Olshan Law: Attorney Profiles: Kyle C. Bisceglie

KYLE C. BISCEGLIE
Partner / New York

Kyle C. Bisceglie maintains a national practice counseling domestic and foreign corporations, partnerships and individuals with respect to complex commercial litigation, alternative dispute resolution, contracts, risk analysis, litigation avoidance and business advice.

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RECENT PUBLICLY-FILED MATTERS
• TV Tokyo and Nihon Ad Systems v. 4Kids Entertainment (S.D.Bankr. 2011) — prosecuting claims for breach of exclusive licensing agreement for U.S. and European rights to Yu-Gi-Oh! and seeking expedited confirmation of termination. Plaintiffs undertook large collection and production of ESI from two publicly-traded clients in Tokyo, Japan in July 2011 and conducted 16 depositions and prepared 3 experts in August 2011 for trial beginning in the same month.

• Atari v. Carlyle Trading (Commercial Division, NY County 2011) — prosecuting dispute involving trade in kind of excess inventory for advertising trade credits.

• Atari v. Zoo (S.D.N.Y. 2011) — prosecuted and settled claims under software contract against publisher of Nintendo games.

• GoSMILE v. Levine (S.D.N.Y. 2010) — defeated both a request for a TRO and preliminary injunction against use of the mark "GLO" on behalf of well-known aesthetic dentist, prosthodontist and inventor in trademark and cybersquatting claims brought by leading teeth whitening products. After a month of full-scale expedited electronic discovery and three days of plenary hearing over a multi-week period including the examination of half a dozen witnesses and survey expert, the Court ruled for Dr. Levine on every issue in a thirty page decision denying GoSmile's claims for relief and sealing various documents used in GoSmile's motion. See copy of decision here.

• Lehman Bros. v. Knutson (S.D.N.Y. 2010) — defending guaranty lawsuit arising from largest residential multi-family real estate development deal in Arizona state history.

• Richard T. Gerstner and Marshall C. Phelps, Jr. v. D&SCI and Steven A. De Chiaro (D.N.J. 2009) — obtained on behalf of two minority shareholder plaintiffs, a restraining order, expedited discovery, and, then, a second order enjoining a defense software contractor and its CEO from certain actions, and requiring plaintiff's Board representation and restoration of their rights as shareholders. Defendants settled in less than one year from plaintffs' filing of the lawsuit paying nearly three times defendants' original multi-million dollar offer to purchase plaintiffs' shares.

• Hasbro v. Atari (D.R.I. 2009) — Defended Atari and prosecuted counterclaims seeking $100 million for wrongful termination of a multi-year global license for the on-line rights to the role-playing game "Dungeons & Dragons." The case was resolved approximately twenty months after Hasbro initially filed suit.

• Turbine v. Atari (Commercial Division, NY County 2009) — successfully defended Atari in lawsuit filed by Turbine, the developer and host of the Massively-Multiple Online Role-Playing Game "Dungeons & Dragons Online." Atari counterclaimed in consolidated lawsuits against, and won motion to dismiss all non-contract claims and counterclaims. Read the decision. The case was resolved shortly after decision.

• Frelinghuysen Morris Foundation v. Carroll (Commercial Division, NY County 2009) — won dismissal of plaintiff's entire case establishing precedent under New York's Art & Cultural Affairs Law on behalf of museum curator, philanthropist and private art dealer sued by a foundation involving purchases from now defunct Salander-O'Reilly Galleries LLC. Read the decision.

• Five Mile Capital v. Knutson (Commercial Division, NY County 2009) — defended lawsuit involving guaranties by mezzanine lenders arising from real estate development project.

• Anthracite BOFA v. Knutson (S.D.N.Y. 2009) — successfully defended lawsuit involving guarantees of $60 million to mezzanine lenders arising from real estate development project. Defeated Plaintiff's motion for summary judgment to establish multiple legally viable theories for trial under Second Circuit precedent for treatment of unconditional guarantees. Read the decision. The case was resolved shortly after the decision.

• LaSalle Bank National Associates v. Knutson (S.D.N.Y. 2009) — defending three lawsuits involving guaranties arising from a real estate development project. Successfully resolved two of the three lawsuits to date.

• Arbor Realty v. Knutson (S.D.N.Y. 2009) — successfully resolved guaranty lawsuit against real estate investor.

• zSlide v. Atari (S.D.N.Y. 2009) — successfully resolved claims arising from a software development project.

• Marvel Entertainment and Marvel Characters, Inc. v. MGA Entertainment, Inc. (Commercial Division, NY County 2009) and Spider-Man Merchandising, L.P. v. MGA Entertainment, Inc. (Commercial Division, NY County 2009) — successfully asserted breach of contract and unjust enrichment claims related to various Marvel characters including Spider-Man 2 and Spider-Man 3 movie properties, Spider-Man Classic, and Ghost Rider and certain MGA produced games including Marvel Insane Darts, Spider-Man Web Crawl and Ghost Rider Walkie Talkie Combo. Successfully launched multi-million dollar contract and common law claims arising from license of Spider-Man 2 and Spider-Man 3 movie properties.

• 3M v. EBL, et al. (D.N.J. 2008) — obtained favorable settlement of trademark and copyright claims against infringer of multiple 3M brands including Thinsulate™ and Scotchguard™.

• Phillips v. Hedge Fund X (Commercial Division, NY County, 2008) — successfully defended hedge fund and principal from contractual, tort, fraud and other claims made by disgruntled limited partner. Won dismissal of seven of eight claims on pre-discovery motion. Subsequently obtained dismissal of entire case as sanction for violation of confidentiality stipulation and order.

• Guidance Endodontics v. Dentsply International and Tulsa Dental (D.N.M. 2008) — obtained TRO and then preliminary injunction to enforce key provision of a manufacturing and supply agreement against the world's largest dental and endodontic company. Read TRO decision here. In October 2009, won $44 million verdict in 3 1/2 week jury trial. At trial, the jury heard more than two dozen witnesses (some of whom testified multiple times over multiple days) and saw in excess of 300 exhibits. The jury deliberated for approximately 24 hours before delivering what was at the time the largest verdict in New Mexico history. According to the National Law Journal, it was also the 40th largest verdict in the USA, third largest verdict involving a breach of contract and second largest involving a medical device during 2009.

• R.W. Carol, LLC v. Byron Associates, Inc. (Commercial Division, NY County 2008) — obtained preliminary injunction for national executive placement agency against competitor business and its client principals arising from an asset purchase agreement.

• Marvel Entertainment, Inv. and Marvel Characters, Inc. v. Kellytoy (USA), Inc. (S.D.N.Y. 2008) — prosecuting breach of licensing agreement, copyright, trademark and related state law claims involving various animation and film properties. Court granted summary judgment on multiple claims and awarded attorneys fees. Read copy of decision here.

• twentysix New York v. Sporn (Commercial Division, NY County 2007) — successfully settled a breach of contract matter arising from a enterprise software development project.

• Dev v. Inovio (Cal. Sup. Ct., San Diego 2007) — successfully defended alleged discrimination claim by a former employee.

• Pyrce v. Inovio (Cal. Sup. Ct., San Diego 2007) — won complete and unanimous defense verdict in May 2009 after two week jury trial for a publicly-traded biotechnology company in a lawsuit for fees allegedly due as a result of stock purchase agreement involving a Norwegian biotech company. The twelve person jury deliberated for less than two hours.

• Ernst & Young — Canada, as Trustee for HIP Interactive, Inc. v. Atari, Inc. f/k/a Infogrames, Inc. (Commercial Division, NY County, 2006) — successfully defended Atari for breach of contract and accounting arising from distribution agreement to distribute software, computer programs and video games in the U.S. and Canada.

• Integrated Payment Systems, Inc. v. Citibank, N.A. and the Bank of New York (S.D.N.Y. 2006) — successful representation of formerly publicly-traded company's subsidiary in a declaratory action involving contract and UCC issues arising from Citibank's acceptance of a fraudulently altered check.

• MMZ Associates v. GELCO and Wachovia (S.D.N.Y. 2006) — successfully defended fleet leasing subsidiary of publicly-traded company arising from terminated insurance brokerage relationship.

• Marvel v. Motorsport Collectibles (S.D.N.Y. 2006) — successfully prosecuted licensing dispute arising under animation and movie licensing agreements for the Incredible Hulk, X-Men and Spider-Man.

• Faith Popcorn Brainreserve v. Impact (S.D.N.Y. 2006) — successfully defended contract dispute involving marketing, branding and event production for Fortune 100 company.

• Fieldman v. Smartchoice Communications (Commercial Division, NY County, 2006) — settled contract and NY Labor Law claims involving sales commissions of telecommunications company.

• Marvel v. Naki (Commercial Division, NY County, 2005) — favorably resolved licensing dispute over various comic book characters including Spider-Man, the Incredible Hulk and Fantastic Four.

• Byrne v. Salerno (D.N.J. 2005) — successfully resolved claims of fraud, breach of fiduciary duty and related claims against employer trustee in an ERISA litigation with no liability to client.

• Marvel v. Johnny Blaze (S.D.N.Y. 2004) — obtained preliminary injunction against defendant in licensing dispute involving comic book character Ghost Rider.

• JSMS v. GMG Capital Partners (S.D.N.Y. 2004) — won dismissal of all securities claims in July 2006 against private equity fund specializing in early stage technology investments. Read the decision

• Ectaco v. Cardservice (E.D.N.Y. 2004) — achieved de minimus settlement in defense of merchant processing dispute.

• iBill v. FDMS (Supreme Court, Queens County, 2004) — favorably defended merchant processing dispute.

• Girard v. VNU (Supreme Court, NY County, 2004) — settled employment dispute arising from terminations at leading trade journal on third day of jury selection in June 2006.