Transcript of "Benesch to bauche and lomb recuced"
ABOUT OUR FIRMBenesch is a business law firm with offices in Cleveland, Columbus, Indianapolis, Philadelphia,Shanghai, White Plains and Wilmington. Benesch is dedicated to building a deep understanding ofour clients, their businesses and their industries. We develop client-focused teams to ensure firstclass legal service, view business issues from our clients perspective and assist in discovering thebest legal services to address our clients needs, drawing upon the strengths of diverse,knowledgeable and experienced lawyers. The firm services national and international clients thatinclude public and private, middle market and emerging companies as well as private equity funds,entrepreneurs, non-profit organizations, trusts and estates.The 2011 edition of The Best Lawyers in America®, which describes itself as the definitive guide tolegal excellence in the U.S. and establishes a system that ranks firms based upon the number ofattorneys selected in designated areas, named 45 Benesch attorneys as Best Lawyers in America®.Our practice areas include Business Reorganization, Commercial Finance & Banking, Corporate &Securities, China, Economic Growth & Development, Employee Benefits & Compensation, EstatePlanning & Probate, Intellectual Property, Labor & Employment, Litigation, Public Finance, PublicLaw, Real Estate & Environmental and Tax. Some of the industries the firm concentrates in includePrivate Equity, Banking, Health Care, Polymers, Transportation & Logistics, Energy & NaturalResources and Construction.Our attorneys serve as trusted counselors, advocates, and partners in all aspects of a legal orbusiness issue. We are proud of the client relationships we have developed and work hard tomaintain them. Above all else, we take a results oriented, innovative approach to practicing law andare committed to assisting our clients to achieve their goals. Firm Management Executive Committee Ira C. Kaplan, Thomas C. Washbush, Jeffrey A. Abrams James M. Hill Managing Partner Columbus Partner-in-Charge George N. Aronoff, Ira C. Kaplan James M. Hill, Raymond H. Lemisch, Ex-Officio Executive Chairman Kevin D. Margolis Delaware Partner-in-Charge John H. Banks, John H. Banks, Megan L. Mehalko Jeffrey A. Abrams, Ex-Officio Chief Operating Officer/ Indianapolis Partner-in-Charge David W. Mellott Chief Financial Officer Frank Carsonie Yanping Wang, Shanghai Thomas C. Washbush Gregg A. Eisenberg Partner-in-Charge
MERGERS & ACQUISITIONSBenesch has been assisting multinational, middle market and emerging companies in connection withcomplex public and private mergers and acquisitions as well as joint ventures for more than 50 years.We have approximately 50 attorneys and legal assistants who are devoted to this market.We counsel clients in all aspects of complex M&A transactions. The types of M&A matters in whichBenesch lawyers are engaged covers the full spectrum of negotiated and contested situations,including advance preparation/diligence for prospective targets, asset sales and purchases, mergers,corporate governance advice, joint ventures, leveraged buyouts, private equity, proxy contests,recapitalizations, stock sales and purchases and equity and debt offerings. Benesch’s high degree ofsophistication and expertise reflects the decades that our M&A lawyers have spent doing dealsdomestically and abroad. Together with our high client service standards and entrepreneurialtradition, we are able to provide advice and assistance to our clients on a cost-effective basis.Our team has completed more than 120 purchase, sale, minority investment, or joint venturetransactions in the past four years. Many of these have involved businesses where we have beeninvolved in creating the sell- or buy-side strategy in concert with the company’s financialadvisor/investment banker. We understand the importance of moving the deal forward, subject topotential regulatory constraints; each transaction has a pace to it that is important if momentum is tobe maintained and positive results achieved.As an experienced “deal shop,” Benesch adds value by understanding and addressing objectivesquickly and efficiently, thus reinforcing a virtual ongoing “best practices” system. We believe that ourability to add value in these ways distinguishes Benesch from other firms.Representative Mergers & Acquisitions ExperienceBenesch has been recognized for representing clients in notable, large and complex M&Atransactions, recent transactions include: Represented an Arizona-based provider of medical transportation services, fire protection and other safety-related services in the companys going private. Transactions included a $60 million deal in Florida as well as a $20 million deal in Colorado. Represented an Arizona-based helicopter parts manufacturer in the sale of its business to a leading global manufacturer of highly engineered bearings and alloy steels. Represented Myers Industries (a NYSE listed company and an international manufacturer of polymer products) in its $1.2 billion acquisition by GS Capital Partners, an affiliate of Goldman Sachs. While the transaction did not close due to market conditions, Myers received a substantial termination fee. Represented Myers Industries in its $250 million senior credit facility with JPMorgan Chase Bank, N.A. Represented Value Creation Partners/Best Brands, one of the largest premium bakery manufacturers in the U.S. (and controlled by three private equity firms), in the sale to an international public company with annual sales of € 2.6 billion. The acquisition price of $510 million represented a multiple of 8.5 times reported 2009 EBITDA. Represented Excel Polymers, LLC, a leading global merchant supplier of elastomeric solutions, in the sale to HEXPOL AB, a world-leading polymer materials group headquartered in Sweden, for approximately $220 million after adjustments.
Represented Dealer Tire LLC, the world’s largest distributor of tires to automobile dealers, in a recapitalization of the company involving a $150 million minority equity infusion, a $150 million mezzanine infusion and a $100 million senior term loan. Represented NCS Healthcare, Inc. in a public merger valued at $400 million following defense of a hostile tender offer launched by a large competitor. Represented Cleveland Unlimited “Revol,” a personal wireless phone service company, in a $150 million 144A high-yield debt offering, related to corporate reorganization and spectrum acquisitions. Benesch also represented Revol in the sale and leaseback of certain assets. Represented (jointly with Paul Weiss) Oak Hill Capital Partners L.P., in connection with its acquisition of Duane Reade, Inc., a NYSE listed company in a transaction valued at over $700 million. Represented WindPoint Partners LP in a consolidation in the pressure label industry of York Label which went from $0 to $250 million plus of top line revenue through a series of acquisitions in three years which was then sold to another private equity firm. Representation included a $200 million credit facility with multiple participants. Represented Altus Capital Partners the $133 million sale of Sale of Gichner Systems Group, Inc. Represented SageQuest, a GPS vehicle management solutions company, in its $36.5 million sale. Represented a manufacturer of custom clothing in an auction with bidders ranging from strategic buyers to private equity funds. Represented the owner of a consumer products and services business in a recapitalization consisting of debt and private equity. Represented Turning Technologies in the sale of membership interests to Brockway Moran & Partners in an equity recapitalization. Previously represented the company in the sale of equity interests to Talisman Capital. Represented Ricerca LLC in an equity recapitalization with Bain Capital and SV Life Sciences. Represented SageQuest in a capitalization with Hopewell Ventures and the subsequent sale of the company to FleetMatics, a portfolio company of a private equity fund. Represented the manufacturer of proprietary pharmaceuticals in a $40 million joint venture with a strategic partner. Served as health care regulatory counsel in the sale of Duane Reade to Walgreens. Represented Oakhill Capital Partners as health care counsel on several healthcare related acquisitions. Represented a consumer products distribution company in the sale of equity to TA Associates with a transaction value in excess of $150 million. Represented a private equity fund in the sale of a portfolio company to a strategic buyer for in excess of $125 million. Represented a consumer products company in a recapitalization valued in excess of $90 million. Represented a public manufacturer in the sale of business assets for in excess of $20 million. Represented an international manufacturer headquartered in Italy in an acquisition of a U.S.- based manufacturer of engineered thermoplastic products.
PRIVATE EQUITY GROUPOne of Benesch’s core competencies is the representation of private equity firms, including leveragebuyout firms, growth equity firms, mezzanine funds, and portfolio companies located bothdomestically and off shore, in the acquisition, financing, operation and ultimate disposition of theirassets and in the formation and ongoing operation of the fund itself.Dedicated to fully understanding our clients, their businesses and their industries, we develop client-focused teams. These teams ensure first class legal service and continuity of personnel, viewbusiness issues from our clients’ perspective, and assist in discovering the best legal services toaddress our clients’ needs, drawing upon the strengths of diverse, knowledgeable and experiencedlawyers.Our Private Equity Group is comprised of attorneys with individual specialties that include corporatefinance, subordinated lending, senior lending, including second lien lending, securities,recapitalizations, buyouts, mergers and acquisitions and restructuring. We have a successful trackrecord assisting investment firms in reaching their business objectives, including fund formation andmaintenance, solicitation of capital, acquisitions, management of portfolio companies, divestitures,leveraged buyouts, PIPEs, SPACS and distressed investments. In addition, we have substantialexperience taking private-equity-backed companies public, publicly-traded companies private and inthe issuance of public debt. Furthermore, we are equally conversant in representing the companyseeking an investment from or an acquisition by a private equity firm.We believe that our private equity practice is differentiated from that of our competitors because ofour focus on the middle market, our ability to represent portfolio companies post-acquisition on aresponsive and affordable basis, our CEO-centric program and our commitment of always staffingprojects with teams led by senior attorneys that are actively involved in the process.As a firm, we focus our practice on middle market companies. This allows us to provide immediatevalue to private equity clients as we recognize changing market conditions, identify potentialtransactions and proactively counsel portfolio companies in their day-to-day operations. We believethat our emphasis on middle market companies makes us a value-added partner in today’s privateequity marketplace.We offer a strong CEO-centric program, where we team successful CEOs with private equity firms tocreate industry focused transactions. We actively identify and qualify these CEOs before introducingthem into CEO-centric private equity firms. In addition, we provide an ongoing program to attractmanagers who are considering MBOs of their operating companies.Our ongoing representation of portfolio companies shows our ability to work with management andprivate equity owners in a cost effective and responsive way.Unlike many of our competitors, we staff our client matters with experienced attorneys that remainactively involved in the day-to-day decision making process. We are committed to having anexperienced partner involved on all transactions and to building a consistent service team thatdevelops a true partnership with the client. In addition, our Midwest base allows us to provide thisbenefit at a competitive rate structure.Although we have represented clients in transactions in almost every industry, we have specificexperience in the packaging, plastics, specialty chemicals, consumer products, transportation andlogistics, financial services, specialty printing, health care, communications, software, media, retailand distribution, manufacturing, and biotechnology sectors. Additionally, we have vertical industryknowledge with special practice groups for transportation and logistics (asset and non-asset based),
retail and regulated health care as to long term care, assisted living, home health, institutionalpharmacy and managed care companies.As a sophisticated player in the private equity marketplace, we know how to invest the institutionalfunds properly, how to help with ongoing governance, operational and financing issues, and ensurethe proper exit. Through a dedicated team, we get the deal done in an efficient and effective mannerwhile protecting the interests, and achieving the objectives, of our clients.Representative Funds AIG Oak Hill Capital Partners Alpha Capital Partners Oak Investments Altus Capital Partners Ohio Innovation American Capital Pinnacle Financial Partners Ares Management LLC Phoenix Capital Management Audax Group Polaris Equity Partners Beecken Petty O’Keefe & Company PNC Equity Partners Blue Point Capital Partners Prairie Capital Castle Harlan Primus Partners Centre Partners Prudential Capital Group Chicago Growth Partners Red Diamond Capital Cincinnatus Partners Reservoir Venture Partners Circle Peak Capital LLC River City Capital Columbia Capital South Franklin Street Partners Cortec Group SVP Partners Crimson Capital Partners The Riverside Company Edgewater Capital Partners T.A. Associates General Atlantic Partners Talisman Capital Partners GSC Group Thoma Bravo HSBC Capital (USA) Inc. Thoma Cressey Bravo Huron Capital Partners Triangle Capital Corporation Key Principal Partners Water Street Healthcare Partners Kirtland Capital Partners Linden William Blair Capital Partners M/C Venture Partners Wind Point Partners
Representative Subordinated Debt Funds Bank One Mezzanine Brown Brothers Harriman & Co. Huntington Capital Key Principal Partners National City Equity Partners Roynat Capital
Doing the Deal® The Benesch Private Equity Group has regional Our Private Equity Group is comprised of and national experience in representing the lawyers with experience that includes corporate unique needs of private equity funds, including finance, securities, mergers and acquisitions, leverage buyout funds, mezzanine funds, and and cross-border transactions. We have assisted venture capital funds, as well as their respective our private equity fund clients in all aspects of portfolio companies. A substantial amount of their business cycle, including formation, our business comes from outside Ohio, mainly fundraising, acquisitions, management of concentrated in the Midwest and the East Coast. portfolio companies, and divestitures. In addition, our securities practice has helped take We focus on middle market companies. This is private equity-backed companies public, as well especially beneficial to our private equity fund as their issuance of public debt. clients, as it allows us to recognize changing market conditions, identify potential We are a transaction-based practice. Our transactions, and proactively counsel portfolio lawyers know how to implement the client’s companies in their day-to-day operations. We investment decisions, how to help with ongoing believe that our emphasis on middle market governance’ add-on and financing issues, and companies with a senior partner running every how to execute the proper exit. At Benesch, we transaction and/or managing a portfolio know how to get the deal done in an efficient company ongoing relationship differentiates us and cost-effective manner, while protecting the from our competition and makes us an ideal interests of our clients. Perhaps this is why so team partner for private equity funds. We also many private equity funds trust Benesch. have a well-established CEO program that provides world class CEOs to LBO funds that are CEO-centric. Another differentiation is our industry specialization in plastics and chemicals, graphic arts, retail, consumer products, regulated healthcare and logistics.BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP 1
PRIVATE EQUITY GROUPTransactions We Have Recently Closed 1818 MEZZANINE FUNDS Sun Acquisition, LLC a Huehoco Group and All outstanding Gotec Group joint venture, membership interests acquired the assets of Investment in sold to Hudson Highland Sun Manufacturing Acquisition of ILC, Inc. Psychiatric Solutions, Inc. Group Coatings, LLC Acquisition of assets Debt and equity financing from and entry into joint Acquisition of the business Acquisition of from Brantley Partners IV, L.P., venture with Cricket of the Matrixx Group eleven long-term Phoenix Life Insurance Co., Communications, Inc. and related companies care facilities and Wells Fargo Foothill, Inc. Independent Steel Disposition by Independent Steel Investment by Acquisition of Company to Esmark Fluke Partners and Acquisition of York Tape Multi-Plan, Inc. Incorporated Benaroya Capital Label, Inc. from BCE-Emergis Talisman Capital $16 million senior debt Management, Inc. secured credit facility Acquisition of Recapitalization of from Wells Fargo North American Orthohelix Series A Turning Technologies Foothill, Inc. Health Plans Financing Acquisition of outstanding Disposition of stock of On Line Disposition to The Color Matrix Acquisition of Alternatives, Inc. and Omnicare, Inc. Corporation Duane Reade, Inc. On Line Payroll Services, Inc.BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP 2
PRIVATE EQUITY GROUP Acquisition of Debt financing in the Acquisition of the assets outstanding stock of Acquisition of assets from amount of $7.7 million of RBF, Incorporated Rand Medical Billing, Inc. Clawson Products Company Acquisition of Acquisition of Investment in Chapter 11 Business the assets of Behavioral Centers Healthcare Financings Reorganization Oil Skimmers, Inc. of America 1818 MEZZANINE FUNDS Centre Partners and Acquisition of Canadian ELS Acquisition LLC’s and U.S. operations of acquisition of ITML Horticultural Liberty Waste Services LLC Investment in Products, Inc. for (n/k/a Environmental Contribution of the All Metro Home Health $110 million Logistics Services LLC) assets of two companies $50 million minority recapitalizationBENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP 3
PRIVATE EQUITYHealth CareThe Health Care Group and the Private Equity Group of Benesch, Friedlander, Coplan & Aronoff LLPhave extensive experience representing private equity firms in their investment in the health careindustry. We have also represented health care companies and providers, including long term careproviders, institutional pharmacies, preferred provider organizations, third party administrators,psychiatric hospitals and managed care organizations. With this background, Benesch is uniquelysituated to provide representation of private equity firms in their merger and acquisition transactionsand ongoing representation of the portfolio companies in this dynamic industry.Private Equity SpecialistsThe Private Equity Group at Benesch is experienced in mergers, going private transactions,leveraged buy-outs, non-control investments, recapitalizations, tax-free reorganizations and SPACs.Benesch lawyers have been able to leverage this experience to handle private equity investments inthe health care industry.Transactional Representation. Benesch has been lead corporate and regulatory counsel as well asongoing day-to-day counsel for sellers, purchasers and investors in transactions ranging frompsychiatric clinics to chains of nursing homes. Governmental mandates, lending requirements, andfinancial realities often result in complex ownership structures that cannot be accomplished withoutthe type of thoughtful analysis and knowledgeable legal advice and documentation for which Beneschis known. Benesch has also represented mezzanine fund investors in a wide variety of investments,including nursing facilities, institutional pharmacies, psychiatric hospitals, acute care centers andhome health care providers. Benesch’s extensive history of transactional experience in the healthcare industry has involved management arrangements, lease relationships, partnership investments,asset sales, and, of course, equity infusions.Benesch is a law firm qualified to assist investors in evaluating opportunities and in structuring andexecuting private equity transactions. We know the private equity industry. We have been workingwith private equity funds since the infancy of the industry in the early 1970s. We know the market,the people and the latest financing terms and techniques. Many firms do some private equity work.We do a substantial amount of private equity work. Our legal experience, business insight, networkof contacts and knowledge of industry trends offer a compelling competitive advantage. Our goal isto provide our clients with the sophisticated advice and practical guidance needed to achievebusiness objectives. We can assist our clients in maximizing value by capitalizing on our broadunderstanding of the private capital markets and our knowledge of the industry.The private equity market is complex and competitive. Funds need a law firm that understands thecomplexities, including technical rules that affect your fund and its portfolio companies. In ourintegrated cross-discipline approach, the Private Equity Group combines knowledge of securities law,tax, ERISA and intellectual property with our firm’s health care industry experience in order to assistand support clients. Our practice allows us to offer our clients a complete understanding of the issuesand concerns on both sides of capital financing and allows us to create business relationshipsbetween company clients and investors we represent.Covering All The Bases. What sets Benesch apart from many other law firms competing in the privateequity arena is the ability to provide a holistic perspective on the challenges and intricacies of thehealth care industry based on a depth of understanding in areas ranging from health care lending,Medicare and Medicaid reimbursement, private insurance, antitrust, federal and state fraud andabuse laws, licensure, and survey and certification. Benesch’s health care clients appreciate the
ability to evaluate transactions from a health care perspective and with a knowledge of how healthcare facilities operate on a day-to-day basis. In the end, it is the familiarity with health care laws andthe business of providing long term care that insure that Benesch will remain a powerhouse in thehealth care industry for years to come. Through the Health Care Group, Benesch is familiar with thehealth care industries in which private equity funds invest and understands the potential benefits andrisks associated with investing in this industry. After assisting a private equity investor client with aninvestment in the health care industry, Benesch continues to add value by supporting and advisingthe fund in its ongoing relationship with its portfolio company by providing seamless “end-to-end”know-how.Institutional Pharmacy ProvidersInstitutional pharmacy providers face a complex and intricate web of business and regulatorychallenges. Benesch prides itself on being a leader in providing innovative solutions to theinstitutional pharmacy providers to help them confront these issues. Lawyers in our group routinelywrite and speak about these issues. Some of our experience includes:Compliance Issues. We assist clients with all types of compliance-related matters such asconducting internal investigations, drafting policies and procedures, implementing complianceprograms, and training management and sales forces. We also assist in the drafting of corporatecompliance plans for institutional pharmacy providers.Contracting and Fraud and Abuse Counseling. We counsel manufacturers on matters such asagreements with third party payors, discounting and rebate practices, consolidated billingrequirements, and handling gift and other business courtesies.Government Investigations. We assist clients in responding to criminal and civil federal and stateinvestigations on kickback issues as well as on matters arising under the False Claims Act. Anumber of the investigations we have handled have involved issues of great significance to theindustry as a whole.Pricing Counseling. We regularly counsel pharmaceutical companies facing issues related to AverageWholesale Price, class of trade pricing and Medicaid Rebates.Civil Litigation. We have represented a publicly-held institutional pharmacy provider in litigationmatters involving contracts with customers and providers, labor and employment issues, andregulatory matters.Home Health CareIn recent years, governmental and private payors have recognized that the future of elder care restsin home based services. Home health care represents an alternative to the more expensiveinstitutional care provided in nursing homes and other long term care facilities. As a result, homehealth care has received a great deal of attention from payors and investors. Benesch has, again,found itself at the cutting edge of this trend. Health care provider clients include large Medicare-certified home health chains, home and community-based service waiver recipients, large therapycompanies and others. Benesch’s familiarity with these home health segments make it an idealchoice for home health investors evaluating and pursuing investments and acquisitions in the homehealth industry.In addition to representing many providers in various segments of the home health industry, Beneschhas represented large investors in the acquisition of interests in significant home health care providerchains. Recently, Benesch represented a major equity fund in its investment in one of the largesthome health care provider chains in the Eastern United States. Benesch’s immediate on-site
diligence, analysis of operational issues and assistance with transaction documents were key toassuring the health of the target and the success of investment. Combining corporate expertise withhealth industry experience is a hallmark of Benesch’s success.Managed CareAdditionally, Benesch’s experience extends back to the beginning of the managed care industry.Benesch structured the earliest health maintenance organizations in Ohio and has been active in theindustry ever since. In recent years, there has been a proliferation and consolidation of preferredprovider organizations in response to the nation’s need for affordable health care. After representingvarious health care providers for many years, it was only natural that Benesch move to the forefront inrepresentation of preferred provider organizations as they came into existence.Transactional Experience. Benesch’s PPO representation ranges from a statewide physician networkfor a national insurer to the purchaser of a large, nationwide preferred provider network of hospitalsand other health care providers. Finance transactions handled by Benesch lawyers in the health careindustry include acquisition and consolidation of the largest preferred provider network in the country.The acquisition occurred in multiple stages as the purchaser’s equity investment was used to expandthe target network through the acquisition of other large networks.In connection with this and similar projects, Benesch advises on transaction structuring, transactionaldue diligence, and coordinating transaction arrangements with a variety of investors, sellers, lenders,and regulatory agencies. Benesch’s participation with a client goes beyond transactional guidance. Inaddition to forming entities and negotiating transaction documents, Benesch assists its clients innavigating regulatory requirements and in strategic planning which allows its clients to identify andtake advantage of opportunities for growth.Getting the Deal Done Right. The breadth of coverage of preferred provider organizations oftenrequires that counsel be able to act quickly in dealing with agencies and governmentalrepresentatives in multiple states. This is where Benesch excels. Utilizing knowledge of insuranceregulations, prompt pay laws, and the tendencies of governmental agencies, Benesch has a longtrack record of meeting client expectations when it comes to negotiating obstacles to transactions inthis heavily regulated industry. As a result, Benesch has developed a reputation among preferredprovider organizations as the firm that gets the deal done and gets it done right.Long Term CareThe commitment demonstrated by the members of the Health Care Group over the last 30 yearshave made Benesch synonymous with long term care transactions throughout the United States.A Changing Industry. Within the last 15 years, few industries have undergone more change than thelong term care industry. With each restructuring of long term care funding programs and eachfluctuation in the long term care investment environment, Benesch has led its clients with soundadvice and guidance. When the implementation of the prospective payment system (PPS) forcedinefficient nursing home operators out of business in the early 1990’s, Benesch helped the healthysurvivors identify and acquire undervalued nursing facilities. Benesch’s strong relationships withlenders also helped clients obtain financing during that uncertain time. By the late 1990’s, nursingfacilities had adjusted to PPS and were developing strategies for optimal reimbursement for services.In this environment Benesch guided many facility owners and operators through the next industryinvestment trend: nursing facility leasing. Benesch’s nursing home industry experience was utilized bysmall single-state facility groups and large multi-state chains alike in complex leasing transactions.
Representative Experience Represented a medical billing services company in its issuance of $8 million of senior unsecured promissory notes and Class D Common Stock to a private equity fund and insurance company. Raised a combined $30 million of debt and equity to fund the opening of 15-20 new pharmacies by year-end for a privately owned institutional pharmacy. Representation of a dental care provider following its $43 million acquisition by three private equity firms we represented as outside general counsel on matters including finance, acquisition of offices, employment, real estate, and four additional rounds of financing and regulatory matters in 17 states. Representation of an after market medical equipment replacement parts supplier as financing counsel on a $60 million dollar recapitalization of the $150 million business with two institutional investors buying approximately one third of the ownership. We also acted as the investment banker on the transaction and succeeded in getting a valuation for the business that was approximately 20 times projected EBITDA. We continue to serve as outside general counsel on all company matters. Representation of a contract research organization that serves the preclinical needs for several businesses including pharmaceutical companies in a $75 million financial restructuring with three private equity firms providing the capital. We also represented the client as it expanded its operations by acquiring businesses in France, Taiwan and the state of Washington. Ongoing corporate, lending and regulatory counsel of a fee for services fibromyalgia series of clinics throughout the southwest and southeast in a follow on institutional financing of $25 million and the original equity round from two institutional investors of $18 million. Representation of a medical billing business in a number of rounds of growth equity totaling $65 million of equity capital, as well as in an ongoing regulatory and general counsel capacity and a going private transaction. Recently, we represented this client in a number of rounds of institutional mezzanine debt and equity financings including a $4.5 million preferred stock, an additional $14 million in mezzanine debt and the sale of $22.3 million of senior notes. Representation of a medical transcription company in its angel rounds of investment, and as counsel in its first institutional round of capital - a minority investment of 20% of the business, which amounted to approximately $15 million dollars. We are now assisting the client in its selection of an investment banking firm to raise another $20-$30 million of capital.
BENESCH: A Powerful Player in Private Equity and Regulated Health Care The factors that make investing in We evaluate investment opportunities and regulated health care companies more identify and suggest strategies to resolve complex are the same ones that make potential regulatory issues. We structure choosing the right legal representation and execute the deal and provide ongoing so critical. representation of the portfolio companies. Benesch, Friedlander, Coplan & Benesch’s Broad Private Aronoff LLP offers the vital combination Equity Experience of private equity deal experience and regulated health care industry knowledge Benesch has been instrumental in you need when investing in health care completing hundreds of transactions for providers, payors and intermediary private equity funds involving mergers and organizations within the heavily-regulated acquisitions, recapitalizations, sales and health care industry. dispositions, and more, and in providing ongoing representation to the portfolio By integrating the industry knowledge, legal companies. Our experience in securities acumen, contact networks and know-how law, business taxation, ERISA, intellectual of our Private Equity and Regulated Health property laws and laws impacting businesses Care Practice Groups, we offer our private generally enables us to provide thoughtful equity fund clients key advantages in every analysis and wise counsel at every turn. stage of the investing process.BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP 1
Benesch’s Extensive Health and abuse and self-referral laws, licensing Care Experience and certification requirements and more. Health care is among the most heavily Our in-depth knowledge of this sector regulated industries. When investing in can help you avoid risks such as: the health care arena, it is not enough that • Significant fines and civil monetary your legal advisor knows how to do private penalties imposed by Medicare, equity deals; it’s essential that he or she also Medicaid, and other state and federal understands the comprehensive regulations regulators impacting health care company acquisitions and ongoing business operations. • Termination or suspension of relevant operating licenses or reimbursement With Benesch on your team, you get more certifications than legal knowledge—you get decades of health care industry experience. We know • Criminal indictments and investigations the issues to look for when evaluating a Capitalize on health care opportunities target company, including those involving with confidence—talk to Benesch first. Medicare/ Medicaid/third-party Call us today. reimbursement, federal and state fraud PRIVATE EQUITY FUNDS WITH WHOM WE WORK: AIG GSC Partners South Franklin Street Alpha Capital HSBC Capital (USA) Inc. Partners Altus Capital Partners Huron Capital Partners The Riverside Company American Capital Key Principal Partners Talisman Capital Partners Strategies Kirtland Capital Partners Thoma Cressey Equity Ares Management LLC Linden Partners Partners Bank One Max Capital Triangle Capital Beecken Petty Corporation MC Venture Partners O’Keefe & Company White Oak Partners National City Capital Blue Point Capital Partners William Blair Equity Oak Hill Capital Partners Brantley Partners Partners Oak Investments Castle Harlan Wind Point Partners Ohio Innovation Caxton-Iseman Pinnacle Partners SUBORDINATED DEBT Centre Partners Phoenix Capital FUNDS CID Equity Partners Pittsburgh National Capital Cincinnatus Partners Bank One Mezzanine Polaris Partners Circle Peak Capital LLC Brown Brothers PNC Equity Harriman & Co. Columbia Capital Prairie Capital Huntington Capital Cortec Partners Primus Venture Partners Key Principal Partners Crimson Capital Partners Prudential Capital National City Equity Edgewater Capital Red Diamond Capital Partners Equitek Capital Reservoir Partners Roynat Capital General Atlantic Partners River City CapitalBENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP 2
PRIVATE EQUITY/REGULATED HEALTH CARE Representative Health Care Transactions Benesch served as health care transactional and regulatory counsel for the following transactions: 1818 MEZZANINE FUNDS Private securities Acquisition of offering in the amount Multi-Plan, Inc. Investment in of $2.2 million from BCE-Emergis All Metro Home Health Investment in Acquisition of Behavioral Centers Debt financing in the Duane Reade, Inc. of America amount of $7.7 million 1818 MEZZANINE FUNDS Acquisition of Contribution of the Investment in North American assets of two companies Psychiatric Solutions, Inc. Health Plans Benesch served as general outside counsel for the following transactions: Investment by Acquisition of Fluke Partners and Disposition to eleven long-term Benaroya Capital Omnicare, Inc. care facilitiesBENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP 3
MY BENESCH MY TEAMINTELLECTUAL PROPERTY Case Book
Benesch’s flourishing Intellectual PropertyPractice Group is often asked to identifyand describe representative litigationengagements. This book is a sampling ofrecent litigation matters handled by the IPGroup. We take great pride in successful andcost-effective representation of our clients.MY BENESCH MY TEAMDISCLAIMER: This brochure is for general information purposesonly. It does not constitute legal advice or an attorney-clientrelationship. Any use of this brochure is for personal use only.All other uses are prohibited. Prior results do not guarantee asimilar outcome.
Intellectual Property Case BookIntellectual Property Practice GroupBenesch’s Intellectual Property Practice Group assistsprivate and public companies, universities and otherresearch institutions, and individuals in protectingand enforcing their intellectual property rights and indefending against the enforcement of others’ IP rights.Our attorneys have experience counseling clients inchoosing the most effective means of protection andenforcement based on each client’s business goals andobjectives. Attorneys in our IP Group have backgroundsand experience in a wide array of technical disciplines,including mechanical engineering, chemistry, chemicalengineering, biotechnology, physics, computerengineering and electrical engineering.Intellectual Property EnforcementThe IP Group is very active in representing clientsin intellectual property enforcement actions, whetherin litigation, through arbitration or in administrativeactions, including those before the U.S. InternationalTrade Commission.We have summarized some of our recent litigationexperience in the following pages. If you have anyquestions about our capabilities or experience, pleasecontact Steve Auvil, Chair of Benesch’s IntellectualProperty Practice Group, at firstname.lastname@example.org at (216) 363-4686. 1
Patent CASE LSP Technologies, Inc. v. Continuum Electro-Optics, Inc., Nos. 2:08-CV-00038, 00039 FORUM U.S. District Court, Southern District of Ohio SUMMARY Lead counsel representing plaintiff in patent infringement actions involving laser peening systems. CASE Monode Marking Products, Inc. v. Freedom Technologies Corp., No. 1:08-CV-00232 FORUM U.S. District Court, Northern District of Ohio SUMMARY Represented defendant as lead counsel in patent infringement suit involving shop floor control software. Negotiated favorable settlement agreement. CASE Responsive Innovations, LLC v. Holtzbrinck Publishers, LLC et al., No. 4:08-CV-01184 FORUM U.S. District Court, Northern District of Ohio SUMMARY Lead counsel representing plaintiff in patent infringement dispute involving radio frequency audience response systems. Case pending after Markman hearing and favorable claim construction order. CASE Connective Tissue Imagineering, LLC v. Thomas F. Mitts, M.D. et al., No. 3:07-CV-00058 FORUM U.S. District Court, Northern District of California SUMMARY Retained as lead counsel by plaintiff in patent and trade dress infringement suit involving cosmetic and therapeutic compositions for enhancing tissue elasticity. Negotiated favorable settlement on client’s behalf after Markman hearing.2
CASE Cartner et al. v. Alamo Group, Inc., No. 1:07-CV-1589 FORUM U.S. District Court, Northern District of OhioSUMMARY Lead counsel representing defendant in patent infringement suit relating to hydraulic motor braking systems. Case pending after favorable claim construction order (2008 WL 2169005), appeal to Federal Circuit and remand. CASE Ames True Temper, Inc. v. Myers Industries, Inc. et al., No. 2:07-CV-01751 FORUM U.S. District Court, Western District of PennsylvaniaSUMMARY Represented defendants as lead counsel in dispute concerning settlement agreement involving planter. After court denied plaintiff’s Rule 60 motion (2007 WL 4268697) in underlying case, negotiated confidential settlement agreement. CASE MacLean-Fogg Co. v. Eaton Corp., No. 2:07-CV-472 FORUM U.S. District Court, Eastern District of TexasSUMMARY Represented defendant as lead counsel in dispute involving 14 patents and more than 500 asserted claims relating to automotive engine components. Negotiated favorable settlement agreement after favorable ruling on summary judgment motion and Markman hearing. CASE Tyeis Baker-Baumann et al. v. Harold A. Walker et al., No. 3:06-CV-00017 FORUM U.S. District Court, Southern District of OhioSUMMARY Defended vendor of precision loading systems used in coal mining as lead counsel against breach of contract and patent infringement allegations involving U.S. and Australian patents. Negotiated favorable settlement prior to close of discovery. 3
Patent CASE Fitness Quest v. Jonathan Monti, No: 5:06-CV-02691 FORUM U.S. District Court, Northern District of Ohio SUMMARY Lead counsel for plaintiff in declaratory judgment action involving fitness equipment. Case pending after favorable summary judgment order (2008 WL 2387992), appeal and limited remand order (2009 WL 1290341). CASE Tesseron, Ltd. v. R.R. Donnelley & Sons Co., No. 1:06-CV-02909 FORUM U.S. District Court, Northern District of Ohio SUMMARY Represented defendant as co-counsel in patent infringement action relating to variable data printing systems. Favorable settlement agreement reached after Markman hearing. CASE Baran v. Tyco Healthcare, No. 1:06-CV-03034 FORUM U.S. District Court, Northern District of Ohio SUMMARY Retained by plaintiff as lead counsel to prosecute patent infringement claim involving biopsy instruments. Negotiated favorable settlement on client’s behalf. CASE GSK Technologies, Inc. v. Eaton Electrical Company, No. 6:06-CV-358 FORUM U.S. District Court, Eastern District of Texas SUMMARY Represented defendant as lead counsel in patent infringement action relating to circuit breakers. Negotiated favorable settlement after Markman hearing, but before favorable claim construction order (2008 WL 906713).4
CASE Certain Pool Cues With Self-Aligning Joint Assemblies, Inv., No. 337-TA-536 FORUM U.S. International Trade CommissionSUMMARY Represented respondent Taiwanese manufacturer and seven U.S. importers in patent infringement suit involving consumer and professional pool cues. Investigation terminated based on finding of no violation after Administrative Law Judge granted summary judgment of non-infringement. CASE Precor Incorporated v. Fitness Quest, Inc., No. C-05-0995 FORUM U.S. District Court, Western District of WashingtonSUMMARY Retained as lead counsel by defendant fitness equipment marketer to defend patent infringement claim. Negotiated favorable settlement on client’s behalf after denial of plaintiff’s preliminary injunction motion (2006 WL 290555) and Markman hearing. CASE Turning Technologies, LLC v. Fleetwood Group, Inc., No. 4:05-CV-2057 FORUM U.S. District Court, Northern District of OhioSUMMARY Retained as lead counsel by developers and marketers of audience response systems in seeking declaratory judgment of patent non- infringement against competitor. Negotiated favorable settlement of dispute in which competitor stipulated that none of its patents in the disputed technology were infringed. 5
Patent CASE Baran v. AMT Sverige, AB et al., No. 1:04-CV-01251 FORUM U.S. District Court, Northern District of Ohio SUMMARY Lead counsel representing plaintiff in patent infringement case involving biopsy instruments. Appeal pending after Markman hearing, claim construction order (519 F. Supp.2d 698) and summary judgment order. CASE Tesseron, Ltd. v. GMC Software AG et al., No. 1:04-CV-2182 FORUM U.S. District Court, Northern District of Ohio SUMMARY Represented vendor of variable data printing software as lead counsel in defending multiple infringement claims brought under seven patents. Favorable settlement reached after Markman hearing. CASE Mr. Bar-B-Q, Inc. v. Big Lots Stores, Inc., No. 1:03-CV-01850 FORUM U.S. District Court, Eastern District of New York SUMMARY Retained as lead counsel by defendant in patent infringement action involving multiple patents. Negotiated favorable settlement of claims.6
CASE Litetronics International, Inc. v. Technical Consumer Products, Inc., No. 1:03-CV-05733 FORUM U.S. District Court, Northern District of IllinoisSUMMARY Retained by defendant lighting product manufacturer as lead counsel in patent infringement case involving cold cathode fluorescent lamps. Negotiated favorable settlement on client’s behalf near close of discovery. CASE Tele-Cons, Inc., et al. v. Harmony Lighting, Inc., et al., No. 1:03-CV-11250 FORUM U.S. District Court, District of MassachusettsSUMMARY Represented defendant as lead counsel in patent infringement case involving three-way compact fluorescent lamp. Negotiated settlement agreement and license after Markman hearing and favorable claim construction order. CASE Nilssen et al. v. Technical Consumer Products, Inc., No. 9:03-CV-80548 FORUM U.S. District Court, Southern District of FloridaSUMMARY Represented defendant as lead counsel in 13-patent infringement dispute involving compact fluorescent lamps and electronic ballasts. Negotiated patent license and settlement on favorable terms. 7
Trademark / Trade Dress CASE The Council of Independent Restaurants of America, Inc. d/b/a Dine Originals v. Cleveland Originals, No. 1:07-CV-00105 FORUM U.S. District Court, Northern District of Ohio SUMMARY Represented plaintiff national organization of restaurateurs in action for service mark infringement and cybersquatting. Obtained permanent injunction. CASE Ohio Savings Bank v. Amtrust Mortgage Corporation, No. 1:06-CV-00151 FORUM U.S. District Court, Northern District of Ohio SUMMARY Retained by plaintiff mortgage lender to defend a trademark infringement claim. Case settled on favorable terms after court excluded adversary’s expert. CASE Zinsser Brands Company et al. v. The Glidden Company, No. 1:06-CV-01230 FORUM U.S. District Court, Northern District of Ohio SUMMARY Represented defendant in trademark infringement action involving paints and coatings. Negotiated favorable settlement after court denied plaintiffs’ motion for temporary restraining order (81 U.S.P.Q.2d 1588). CASE Vita-Mix Corp. v. Taiwan Star Industrial, Inc., No. 06-CV-2228 FORUM U.S. District Court, Central District of California SUMMARY Represented plaintiff in patent and trade dress dispute involving imported electric blenders. Case resolved by judgment and order for permanent injunction against manufacturer/importer.8
CASE Cleveland Unlimited, Inc. v. Perfect Cellular Inc. et al., No. 1:05-CV-0901 FORUM U.S. District Court, Northern District of OhioSUMMARY Represented plaintiff wireless telephone product and service provider in trademark infringement action against former licensee. Obtained permanent injunction. CASE Vita-Mix Corp. v. Welbon, Inc., et al., No. 1:05-CV-2326 FORUM U.S. District Court, Northern District of OhioSUMMARY Represented plaintiff in patent and trade dress dispute involving imported electric blenders. Obtained permanent injunction. CASE Vita-Mix v. Conair Corporation No. 1:05-CV-01675 FORUM U.S. District Court, Northern District of OhioSUMMARY Represented plaintiff as lead counsel in trademark infringement action involving commercial blender. Negotiated early, confidential settlement agreement, and consent injunction entered against defendant. CASE Fitness Quest, Inc. v. Next Wave Marketing, Inc. et al., No. GIC842709 FORUM Superior Court of the State of California for the County of San Diego, Central DivisionSUMMARY Represented plaintiff in counterfeiting action. Obtained temporary restraining order, permanent injunction and consent judgment against importer of counterfeit fitness equipment. 9
Trademark / Trade Dress CASE Eastgate Health Care Center, Inc. et al. v. Highland Heights Nursing and Rehabilitation Center, LLC, No. 2:04-CV-00065 FORUM U.S. District Court, Eastern District of Kentucky SUMMARY Represented plaintiff in trademark infringement suit against competing nursing home using similar service mark. Obtained permanent injunction. CASE Elmer’s & Toagosei, Ltd. and Toagosei Ltd. v. Ming Yang Trading, Inc., No. 1:04-CV-08153 FORUM U.S. District Court, Eastern District of New York SUMMARY Represented plaintiff in trademark counterfeiting action. Obtained $2.5 million judgment and permanent injunction after obtaining ex parte seizure order, temporary restraining order and preliminary injunction. CASE Plasticolors, Inc. v. Plasticoncentrates, Inc., No. 1:03-CV-0654 FORUM U.S. District Court, Northern District of Ohio SUMMARY Represented plaintiff manufacturer of engineered polymer products in trademark infringement suit involving defendant’s use of plaintiff’s trademark as a metatag on Web site. Obtained permanent injunction.10
CASE In Zone Brands, Inc. v. Global Consumer Products, Inc., No. 4:02-CV-01129 FORUM U.S. District Court, Northern District of OhioSUMMARY Represented defendant in trade dress infringement action involving container designs. Case settled after court denied plaintiff’s motion for preliminary injunction. CASE Toolovation LLC v. ICC Innovative Concepts Corporation, No. 1:02-CV-01963 FORUM U.S. District Court, Northern District of OhioSUMMARY Represented declaratory judgment plaintiff in trade dress infringement action involving color applied to power tools. Case settled after court denied defendant’s motion to dismiss. CASE Right Ascension, Inc. v. Action Software, Inc. et al., No. 2:01-CV-00666 FORUM U.S. District Court, Western District of PennsylvaniaSUMMARY Represented defendants as lead counsel in action involving e-commerce web site. After court granted summary judgment on seven of eight counts in complaint, negotiated confidential settlement agreement of remaining claim. 11
Internet—Uniform Domain NameDispute Resolution Policy CASE Dominic Ierace, p/k/a Donnie Iris v. MDNH, Inc., No. D2006-0145 FORUM World Intellectual Property Organization Arbitration and Mediation Center SUMMARY Represented complainant, a popular music singer, in UDRP action relating to respondent’s registration of the domain name <donnieiris.com>. Respondent voluntarily transferred the domain name to complainant before decision issued. CASE Micro Electronics, Inc. v. J. Lee, No. D2005-0170 FORUM World Intellectual Property Organization Arbitration and Mediation Center SUMMARY Represented complainant in UDRP action relating to respondent’s registration of a domain name comprising a typographical variant of complainant’s registered trademark. Panel ordered transfer of the domain name to complainant. CASE Micro Electronics, Inc. v. Name Administration, No. D2005-0880 FORUM World Intellectual Property Organization Arbitration and Mediation Center SUMMARY Represented complainant in UDRP action relating to respondent’s registration of a domain name comprising a typographical variant of complainant’s registered trademark. Panel ordered transfer of the domain name to complainant.12
CASE Micro Electronics, Inc. v. Collazo, No. D2005-0170 FORUM World Intellectual Property Organization Arbitration and Mediation CenterSUMMARY Represented complainant in UDRP action relating to respondent’s registration of a domain name comprising a typographical variant of complainant’s registered trademark. Panel ordered transfer of the domain name to complainant. 13
Copyright CASE Reed, et al. v. Freebird Film Productions, Inc., et al., No. 1:08-CV-1761 FORUM U.S. District Court, Northern District of Ohio SUMMARY Represent multiple defendants in copyright infringement and breach of contract action alleging unauthorized use of film footage in live performances and video projects. CASE Geovision, Inc. v. PCSurveillance.net, No. 4:06-CV-0659 FORUM U.S. District Court, Northern District of Ohio SUMMARY Represented plaintiff as lead counsel in copyright infringement action relating to digital surveillance software. Negotiated confidential settlement, and consent injunction entered against defendant. CASE Testa et al. v. Channel Four Television Corporation, No. 1:06-CV-0297 FORUM U.S. District Court, Northern District of Ohio SUMMARY Represented plaintiff in copyright infringement action relating to musical composition. Negotiated favorable settlement of claim. CASE Bema Music Co. v. Motorola, Inc. et al., No: 1:03-CV-1060 FORUM U.S. District Court, Northern District of Ohio SUMMARY Represented plaintiff as lead counsel in copyright infringement case relating to cell phone ringtones. Negotiated favorable settlement agreement.14
CASE Fitness Quest, Inc. et al. v. Universal Music Publishing Group, Inc., No. 5:02-CV-02528 FORUM U.S. District Court, Northern District of OhioSUMMARY Represented declaratory judgment plaintiff in action involving use of plaintiff’s music in fitness videotape series. Negotiated favorable settlement after court granted client’s motion for partial summary judgment. CASE Glanton v. Sony Records, No. 2:02-CV-0631 FORUM U.S. District Court, Northern District of OhioSUMMARY Represented defendant in copyright infringement action relating to plaintiff’s musical composition. Plaintiff dismissed claim after briefing. 15
Intellectual Property Transactions Benesch’s IP transaction lawyers have Recent representative engagements substantial experience in all phases of include: a sale or transfer of intellectual assets. • Represented a technology company We help companies prepare for sale in the expansion of its product lines to enhance the value of their IP and through the acquisition of software perform due diligence for purchasers rights and the transfer of subscription- of intellectual assets. Our business based license agreements acumen and extensive experience in all aspects of negotiations provide • Represented automotive suppliers in clients sound counsel on appropriately international IP license agreements structuring the transaction. • Represented a biotechnology company Services include: in negotiating license, supply and distribution agreements • Conducting due diligence of targeted IP assets to identify strengths and • Represented a multitude of diverse weaknesses purchasers and sellers in stock and asset transactions involving • Conducting audits of IP portfolios international patent and trademark and procedures to assess the valueBenesch Friedlander Coplan & Aronoff LLP portfolios and coverage200 Public Square • Represented a major consumer • Counseling clients on technology products company in negotiatingSuite 2300 transfer strategies to maximize value agreements regarding variousCleveland, OH 44114 • Drafting and negotiating agreements music-related properties216.363.4500 involving intellectual property, including • Represented a major music licenses publication regarding various licensing and co-branding deals with major music publishers and record companies www.beneschlaw.com Cleveland • Columbus • Indianapolis • Philadelphia • Shanghai • White Plains • Wilmington
LABOR & EMPLOYMENTBenesch’s Labor & Employment Practice Group provides a full range of services to clients on anational basis. From counseling clients on daily employment issues to the handling of the mostcomplex litigation, our Labor and Employment lawyers have the experience, skills and commitment toclient service your needs to minimize the risks inherent in today’s workplace.Our lawyers are keenly aware that client representation means not only providing the highest quality,result oriented legal services, but doing so in a manner which is cost effective and consistent with theclients’ circumstances and goals. We work with clients at the outset of each matter to make sure weunderstand the desired end result and that the client understands what will likely be involved inobtaining that result. This process continually repeats throughout the representation. In short, werecognize that sound business judgment is every bit as important as sound legal judgment.We are actively involved with many clients in the public sector as well as industries such as retail,automotive, health care, manufacturing, trucking, technology, food and beverage distribution,industrial product distribution, professional services and banking, to name just a few. Summarizedbelow are the types of matters our Labor & Employment lawyers typically handle and descriptions ofsome of the actual cases in those areas:Employment LitigationBenesch’s Labor & Employment lawyers have a wealth of experience in employment litigation. Wehave represented employers in virtually every type of lawsuit, in every kind of forum. Examples of thekind of cases our Labor and Employment lawyers handle include discrimination charges before theEEOC and state fair employment practice agencies, including the Ohio Civil Rights Commission;employment discrimination, wage/hour, wrongful discharge and breach of contract claims in federaland state courts; and arbitrations under employment and collective bargaining agreements. Whetherit’s the arbitration of a single employee’s discharge or complex class action defense, our lawyershave the experience necessary to provide the highest quality representation available.Beyond this experience, our lawyers also possess the awareness that client needs and desires varywith each case. Litigation demands that counsel not only provide sound legal analysis, but alsodesign a strategy consistent with the client’s business objectives. Our approach is to work with ourclients to formulate the best legal strategy, understand the client’s business needs and goals andthen together devise the approach best suited to achieve the desired result. Just some of theemployment litigation matters handled by Benesch’s Labor & Employment Practice are summarizedbelow: Resolved an age discrimination and wrongful discharge lawsuit brought against a global household products manufacturer in federal court in Jackson, Mississippi. Obtained summary judgment on behalf of a multinational consumer products company in a sexual harassment matter brought in the Eastern District of Missouri. Obtained summary judgment on behalf of a nursing home in a wrongful discharge and defamation matter in Ohio and recovered attorney fees on behalf of the client pursuant to Ohio’s Frivolous Conduct Statute. Represented a national beverage distributor in a wage/hour class action, obtaining summary judgment by establishing that the client’s employees were exempt from overtime requirements.
Obtained summary judgment in favor of a multinational telecommunications equipment manufacturer in a disability discrimination matter in Ohio and successfully defended the appeal of this decision. Won a jury trial in a class action wage and hour lawsuit in federal court in the Northern District of Ohio. Obtained summary judgment on behalf of financial institution in hotly contested age discrimination matter brought in the Cuyahoga County Court of Common Pleas. Obtained dismissal of class action ERISA breach of fiduciary duty lawsuit brought in the District Court of Massachusetts. Defeated certification of class in FLSA collective action litigation brought in the Northern District of Ohio based on the retail sales exemption to the FLSA. Obtained dismissal of class action FLSA claim in the Northern District of Ohio based on the companionship services exemption to the FLSA.Labor-Management Relations and Collective BargainingIn the area of “traditional” labor law, our Labor & Employment lawyers represent employers incollective bargaining, union avoidance, before the State Employment Relations Board and theNational Labor Relations Board and in arbitration. The clients we represent in their relationships withunions, or in attempting to avoid such relationships, come from the public sector as well as diverseindustries such as health care, household product manufacturing, retail, steel and trucking. Asampling of matters our Labor & Employment lawyers have handled in this area include: Representation of a hospital in bankruptcy which included the rejection of the collective bargaining agreement in the Bankruptcy Court, counseling the client through a bitter strike and obtaining Court ordered injunctive relief during the strike, significantly limiting the number of pickets around the hospital’s premises. Representation a shopping center management firm in the Sixth Circuit Court of Appeals, successfully overturning an NLRB order involving a union’s right to picket on private property. This matter was a case of first impression and greatly expanded management’s right to control access to private property. Coordinated the legal and labor relations aspects of a multinational manufacturer’s efforts to consolidate operations following the acquisition of a large competitor. This representation involved counseling on layoffs, advising on the closing of several large manufacturing plants throughout the United States and bargaining with the unions representing the employees at both the closing and continuing plants. Successfully represented a manufacturing operation in its union avoidance efforts in the face of a multi-year organizational campaign. This representation included counseling on permissible campaign material and programs, as well as the defense of numerous unfair labor practice charges. Successfully represented an employee leasing firm in the trucking industry in obtaining a court order vacating an arbitration award which reinstated a discharged truck driver who had tested positive for drugs.
Successfully represented a health care employer through collective bargaining, a strike and ultimately the withdrawal of recognition from the union. The matter was the subject of extensive litigation before the NLRB and the Sixth Circuit Court of Appeals. The Court of Appeals found that the client engaged in lawful hard bargaining, reached a legitimate impasse, lawfully implemented its final offer and lawfully withdrew recognition from the union after two - thirds of the bargaining unit resigned from the union and crossed its picket line. Representation of a platform company in the baked goods industry, which acquired the foodservice and bakery division of a major publicly-held company, with operating plants and distribution throughout the US. During the acquisition, we protected the buyer from liabilities relating to the sellers closing of a major plant, and re-negotiated a collective bargaining agreement for a key facility, obtaining concessions in a number of areas. This contract is enabling our client to be more competitive in its industry. Negotiation of contracts with most major unions in Ohio and in many parts of the United States by way of Benesch attorneys who are OSBA-certified specialists in labor and employment law.Client CounselingWe recognize that proactive, preventive maintenance is the most effective way of avoiding costlylitigation. To that end, we are very active in counseling clients on day-to-day employment issues asthey arise. This counseling takes many forms, such as reviewing disciplinary or discharge decisions;reviewing policies, programs and compensation plans for compliance with the Title VII, FMLA, ADA,FLSA, ADEA, O.R.C. § 4112 and the myriad of other employment laws; advising employers duringreductions in force; providing supervisor training on issues such as employment-at-will, equalemployment opportunity and workplace harassment; preparing employment agreements; andimplementing alternative dispute resolution programs. The counseling we provide is always withcomplete recognition that maximizing the client’s business position is as important a priority asavoiding litigation. Specific examples of the counseling we have provided include the following: Advised a multinational client on the consolidation of manufacturing plants in several states, together with the reduction in force of its national sales organization, which involved the implementation of layoffs and severance programs, as well as WARN compliance. Conducted a workforce assessment for a multinational household product manufacturer. Our Labor and Employment lawyers first worked with the client’s human resource professionals in reviewing current practices and formulating guidelines for the implementation of self-directed work teams. Some of the issues which needed to be addressed were compensation structure, the implications of the team concept under the National Labor Relations Act, joint employer status in connection with the use of temporary workers, and structuring lines of supervisory and management authority. After the framework was established the labor and employment lawyers, again in concert with human resources professionals, conducted training sessions at the various plants as part of the implementation process. Counseled a multinational office supply chain on the structuring and implementation of an alternative dispute resolution program for its employees. Counseled an international telecommunications company in connection with the downsizing of several plants and compliance with WARN and Older Worker Benefit Protection Act requirements. Counseled the Board of Directors of a client regarding an extremely sensitive termination of the client’s Chief Executive Officer.
Workplace Safety, Workers Compensation and Unemployment CompensationAttorneys in the Labor & Employment Practice Group represent clients in administrative and judicialforums in Ohio and throughout the country.A client’s problems related to workplace safety, unemployment and workers’ compensation mattersare often linked with other aspects of labor and employment law. For example, a serious employeeinjury can result in a lawsuit, an OSHA complaint, and a workers’ compensation claim. The sameinjury may draw into question and interpretation the employer’s policies regarding leaves of absenceand accommodation of disabilities. Giving competent advice in a workers’ compensation matter mayrequire resolving issues regarding the Family and Medical Leave Act, the Americans with DisabilitiesAct and Ohio’s disability discrimination law.The extensive experience of the Labor & Employment Practice Group has prepared attorneys to beresponsive to the full gamut of potential issues. In addition to the experience of the Group’s attorneys,a nurse paralegal plays an active role in preparing for hearings and responding to pleadings anddiscovery requests.With the advent of managed care organizations (MCOs) in Ohio’s workers’ compensation system,employers are reviewing their overall workers’ compensation administration. Some are now relying ontheir MCOs to provide basic administrative and gatekeeping services and relying on their attorneys torepresent them in disputed claims and in administrative matters with the Bureau of Workers’Compensation. The following examples show the breadth of the services provided to clients inworkplace safety issues: Representing a foundry before OSHA and the Industrial Commission after one of the company’s employees died, allegedly from a workplace injury. Negotiating a favorable settlement for a plastic products manufacturer, which was defending against its employee’s application for an award for the violation of a specific safety requirement. Representing a foundry in defending against its employee’s application for an award for the violation of a specific safety requirement. Representing a computer manufacturer in court and before the Industrial Commission and the Bureau of Workers’ Compensation in Columbus, Ohio on matters dealing with the company’s unintentional failure to pay timely its workers’ compensation premiums. Working with a large health care provider to lower both its claims and administrative costs by advising on how to handle more of its own workers’ compensation administration. Proving that an employee of a national rental chain was feigning total disability for months and was entitled to no benefits. Successfully representing a furniture retailer in defending against a claim made by a disgruntled worker for unemployment compensation and a subsequent lawsuit for workers’ compensation retaliation. Successfully defending a large forgings producer in a workers’ compensation appeal by asserting that the trial court did not have the jurisdiction to hear case. Successfully representing a national market research firm, which had 150 Ohio employees, before the Court of Appeals in Columbus, Ohio in an unemployment compensation contributions dispute.
Representing clients at Industrial Commission hearings. Few employers realize that only their attorneys are authorized to cross-examine witnesses and argue facts and points of law to the Commission’s hearing officers. Other representatives, even if they are attorneys, can simply present facts on behalf of employers. This distinction was important when, on behalf of a steel fabricator, one of the Group’s attorneys successfully argued that a claimant was not entitled to the hefty percentage permanent partial disability award that he requested for the loss of his arm.
Ira C. Kaplan Managing Partner Executive Committee Member Mr. Kaplan is the firms Managing Partner and serves as a member of the firms Executive Committee. Mr. Kaplan has Co- Chaired the firms Private Equity Group and Middle Market Group and is a member of its Polymer Group. He focuses his practice on mergers and acquisitions as well as public and private debt and equity financings. Mr. Kaplan represents both publicly and privately held companies at various stages of growth. He has been involved in planning for growth companies, helping to position them for various stages of private financing and anticipated public offerings. Mr. Kaplan also represents private equity, subordinated debt and venture funds as well as portfolio companies of such funds. MEMBERSHIPS/AFFILIATIONSikaplan@beneschlaw.comT: 216.363.4567 s Co-Chair of Southern Region, United Way of Greater ClevelandM: 216.789.8722 s Board Member and Executive Committee Member, Cleveland Leadership CenterF: 216.363.4588 s Board Member, Jewish Education Center of Cleveland s Board Member, Business Volunteers UnlimitedAssistant Contact s Treasurer, Executive Committee Member and Trustee, Menorah Park Center for Senior Living; Chair of the Budget andJoan DeMarchi Finance Committee; Member of Strategic Planning, Audit, Budget and Finance and Government Relations Committees,email@example.com 2004-2008216.363.4401 s Trustee, Jewish Community Federation of Cleveland, 2008 s Trustee, The Temple Tifereth Israel Foundation, 2008Cleveland s Board Member, Trustee and past Board Chair, Council Gardens, 1990-2008200 Public Square s Alumni, Leadership ClevelandSuite 2300 s Served, Governors Third Frontier Task Force on BiotechnologyCleveland, OH 44114- s Member, Case Western Reserve University - Government Relations Advisory Committee2309 US OTHER DISTINCTIONS s Listed, The Best Lawyers in America® 2011 (Copyright 2011 by Woodward/White, Inc., of Aiken, SC) and named Best Lawyers’ 2010 Cleveland Corporate Lawyer of the Year s Listed, Chambers USA 2010 Leading Lawyers, Corporate/M&A s Listed, Ohio Super Lawyers 2004-11 s Listed, Leading Lawyers, Inside Business Magazine EDUCATION s The George Washington University Law School, 1979, J.D. s University of Rochester, 1976, B.A., Political SciencePRACTICE GROUPS ANDFOCUS AREAS s Scott Paper Scholarship AwardCorporate & Securities s Student Life AwardBank and Institutional Borrowings COURT AND BAR ADMISSIONS/ASSOCIATIONSCapital Formation s Member, American Bar AssociationContract Preparation, s Member, Cleveland Metropolitan Bar Association Negotiation and ComplianceCorporate Governance NEWSDomestic and International Joint Ventures Benesch Management ElectionsMergers, Acquisitions and March 2, 2011 Divestitures 32 Benesch Attorneys Named 2011 Super LawyersPublic Offerings and Private January 3, 2011 Equity FinancingsRegulatory Compliance Forty-Five Benesch Attorneys Named 2011 Best Lawyers in AmericaShareholder, Operating and August 11, 2010 Partnership AgreementsPrivate Equity Wild Received Bennett and Donna Yanowitz Leadership Award and Kaplan Received Irving Stone AwardEconomic Growth and December 28, 2009 Development TeamPrivate Equity/Health Care Ira Kaplan Named Best Lawyers 2010 Cleveland Corporate Lawyer of the YearPolymers November 17, 2009
Regional and Global Thirty-Eight Benesch Attorneys Named 2010 Best Lawyers in America Competition Counseling July 30, 2009 RELATED ARTICLES AND PRESENTATIONS Beneschs Subdebt Survey June 2006 Highlights from Beneschs Annual Private Equity Conference February 15, 2005 Acquiring a Troubled Company: How to Navigate Through a Mine Field May 12, 2004 Real Estate as a Financing Tool March 12, 2004 Research Is Essential When Acquiring Troubled Companies James M. Hill and Ira C. Kaplan March 2004