Kevin J. Fee

Areas of Practice

• Commercial Litigation
• White-Collar Defense

Representative Matters

• Obtained summary judgment in New York dismissing the claims of a neurosurgeon who alleged that the Mount Sinai Health System terminated his privileges and employment due to his race. The discrimination claim was brought under the NYC Human Rights Law which must be construed “as liberally as reasonably possible in favor of plaintiffs," and plaintiff also brought a claim under New York State Public Health Law, which states a doctor can't be terminated for reasons unrelated to standards of patient care/welfare, the objectives of the institution, or character/competency. The plaintiff, the only African-American neurosurgeon at Mount Sinai, claimed the hospital treated a similarly situated white neurosurgeon more favorably. The court ultimately found that plaintiff failed to contradict that the disparate treatment alleged was attributable to legitimate, nondiscriminatory reasons. 

• United States of America ex rel. Hayes v. Allstate Insurance Company, et al, and United States of America ex rel. Takemoto v. ACE, Ltd., (W.D.N.Y. 2014). Defended one of more than a dozen defendants in reverse False Claims Act case alleging failure to repay Medicare for "conditional payments."

• Beth Israel Medical Center v. Siemens and Beth Israel Medical Center v. Verizon, (S.D.N.Y. 2014). In action to recover large overcharges, obtained settlements from the provider who issued the invoices and a third-party vendor hired to prevent overpayments through its review of invoices.
• Vedder Software Group, Ltd, v. ISO et ano, 545 Fed.Appx. 30 (2d Cir. 2013). Obtain dismissal — affirmed on appeal — of complaint against insurance company alleging an antitrust conspiracy with a vendor.
• M&T Bank v. First Tennessee Bank, 13 CV 977 (W.D.N.Y. 2013). Obtained arbitration award requiring adversary bank to repurchase $23 million in loans originated in violation of underwriting guidelines or tainted by fraud in the origination. Panel also awarded $3 million in attorneys' fees and $445,000 in discovery sanctions.
• Estate of Gertrudo R. Realuyo v. Amelia Realuyo, (Sup. Ct. N.Y. Co. 2013). After court granted ex parte application for TRO that stopped the sale of a $6 million co-op, defeated preliminary injunction application and won dismissal of the complaint.
• Employers Insurance Company of Wausau v. Tri-State Employment Services, Inc., (S.D.N.Y. 2012). In action by workers compensation insurer for unpaid premiums, obtained early settlement that included $5,902,403 confession of judgment and waiver of all claims that insurer failed to process claims correctly. Client has not had to file confession of judgment.
• M&T v. Gemstone CDO VII Ltd, et al, 78 A.D.3d 1664, 912 N.Y.S.2d 824 (4th Dep't 2010) and 68 A.D.3d 1747, 891 N.Y.S.2d 578 (4th Dep't 2009). As described in client's press release, client settled claims for $55 million stemming from purchase of $82 million in CDO note after defeating motions to dismiss complaint and winning motion to compel discovery.
• Executive Risk Indemnity, Inc. v. NPS, (Chancery Div. Morris Co. N.J. 2010). On summary judgment, obtained rescission of errors and omissions policies with an aggregate limit of $240 million and dismissal of aggregate claim for coverage of $140 million by demonstrating that the insured's application contained material misrepresentations and purposeful concealments of fact.
• In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300 (3d Cir. 2010). Represented a Fortune 100 company in a nationwide antitrust and RICO class action involving dozens of defendants, over 80 million pages of documents and 200 depositions.
• SEC v. General Re Corp., 10 CV 458 (LAP) (S.D.N.Y. 2010). Represented non-party that moved to intervene in the SEC's disgorgement of $12.2 million from a reinsurer as part of a settlement of charges that it issued fraudulent reinsurance agreements to two insurers. While the Court held those funds in escrow, the matter was resolved in mediation on terms acceptable to our client.
• Cuomo v. Liberty Mutual Insurance Company, 52 A.D.3d 378, 861 N.Y.S.2d 294 (1st Dep't 2008). Representing the first company to contest the coordinated efforts of various state attorneys general to ban contingent commission agreements, obtained dismissal on appeal of all common law and statutory fraud, breach of fiduciary duty and unjust enrichment claims related to such arrangements. Thereafter, each of the attorneys general amended their prior settlement agreements with other insurers and brokers to permit contingent compensation
• In re Robert R. Greenberg, (Bankruptcy Co. E.D.N.Y. 2007). After the trustee in bankruptcy negotiated a $150,000 settlement of a fraudulent conveyance claim against the debtor's spouse, the largest creditor objected to the settlement, purchased the right to pursue the claim on behalf of the estate, prosecuted an adversary proceeding against the debtor's spouse, and recovered $1.35 million for the estate.
• In re M. F. Bank & Company, Inc. (D. Minn. 2005). Reversal of a bankruptcy court's erroneous application of both the "adverse interest" exception to a principal's vicarious liability for the tortious conduct of its agents and corporate liability under the apparent authority doctrine leading to a $500,000 recovery from the bankruptcy estate.
• American Telephone Utilities Consultants, Inc. v. Beth Israel Medical Center, (Sup. Ct. N.Y. Co. 2005). After a 12 day trial, the jury returned a defense verdict in favor of the firm's client and dismissed the plaintiff's $3.2 million breach of contract and unjust enrichment claims.
• Long Island College Hospital v. Harris, (D. N.J. 2003). Hired after a client received a $1 million demand from a collection attorney, uncovered the claimant's fraud, commenced a civil RICO action, invoked New Jersey's attachment statute to freeze the claimant's real property, obtained a judgment, and forced the sale of the real property in a Chapter 7 bankruptcy proceeding.
• Levy v. Chubb Corp., 2002 WL 799866 (N.D. Ill. 2002). Obtained dismissal of bad faith claims by establishing that the insurer had a reasonable basis to deny the plaintiff's $4.2 million claim based upon the evidence that the property was destroyed by arson and the plaintiff's powerful financial motive for destroying the property.
• Soanes v. Empire Blue Cross Blue Shield, 970 F. Supp. 230 (S.D.N.Y. 1997). Hired to defend an insurer in an action seeking to compel it to pay health insurance benefits to union members, commenced a civil RICO impleader action resulting in a $26 million judgment in our client's favor. The trial court referred the matter to the United States Attorney leading to the criminal conviction of the mastermind of the fraud. United States v. Sprei, 145 F.3d 528 (2d Cir. 1998).
• Eardley v. IKEA, (Los Angeles, California 1999). Defeated class certification of a false advertising claim under California's private attorney general statute by presenting survey evidence demonstrating that an overwhelming percentage of the population knew and understood the information that the putative class representative allegedly lacked. The denial of class certification was upheld on appeal.
• Klein v. Empire Blue Cross and Blue Shield, 1998 WL 336633 (S.D.N.Y. 1998). Defeated class certification seeking to determine whether high-dose chemotherapy for breast cancer was experimental by demonstrating that medical issues regarding the appropriateness of the treatment for each class member would predominate. The decision on that motion effectively ended the case.
• Slutskaya v. Landau, 250 A.D.2d 594, 672 N.Y.S.2d 248 (2nd Dep't 1998). Obtained summary judgment, affirmed on appeal, dismissing a premises liability claim against a landlord for injuries inflicted on a tenant by an intruder.
• Schrotenboer v. Soloff, 74 N.Y.2d 597 (1989). The New York Court of Appeals accepted Kevin's public policy argument and held that an agreement of immunity from prosecution that was extracted by a father in exchange for his return of his children to their mother, the lawful custodian, was unenforceable.
• People v. DeMatteis and Cuadrado, 186 A.D.2d 460, 589 N.Y.S.2d 153 (1st Dep't 1992). Obtained a jury verdict convicting both defendants of murder in the second degree in a contract killing which withstood a challenge on appeal under New York's accomplice corroboration rule. The principal evidence was the testimony of the people who drove the shooter to and from the murder.

Admissions

• New York
• U.S. District Court for the Southern District of New York
• U.S. District Court for the Eastern District of New York
• U.S. District Court for the Western District of New York
• U.S. District Court for the Northern District of New York
• U.S. Court of Appeals for the Second Circuit
• U.S. Court of Appeals for the Third Circuit

Education

• Georgetown University Law Center, J.D., cum laude, 1984
• State University of New York at Albany, B.A., magna cum laude, 1981

Experience

• Duane Morris LLP
  - Partner, 2015-present
• Kornstein Veisz Wexler & Pollard LLP
  - Partner, 1991-2015
• New York County District Attorney's Office
  - Labor Racketeering Unit, 1989-1990
  - Trial Division, 1984-1988

Professional Activities

• Association of the Bar of the City of New York
  - Banking Committee, 2005-2008
  - Health Law Committee, 2001-2003