Barry P. Kaltenbach

Restrictive Covenants and Investment Advisory

• An investment advisory team resigned and began working for a competitor. We successfully defended a motion for temporary restraining order asserting that the advisors were soliciting their former clients. We also successfully defended a request for expedited discovery and a preliminary injunction hearing before the matter was successfully resolved in arbitration.
• An investment advisor moved to a competitor and was sued for soliciting his former clients, based on social media posts, and a former co-worker. We defended the request for temporary restraining order before the client moved forward with a local firm. When the matter became bogged down in discovery, we were brought back in and got the matter resolved through mediation.
• Two employees resigned, went to work for a competitor, and began soliciting their former clients in violation of their employment contracts. We obtained a temporary restraining order, and expedited discovery revealed that the employees had secretly begun assisting the competitor months before their formal resignation, resulting in a preliminary injunction. The matter settled with the competitor barred from expanding its business and the employees repaying considerable salary and bonuses.

• We were engaged by a registered representative seeking to expunge a CRD occurrence dating back twenty years. Despite the six-year limitations period, we were able to successfully expunge the occurrence, clearing the only blemish on the individual’s record.
• A dissatisfied customer initiated arbitration against a client, alleging the client failed to follow customer investment directives. After mounting a vigorous defense, and helping the client navigate a CFP^® Board investigation, we were able to resolve the matter through mediation without the client contributing settlement funds.

Financial Services

• A commercial lender was hesitant to foreclose its mortgage due to environmental concerns. We developed a creative solution that resulted in a monetary judgment against the borrower and the appointment of a selling agent to market the property without the need to work through the foreclosure process.
• We represented the receiver of a high-rise residential building with ongoing leasing and tenant disputes. Shortly before discharge and over the winter holidays, the building experienced a fire. We worked with the receivership team and City of Chicago officials to ensure tenant safety and effectuate emergency repairs.
• A mortgage insurance company incurred $1 billion in net operating losses and was placed into rehabilitation. The corporate parent filed for bankruptcy protection and initiated an adversary proceeding against its own subsidiary seeking a declaration that it was entitled to take a worthless stock deduction, threatening the subsidiary's ability to apply the net operating losses to offset several hundred million dollars in projected future income. We obtained a favorable ruling in the bankruptcy court, prohibiting the parent from taking the deduction, and the parent appealed to the district court. The district court affirmed the bankruptcy court, securing the right of the subsidiary to apply its own net operating losses, saving over $100 million in future tax liability.

Insurance and Reinsurance

• A medical insurer paid a sizeable claim, but its reinsurer denied reimbursement arguing that the payments were extracontractual obligations. We took over the matter from prior counsel and obtained a significant arbitration award for our client.

• After the construction of a significant airport expansion, the owner filed suit against the general contractor alleging construction defects. After analyzing the client's insurance policies, potential coverage was found from an unlikely source, and the client received a complete defense.
• Another client entered into a new contract with a major railway operator, with complex insurance requirements, and wanted its insurance program analyzed to make sure it was fulfilling its contractual obligation. The analysis revealed a gap in insurance that the client's broker had missed.
• A hotel owner was sued after a tragic accident resulted in the death of one of its guests by a drunk driver. We worked with the client to secure general commercial and umbrella liability coverages and worked with the trial team to make sure the client's interests were protected. After the runaway jury returned a verdict in excess of policy limits, we worked on a successful appellate strategy that resulted in reversal and entry of judgment in the client's favor on appeal.

Construction and Property Claims

• A large general contractor partnered with an engineering firm to redesign and rebuild a highway interchange. The firm underestimated construction quantities, resulting in substantially increased construction costs for which the local department of transportation refused to pay. We implemented a strategy that maneuvered the engineering firm, two insurance brokers and two insurance companies—all from different jurisdictions—into the same lawsuit. The case settled prior to trial with the client recovering nearly all its claimed damages.
• A general contractor was building a large water purification plant when, a few days before the scheduled turnover, a series of failures resulted in a flange rupturing and the nearby reservoir draining downhill into the plant. The owner suspended payment and imposed liquidated damages to purchase potable water from the state. Litigation followed with the owners and several subcontractors and material suppliers, while related litigation was filed in multiple states by or against insurance companies. All litigation was resolved prior to trial, with the client ultimately not paying anything for its own defense or contributing to settlement.
• The sprinkler system in an occupied luxury high-rise kept rupturing, and the owner filed suit to recoup the cost to repair the damage and replace all the piping. While defending the general contractor, we discovered that a component parts supplier had made unannounced chemical changes to one of its products, resulting in a combination of incompatible materials being used. Working with our client, we settled with the owner and asserted claims against the design-build fire subcontractor, then resolved those claims and exited the litigation, which continued for years amongst the industry parties.
• A suburban church granted a license to a developer to permit the contractor to store construction materials in the church's parking lot but specifically forbidding excavation over concerns that the historic building might be damaged. The developer excavated the space regardless to save money and expedite its construction. We obtained a temporary restraining order shutting the project down, ultimately resolving the dispute without damage to the church, and with the developer paying a substantial settlement for its trespass.
• A complicated series of transactions resulted in a property owner losing title to several of his properties in the Chicago area. We pursued the co-conspirators, one of whom filed for bankruptcy protection, but we prevailed at trial on our adversary proceeding and obtained a judgment for fraud that was found to be non-dischargeable.

Illinois Biometric Information Privacy Act (BIPA)

• Class action defense of employers and other entities for BIPA and related claims
• Advising and counseling insureds on obtaining defense for BIPA claims
• Auditing and advising on company policies and practices to ensure BIPA compliance

International Trade

• A Japanese global electronics and robotics company sought to consolidate multiple free trade zones (FTZs) throughout North America into a new FTZ located in Dallas, Texas, pursuant to a warehousing agreement with a third-party logistics provider (3PL). Almost immediately the 3PL’s operations resulted in: significant cost overruns, more than doubling the monthly budget; lost and delayed receipt and shipment of products and supply chain breakdowns; increased compliance and consulting costs, penalties and liquidated damages owed to U.S. Customs and Border Patrol; and the closure of the FTZ. We engaged a 3PL expert consultant and advised the client on its ongoing dispute, helping it navigate its way through a challenging environment.

"Litigation Trends," Wine, Beer & Spirits Law Annual Conference, Denver, October 9, 2024

"Proactive Risk Management," Door and Access Systems Manufacturers Association, Las Vegas, January 2023

"What Trial Lawyers Look for When Choosing an Expert," Forensic Expert Witness Association, June 2022

Product Liability Law presentation, National Association of Garage Door Manufacturers, June 2022

"Where Are We Going to Fight? Jurisdiction and Venue," Primerus Business Law Institute, Webinar, December 2014

"Navigating Through Client Liquidation or Bankruptcy," Primerus Business Law Institute, Annual Symposium, New York, New York, May 2014

"You Want Me to Agree to What?!? Negotiating Tough Construction Contracts," Primerus Business Law Institute, Webinar, November 2013

"Doing Business With Financially Troubled Companies," Association of Corporate Counsel, Annual Conference, Denver, Colorado, October 2011

"Drafting and Enforcement of Alternate Dispute Resolution and Venue-Selection Provisions in a Global Environment," Primerus Business Law Institute, Annual Symposium, Chicago, Illinois, June 2011

"Real Estate Litigation Issues," Attorneys’ Title Guaranty Fund, Inc., Webinar, May 2011

"Mechanics Lien and Payment Bond Claims," Primerus Business Law Institute, Webinar, January 2011

"An Owner's Look at the Illinois Mechanics Lien Act: Old Rules and New Duties," Joseph A. Freed & Associates LLC, May 2009