efficacy Study Implementation (DESI) review. The plaintiffs claimed that the drug and other hormone drugs had caused their cancers and cardiovascular events. Brian developed a strategy to minimize trial risk while preparing an expert case and working through the MDL procedures to eliminate cases. All cases remaining after dismissals for, e.g., limitations and failure of proof of product identification were favorably settled.
• Won complete victory for an industrial client and its officers in an action by a former employee who had contracted a fatal “fingerprint” disease associated with processing of the primary material produced by the client. The state supreme court had eliminated the workers’ compensation bar for employee claims for occupational diseases, opening the door for a potential wave of new claims. Brian obtained voluntary dismissal of the claims against the officers, negotiated a stay of discovery pending filing and resolution of a threshold summary judgment motion, then won a precedent-setting summary judgment on grounds of election of remedies. Costs were minimized by the stay strategy.
• Participated in successful defense of hundreds of cases filed against a manufacturer of long-bone fixation devices used off label for spinal fixation.
• Successfully defended multiple cases for major personal injury allegedly caused by toxic workplace exposure.

Memberships

• American Bar Association
• Federal Bar Association
• Defense Research Institute
• Cleveland Metro Bar Association