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EDITORIAL REVIEW In a complex class action pending for years, this top trial lawyer was hired 6 days before trial to defend William Penn Life Insurance against a $ 108M claim – and won a unanimous jury verdict. — Lawdragon,
January 2008
Watch out for clever Carmody, who wrangled $61 million from an oil company for failure to pay contractors. — Lawdragon,
February 2007
Equally adept at finding the key to seven-figure success on offense and defense. — Lawdragon,
October 2006
VISITOR RATINGS (on a scale of 1 to 10 with 10 being best)
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bcarmody@susmangodfrey.com
www.susmangodfrey.com/Bill_Carmody New York, NY Tel: 212-336-8334 Fax: 212-336-8340 Dallas, TX Tel: 214-754-1984 Fax: 214-754-1933 Admitted in New York and Texas Education
CARMODY'S COMPETITIVE EDGE Before being recruited by Susman Godfrey, Carmody ran his own trial firm in Dallas, Texas, making his reputation first as a successful plaintiffs’ lawyer then becoming equally accomplished representing defendants as well. It was in his own firm that he found his forté, the so-called "bet your company" case — the kind that can mean the difference between the life and death of a business. Today’s “bet your company” cases typically involve a variety of interrelated issues. Working under the broad umbrella of complex business litigation, Bill has handled a wide variety of cases including commercial and securities fraud, antitrust, fatal and catastrophic injuries (including airplane crashes), oil and gas, trade secrets and patent infringement. Everybody hates to lose, but Carmody loves trying lawsuits almost as much as he loves to win. Whether he is representing plaintiffs or defendants, his work is defined by one credo: Expect the Unexpected. Most lawsuits are tried the same old way. But Carmody's career has been defined by his success in treading a different path. Unlike many lawyers caught in the habit of traditional "lawyer think," Bill’s creativity often provides the margin of victory. This creativity gives him maximum flexibility in analyzing and presenting the case. Consider these case briefs: EIGHT SELECTED CASE BRIEFS 1 of 8 Worth Every Penny In a huge defense victory, Carmody orchestrated events outside the lawsuit to defeat a local hero in his hometown court. Carmody’s client, a Dallas investment brokerage, got sued for over $50 million. A loss was sure to break the company. The plaintiff was a “big fish” businessman who had sued Bill’s client in his “small pond,” the little town of Rockport, Texas. The case stood second on the trial docket. If the first case went as set, Carmody’s case would be bumped for months. A postponement could have cost the brokerage an advantage it had gained during discovery: although Carmody had deposed all of the opponent’s experts, he had shielded his client’s key expert from deposition. So, the opposition was ill prepared for the expert’s trial testimony. If the case was reset, the opposition would be able to depose the expert and erase their disadvantage. To prevent this, Bill took the unprecedented step of brokering a deal in which his client funded a $180,000 settlement of the first case on the docket. This enabled Carmody’s case to be tried while the brokerage still had the edge. Bill and his client did go to trial and won a resounding take-nothing judgment – and jury debriefing confirmed the deciding role of the key expert’s testimony. The brokerage also won its counterclaim of almost $700,000. Despite the plaintiff’s vigorous attempts to overturn the take-nothing judgment, this remarkable victory withstood appellate scrutiny – it was affirmed by both the Corpus Christi Court of Appeals and the Texas Supreme Court. Wowed with Carmody’s results throughout the trial and appellate process, the company’s CEO remarked “I’ve dealt with lots of lawyers and, by far, Bill Carmody is the best I’ve ever seen.” Bill Woodruff, CEO, Wm. K. Woodruff and Co., Dallas, Texas. For media coverage of the brokered settlement, see National Law Journal, February 2, 1998, “Two Texas Litigators Leapfrog to Trial Win.” 2 of 8 David Beats Goliath By uncovering evidence of commercial fraud, Carmody helped a small contractor conquer a mult-national conglomerate. This “David v. Goliath” scenario pitted Carmody’s plaintiff client against one of the world’s largest oil companies. The case centered around the defendant’s refusal to pay for refinery construction work performed by the plaintiff in El Paso. But Bill capitalized on then-favorable venue rules to hold the case more than 800 miles away, in Beaumont – where the oil company had recently laid off hundreds of workers. The case was originally viewed only as a million-dollar breach of contract claim; however, Carmody identified a claim that the company’s previous lawyers missed. The argument was novel: the defendant’s false assurances of safe working conditions constituted fraudulent misrepresentations. After an arduous 2-month trial – featuring a paperless, multi-media presentation, complete with an in-court, full-size model of a quarter section of a crude oil tower – the jury found that the oil company committed fraud and awarded Bill’s client over $61 million. To cash in on this big verdict, Bill quickly negotiated a substantial confidential settlement on behalf of his client. The client’s reaction to this happy ending? “Any firm can supply lots of bodies. I’d rather have just one brain like Bill Carmody’s.” Jerry Strickland, CEO, AltairStrickland, Inc., Houston, Texas. See, National Law Journal, February 10, 1997, “The Big Numbers of 1996” and Dallas Business Journal, January 17-23, 1997, “Carmody Firm May be Tiny, but Judgment was Mighty.” 3 of 8 Avoiding The Crush In some cases, an innovative trial lawyer may be the only thing that can keep momentum from crushing his client. The world’s then-largest recycler of aluminum found this out the hard way. When the recycler was sued for negligence by an employee injured in a fire at one of its plants, things looked bad. When the recycler then got tagged with a $4 million adverse judgment in the case, things looked even worse. When the recycler’s umbrella insurance company sought a declaratory judgment that it did not have to cover the judgment because it had not received timely notice of the negligence suit, things looked downright bleak. If momentum was not reversed fast, the recycler would be crushed like an old tin can and left on the scrap heap. The recycler replaced its counsel and hired Carmody to dig it out of this $4 million hole. One big problem – the company had in fact given its umbrella carrier only 18 hours notice of the negligence suit. Carmody developed two creative theories to get around this potentially devastating fact. First, he argued that the recycler had fulfilled the umbrella policy’s notice provision by giving timely notice of the negligence suit to its own insurance agent. Devising a fresh use of the theory of dual agency, Bill established that notice to the recycler’s agent served as notice to the insurance company as well – because the insurance agent was effectively an agent for both the recycler and the umbrella carrier. Second, pointing to the insurer’s participation in settlement talks of the underlying suit, Bill proved that, even if the insurer had not received timely notice, it had not been prejudiced by this fact. The jury found for Carmody’s client on all counts and the court granted the recycler complete relief. Soon afterward, the case settled on appeal with the insurer paying the entire underlying $4 million judgment and paying the recycler over $600,000 in attorneys’ fees. The momentum had not only turned but had carried Bill’s client to victory. Don Ingram, then CEO and Chairman of IMCO Recycling, summed up his impressions: “When litigation is threatening your company’s bottom line, hiring Bill Carmody is the best business decision you can make.” See, Verdict Search Commercial Litigation, July 2004, p. 19. 4 of 8 Know Thy Jury A case in which he sued a large steel company on behalf of one of its former employees thrust Carmody into the national spotlight as a leader in the use of mock trials. The steel company fired Bill’s client, branding him a thief. But Bill discovered that the defendant had based the firing on the dubious word of an unreliable third party – without verifying the accusations or giving its 15-year employee any chance to tell his side of the story. Although employee discharges are not uncommon, Carmody honed in on the inherent unfairness of this unceremonious axing. Then, to test the impact of the company’s wrongdoings, he tried the case to a mock jury. At the same time Bill was preparing this slander case, the nation’s eyes were focused on another big case – the O.J. Simpson murder trial. Recognizing that the jury was the key unpredictable factor in the Simpson case, the media was focusing its attention on juries and what makes them tick. ABC News, having heard of Carmody’s extensive use of mock trials, dispatched a film crew to Dallas, to capture his mock trial of the steel company case. ABC filmed not only Carmody’s presentation of the evidence to the mock jurors, but also the mock jury’s deliberations. These deliberations underscored the defendant’s significant exposure. The mock jurors not only heavily favored Carmody’s client, but also agreed that his damages were enormous. When probed for advice for the steel company, the mock jurors replied in unison: “Settle!” At a court-ordered mediation on the eve of trial, Bill played the tape of the mock jurors’ reactions for the steel company’s representatives and attorneys. The mock jurors’ message rang loud and clear, and Bill’s client received a handsome settlement. The client recalls how Bill Carmody “took a case that everyone told me was a loser and found a way to win – and win big.” Harold Franklin, Dallas, Texas. 5 of 8 Faster Than A Speeding Fiber-Optic Transmission OK, so maybe he can’t outrace bullets or leap tall buildings in a single bound but, when a rift between the “money man” and the “idea man” of a North Dallas high-tech company turned ugly, Carmody fought and won an uphill battle to defend his client. Bill represented the funding partner of a fiber-optics company, fighting against the majority shareholder and inventor of the patented technology that was the basis of the company’s business. Anticipating that the opponent was about to sue his client in state court for wrongful termination and misappropriation of the patents, Bill gained a strategic advantage by firing the first shot: he filed an arbitration claim of fraudulent misrepresentation against the inventor. This effectively turned his “defense” client into the plaintiff and put the opponent on the defensive. Then it was time to go into high gear. Under the arbitration rules, Carmody had only 45 days to get trial-ready. “Getting ready” included:
Thriving under this “crunch time” pressure, Carmody pulled out a great result for his client. After a 2-week trial, the arbitrator ordered the opponent to sell his 44% ownership stake in the company to Bill’s client for only $1.1 million. This forced sale gave the client full ownership of the company and all its technology. Carmody then got the opponent’s state court case dismissed on the grounds that all those claims were subject to the arbitrator’s ruling. Only eight months later, the company was valued at over $508 million. Not a bad return on investment. See, Dallas Business Journal, August 4-10, 2000, “Who Got The Ventures/Angels Money.” 6 of 8 Class Warfare In some cases, certain pre-trial battles are so crucial that their outcome will determine which party walks away happy. In such a case, Carmody and his partners represented the plaintiffs, a multi-state group of gas production royalty interest owners. The plaintiff class alleged that one of the world’s leading oil and gas companies had underpaid them royalties on gas production by charging improper deductions for production-related costs. After Susman Godfrey and their Oklahoma counsel obtained class certification in a hotly-contested five-day hearing, one key pre-trial issue loomed over the case – choice of law. Knowing that Oklahoma law would be the most favorable to their clients’ claim, Bill and his co-counsel urged the court to apply the law of that state to the case. The oil company argued for the application of the law of each sub-class state, which would severely diminish many of the plaintiffs’ claims. The choice of law question was a sticky one. The prevailing position supported the oil company’s arguments. Carmody’s team argued that the court should apply the law of the state in which the underpayment of royalties had actually occurred. This was a progressive torts principle that had never previously been adopted in Oklahoma in a contract case. Bill and his colleagues took 30 depositions to uncover the evidence they needed – the oil company’s alleged improper accounting practices and unlawful charges stemmed from activities in Tulsa, Oklahoma. Then, in consultation with the top choice-of-law experts in the country, Carmody’s group filed persuasive briefing showing the court why Oklahoma law should be applied. Shortly before the choice-of-law hearing was to be held, the oil company – knowing a ruling applying Oklahoma law would destroy their bargaining position – agreed to a settlement with the plaintiffs that was much larger than had previously been garnered in most cases of this type. Under the terms of the settlement agreement, the oil company paid the plaintiffs’ class a net of $40 million – enough to reward each individual class member handsomely. War may be hell but, with the right lawyers conducting the battles, the spoils can be heavenly. See, e.g., The Daily Oklahoman, November 23, 2004, “Notice of Settlement.” 7 of 8 Fight Fire With Fire Having made his reputation by employing aggressive plaintiffs’ lawyer tactics, Bill has shown himself to be a “go-to guy” for defendants facing just such tactics. When one of the Southwest’s largest health care systems was sued by a plaintiffs’ lawyer notorious for reaping high-dollar recoveries from corporate defendants, it knew it needed a change of its usual strategy. The plaintiff class claimed the non-profit health care system had violated its federal tax exemption by unlawfully charging uninsured patients more than the insured. In a rare move, the health care system decided to by-pass its usual outside defense counsel. Following the ancient battle philosophy “know thy enemy”, the company hired Carmody who spent years mastering the same strategies as the plaintiff’s counsel the client was facing. As the client’s then-general counsel put it: “Are we sending a message? Absolutely, and there are no white flags attached to it.” Step one of Carmody’s treatment plan – defeat the plaintiffs’ motion to have the class action consolidated with others into a Multi-District Litigation (MDL). If the case became an MDL, it could become a slow-moving morass of litigation, tying up even more of the client’s time and money. Bill then moved to Step Two of the treatment – total eradication. Carmody’s team persuaded the federal court to dismiss the case with prejudice. This door-slamming result made any “relapse” of this case highly unlikely. The final diagnosis? The company remains thrilled with the results of its use of Carmody’s alternative medicine. John Thomas, General Counsel for Baylor Health Care System at the time, put it simply: “We needed bold, innovative action – that’s what we got with Bill Carmody.” See, Dallas Morning News, August 23, 2004, “Are Higher Fees for Uninsured Fair?” 8 of 8 Better Late Than Never In a perfect world, a lawyer would always have unlimited time and resources to prepare for trial. But the world is not perfect and, often, time is not on your side. In a recent case, Carmody demonstrated the efficiency and guts required to take over and win big at the eleventh hour. The case arose when a life insurance company was sued in a class action case by 25,000 of its policyholders. The plaintiff class alleged that the insurer had breached the terms of its policies, causing the plaintiffs to be overcharged for their insurance. The class sought $108 million in damages. In this bet-your-company case, a loss could have wiped out the company’s net worth – and forced a shut down. The case had been pending for five years, as the insurance company was represented by a large, full- service law firm. But with the make-or-break trial looming, the insurance company decided it needed a proven trial lawyer – someone who made his reputation in the courtroom. So, just 6 days before trial, the insurer asked Carmody to try the case. Carmody quickly learned the case cold, devised the trial strategy, and presented the case during an eight-day jury trial. The jury quickly and unanimously delivered a complete defense verdict. Given a new lease on life, the company heaved a sigh of relief and its General Counsel praised Carmody’s command: “Just six days before trial, most lawyers would have refused to take the case. But Bill Carmody thought of, and seized upon, every tactical advantage. Bill was a clutch performer who won us an incredible victory.” Bryan R. Newcombe, General Counsel, Legal & General America, Inc., Rockville, Maryland. See, The American Lawyer, Sept. 2007, Big Suits, “Beller et al. v. William Penn." REPRESENTATIVE PLAINTIFFS' CASES Carmody’s record of success has been built on both sides of the bar, with cases covering a wide variety of subject matters. Some of his plaintiffs’ cases include:
REPRESENTATIVE DEFENDANTS' CASES Although many know Carmody as a successful plaintiffs' lawyer, much of his work is done on behalf of defendants. SOme of his significant defense cases include:
TRIAL REFERENCES It's one thing to just read about the way Bill Carmody tries a case. But the best proof of his unique approach comes from talking to people who have actually seen Carmody at work. The following people (not aligned according to case) are clients who hired Carmody to represent them, attorneys who tried a case with or against him, and judges who presided over one of Carmody's trials. All are willing to speak with you about Bill Carmody's efficacy in the courtroom.
by William Carmody
LAWDRAGON NEWS
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