Brian S. Cohen

Representative Matters

Business Litigation

• Defended a large California-based importer and seller of alcoholic beverages in an action seeking substantial money damages based on an alleged breach of a factoring agreement. Secured a dismissal of the action, commenced with a motion for summary judgment in lieu of complaint, by cross-moving to dismiss on the grounds that New York courts lacked personal jurisdiction over the defendants.
• Represented a leading technology solutions provider in an action against a former client for breach of a consulting agreement. After serving a demand letter, the dispute was resolved pre-litigation with a recovery of 94% of the client’s damages.
• Represented a lender in an action against a borrower who defaulted on a multimillion-dollar revolving credit loan. After successfully defeating the defendants’ motion to dismiss, secured a seven-figure settlement secured by real property and business assets.
• Represented a large California-based manufacturer in a commercial dispute with several parties. After serving a demand letter and participating in mediation, obtained a recovery of 105% of the client’s actual damages. Pre-litigation, the client was made whole and recovered a portion of its attorney’s fees.
• Defended an owner and developer of real estate in Eastern Europe in an action brought by a former business partner alleging breach of fiduciary duty, mismanagement and self-dealing. The case resulted in a business divorce and a buyout of the former partner’s interests.
• Secured a six-figure settlement on behalf of a transportation company against an insurance broker asserting breach of fiduciary duty claims based on the broker’s alleged failure to advise the client that by becoming a member of a worker’s compensation self-insured trust, it was agreeing to be jointly and severally liable for the trust’s financial obligations, including the entire amount of any deficit.
• Defended a 50% member of a domestic partner in a joint venture with a far-east technology company accused by the other domestic partner of cheating it out of profits. After the completion of discovery, the plaintiff dismissed his claims without monetary consideration.
• Defended a technology company in an action by the principal’s former employer alleging the breach of a non-solicitation agreement and seeking a TRO, an injunction and monetary damages. Three weeks after commencing the action, the plaintiff discontinued the action for non-monetary relief.
• Obtained an $11 million jury verdict on behalf of a group of sophisticated investors in a derivative action asserting fraud, breach of fiduciary duty and negligence against the general partner of a hedge fund and secured a favorable settlement with the fund’s prime broker before trial.
• Represented an entrepreneur in an action against a major bank arising out of several unauthorized transfers of funds out of the plaintiff’s bank accounts that were perpetrated by an impostor identifying himself as the plaintiff. The case, in which the plaintiff alleged that these unauthorized transfers could and should have been prevented by the bank had proper security procedures been in place, resulted in a recovery of 87% of the client’s maximum damages.
• Defended a hospitality company in a trademark infringement action alleging the unauthorized sale and promotion of a brand of beer.
• Conducted an 8-month investigation of a Ponzi scheme that resulted in a 6-year prison sentence for a Southern California businessman who swindled investors out of $13.5 million.
• Secured a six-figure settlement on behalf of the purchasers of a variable universal life insurance policy in an action against the plaintiffs’ insurer, broker and attorney. The plaintiffs alleged that, notwithstanding their conservative, low-risk investment objectives: their broker and attorney improperly steered them into an insurance policy that was highly unsuitable; and the insurer failed to engage in the requisite suitability and compliance oversight that would have prevented the losses.
• Represented a client of a large broker-dealer in a New York Stock Exchange arbitration alleging unauthorized trading and unsuitability, which resulted in a recovery of 70% of the client’s maximum damages.
• Advised a holder of auction rate securities who was misled by a major broker-dealer concerning the liquidity of those securities. After counseling the client to refrain from commencing litigation, the client was made whole.

Real Estate Litigation

• Represented a real estate developer, owner and operator in an action brought by a retail tenant seeking money damages and injunctive relief based on allegations that the owner made improper demands for insurance coverage and improperly rejected the tenant’s proposed contractors hired to perform alterations to the space. Brian successfully moved for summary judgment and the case was dismissed pre-discovery.
• Represented a hotel developer and owner of a commercial mixed-use property in an action against one of the building’s largest retail tenants. The dispute arose out of the parties’ competing interpretations of various lease provisions, including rent commencement date and exclusive and permitted uses of the premises.
• Represented a buyer of real estate in an action against the seller arising out of the seller’s failure to disclose the existence of a long-term lease with rent substantially below market value that it had recently entered into with the building’s commercial tenant. Shortly after the action was commenced, the parties negotiated a settlement that included the commercial tenant’s surrender of the premises.
• Represented a developer and former managing agent of a condominium in an action brought by the homeowners association alleging that the developer used substandard materials in construction as well as fraud in connection with the management of the building. After substituting in for predecessor counsel and quickly establishing no liability, the homeowners association voluntarily discontinued the action with prejudice.
• Represented an owner, developer and operator of commercial real estate in an action against a lender for breach of an oral contract to buy back a mezzanine loan at a discount. Secured a six-figure settlement after obtaining a reversal by the New York State Appellate Division of a decision by the N.Y.S. Supreme Court dismissing the case.
• Represented a boutique hotel and hospitality company in a commercial dispute with a large mortgage lender. After serving a demand letter and participating in mediation, recovered a substantial portion of the client’s actual damages pre-litigation.
• Represented a buyer of commercial real estate in an action against the seller for breach of contract and specific performance based on the seller’s failure to fulfill its contractual obligations, which included closing out open permits and proceed with the closing of title. Secured a settlement during discovery in which the seller ultimately closed out the open permits, closed on the transaction and paid the buyer’s attorney’s fees.
• Defended the sponsor of and a commercial unit owner in a Greenwich Village mixed-use condominium in which the condominium board alleged that it had mistakenly under-billed the commercial unit owners for their share of the building’s common expenses over the course of 20 years and sought to recover the alleged difference, which amounted to hundreds of thousands of dollars. After full briefing and oral argument on the board’s motion for summary judgment, the case settled for non-monetary relief.
• Secured a six-figure settlement on behalf of purchasers of a luxury apartment in a landmark Manhattan building during its conversion to condominium ownership in an action against the building’s sponsor, architect, marketing agent and managing agent, and commercial tenant, a high-end health club. The plaintiffs asserted various claims based on alleged material misstatements and omissions concerning preexisting structural defects and severe noise and vibration issues as well as the failure to abate various forms of nuisance.
• Defended an entertainment industry commercial tenant in a Manhattan building in an action by a co-tenant in the premises directly below in which the co-tenant alleged private nuisance resulting from noise and vibrations emanating from the client’s premises. After expert discovery, the case settled.
• Defended a seller of commercial real estate in an action by a broker alleging that the seller failed to pay a brokerage commission he claimed to be owed in connection with the sale. After full discovery, moved for summary judgment and the action was dismissed.
• Represents property owners in defending against access and public accommodation claims under the Americans With Disabilities Act.
• Represented a commercial tenant in litigation to enforce the tenant’s right of first refusal.
• Represented an entertainment industry commercial tenant in an action against its landlord for breach of contract and fraud in the inducement. The case settled during discovery.
• Represents various clients in the construction industry, including property owners, development companies, general contractors and subcontractors, in connection with a broad range of disputes and issues that arise during and after construction projects.
• Secured a six-figure settlement on behalf of homeowners in a property damage case arising out of a major fire against a damage restoration specialist and a moving and storage company. The plaintiffs asserted causes of action sounding in breach of contract, negligence, and negligent hiring and supervision.

Class Action Litigation

• In 2012, after an extensive two-year investigation, Brian filed a groundbreaking lawsuit against Aspen Dental, the nation’s largest corporate dentistry chain, which exposed rampant misconduct, patient abuse, and the illegal corporate practice of medicine. The company opened dental clinics in low-income areas, targeted unwitting patients who are unfamiliar with proper dental care, and employed a profit-driven business model that incentivized and pressured dentists and staff to increase revenue in a manner that placed profits before quality of care. Brian shared the fruits of his investigation with, and provided substantial assistance to, the Office of the New York Attorney General, which then launched its own investigation. Brian’s efforts were the catalyst for the NYAG’s investigation into and ultimate settlement with the company, which paid material financial consideration and implemented substantial corporate reforms over a three-year period under the supervision of an independent monitor. 
• As co-interim class counsel, achieved a $32 million settlement on behalf of a nationwide class of consumers against one of the world’s largest banks based on the bank’s alleged unlawful manipulation of customer debit transactions to maximize overdraft fees.
• As co-lead counsel, achieved a $400 million settlement on behalf of aggrieved investors in a case against the world’s largest insurance broker arising from the company’s illicit practice of steering its clients to insurance companies that agreed to pay it billions of dollars in contingent commissions. The case is among the top 25 largest securities fraud class action settlements in history.
• As co-lead counsel, achieved a $192 million combined settlement against a leading technology company and its auditor in a securities fraud class action alleging improper accounting.  
• Represented end-payors in a federal antitrust action against a major pharmaceutical company alleging the misuse of patent infringement litigation to prevent competition from generic versions of a non-steroidal anti-inflammatory drug. The case resulted in a $75 million settlement.
• As a member of the Plaintiffs’ Executive Committee, achieved a $586 million recovery in a litigation of over 300 securities class actions, which ranks among the top 25 largest securities fraud class action settlements in history.
• As lead counsel, achieved a $10.5 million settlement against a leading international oil and gas contractor in a case alleging that the company was reckless in issuing public statements due to the lack of internal controls at foreign subsidiaries.
• As lead counsel, achieved a $6 million settlement against a major sportswear apparel retailer; the plaintiffs alleged that the defendants made material misrepresentations and omitted material information concerning the truth of rumors circulating regarding the company’s ability to meet Wall Street expectations for its same-store sales growth.
• As co-lead counsel, achieved a $93 million cash settlement on behalf of aggrieved investors in a class action against a leading international health service provider.
• Represented tenants of New York City apartment complexes alleging that landlords illegally charged market rate rents for apartments that should have been regulated under New York City’s Rent Stabilization Law.
• In a consumer class action brought in New York State Supreme Court, Broome County on behalf of a class of then-current and former SUNY students asserting claims for violations of New York General Business Law § 349 based on SUNY’s alleged failure to provide statutorily mandated lower tuition rates to non-resident students who graduated from a New York high school, was retained by the plaintiffs as Special Counsel to advise on class action issues. The members of the class received a near complete vindication and full refund of their overpaid tuition and SUNY improved both its procedures regarding and the disclosure of the “high school rule.”

Labor & Employment Litigation

• Defended a non-profit organization in an action by a former employee alleging disability discrimination. After full discovery, the Court granted our motion for summary judgment dismissing the case in its entirety. 
• Defended employers in several actions alleging unpaid overtime in violation of the Fair Labor Standards Act and the New York Labor Law.
• Defended an employer in an action by an ERISA pension plan alleging withdrawal liability and joint and several liability based on an alleged “controlled group.”
• Defended an employer in an action by an employee alleging disability discrimination, hostile work environment, and intentional infliction of emotional distress.
• Enforced the rights of an executive of a leading international retail company who was wrongfully terminated and falsely accused of various forms of misconduct. The case resulted in a multi-million dollar settlement.