Commercial Litigation

RKC’s Commercial Litigation attorneys handle a wide range of cases, both locally, regionally, and nationally. We represent a broad spectrum of clients, ranging from local business owners to Fortune 500 companies in the areas of class actions, consumer litigation, intellectual property and other commercial disputes. Our considerable litigation and trial experience includes handling cases in the areas of antitrust, trademark and copyright, contract disputes, construction, and general business tort cases.

Banking and Financial Institutions Litigation

Banks and other financial institutions face a dizzying array of legal and regulatory requirements that affect their daily decisions in all areas of operation. The financial crisis provoked new legislation and so many changes that virtually every aspect of banking is now under the microscope. We work with banks, special servicers and other financial institutions in legal matters including commercial litigation, collections, labor and employment, special/problem asset (loan) remediation, and commercial and multi-family foreclosures in Florida and Alabama.

Litigation

  • Class actions
  • Deposit, Payment Systems
  • Lending/lender liability
  • Trust
  • Commercial litigation
  • Consumer litigation, including FCRA, FACTA, FDCPA, TILA, ECOA
  • Vendor issues
  • IP license/infringement matters
  • Prevention (employee education, customer dispute resolution)
  • Management (assistance in establishing/monitoring litigation reserves; management of out-of-state litigation)

E-Discovery/Document Retention

  • Develop/implement compliance policies
  • Manage response to document requests/subpoenas

Commercial Foreclosure/Problem Loan Remediation

  • Foreclose commercial property
  • Receivership
  • Forbearance/modification
  • Deficiency/recovery litigation

Response to Regulatory Inquiry

  • Immediate response/interface with regulatory authorities seeking information and documents
  • Conduct internal investigations
  • Identify/preserve evidence
  • Structure/negotiate resolution

Collections

  • Federal and Florida Unfair Debt Collections Act
  • Federal and Florida Consumer Collections Acts

RKC attorneys have experience tracking down and seizing assets to satisfy judgments. We provide services in commercial collections. Much of this work is repetitive in nature, allowing RKC to collect accounts receivable in a cost-effective, efficient manner. We try to resolve many cases through an enforceable payment plan filed with the court. When such resolution is not possible, RKC attorneys aggressively pursue judgments through litigation and enforce those judgments through garnishments and levies.

  • Represented one of the nation's largest banking institutions in the pursuit of injunctions to terminate the activities of a fraudulent arbitration service. The "arbitration service" offered itself as a means of allowing debtors to evade their obligations.
  • Represented a major Southeastern banking institution in the defense of lawsuits arising out of mortgage loan disputes.
  • A respected Midwestern bank retained RKC to serve as local counsel in litigation brought by over 100 IRA investors, victims of a fraudulent pyramid scheme perpetrated by a now-incarcerated business owner. The victims invested in the fraudulent business through IRAs, for which the bank was mere custodian.

Bankruptcy and Restructuring

Rumberger's Bankruptcy and Restructuring Group provides a broad range of business advisory and crisis management services. We have extensive experience in bankruptcy and insolvency matters and the skills, to navigate clients through the turmoil of situations involving financially-troubled companies.   In providing these services, we act for a wide range of clients, including debtors, secured and unsecured creditors, bondholders, investors, boards of directors, and creditors' committees in complex corporate restructuring, workout and bankruptcy planning, negotiation and litigation.

In addition, we regularly draw upon and benefit from the experience of other lawyers in securities, litigation, environmental and employment law. This comprehensive approach to solving problems that arise in dealing with troubled businesses allows us to skillfully address the wide range of issues that develop when restructuring the assets and liabilities of troubled businesses and protecting clients dealing with troubled companies.

Typical engagements include:

  • Representing debtors, committees, and major creditors in Chapter 11 cases
  • Acquiring companies through Chapter 11
  • Representing secured creditors in bankruptcy, restructuring or foreclosure processes
  • Negotiating and litigating the terms of debtor-in-possession financing, use of cash collateral, adequate protection, and relief from automatic stay 
  • Participating in the Chapter 11 Plan process, including drafting and confirming debtors’ and creditors' Chapter 11 plans
  • Prosecuting or defending fraudulent transfer and preference actions as well as equitable subordination actions
  • Representing plan or liquidating trustees
  • Establishing, negotiating, and litigating breach of fiduciary duty and other D & O claims, and preference, fraudulent conveyance, and other avoidance actions
  • Participation in the § 363 sales, including negotiating bidding and auction procedures
  • Out-of-court debt restructuring, workouts and wind downs
  • Dealing with problem real estate loans and commercial leases
  • Foreclosures
  • Additionally, our Creditor Committee representation is able to advise the committee on all matters pertinent to Chapter 11 proceedings, including, among other things: (i) the debtor's ability to sell substantially all of its assets with expedited notice, (ii) a debtor's financing and restructuring strategy, (iii) the validity and/or extent of secured creditors' liens and claims, (iv) valuation and solvency of a debtor and/or its assets, (v) the validity and prosecution of potential bankruptcy and non-bankruptcy related causes of action, and (vi) the most effective and efficient means of maximizing value for unsecured creditors. 

Recent notable engagements:

  • Represented the Debtor in In re Franklin Pharmacy, LLC (Bankr. N.D. Ala. 2014)
  • Represented Equipment Lessor in In re: Adams Produce (Bankr. N. D. Ala. 2013)
  • Represented the Official Committee of Unsecured Creditors in Belle Foods, LLC (Bankr. N.D. Ala. 2013)
  • Represented Equipment Lessor in In re: Chordus, Inc. (Bankr. N.D. Ala. 2013)
  • Represented the Official Committee of Retired Employees of Eastman Kodak Company (Bankr. S.D.N.Y. 2012)
  • Represented the DIP lender and stalking horse bidder in GTM Energy Partners (Bankr. N.D. Ala. 2011)Represented the Official Committee of Unsecured Creditors of Moore Handley, LLC (Bankr. N.D. Ala. 2009)Represented the Post-Petition Lenders in Colonial BancGroup, Inc. (Bankr. M.D. Ala. 2009)
  • Represented the Debtor in In re: City of Prichard, Alabama (Bankr. S.D. Ala. 2009)
  • Represented various landlords in In re: Brunos, Inc.; BFW Liquidation, LLC (Bankr. N.D. Ala. 2009)
  • Represented the Official Committee of Unsecured Creditors of Green River Biodiesel (Bankr. N.D. Ala. 2008) and the Liquidating Trustee subsequently appointed through the Plan 
  • Represented Secured Lender in In re: Bill Heard Enterprises, Inc. (Bankr. N.D. Ala. 2008)
  • Represented Secured Creditor and DIP Lender in Levitt & Sons, LLC (Bankr. S.D. Fla. 2007)
  • Represented Lead Secured Lender in In re: Citation Corporation and its subsidiaries (Bankr. N.D. Ala. 2007 & 2004)
  • Represented the Debtor in In re: Carlton Cove, Inc. (Bankr. N.D. Ala. 2006)
  • Represented the Official Committee of Retired Employees in Solutia, Inc. (Bankr. S.D.N.Y. 2003)

Real Estate Services

RKC’s real estate practice group has extensive experience representing clients in a wide range of real estate matters. We represent land owners, developers, contractors, subcontractors, vendors, title insurance companies, investors, brokers, agents, landlords, tenants, tax sale purchasers, and many others.

Every matter is different. We parse out the specific material issues involved and tailor creative solutions to resolve every issue in our clients’ best interests. We make every effort possible to resolve disputes in the most practical, efficient, and effective means possible. We routinely utilize settlement negotiations, mediations, arbitrations, and others alternative means of resolution to avoid litigation. Nonetheless, when litigation is necessary, our experienced team of lawyers is there to guide our clients through the process. Our team practices in both state and federal courts.

RKC’s real estate practice group also has substantial experience in appellate practice. If litigation is required to resolve a dispute, we are mindful of the need to build a record at the trial level to support or defend an appeal.

Real Estate Litigation

We represent all types of clients, from individuals to publicly traded companies, involved in a variety of general real estate matters including adverse possession, boundary disputes, condominiums, contracts, conveyances, easements, ejectment, engineering, foreclosures, home owner associations, liens, leasing, mortgages, nuisance, partitions, property management, quiet title, sales for division, slander of title, surveys, tax sales, trespass, unlawful detainer, water rights, and many others.  

Title Insurance

RKC’s team of real estate attorneys has extensive experience in title insurance coverage, claims, litigation, and appeals. We routinely represent title insurance companies in direct actions filed by insured owners or lenders. We are frequently retained by title insurance companies to represent insured owners or lenders to initiate curative litigation or defend suits seeking to frustrate the existence or priority of the property interest as insured. 

Eminent Domain / Condemnation

Private lands continue to be converted to public uses. We take pride in ensuring that landowners’ constitutional rights are protected and that they receive fair compensation for the loss of their property. Our real estate attorneys also have experience condemning property for those who are vested with the power of eminent domain. 

Land Use and Zoning

Our firm routinely works with companies and individuals in matters involving affordable housing, covenants and restrictions, permits, zoning, subdivisions, variances, and wetlands.

Contract Review and Commercial Transactions

We advise clients on a wide range of commercial real estate transactions. Our services include drafting or reviewing commercial sales contracts, leases, easements, and covenants.

Construction and Development

In addition to the services provided by RKC’s Construction Litigation Group, our real estate group offers a wide variety of services to developers and construction companies. We represent developers during real estate acquisition, subdivisions, land use, zoning, covenants, permitting, variances, liens, and environmental issues. We also advise builders and construction companies on owner and subcontractor contract negotiation and review, licensure, and liens.

Class Actions

RKC has an extensive class action practice in a variety of areas including consumer litigation, product liability, construction, banking and insurance law. These type of claims often result in class actions which pose significant exposure and expense to our clients regardless of the merits. In the area of consumer litigation, RKC has had substantial responsibility on a number of leading class action cases in federal and state courts, and under the American Arbitration Association Class Action Rules. Our attorneys have been successful in emphasizing due process considerations involved in class actions, as well as the difficulties of proof relating to causation and fact of injury. In our general litigation of consumer claims, the firm has been responsible for some of the more significant cases restricting the types of damages that are recoverable under the Florida Unfair and Deceptive Trade Practices Act, as well as imposing strict requirements of causation in order to establish violations.

Representative Class Action Cases:

  • RKC represented a major foreign automobile manufacturer and its American subsidiary in a putative, nationwide class action in the Southern District of Florida. The putative class representatives, represented by well-known plaintiffs' class action lawyers, alleged that components of the braking system installed on particular vehicles suffered from defects that caused the vehicle’s brake pads and rotors to wear out prematurely and need replacing every 7,500 to 15,000 miles. The suit alleged, among other claims, FDUTPA violations and breach of written warranties. RKC, working with the manufacturer's national coordinating counsel, secured dismissal of the case at the pleadings stage by showing that the bulk of the claims were time-barred by valid warranty limitations. Further, RKC helped thwart plaintiffs' efforts to circumvent these warranty limitations by demonstrating for the court that key elements of each claim were missing.
  • RKC has handled several securities class actions for one of the largest banks in the country, obtaining a voluntary dismissal of one after invoking the Securities Litigation Uniform Standards Act, and favorably settling another with a vigorous demonstration that the underlying investments were not securities at all. We also handled a consumer class action under Florida's Consumer Collection Practices Act, facilitating a favorable settlement based on effective challenges to the underlying merits of the claims.
  • RKC resolved a federal class action against a Fortune 500 company based on the Telephone Consumer Protection Act. Although the estimate total exposure ranged in the multi-millions of dollars, RKC was able to settle with the main plaintiff for a nominal amount before the class was certified. The case was dismissed with prejudice.
  • Appointed by U.S. District Court Judge Eldon Fallon to be national lead counsel for of the contractors involved in the Chinese Drywall Multidistrict litigation. The Chinese Drywall MDL involved claims concerning allegedly defective drywall, sold and installed in tens of thousands of homes around the United States, against over 1,000 defendants. Numerous classes of plaintiffs were established based on the distribution chain of the product and each type of defendant in the distribution chain was separated into a distinct class, one of which was the contractors that installed the product. RKC was lead counsel for the contractor class.
  • The firm also represents major insurance companies in class actions involving important issues concerning the legality of certain insurance practices or the meaning of critical provisions of insurance policies. We have been successful in preemptively dismissing numerous class actions by prevailing on standing issues or establishing as a threshold matter that the class representative’s claims do not state a cause of action.
  • RKC was successful in defeating class action certification in California for a national client by focusing the court’s attention on the untimeliness of Plaintiff’s motion to certify the putative class. In a related case, RKC was involved in defeating the class claim by forcing individualized arbitration.
  • In Arkansas, RKC was involved in defeating a class claim by showing the class representative’s claims were barred by the statute of limitations, making the class-representative and insufficient representative of the class.
  • RKC was also involved defeating a statewide class arbitration action by defeating the class-representative’s claims on the same ground, as well as showing that the individual issues associated with each class member’s claims would make the class process unmanageable. Once class certification is defeated many plaintiffs simply abandon their claims or reduce their demands to a reasonable amount. These claims have also included multi-million dollar claims under the AAA’s class action rules, Regardless, RKC is prepared to defend the client with creative strategies that challenge the Plaintiffs’ legal theories on every legitimate grounds while simultaneously aggressively developing a strong factual record to attack not only liability issues, but standing, causation and damages.
  • RKC defended with co-counsel a national banking institution in a class action which attacked the bank's method of prioritizing deposits, alleging that the order of customers' transactions were manipulated to produce the maximum amount of overdraft fees. After preliminary discovery, on the bank's motion to dismiss the class allegations, the court held that class action treatment was inappropriate, finding that the claims of the putative class lacked commonality and typicality, and that the damages allegedly sustained by the putative members were incapable of class proof. In light of this ruling, the lawsuit was voluntarily dismissed by the class representative.

Securities Litigation

RKC lawyers have extensive experience representing public and private companies, the directors and executive officers, in a wide variety of securities related litigation.

Shareholder Actions

Companies and their officers and directors frequently are named as defendants in federal securities class actions, shareholder derivative actions and other circumstances involving the public or private sale of securities. Oftentimes in these matters, counsel must manage the defense of several cases arising out of the same facts as well as coordinate with co-counsel, experts and D&O insurance carriers to efficiently and effectively guide clients through a maze of sometimes conflicting laws and processes. Many of these cases are “bet the company” litigation requiring the highest degree of skill and experience to handle successfully. In the case of individual directors and officers, personal assets and reputation are often at stake.

Representative matters include:
  • Representing executive officers of a $12.5 billion Savings & Loan in a federal securities class action; Representing an executive officer of a mortgage servicing company in a federal securities class action;
  • Representing a securities broker dealer in a federal class action concerning the charging of handling fees in connection with securities transactions;
  • Representing a national restaurant chain and its directors in a shareholder suit seeking to invalidate a $20 million financing through the sale of preferred stock;
  • Representing an online seller of jewelry in a state securities class action concerning stock sold in an IPO.  

Regulatory Actions

Shareholders suits, periodic filings, audit issues, corporate governance suits and other adverse public disclosures often spawn investigations and/or enforcement actions by regulators of publicly traded companies, including the Securities and Exchange Commission (“SEC”) and Financial Industry Regulatory Authority (“FINRA”). Many times these cases proceed parallel to shareholder suits or other related litigation. RKC lawyers have substantial experience defending public companies and their directors and officers in such regulatory investigations and enforcement proceedings.

Representative matters include:
  • Represented an executive officer of a public holding company of a bank in an SEC investigation;
  • Represented executive officers of a public holding company of a PEO company in an SEC investigation and subsequent enforcement action;
  • Represented an internet security company in an SEC investigation and subsequent enforcement action;
  • Represented executive officers of a public food processing company in an SEC investigation and subsequent enforcement actions.

Corporate Investigations and Litigation

RKC lawyers have been retained by boards of directors, audit committees, litigation committees and others to conduct internal corporate investigations in anticipation of litigation, and/or to represent the company and/or its directors and officers in a variety of corporate issues. These may range from merger and acquisition litigation, audit related issues and corporate governance matters to defense of directors and officers in adversary cases brought by bankruptcy trustees or creditors committees. 

Representative matters include:
  • Conducted an internal investigation for a public company audit committee in connection with a revenue recognition issue that resulted in the resignation of the company’s auditors;
  • Conducted an internal investigation for a bank regarding possible money laundering in a connection with a customer’s real estate investments;
  • Represented the company and board of directors in defense of a RICO claim arising out of the provision of fraudulent letters of credit as collateral;
  • Represented the board of directors of a medical device company in a bankruptcy trustee adversary proceeding for breach of fiduciary duty;
  • Represented the CFO of a bank holding company in a creditors committee suit for negligence, breach of fiduciary duty and fraudulent transfers.

Consumer Litigation

Florida’s Deceptive Unfair Trade Practices Act (“FDUTPA”), also known as the “Florida Little FTC Act”, presents unique challenges in consumer litigation. Rumberger, Kirk & Caldwell attorneys have written and lectured in the areas of the FDUTPA, and have formerly worked for federal and state consumer protection agencies. When assigned a consumer case, RKC strives to clearly understand the business objectives of the client and develop a cost effective plan tailored to meet those objectives.

FDUTPA allows claimants to recover “actual damages” and attorney’s fees and costs for even a single act or practice which is “deceptive,” “unfair,” “unconscionable,” or an unfair method of competition. Unlike many states, the Little FTC Act does not restrict itself to claims brought by consumers. Instead, it applies to virtually all commercial relationships, unless specifically exempted. The attorney fee provision applies to the prevailing party (not Plaintiff); courts award fees only after judgment and the exhaustion of all appeals. The cases can be extraordinarily risky because of the attraction of the fee provision and the opportunity for “copy cat” cases and a Plaintiff lawyer may attempt to create a cottage industry based upon a type of case, often targeting an entire industry or a specific defendant. Early and realistic evaluations of the risk involved and potential modifications of the challenged business decisions need to be considered in a pragmatic manner. RKC typically considers potential recommendations to minimize risk in appropriate cases such as modification of contracts or business practices in a manner that does not inhibit legitimate business practices, but reduces risk. When appropriate, potential regulatory or administrative avenues are considered as solutions.

As a result, litigants often attempt to re-characterize straightforward contract-based claims into FDUTPA actions simply by characterizing conduct as “unfair” or “deceptive.” This theoretically enables parties to avoid the terms of certain contracts or warranties and obtain the leverage of the prevailing party fee provision. Litigants accomplish this by claiming non-disclosure of “material facts” or complaints about post-contract representations or performance. Additionally, the statute incorporates as a violation of the Act, any violation of FTC rules, or certain FTC policy statements, as well as, any other statutes or ordinances that proscribe unfair or deceptive conduct. Unlike tort claims, the economic loss doctrine does not bar a Little FTC Act claim, and claimants may not have to prove intent or “reliance” as an element.

RKC has extensive experience in defending such claims, including trial. Our experience in this area includes nearly every imaginable type of matter in which a FDUTPA claim might arise. As noted, many consumer actions involve what amounts to a contractual dispute that are transparent attempts to avoid the terms of the contract by asserting vague claims of unfairness or deception regarding conduct that has never previously been proscribed by controlling case law. Our clients also frequently encounter FDUTPA claims in cases involving breaches of warranty in the automotive and recreational product industries, pest control, and construction industries.

RKC has also had success in “capping” potential FDUTPA damage claims to the amount of the “diminished value” of goods or services. This includes overturning “stigma” damage awards on appeal. An advantage of such rulings is that the damages often occur at the time of sale, this triggers the statute of limitations, even if the Plaintiff was unaware of any violation. This measure of damages excludes all consequential damages.
  • RKC successfully defended class actions brought under FDUTPA, resulting in decisions which reject “bad act,” and “pattern and practice” evidence as a basis to certify class actions and emphasizing the Defendants’ due process rights to contest most allegations on a transaction by transaction basis.  
  • In the maritime context, RKC successfully defended FDUTPA claims by establishing that repairs made to a "vessel" are essentially maritime contracts.   In that regard, the courts will apply general federal maritime law to the dispute. Traditionally, claimants pair claims under the Magnuson Moss Warranty Act with counts under FDUTPA. Both acts provide for an award of attorneys' fees to the plaintiff if plaintiff prevails against the manufacturer. RKC has established that general federal maritime law preempts claims for breach of warranty brought pursuant to the Magnuson Moss and Florida Deceptive and Unfair Trade Practices Act because they conflict with the award of attorneys' fees under general federal maritime law.
  • RKC has also successfully handled FDUTPA actions in connection with lawsuits brought by Florida’s Attorney General. 
  • RKC also has substantial experience in enforcing arbitration clauses, as well as enforcing the non-joinder provision of arbitration clauses. We have successfully defeated efforts to attack arbitration agreements on a wide range of grounds, including unconscionability and alleged inconsistency with statutory remedies.
  • RKC also has substantial experience in other forms of consumer litigation, including false advertising claims, federal and state versions of debt collection statutes, as well as virtually every other consumer statute.

In addition to FDUTPA, RKC helps clients resolve conflicts under consumer protection laws including the Federal Trade Commission Act (FTC Act) and other consumer statutes from other states. Actions under these laws can pose special problems for clients, because often the civil claims under these acts implicate potential criminal violations as well as violations potentially subjecting the client to severe civil penalties. RKC is experienced in coordinating with criminal counsel in the defense of the civil related cases, while developing a strategy to resolve the civil issues as quickly as possible.

RKC has represented clients in actions involving the Federal Trade Commission, the Florida Department of Legal Affairs, the Securities and Exchange Commission (SEC), as well as enforcement agencies from other states.

  • We represented owners of a small business, which suddenly found themselves subjected to a Temporary Restraining Order and Asset Freeze imposed by the FTC in federal court. We were able to aggressively fight the actions of the FTC and push a practical resolution of the case, while coordinating with the clients’ criminal counsel to insure that the civil action did not create any additional issues on the criminal front. 
  • RKC has also represented a large national family of businesses in actions brought by the Florida attorney general under FDUTPA. RKC successfully obtained dismissal of the AG’s claims and through aggressive discovery and legal arguments, resulting in a quick and advantageous resolution.
  • RKC also represents clients when they face civil actions by private litigants under these consumer statutes. RKC represented a national client with other leading firms in several putative class-action claims brought under various state consumer statutes.

Collections

RKC attorneys have extensive experience advising and defending national and local clients on all aspects of consumer collection laws, including the federal Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act. We represent clients in both state and federal courts, including bankruptcy court and on appeal. RKC's successes have resulted in favorable opinions from both federal and state courts in Florida which have been instrumental in defining clients' rights and obligations. Our attorneys' knowledge and experience in this ever evolving area of the law combined with the firm's extensive litigation and appellate experience, make RKC uniquely qualified to guide its clients on all levels, including policy decisions, procedures and litigation strategy.

Florida is a debtor's haven, with homesteads and other devices for evading collections. RKC attorneys have experience tracking down and seizing assets to satisfy judgments. RKC provides services in commercial collections--collecting accounts receivable for businesses from their debtors. Much of this work is repetitive in nature, allowing RKC to collect accounts receivable in a cost-effective, efficient manner. While we try to resolve many cases through an enforceable payment plan filed with the court, when such resolution is not possible, RKC attorneys aggressively pursue judgments through litigation enforce those judgments through the use of garnishments and levies.

Intellectual Property Litigation

RKC attorneys have significant experience serving local, national, and international businesses in disputes and transactions related to Intellectual Property. RKC stood at the forefront of the emerging area of internet law and argued one of the landmark cases on internet jurisdiction, Cybersell v. Cybersell, (9th Cir. 1997), and continues to represent clients in domain name disputes and internet defamation.

Our attorneys also help develop and protect our clients’ intellectual property rights by:

  • evaluating intellectual property needs and assets, including providing freedom to operate, patentability, validity, infringement, and clearance opinions;
  • drafting, prosecuting, and registering copyrights, patents, and trademarks before the United States Copyright Office and the United States Patent and Trademark Office;
  • negotiating franchise, licensing, non-competition, non-disclosure, marketing, and other rights agreements to protect and leverage the company’s trade secrets, copyrights, patents, trademarks, and other proprietary assets; and
  • monitoring, mediating, and, where necessary, litigating infringement, Lanham Act, misappropriation, Uniform Trade Secrets Act, unfair competition, false advertising, defamation, cybersquatting, and other disputes regarding proprietary assets.
  • RKC attorneys also defend disputes related to intellectual property before state, federal, and administrative agencies including the Trademark Trial and Appeal Board.

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