Interior of the Office of Kaplan Johnson Abate & Bird LLP

Appellate and Constitutional Law

Kaplan Johnson Abate & Bird LLP’s attorneys have extensive experience handling complex appellate and constitutional litigation in federal and state courts around the country. We have handled a wide range of complex issues, including high-stakes business, class action, and constitutional litigation.

National Appellate Experience

Our team, which includes a former U.S. Department of Justice appellate attorney and attorneys who practiced in large national and regional firms, has argued appeals before 11 different U.S. Courts of Appeals as well as numerous different state appellate courts.

Experience with the Highest Courts

Our attorneys regularly appear before the Kentucky Supreme Court and Court of Appeals. Our team also has considerable experience briefing cases before the U.S. Supreme Court at both the certiorari and merits stages, for both parties and amici.

Our team of appellate lawyers is regularly retained to take over high-stakes disputes as they move to the appellate court. We are skilled at working collaboratively with trial counsel to achieve the best possible results for our client, whether defending a victory below or attempting to overturn an unfortunate result.

Constitutional Law

Our attorneys also regularly litigate constitutional issues in state and federal trial courts, on a wide range of constitutional issues. This includes First Amendment, Fourth Amendment, Fifth Amendment, 14th Amendment, pre-emption claims, and state constitutional issues, among others.

Representative Matters

  • Aetna Life Ins. Co. v. Big Y Foods, Inc., 52 F. 4th 66 (2nd Cir. 2022): Successfully defended double-damages judgement for a Medicare Advantage Organization against a primary payer under the Medicare Secondary Payer law.
  • Humana Health Plan, Inc. v. Anthem Kentucky Managed Care Plan, Inc., No 2021-CA-0819 (Sept. 9, 2022): Obtained reversal of opinion setting aside results of Kentucky’s multi-billion-dollar Medicaid Managed Care procurement.
  • Courier Journal v. Shively Police Dept., No. 2021-CA-1120 (Ky. Ct. App. Nov. 10, 2022): Won reversal of opinion upholding Open Records denial, confirming that police departments cannot withhold records solely because they relate to a pending investigation.
  • Jones v. Commonwealth, 636 S.W.3d 503 (Ky. 2021): Successfully persuaded Kentucky Supreme Court to unanimously reverse a Court of Appeals ruling that would have prohibited indigent litigants from obtaining fee waivers when pursuing expungements.
  • Does 1-10 v. Ana Violeta Flores, No. 2021-CA-0314 (Ky. Ct. App. Sept. 23, 2022): Won affirmance of dismissal of defamation claim brought by anonymous Covington Catholic students against journalists and academics
  • Smith v. Gordon, No. 2021-CA-0713 (Ky. Ct. App. Sept. 23, 2022): Won affirmance of order dismissing defamation claim against newspapers and TV stations brought by formerly incarcerated inmate
  • Rupp v. Courier Journal, Inc., 839 F. App’x 1003 (6th Cir. 2021): Obtained dismissal of trademark claims filed against a newspaper by litigious baker.
  • Al J. Schneider Co. v. Moseley, No. 2019-CA-1700-MR (Ky. Ct. App. Aug. 27, 2021): Obtained reversal of trial court’s entry of a motion for judgment on the pleadings and restoring breach of fiduciary duty claims.
  • Louisville Galleria, LLC v. Kentucky Pub Investments, LLC, 2020-CA-0983-MR (Ky. Ct. App. Aug. 13, 2021): Obtained order reversing trial court finding that commercial landlord waived claims for unpaid rent by failing to auction tenant property left on premises.
  • Lincoln Trail Grain Growers Ass’n, Inc. v. Meade Cty. Fiscal Ct., No. 2020-CA-0892-MR, 2021 WL 3437971 (Ky. Ct. App. Aug. 6, 2021): Won reversal of trial court’s ruling that the plaintiffs lacked standing to challenge Open Meetings Act violations and unlawful removal of board members of public agency.
  • Craig & Landreth Cars, Inc. et al. v. Protective Life Corporation et al., 2020-CA-0119 (Ky. Ct. App. Apr. 16, 2021): Successfully defended dismissal of fraud, breach of contract, breach of fiduciary duty, and other claims related to vehicle service contracts and reinsurance agreements.
  • Aetna v. Big Y Foods, No. 20-3853 (2d Cir. 2021): Represented Medicare Advantage Organization in appeal seeking to set aside judgment obtained under the Medicare Secondary Payer Act.
  • Protect Democracy Project v. National Security Agency, 10 F. 4th 879 (D.C. Cir. 2021): Represented public interest organization in FOIA litigation seeking access to documents withheld under the Presidential Communications Privilege.
  • Molett v. Hyche, No. 2019-CA-1159-MR (Ky. Ct. App. Nov. 13, 2020), review denied (Sept. 22, 2021): Obtained order affirming defense jury defense verdict for police officer in malicious prosecution case.
  • Eifler v. Greenamyer, No. 2017-CA-000079-MR (Ky. Ct. App. June 28, 2019), review denied (Sept. 16, 2020): Obtained complete reversal of multimillion-dollar verdict against client sued in business tort dispute, with instructions to dismiss all claims against him.
  • Ally Align Health, Inc. v. Signature Advantage, LLC, 574 S.W.3d 753 (Ky. 2019): Pursued successful interlocutory appeal resulting in holding that parties who adopt the American Arbitration Association rules unmistakably intent to delegate the issue of arbitrability to the arbitrator.
  • Abbit v. ING USA Annuity & Life Ins. Co., 774 F. App’x 351, 352 (9th Cir. 2019): Obtained order affirming summary judgment for defendant on all individual and class action claims concerning fixed indexed annuities.
  • Back v. Chesapeake Appalachia, L.L.C., 773 F. App’x 294, 295 (6th Cir. 2019): Obtained order reversing trial court’s dismissal of class action complaint concerning calculation of oil and gas royalties.
  • Barnes v. Sec. Life of Denver Ins. Co., 945 F.3d 1112, 1115 (10th Cir. 2019): Obtained order reversing district court’s denial of reinsurer’s motion to intervene as defendant in putative class action challenging certain charges on universal life insurance contracts.
  • Chinook USA, L.L.C. v. Duck Commander, Inc., 721 F. App’x 361 (5th Cir. 2018): Obtained order affirming bench trial judgment in breach of contract action.
  • Cabinet for Econ. Dev. v. Courier-Journal, Inc., No. 2018-CA-001131-ME (Ky. Ct. App. May 17, 2019), review denied (Aug. 21, 2019): Successfully defended trial court order compelling the disclosure of documents containing the names of the shareholders in Braidy Industries, a company owned in part by the Commonwealth of Kentucky.
  • Louisville/Jefferson Cty. Metro Gov’t v. Courier-Journal, Inc., 605 S.W.3d 72 (Ky. Ct. App. Aug. 9, 2019): Successfully defended landmark trial court ruling compelling the City of Louisville to disclose its bid for the Amazon HQ2 project.
  • Purdue Pharma L.P. v. Bos. Globe Life Scis. Media, LLC, No. 2016-CA-000710-MR (Ky. Ct. App. Dec. 14, 2018), review denied (Aug. 21, 2019): Successfully obtained and defended order requiring opioid litigation records to be unsealed, including an important and rare deposition of a key member of the family that owned Purdue Pharma.
  • Association of American Railroads v. Hatfield et al., 435 F. Supp. 3d 769 (E.D.K.Y. 2020): Obtained permanent injunction against enforcement of state statutes regulating the amount of time trains can block railroad crossings.
  • Clemons v. Norton Healthcare Inc. Ret. Plan, 890 F.3d. 254 (6th May 10, 2018): Successfully briefed case partially overturning class certification and vacating large damages award against ERISA retirement plan;
  • WPSD TV et al v. Jameson, Nos. 18-CA-277 & 18-CA-279 (Mar. 1. 2018): Successfully obtained emergency appellate relief ordering court to unseal proceedings of juvenile defendant indicted as an adult in connection with school shooting in Marshall County, KY;
  • Served as counsel of record in the U.S. Supreme Court in multiple cases for amici curiae, including Janus v. AFSCME, No. 16-1466 (merits stage); Coventry Health Care of Missouri v. Nevils, No. 16-149 (merits stage); and United Healthcare of Arizona, et al. v. Spinedex Physical Therapy USA, Inc., No. 14-1286 (cert. stage).
  • Utility Management Group v. Pike County Fiscal Court, 531 S.W.3d 3 (Ky. 2017): Successfully argued against retroactive application of amendment to Open Records Law;
  • Board of Commissioners of City of Danville v. Advocate Commc’ns, Inc., 527 S.W.3d 803 (Ky. 2017): Successfully argued that public agency violated Open Meetings Act by conducting business in closed session;
  • Norfolk Southern Ry. Co. v. Johnson, No. 2016-SC-00248 (Ky. Sup. Ct. 2017): Successfully persuaded Kentucky Supreme Court to grant discretionary review in, and argued, a tort case presenting novel questions of law relating to the “Firefighter’s Rule” in Kentucky (decision pending).
  • KentuckyOne Health, Inc. v. Reid, 522 S.W.3d 193 (Ky. 2017): Successfully persuaded Kentucky Supreme Court to grant discretionary review, and reverse, decision denying HCQIA immunity to hospital;
  • Stavens v. Digenis, 2017 WL 1203395 (Ky. Ct. App. Mar. 31, 2017): Successfully defended summary judgment in favor of the plaintiff concerning defendants’ duty to indemnify against creditor lawsuits under membership interest purchase agreement.
  • Eitel v. Duncan Commercial Real Estate, 2017 WL 65607 (Ky. Ct. App. January 6, 2017): Successfully defended dismissal of plaintiff’s claims of tortious interference with a contract and business relationship, fraud, unjust enrichment, and quantum meruit, arising from a real estate transaction.
  • Humana Med. Plan, Inc. v. Western Heritage Ins. Co., 832 F.3d 1229 (11th Cir. 2016): Successfully argued case establishing MAOs’ rights to pursue affirmative recoveries from liability insurers under the MSP law;
  • Cabinet for Health & Family Servs. v. Courier-Journal, Inc., 493 S.W.3d 375 (Ky. Ct. App. 2016): Obtained and defended unprecedented judgment awarding client over $1 million in fees and penalties under Kentucky Open Records Act.
  • Harrison Mem’l Hosp., Inc. v. Wellcare Health Ins. Co. of Kentucky, Inc., 509 S.W.3d 69 (Ky. Ct. App. 2016), review denied (Feb. 9, 2017): Obtained and defended dismissal of suit seeking to force Medicaid MCOs to pay for non-emergency services rendered in emergency room setting.
  • Int’l Bhd. of Teamsters v. U.S. Dep’t of Transp., 724 F.3d 206 (D.C. Cir. 2013): Successfully briefed and argued against petitions for review challenging the U.S. Department of Transportation’s NAFTA Trucking Program, preserving more than $600 billion in annual cross-border trade throughout North America.

Contact Us

We counsel and represent clients in Metro Louisville and throughout the nation. To speak with one of our lawyers, call our office at 502-416-1630.