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Kevin M. Fitzgerald



Kevin Fitzgerald is a nationally recognized litigator whose practice is focused on complicated business disputes. Kevin is also a firm leader serving his second term as chairman of the Policy Committee, the firm’s principal governance and oversight board, and previously in its Manchester office as the firm’s longest-serving office managing partner.

What do you focus on?

I have a trial practice, national in scope, concentrated in the area of complicated financial disputes. I have particular experience in constitutional challenges to government action impairing private contract rights and in federal and state receivership proceedings. I recently secured on behalf of national equipment manufacturers a preliminary injunction on constitutional grounds of legislation purporting to retrospectively impair manufacturer/dealer agreements. I have successfully tried as lead counsel high dollar value claims of national note involving challenges to unconstitutional government action, mergers and acquisitions, corporate fiduciary duty, lender rights, class action and insurance coverage. Most recently, I was lead counsel in a complex, multi-forum litigation winning a $110MM judgment for a class of 6000+ health care providers.

In addition to courts in which I am admitted, I have appeared in matters in most other U.S. jurisdictions including courts in New York, California, Illinois, Indiana, Delaware, Maryland, Rhode Island, Vermont, Virginia, Nevada, New Mexico, Florida, Ohio, Pennsylvania, Texas, Washington, Connecticut and Maine. I have also appeared in American Arbitration Association proceedings in New York City, Boston and Washington, D.C.

What do you see on the horizon?

Growing economic and political pressures will continue to push both federal and state governmental actors to attempt increasingly aggressive legislative and regulatory action in an effort to raise and reallocate private sector revenue and engineer related political policy. This means more increasingly high value litigation is in store for private parties whose rights are implicated by these trends.

Representative Experience

  • New Hampshire class action, unconstitutional state taking and impairment of contract: Acted as lead counsel for a consortium of over 300 health care providers, on behalf of themselves and a class of more than 6,000 current or past policyholders in the New Hampshire Medical Malpractice Joint Underwriting Association (JUA), in an action that successfully challenged state legislation that required JUA to transfer a total of $110 million in alleged excess surplus funds to the state’s general fund in fiscal years 2009, 2010, and 2011. Both the trial court and the New Hampshire Supreme Court ruled in our clients’ favor, holding that the legislation constituted an impermissible impairment of clients’ contract rights in violation of the New Hampshire Constitution. In 2011–2012, successfully defended clients’ adjudicated rights in a sequence of judicial, administrative and legislative proceedings culminating in the prosecution of a precedent setting litigation class action. Class certification was granted, summary judgment was obtained and, after a fairness hearing, the Plan of Allocation to return the $110 million in funds to policyholders was approved. (Georgia Tuttle, M.D., et al. v. The State of New Hampshire, Belknap County Superior Court, NH, Docket No. 09-E-148(2009); NH Supreme Court Docket No. 2009-0555 (2010) and related judicial, administrative and legislative proceedings.)
  • Retained to advise United States Court of Appeals in connection with confidential investigation and related matters.
  • Secured multimillion-dollar recoveries for benefit of receivership and defrauded investors as lead counsel for federal court appointed receivership arising out of high-profile SEC enforcement litigation.
  • Representing a global bank in high-profile Vermont federal court litigation over a failed municipal lease finance transaction. In 2009, the bank provided $33.5 million to the City of Burlington to refinance and expand its high-speed broadband project, and the bank agreed to this financing based, in large part, on the City’s representation and a related opinion of its counsel that its General Fund was available to satisfy rental payments due under the financing documents. In 2010, the City elected not to appropriate sufficient funds necessary to make any further rental payments. After extensive discovery and motion practice in which the bank prevailed on multiple motions for summary judgment, the matter was settled on terms providing for upfront cash payments to the bank of no less than $10.5MM and further payment of 50% of the proceeds from the compulsory sale of the network.
  • Representing three national equipment manufacturers in a constitutional challenge to the expansion of a law known as the “Automobile Dealers Bill of Rights,” which proposed to prescribe business practices between manufacturers, distributors, and dealers in a manner that would impair existing business contracts between these manufacturers and their dealers. After a hearing, the law was preliminarily enjoined from going into effect, the court agreeing that the law was likely unconstitutional as applied to the manufacturers contracts. This matter is considered a key battleground case that may impact similar actions proposed in other states. Following a further trial court proceedings, the matter will be reviewed de novo and decided by the New Hampshire Supreme Court in 2014.
  • Secured defendants’ verdict in defense of board of directors sued for breach of fiduciary duty, self-dealing, and fraud in connection with public company merger transaction.
  • Secured defendants’ verdict in defense of multimillion-dollar breach of fiduciary duty claims by minority shareholders against directors and majority shareholders.
  • Obtained $1 million breach of contract award on behalf of former CEO of high-technology start up company.
  • Successfully argued landmark appeal on behalf of national managed care insurer, resulting in invalidation of court orders made in derogation of carrier’s audit and arbitration rights.
  • Obtained multimillion-dollar recoveries in separate trials on behalf of two former corporate chief executives wrongfully terminated “for cause” in attempts to escape payment of vested compensation and stock rights.
  • Earned multiple defense judgments on behalf of insurers in disputes involving hundreds of millions of dollars in disputed insurance coverage and related bad faith claims.
  • Acted as lead counsel in successful arbitration of $4+ million complex contract civil fraud and conspiracy claim and secured no-prosecution decision in related federal criminal investigation.
  • Earned defense judgment in defense of defamation and civil conspiracy claims against corporate defendant arising out of shareholder dispute.
  • Obtained defense judgment in federal court trial of ERISA claims against major regional financial institution.
  • Twice successfully defended appeals to the United States Supreme Court from successful orders in lower appellate courts.
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Contact

Kevin M. Fitzgerald

Partner
Chairman, Policy Committee

Manchester

Phone: 603-628-4016


Fax: 603-628-4040

Suffolk University Law School, J.D., with honors, (Law Review

University of New Hampshire, B.A., with honors

Harvard Business School, Executive Education Program

New Hampshire

U.S. District Court, District of New Hampshire

U.S. Court of Appeals, First Circuit

U.S. Court of Appeals, Second Circuit

U.S. Supreme Court

Massachusetts

U.S. District Court, Northern District of New York

Kevin was selected, through a peer-review survey, for inclusion in The Best Lawyers in America© 2021 in the fields of Commercial Litigation; Litigation—Banking and Finance; Litigation—Mergers and Acquisitions; and Mass Tort Litigation/Class Actions—Defendants, and was also named the Best Lawyers 2020® Litigation—Banking and Finance “Lawyer of the Year” in Manchester, NH. Kevin has been listed in Best Lawyers since 2011, and was the 2018 Best Lawyers® Litigation—Banking and Finance “Lawyer of the Year” in Manchester, NH. Clients have described him as “a gifted litigator” whose “arguments, remarks, and ability to convey the client’s side of the argument are second to none.”

Kevin has been recognized for exceptional standing in the legal community in Chambers USA: America’s Leading Lawyers for Business 2020 for Litigation: General Commercial (New Hampshire). He has been recognized in Chambers in every year of its publication. Chambers reports that Kevin’s clients describe him as a “great leader,” “very astute strategy-wise, a good communicator and good at addressing any concerns and issues.”

Kevin has also been recognized as a “New England Super Lawyer” in Business Litigation based on a peer-review survey by Thomson Reuters (2007–2014).

Kevin has also been recognized for both his leadership of Nixon Peabody’s “highly recommended” litigation team and as an individual “Litigation Star” by Benchmark Litigation (2020, as well as in prior years), a guide to leading American trial lawyers, describing him as “brilliant” and “logical” in the courtroom.

Kevin has also received an AV Preeminent® Peer Review Rating™ from Martindale Hubbell®, the highest possible rating for ethics and legal ability.

Kevin has served on the board of directors of the American Diabetes Association—New England and New Hampshire affiliates (past chairman); he is president and chairman of the board of the Manchester Community Music School and serves as an advisor to several other charitable organizations. He is a past member of the board of governors of the New Hampshire Trial Lawyers Association and past president of the Manchester Bar Association.

Groundbreaking Class Action Returns $110 Million to JUA Policyholders

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