Robert Feltoon,

• Bob and other members of the firm were retained by Cravath, Swaine & Moore LLP to represent Cravath in a lawsuit filed in Pennsylvania by a former client, Airgas, Inc., seeking to enjoin Cravath from representing Air Products, Inc., in connection with a possible acquisition of Airgas by Air Products. Cravath thereafter successfully defeated Airgas’s attempt to disqualify Cravath from representing Air Products in the Delaware Chancery Court.

• Retained by Country View Family Farms, LLC (sister company to Hatfield Quality Meats, well-known sponsor of “Hatfield Dollar Dog Days” at Citizens Bank Park), to defend two lawsuits filed by 165 residents living nearby a Concentrated Animal Feeding Operation located in Luzerne County, PA, which raises and manages pigs owned by Country View. The lawsuits alleged claims based on common law nuisance and trespass. In 2015, the court granted Country View’s preliminary objections, dismissing the trespass claim; striking allegations concerning an ordinance violation and harm to nearby schools, a hospital, and a waterway; directing the plaintiffs to replead their nuisance claims in order to specify the harm allegedly suffered by each plaintiff; and striking the demand for punitive damages. In 2017, following oral argument, the court granted Country View’s motion for summary judgment, ruling that the plaintiffs’ nuisance claims were barred by the Pennsylvania Right to Farm Act’s statute of repose. In 2018, the Superior Court affirmed the trial court’s decision in all respects in a published opinion.

• Retained in 2016 by Senator Ted Cruz in defense of a highly-publicized lawsuit filed in Commonwealth Court claiming the senator is not a “natural born citizen” eligible for the office of president of the United States. Similar cases had been filed in other courts and administrative proceedings, all of which had been rejected on standing or various procedural grounds without reaching the merits. Bob convinced Commonwealth Court to rule in favor of Senator Cruz on the merits, and that decision was affirmed on direct appeal to the Pennsylvania Supreme Court.

• Retained by FacilitySource, a Warburg Pincus portfolio company headquartered in Phoenix, in a dispute with TD Bank over a service contract to supply snow clearing and landscaping services at hundreds of TD Bank locations in multiple states. The dispute is in litigation in Camden County, NJ, as part of the new Complex Business Litigation Program, in which FacilitySource and TD Bank have each filed their own complaint. The parties made their first appearances in July 2016, on cross-motions to dismiss the other side’s complaint in whole or part. Following oral argument, the court granted the motion of FacilitySource, dismissing TD Bank’s claim for damage to its reputation, while denying TD Bank’s motion in full.

• Represented IBM in a lawsuit brought by an authorized reseller of IBM’s largest mainframe computers, which claimed that IBM acted improperly in a competitive situation between the plaintiff and another IBM authorized reseller. The court rejected all but one of the plaintiff’s claims. The remaining claim proceeded to trial, after which the court ruled in IBM’s favor. A commentator who followed the case closely wrote that Bob “mounted a defense quite worthy of classroom presentation” and that “[w]ell before the three-year battle ended, it became clear that [Bob] would crush his opponent”.

• Represented IBM in one of the first cases resulting from a major data breach involving theft of customer information. IBM supplied the software used by BJ’s Wholesale Club to process in-store payments. BJ’s added IBM as a third-party defendant, alleging that IBM’s software failed to comply with BJ’s requirement that it not retain credit card numbers after a transaction was completed. The court granted IBM’s motion to dismiss in part, substantially limiting the damages BJ’s could recover. During the pendency of IBM’s motion for reconsideration, the court dismissed the plaintiff’s claims against BJ’s, thereby dismissing BJ’s third party claim against IBM.

• Represented IBM in a lawsuit brought by the New Jersey Department of Environmental Resources seeking to recover “natural resource damages,” arising out of IBM’s former ownership of a manufacturing site. These unprecedented claims raised significant legal issues. NJDEP sought substantial monetary damages, but agreed to settle early in the litigation on terms favorable to IBM.

• Represented IBM in a lawsuit brought by a potential subcontractor under a “teaming agreement” entered into in connection with a contract between IBM and the Department of Defense. After the district court granted IBM’s motion to dismiss, the Third Circuit remanded one claim for further proceedings. On remand, the district granted IBM’s renewed motion to dismiss, and that decision was upheld on the plaintiff’s further appeal.

• Represented the CEO and three other senior officers of Merck & Co., Inc. in shareholder derivative litigation brought in connection with Merck’s marketing of the drug Vioxx.

• Bob was co-counsel with Cravath in defending Qualcomm in antitrust litigation concerning actions in a standard-setting organization involving technology used to locate the position of a cell phone. After three years of active litigation on a worldwide scale, the plaintiff agreed to withdraw all of its allegations of wrongdoing against Qualcomm, and Qualcomm agreed to settle to avoid the expenditure of litigation costs exceeding the settlement amount.

• Bob represented the insured in fire insurance coverage litigation in state court in New Jersey. Bob moved successfully for partial summary judgment on the ground that the insurer improperly named as its fire insurance “appraiser” the head of a company which was acting simultaneously as the insurer’s “adjuster” on other aspects of the same fire insurance coverage claim. Following a number of favorable rulings for Bob’s client, the case was settled.

Class Action and Insurance

• Retained by Truck Insurance Exchange as lead defense counsel in two putative class action lawsuits filed in the Court of Common Pleas in Philadelphia in 2015, challenging practices concerning the payment of general contractor’s overhead and profit to insured under Farmers homeowners’ policies.
• Represented Progressive Group of Insurance Companies (Progressive), taking the lead on behalf of a group of insurer defendants in a class action involving reimbursements for multiple MRIs conducted at a single patient session. The trial court granted the defendants’ motion for summary judgment on all claims. Pending the plaintiffs’ appeal to the Second Circuit, a favorable settlement was reached.
• Successfully defended Progressive in a class action complaint seeking to recover on behalf of a class of Pennsylvania massage therapists. The case was dismissed on the basis that the plaintiffs were required to hold the equivalent of a physical therapist’s license in order to seek insurance benefits. That ruling was affirmed on appeal.
• In a pending putative class action in Philadelphia against Progressive and other insurers, concerning insurance discounts for automobile antitheft devices, Bob argued a summary judgment motion and motion for class certification on behalf of defendants. When a similar case was filed against Progressive and other insurers in federal court in Minnesota, Bob took the lead on a joint motion to dismiss and argued on behalf of all four defendants. The trial court granted the motion, dismissing plaintiffs’ claims. That ruling was appealed to the Eighth Circuit, where Bob successfully argued the appeal on behalf of all defendants.
• Represented Progressive in a long-pending class action concerning the meaning of “reasonable proof” under Section 1716 of the Pennsylvania MVFRL. In 2003, the trial court accepted the plaintiffs’ position that receipt of a completed standardized billing form constituted reasonable proof of the amount of the insurance benefits due in all cases, and on that basis certified the class. Bob took over the case in 2009 and, in January 2014, convinced the Superior Court to reverse and decertify the class. The Pennsylvania Supreme Court declined to review the case, effectively ending 12 years of litigation in Progressive’s favor.