Donald J. Kelly

REPRESENTATIVE MATTERS

• Commonwealth of Kentucky v. KKR & Co., L.P., et al. The firm represents Blackstone Inc., Blackstone Alternative Asset Management, L.P. and related entities in a series of derivative and direct actions brought on behalf of the Kentucky Retirement System and beneficiaries alleging breach of statutory and fiduciary duties, civil conspiracy and aiding and abetting breaches of fiduciary and statutory duties.
• Denney, et al. v. Honeywell International, Inc., et al. The firm represents Honeywell in a series of Federal and Indiana state toxic tort actions stemming from the operation of a former manufacturing facility.  Plaintiffs assert causes of action on multiple tort theories and seek personal injury and real property damage for alleged release of chlorinated solvents and other volatile organic solvents.
• American Commercial Barge Line LLC v. Louis Dreyfus Company LLC. The firm represents ACBL in a federal maritime breach of contract and declaratory judgment action over the assessment of accessorial port charges in the lower Mississippi River.
• Gibson, et al. v. Garmin International Inc., et al. The firm represents Garmin International in a series of related strict tort product liability actions stemming from a boating accident on Lake Cumberland.
• Lalita Crews v. KFC Corporation, et al. The firm represents KFC Corporation in a personal injury action pending in New York stemming from an alleged fryer malfunction.
• Uniper Global Commodities SE v. Rainer Triem, et al. The firm obtained judgments on behalf of Uniper and affiliated companies for violations of the Racketeer Influenced Corrupt Organizations Act, fraud, breach of fiduciary duty, civil conspiracy and breach of contract stemming from a coal development Joint Venture.
• Mariner Healthcare Management v. Omnicare. The firm successfully represented Mariner in a breach of contract arbitration involving a Master Pharmacy Products and Services Agreement.
• Modern Holdings, LLC, et al. v Corning Inc., et. al. The firm successfully represented Corning Incorporated in several toxic tort actions stemming from the operation of a glass manufacturing facility.  The District Court denied plaintiffs’ Motion for Class Certification.  Plaintiffs asserted causes of action on multiple tort theories and seek personal injury and real property damage for alleged release of lead, arsenic and TCE.
• Laborer’s Local #231 Pension Fund v. PharMerica Corporation, et al. The firm successfully represented PharMerica and related entities in a securities fraud class action stemming from the Company’s go-private sale in 2017.  The District Court granted defendants’ Motions to Dismiss under the Private Securities Litigation Reform Act.
• Raheel Foods v. KFC Corporation and Yum! Brands, Inc. The firm successfully defended claims brought by a former franchisee for alleged Tortious Interference with Prospective Business Advantage and Unfair Business Practices.
• RAM Engineering & Construction v. Louisville Arena Authority, et al. Bench trial awarded Judgment to RAM for violation of Kentucky Model Procurement Code requirements of good faith, fair dealing and use of commercially reasonable practices and misrepresentation by General Contractor, Mortenson Construction.
• PharMerica Corporation v. AmerisourceBergen Drug Corporation.  The firm successfully represented PharMerica in a breach of contract and declaratory judgment action involving a Prime Vendor Agreement for wholesale pharmaceuticals.
• Dow Chemical Company v. Anglers E. & C. Inc.  (U.S. District Court, S.D. Texas).  The firm represents American Commercial Lines LLC in this Superfund and Texas Solid Waste Disposal Act cost recovery action brought by other potentially responsible parties.
• Kentucky Coal Association, et al. v. TVA.  Plaintiffs asserted violations of the National Environmental Policy Act and the TVA Act based on TVA’s decision to shut down two coal fueled units at it Paradise Power Plant in Muhlenberg, KY and construct a new natural gas fueled plant.  The firm represented the plaintiffs who sought injunctive relief based upon TVA’s failure to prepare an Environmental Impact Statement prior to making its decision.
• Sullivan-Schrenk v. Sullivan University Systems, Inc., et al.  In this shareholder’s derivative and direct action suit plaintiff, as minority shareholder alleges director, officer and majority shareholder breaches of fiduciary duties, aiding and abetting and seeks injunctive relief.  The firm represents the Company and the outside directors.
• Merrick, et al v. Brown-Forman Corporation and Heaven Hill Distilleries, Inc.  The firm successfully defended class certification claims for personal and real property damage and injunctive relief for mold allegedly caused by defendants’ whiskey warehouse operations.  The putative class representatives assert causes of action for negligence, trespass and nuisance.
• Edwin G. Middleton, Jr., as Trustee, et al. v. Nancy Lampton, et al.: In this shareholder’s derivative suit plaintiffs alleged, inter alia breach of director fiduciary duties and sought injunctive relief, appointment of a Receiver and dissolution of the companies.  The firm represented three outside directors and the companies’ President.  On July 24, 2013, the court granted defendants’ motions to dismiss.
• Blessey Marine Services, Inc. v. Jeffboat LLC.  This three day jury trial in USDC New Orleans involved the terms of a contract for the sale of five barges.  A jury verdict in our client, Jeffboat’s favor was rendered on June 5, 2013.  On November 10, 2014 the U.S. Court of Appeals, Fifth Circuit affirmed the verdict in a to be published opinion, 2014 WL 5837059.
• Asher Land and Mineral v. Nami Resources Company.  This nine day jury trial in Eastern Kentucky involved claims for underpayment of gas well royalties.  Causes of action included breach of contract, fraud and negligent misrepresentation.  On [date] the Kentucky Supreme Court reversed the punitive damages award.
• Johnston Family Louisville LLC v. Kentuckiana Yacht Sales and Jefferson Yachts, Inc. This two and a half week jury trial over the purchase of a defective yacht resulted in a verdict for our client on claims of revocation of acceptance, breach of express and implied warranties, fraud and violation of the state consumer protection act. A judgment of $4,311,633 plus interest and attorneys fees was entered May 13, 2010.
• Dickens, et. al. v. Oxy Vinyls, L.P. Plaintiffs sought property damages for odors and particulates allegedly emanating from Oxy Vinyls’ facility. Class certification was denied and after discovery, the District Court granted Defendant’s Motion for Summary Judgment. Plaintiffs voluntarily dismissed their appeal.
• Bell, et. al. v. DuPont, et. al. In a similar case to Dickens, et. al. v. Oxy Vinyls, a class of over 6,000 members sought personal injury and property damages for odors and particulates allegedly emanating from a DuPont Performance Elastomers facility. The action was settled on a class basis for a “nuisance” amount by the creation of a local Scholarship Endowment Fund.
• Perconti v. Thornton Oil Corporation. Mr. Kelly was co-counsel for Thornton Oil Corporation in this suit brought by the Company’s former CEO alleging defamation, breach of contract, tortuous interference with business relationships and a variety of other business torts. The Company counterclaimed for damages arising from the former CEO’s breaches of fiduciary duty, conversion of Company funds and fraud. After a four week trial, the jury found that the former CEO had committed fraud, breached fiduciary duties and converted Company funds and awarded the Company over $2 million on the Company’s counterclaim.
• Western Farmers Electric Cooperative v. Shell Oil Corporation. This four week jury trial involved the breach of a long term coal supply agreement and the calculation of various pricing indices. During discovery, a $2 million mistake in pricing was identified and paid to our client, an Oklahoma Electric Cooperative. The jury awarded an additional $5 million, plus interest, in past pricing damages.
• Donald S. Houchens, et al. v. Rockwell International Corporation. This nine week jury trial was brought by approximately 80 plaintiffs seeking personal injury, medical monitoring and real property damages against Rockwell for the release of PCBs from a former die cast facility. Plaintiffs brought causes of action based upon strict liability, negligence, intentional and negligent trespass and nuisance. The case initially resulted in the then largest jury verdict in the state of Kentucky, but was reversed on two separate occasions by the Court of Appeals, affirmed by the Supreme Court and judgment rendered on behalf of Rockwell.
• Gregory D. Goodman, et al. v. Rockwell International Corp. Plaintiff sought personal injury and property damages against Rockwell for the release of PCBs for its former die cast facility. Plaintiffs’ causes of action were based upon strict liability, negligence, intentional and negligent trespass and nuisance. A four week jury trial resulted in a hung jury, after which the District Court granted judgment to Rockwell.
• Day v. E.I. du Pont De Nemours Company. Toxic tort suit claiming personal injuries as a result of a sulfuric acid release. Mr. Kelly was lead counsel for du Pont. After a two week trial, the jury returned a nuisance value verdict on behalf of Plaintiff, which was less than the amount offered in settlement.
• Autodie International, Inc. v. General Electric Company, arbitration. Mr. Kelly was lead outside counsel in this arbitration against GE’s then Electric Appliances division brought by the supplier of multiple major appliance manufacturing lines in KY, IN and AL. Hal Bogard was GE’s lead in-house counsel. The matter was successfully settled on the eve of trial.
• Michael J. Turner, et al. v. The Archdiocese of Louisville, et al. Mr. Kelly was lead counsel on behalf of a group of defendants in 19 lawsuits alleging sexual abuse of a minor. After a year of discovery, the cases, which had not been consolidated, were all settled in a court ordered settlement conference.

REPRESENTATIVE CLIENTS

• American Commercial Barge Line
• Blackstone Group LP
• Brunswick Corporation
• Chemours Company
• Corning Incorporated
• CSX Transportation, Inc.
• E.I. du Pont De Nemours and Company
• Garmin International
• Ingersoll-Rand Company
• Kentucky Fried Chicken Corporation
• Oxy Vinyls, L.P.
• Paducah & Louisville Railway, Inc.
• Papa John’s International, Inc.
• PharMerica Corporation
• Rockwell Automation, Inc.
• The Province of Our Lady of Consolation, Inc.
• Thorntons LLC
• Uniper Global Commodities
• Vinland Energy Company
• Volvo