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Practice Areas
Complex Commercial and Business Disputes and Securities Arbitrations
Wilker, McKay and Hansen have successfully handled a wide variety of complex business and commercial disputes in a broad range of areas, including securities, banking, breach of contract, construction, business fraud, reinsurance, trade secrets, copyright and trademark, employer-employee, including ERISA, and defamation and publication torts. Wilker and McKay are each highly experienced litigators, and Wilker is thoroughly conversant with the Federal Arbitration Act and the two arbitral conventions, i.e., the New York Convention and the Inter-American Convention, to which the U.S. is a party.
The following are some representative matters they have handled:
The firm won the first jury verdict in the United States rescinding a reinsurance agreement, in the case of Gerling Global Reinsurance Corporation -- U.S. Branch v. ACE Property & Casualty Company (S.D.N.Y.). In a related case arbitrated in 2006, they were successful in obtaining restitution of almost $11 million for their client.
Over the years, the firm has represented both broker-dealers and customers in securities arbitrations. More specifically, McKay has represented both customers and broker-dealers in securities arbitrations, and obtained the only two monetary awards ever granted to Stratton Oakmont.
Wilker litigated the first case to hold that a bank is not subject to CFTC regulation for spot market foreign currency transactions. Bank Brussels Lambert, S.A. v. Intermetals Corp., 779 F. Supp. 741 (S.D.N.Y. 1991).
Following the firm’s victory in Intertec Contracting A/S, et al. v. Turner Steiner International, S.A., et al., 6 A.D.3d 1, 774 N.Y.S.2d 14 (1st Dept. 2004), in which they persuaded an appellate court that the trial judge had abused his discretion when he dismissed their client’s case, the firm resolved a complex construction delay case through mediation, obtaining a very favorable result for their client.
The firm has obtained favorable judicial decisions for its clients relating to international commercial arbitrations. In Banco de Seguros del Estado v. Mutual Marine Offices, Inc., and Mt. McKinley Insurance Co., 344 F.3d 255 (2d Cir. 2003), they persuaded a federal Circuit Court of Appeals that the doctrine of sovereign immunity does not apply in private commercial arbitrations. In Gerling Global Reinsurance Corporation -- U.S. Branch v. ACE Property & Casualty Co., 2002 U.S. App. Lexis 15571 (2d Cir. 2002), they convinced a federal Circuit Court of Appeals that the U.S. branch of a major German reinsurer was not required to arbitrate its rescission claim (this victory paved the way for the jury verdict, mentioned above). Similarly, in Intertec Contracting, A/S, et al. v. Turner Steiner International, S.A., et al. 2001 U.S. App. Lexis 4156 (2d Cir. 2001), the firm obtained a decision from the same court that a Danish construction company had not agreed to arbitrate its dispute with the contractor, a major international construction company, in Sri Lanka.
McKay handled six international arbitrations against the Iranian Government (on behalf of CBS Records, Security Pacific National Bank, and other clients), all of which resulted in favorable awards.
In Calloway v. Marvel Entertainment et al., 854 F. 2d 1452 (2d Cir.1988), McKay successfully defended a $69 million copyright infringement case and thereafter successfully recovered sanctions of $200,000 against the plaintiff and his counsel, obtaining what is probably the largest award of sanctions ever granted under Rule 11 of the Federal Rules of Civil Procedure.
McKay also represented a syndicate of thirty-nine banks in a successful suit against three government-owned Costa Rican banks, resulting in a landmark ruling by the Second Circuit on the act of state doctrine. Allied Bank International v. Banco Credito Agricola De Cartago, 757 F. 2d 516 (2d Cir. 1985).
McKay also has served for many years as an arbitrator for the National Arbitration Forum, based in St. Paul, Minnesota.
Intellectual Property and Trade Secrets
Wilker and McKay both have a wealth of experience litigating disputes involving trade secrets and intellectual property.
Wilker headed a 12-lawyer trial team in a dispute involving copper foil for circuit boards, resulting in a favorable settlement for his client.
The firm has handled several “337” proceedings before the International Trade Commission involving computer technology. In one of those proceedings, involving electrical discharge machine (EDM) technology, Wilker headed up a 15-lawyer trial team that obtained a result that allowed his client to continue to import its EDM technology.
The firm has also worked with several major law firms that specialize in intellectual property cases, but which do not have offices in the New York area, serving as their local counsel involving patent and copyright matters pending in federal courts in New York City.
McKay has handled an extensive number of litigations in the entertainment field, several involving issues of copyright infringement, representing such clients as George Harrison of The Beatles, Al Brodax (the producer of the film “Yellow Submarine”), The William Morris Agency, Marvel Entertainment Group and Sidney Poitier.
Reinsurance Disputes and Insurance Insolvencies
The firm is well known in the area of reinsurance. P. Jay Wilker has represented insurers and reinsurers in more than a hundred arbitrations and has more than twenty years’ experience litigating and arbitrating reinsurance disputes. The firm’s experience encompasses issues involving allocation/aggregation, arbitrability, "follow the fortunes," commutation, rescission, insolvency collections, accounting, catastrophic losses and international collections, among others. Wilker is thoroughly conversant with the Federal Arbitration Act and the two arbitral conventions, i.e., the New York Convention and the Inter-American Convention, to which the U.S. is a party. Mr. Wilker is a Certified Arbitrator of ARIAS – U.S.
Among their many successes, Wilker has “scored a hat trick” by obtaining the extraordinary remedy of rescission of reinsurance agreements on three occasions. In May 2003, the firm won the first jury verdict ever in the United States rescinding a reinsurance agreement, in the case of Gerling Global Reinsurance Corporation -- U.S. Branch v. ACE Property & Casualty Company (S.D.N.Y.). In 2006, they were successful in obtaining restitution of almost $11 million for another client, when they persuaded an arbitration panel to rescind two facultative certificates. Representing a reinsurer of Union Indemnity Insurance Company in one of their early collaborative efforts, Wilker persuaded the New York State Supreme Court, New York County, to grant his client rescission of a reinsurance treaty and thereafter persuaded New York’s Appellate Division to affirm that order. Curiale v. AIG Multi-Line Syndicate, Inc., et al., 225 A.D.2d 409, 640 N.Y.S.2d 18 (N.Y. App. Div. 1996).
Many of the firm’s reinsurance cases, as with the firm’s practice generally, concern disputes involving foreign entities and issues of international and transnational law. In one matter, Wilker was able to collect more than $5 million, of approximately $6 million owed to a U.S. reinsurer, from numerous reinsurers located in Central and South America. In so doing, he obtained the first decision of a federal court holding that the New York and Inter-American Conventions’ provisions on posting of security trump the U.S. Foreign Sovereign Immunities Act’s prohibition against pre-judgment attachments. Skandia America Reinsurance Corporation v. Caja Nacional de Ahorro y Seguros, 1997 U.S. Dist. Lexis 7221 (S.D.N.Y. 1997). That victory was followed by Mutual Marine Offices, Inc., et al. v. Banco de Seguros del Estado, 344 F.3d 255 (2d. Cir. 2003), which was the first decision to recognize, based on arguments the firm made, that sovereign immunity does not apply in a private commercial arbitration. The Firm also obtained a decision from the U.S. District Court for the Southern District of New York requiring a large Japanese reinsurer to post a $7.5 million letter of credit in favor of the U.S. branch of a large German reinsurer. Global Reinsurance Corporation, U.S. Branch v. Sompo Japan Insurance, Inc., 2005 U.S. Dist. LEXIS 37969 (S.D.N.Y. 2005).
With respect to liquidations, the Firm has represented clients in the well-known liquidations of Union Indemnity Insurance Company and The Home Insurance Company. Moreover, Joseph Termini, who is Of Counsel to the firm, is the former Special Deputy Superintendent of the New York State Insurance Department, where he was in charge of the Liquidation Bureau. He has handled a myriad of insolvency-related cases pertaining to policyholders, shareholders, agents, secured creditors, third party claimants, guaranty funds and the fiduciary responsibilities of officers and directors of troubled insurers and their related companies. Mr. Termini is available to advise on all matters pertaining to reinsurance in court-ordered liquidations or rehabilitations, including collections, offsets and cut-throughs, among other issues.
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