featured cases

FBBC, along with its co-counsel, has settled a class action against Verizon Wireless, one of the largest wireless carriers in the country for over $64,000,000 on behalf of over 2,000,000 consumers nationwide.

In a hotly contested oil and gas rights case, in which FBBC was engaged after the litigation began, FBBC filed a Second Amended Complaint alleging among nine causes of action that Defendants, including the original sellers of the property, had wrongfully recorded oil and gas leases on property owned by FBBC’s client. Defendants filed a Cross-complaint against Plaintiffs, alleging that Plaintiffs’ claimed interest in the property was legally improper based on the language of a deed from the original seller of the property.  FBBC then implemented its carefully designed strategic litigation strategy which included a reasoned discovery plan. As a result of that plan FBBC was able to terminate the litigation early and in its clients favor by filing and winning a Motion for Summary Judgment. Defendants, faced with the loss of the Summary Judgment and facing trial on the issue of damages claimed by FBBC’s client, the case was settled on terms favorable to FBBC’s client which included, the deeding of all mineral rights in the property to FBBC’s client.  Experts  in  the case valued this victory to be in excess of $1.0 Billion.

Jeffrey Schulein, et al. v. Petroleum Development Corporation et al.

8:11-cv-01891-AG-AN, United States District Court, Central District of California

FBBC secures preliminary approval of a $37.5 million settlement for nationwide class of investors in lawsuit against large domestic oil company

FBBC and its co-counsel represented a nationwide class of limited partners that invested millions of dollars in limited drilling partnerships managed by PDC Energy (formerly Petroleum Development Corporation), a large, publicly traded domestic oil company. When PDC began acquiring the partnerships in 2010, purchasing the limited partners’ interests for a fraction of their true value, FBBC took action to protect the limited partners’ rights. On behalf of its clients, FBBC and its co-counsel filed a class action lawsuit in federal district court for the Central District of California for violations of federal securities laws and for breach of fiduciary duty.

From the beginning of the lawsuit, PDC fought to have the investors’ lawsuit dismissed, engaged in procedural battles involving discovery, opposed the certification of the investors’ class, and attempted to obtain a summary judgment prior to trial. Over the course of the lawsuit — which lasted more than three years — FBBC and its co-counsel devised and implemented a comprehensive strategy for overcoming PDC’s defense tactics. Because of this strategy-driven approach, FBBC and its co-counsel obtained an order compelling PDC to produce millions of pages of documents relevant to its client’s claims, prevailed in certifying the investors’ class, and defeated PDC’s attempt to obtain a judgment in its favor before trial. Ultimately, FBBC and its co-counsel obtained a $37.5 million settlement from PDC on behalf of its clients.

Diversified Lending Group Litigation

FBBC successfully recovers over $7 million dollars lost by thousands of investors in a California based Ponzi scheme

FBBC has recovered millions of dollars that individuals lost in an alleged Ponzi scheme involving Diversified Lending Group, Inc. (“DLG”). From 2004 to 2008, DLG raised more than $200 million from over 200 investors. The Securities and Exchange Commission (“SEC”) shut down DLG in March of 2009, and had a Receiver appointed to liquidate DLG’s assets. The remaining assets were insufficient to pay legitimate claims from investors. The court appointed Receiver liquidated DLG’s assets, and the individual investors received less than ten cents on the dollar in recovery from the Receiver.

Most Ponzi schemes need the help of third parties to operate, and the assistance of those third parties makes it appear that the Ponzi scheme is a legitimate business. To recover for defrauded investors, FBBC focused on solvent third parties who aided and abetted the operator of the Ponzi scheme, including accountants, attorneys, title and insurance companies.

Specifically, FBBC led a nationwide class action in 2010 for investors in DLG against Jackson National Insurance Company, in an action alleging that Jackson National had knowingly aided and abetted the sale of DLG investments in order to sell its insurance products. And, in 2012, FBBC led a lawsuit against American National Insurance Company, asserting that it, too, had aided and abetted the sale of DLG securities for its own benefit. In Galper v. Jackson National Life Ins. Co. (Los Angeles Superior Court Case No. BC454632), FBBC and its co-counsel recovered more than $6.3 million dollars for its clients. And, in Kramer v. American National Ins. Co. (Los Angeles Superior Court Case No. BC480029), FBBC and its co-counsel recovered $1.5 million in settlements for its clients.

B&B Hardware, Inc. v. Hargis Industries, Inc. et al.

FBBC Victory at Trademark Trial and Appeal Board is Focal Point of First Trademark Case in 10 years to be Decided by U.S. Supreme Court

On December 2, 2014, the United States Supreme Court (“SCOTUS”) heard oral arguments in B&B Hardware, Inc. v. Hargis Industries, Inc., et al. The case is the first trademark case in 10 years to be decided by the U.S. Supreme Court.

FBBC was hired by B&B Hardware, Inc. (“B&B”) after a jury found against B&B on its trademark infringement claims against Hargis Industries, Inc. (“Hargis”), another fastener manufacturer. Specifically, the jury found that B&B’s trademark “Sealtight” was merely descriptive and had no secondary meaning. Thereafter, Hargis sought to parlay its victory at trial and aggressively extend its rights, including an application to register its own trademark “Sealtite.” If successful, this registration would have been devastating to B&B’s business. On the eve of the close of the opposition proceeding period at the Trademark Trial and Appeal Board, B&B retained FBBC to challenge Hargis’ attempted registration. After a hotly contested trial before the Trademark Trial and Appeal Board, FBBC successfully proved that Hargis’ “Sealtite” mark was likely to be confused with B&B’s “Sealtight” mark. This resulted in the Trademark Trial and Appeal Board’s refusal to register Hargis’ claimed mark. FBBC thereafter secured “incontestable” status for B&B’s mark. Having already proved that Hargis’ claimed mark was likely to cause confusion, FBBC then filed a new trademark infringement action against Hargis in Federal District Court. The Federal District Court initially dismissed the action, claiming that B&B already had its day in court years earlier. However, based on FBBC’s earlier proof of liability (likelihood of confusion), the 8th Circuit Court of Appeal reversed the dismissal. This reversal was based both on FBBC’s successful proof of likelihood of confusion at the Trademark Trial and Appeal Board, and also its securing of incontestable status for B&B mark, which meant that the mark could no longer be challenged for mere descriptiveness. FBBC’s theory was that B&B should not be required to prove likelihood of confusion twice. Having established likelihood of confusion during the trial before the Trademark Trial and Appeals Board, B&B only needed to prove its damages in the subsequently filed infringement action before the Federal District Court.

On March 24, 2015, the U.S. Supreme Court issued its opinion on B&B Hardware, Inc. v. Hargis Industries, Inc., and held that decisions of the Trademark Trial and Appeals Board (TTAB) can have preclusive effect in subsequent litigation, if certain requirements are met. In short, the Court adopted FBBC’s view that certain proceedings before the TTAB, where the usages it adjudicates are “materially the same” as those before the district court, warrant application of issue preclusion in subsequent trademark infringement litigation (provided the ordinary elements of issue preclusion are met). For instance, proving likelihood of confusion in a TTAB opposition proceeding may obviate the need to re-prove that same issue in later litigation. Notably, however, the Court made clear that not all TTAB proceedings will qualify for issue preclusion under this standard. One size does not fit all. Indeed, district courts will have discretion to evaluate issue preclusion on a case-by-case basis. But, significantly, this decision will (or should) change the way practitioners handle TTAB proceedings. No longer can they be viewed as insignificant administrative matters, affecting only issues of registration. Rather, TTAB proceedings now have the potential of significantly affecting subsequent trademark litigation, including the all-important likelihood of confusion element. As for B&B Hardware, the decision places the company in a much better position. As a result of FBBC’s successful proof of liability against Hargis at the TTAB, B&B Hardware is now poised to return to the trial court having only to prove its damages.

The Supreme Court’s Slip Opinion can be read here

Dana Bostick v. Herbalife International of America Inc., et al.

CV 13-02488-BRO (RZx), United States District Court, Central District of California

Herbalife distributors successfully prosecute their nationwide claims to a $17.5 million settlement; FBBC secures the preliminary approval of a $17.5 million settlement for nationwide class of former Herbalife distributors

In a nationwide class action against multi-level marketing company Herbalife, Inc., FBBC led a class action on behalf of hundreds of thousands of the company’s current and former distributors, seeking compensation for what the distributors alleged were the company’s unlawful business practices. FBBC’s clients alleged that Herbalife was operating a pyramid scheme, whereby it profited from the recruitment of additional distributors and not from the sale of its products. Herbalife was defended by Jonathan Schiller of the nationally recognized firm Boies, Schiller & Flexner LLP. FBBC, along with co-counsel, designed a successful litigation strategy to weather an anticipated aggressive defense implemented by one of the nation’s largest law firms. FBBC successfully prosecuted its case on behalf of the nationwide class. FBBC secured the preliminary approval of a $17.5 million settlement on behalf of the class members, which allocated $15 million to a cash settlement and established a $2.5 million fund for the repurchase of unused Herbalife products. Herbalife also agreed to implement substantial corporate reforms as a result of the lawsuit.