Practice Areas

Commercial Litigation

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Commercial Litigation

Cooper & Kirk has long represented parties in commercial disputes in state and federal courts across the nation. We have represented both plaintiffs and defendants. Virtually all of these disputes involve high-stakes claims—some running into the hundred of millions of dollars (or more)—and most of them arise from complex commercial transactions. We have brought our litigation expertise, experience, and judgment to bear on disputes stemming from, among other things, commercial real estate transactions, royalty provisions under oil and gas leases, software licensing, import duties, the handling of trade secrets, and insurance issues. The types of legal claims we have litigated have run the gamut, from breach of contract to breach of fiduciary duty, from antitrust to fraud, from misappropriations of intellectual property to the customs laws, from claims under the Uniform Commercial Code to claims under anti-racketeering statutes.

As with all of our litigation matters, and unlike many other firms of our size, we prefer, whenever possible, to handle commercial disputes from inception to resolution, rather than focusing our practice on appellate work. This way, we can work closely with our clients to try to resolve disputes amicably and, should litigation nonetheless ensue, to build the best possible record, through discovery and other means, to maximize the prospects of a successful result while minimizing the costs and disruption of litigation. And we are fully committed to exploring whether alternative dispute resolution options, such as mediation or arbitration, may make the most sense for our clients.

But whatever the forum, and whatever the nature of the business dispute, Cooper & Kirk is dedicated to doing whatever it takes to maximize our clients’ prospects for achieving a successful outcome.

Issue
Shareholder Misappropriation of Trade Secrets
Level of Court
Delaware Supreme Court

Overview We represented a corporation suing a former shareholder who, shortly after ending its involvement with our client, invested in a competitor to our client, alleging that the former shareholder has misappropriated our client’s trade secrets and confidential information.

Issue
RICO, Breach of Contract in a large scale NYC Real Estate Project
Level of Court
US District Court - Southern District of New York

Overview We represent AmBase Corporation in several lawsuits surrounding its real estate investment in 111 West 57th Street, a luxury residential sky-scraper currently under construction in Manhattan. AmBase has sued the developers for racketeering activity, breach of contract, breach of fiduciary duty, and various torts, and the lenders for violations of the Uniform Commercial Code.

Issue
Validity of Nationalization of Fannie Mae and Freddie Mac
Level of Court
US Court of Appeals - Federal Circuit

Overview We represent a mutual fund and a number of insurance companies challenging the validity of the nationalization of Fannie Mae and Freddie Mac. The suits challenge the government’s expropriation of 100 percent of the companies’ profits in violation of FHFA’s and Treasury’s statutory authority, binding contractual commitments, and the takings clause of the Fifth Amendment. The government profited from the transactions we are challenging by over $120 billion.

Issue
Compensation for Environmental Remediation Costs
Level of Court
US Court of Appeals - Federal Circuit

Overview We represented Shell, Unocal, Atlantic Richfield Co., and Chevron-Texaco in a major contract dispute with the United States government. Our clients sought compensation for environmental remediation costs that they have incurred as a result of their performance of World War II contracts for the federal government. In 2017, the Court of Federal Claims awarded our clients $99.5 million in damages, and in July 2018, the Federal Circuit unanimously affirmed.

Issue
Commercial Lease - Gold Clause Enforcement
Level of Court
US Court of Appeals - Sixth Circuit

Overview We successfully represented a commercial property owner in a landmark case involving the enforcement of gold clauses in long-term commercial leases. Gold clauses were a common feature of early twentieth century contacts and allowed landlords to index rental payments to the value of gold. We argued that transfer of a lessee’s interest revived gold clauses from the original lease contract. After a favorable ruling from the Sixth Circuit, the case settled.

Issue
US Government Breach of Contract
Level of Court
US Court of Federal Claims

Overview After a three-week trial involving significant expert testimony, our client won a multimillion dollar verdict against the United States. The case involved complex damages issues relating to the cost of performance of a contract that the government breached. On appeal, the Federal Circuit awarded $33 million to our client.

Issue
Commercial Lease - Gold Clause Enforcement
Level of Court
US District Court - Southern District of Ohio

Overview We represented several co-owners of commercial property in Columbus, Ohio, that is subject to a long-term lease that includes a “gold clause.” Gold clauses were a common feature of early twentieth century contracts; they allowed landlords to index rental payments to the value of gold. The U.S. District Court for the Southern District of Ohio ruled in our clients' favor that the gold clause is currently in force, and we subsequently negotiated a settlement.

Issue
Government Breach of Contract - $18 Million Award
Level of Court
US Court of Appeals - Federal Circuit

Overview After a two-week trial involving significant expert testimony, we won an $18 million verdict against the United States. The case involved quantification of mitigation costs resulting from the government’s breach of contract. The Federal Circuit affirmed the judgment.

Issue
Winstar Government Breach of Contract
Level of Court
US Court of Appeals - Federal Circuit

Overview We represented Coast Federal Savings Bank in a Winstar breach of contract suit against the United States arising from a 1989 Act of Congress that abrogated regulatory capital contracts between the Government and a number of thrifts, including Coast.

Issue
SpaceX Lawsuit Over Contract Award
Level of Court
US Court of Appeals - Federal Circuit

Overview We successfully represented ULA in a major bid protest brought by SpaceX challenging the award and execution of a five-year contract with the Air Force, valued at $11 billion, for 27 rockets to launch national security satellites into orbit. SpaceX ultimately agreed to dismiss the protest with prejudice under terms that honored all of the Air Force’s contractual obligations to ULA.

Issue
State Denied Royalties by Exxon Mobil
Level of Court
Alabama Supreme Court

Overview We represented the State of Alabama in connection with its suit against Exxon Mobil for fraud in connection with the extraction of natural gas from Mobile Bay. Exxon was obligated to make royalty payments on the “gross proceeds” of all gas produced under the leases, but instead concealed its practice of paying royalties solely on the net proceeds of a portion of the gas produced. We secured a judgment of more than $100 million against Exxon for breach of contract.

Issue
Improper Assessment of Import Duties
Level of Court
US Court of Appeals - Federal Circuit

Overview We successfully represented Ford Motor Company in connection with its challenge to the United States Customs Service’s determination that $10 million in import duties and interest were properly assessed. The Federal Circuit held that the trial court’s verdict was clearly erroneous and that Ford was entitled to judgment.

Issue
Government Breach of Contract
Level of Court
US Court of Appeals - Federal Circuit

Overview We successfully represented EmpowerIT (formerly known as Marketing and Management Information, Inc. (“MMI”)), in a breach of contract action against the United States in the U.S. Court of Federal Claims. The lawsuit stemmed from the decision of the Defense Commissary Agency (“DeCA”) (an agency within the Department of Defense) to terminate a sale/exchange contract between MMI and DeCA, pursuant to which DeCA agreed to provide MMI with raw “scanner data” pertaining to sales at commissaries and MMI agreed to process that data and to perform certain category management support services for DeCA. The trial court granted our summary judgment motion on liability. After extensive discovery, the government agreed to settle the case on the eve of trial.

Issue
Microsoft Anti-Competitive Behavior
Level of Court
US Court of Appeals - Fourth Circuit

Overview We represented Novell in a multi-billion-dollar antitrust lawsuit against Microsoft. Novell alleged that Microsoft engaged in anticompetitive behavior that prevented its software from being compatible with Windows and thus inflicted billions of dollars of harm on Novell. We appealed the district court’s dismissal of the suit, and the Fourth Circuit reversed.

Issue
RICO Lawsuit - Marijuana Industry
Level of Court
US District Court - Colorado

Overview We represented individual Coloradans whose property was injured by the recreational marijuana industry in that state, challenging the legality of the industry under RICO. The Tenth Circuit ruled that federal racketeering claims against marijuana businesses may go forward, and on remand the district court awarded summary judgment to our clients on liability, ruling that the marijuana business that injured their property had violated RICO.

Issue
Taking's Claim Jurisdiction
Level of Court
US Court of Appeals - Third Circuit

Overview We successfully represented Transcapital Financial Corporation and American Capital Corporation in an appeal of a decision regarding jurisdiction of the district court over takings claims after our clients’ wholly-owned thrift subsidiary was placed in receivership.

Issue
Government Breach of Contract - B24 Bombers / Environmental Cleanup
Level of Court
US Court of Appeals - Federal Circuit

Overview We successfully represented Ford Motor Company in a breach of contract suit against the United States arising from a World War II contract for the manufacture of B-24 Liberation Bombers. Ford sought to recover the environmental cleanup costs it has incurred in connection with Ford’s performance of the cost-plus-a-fixed-fee contract. The Federal Circuit reversed the trial court and ruled in Ford’s favor.