Prior Litigation Practice

Jonah Orlofsky, Esq.

Litigation

Prior to moving into the ADR realm on a full-time bases, Jonah represented clients in courthouses across the country in complex civil cases. What was unique about his practice was the degree to which he “worked both sides of the aisle.” Most litigators tend to represent plaintiffs, or corporations, labor or management, insurance companies or insureds. Mr. Orlofsky managed to win the trust of every kind of client, representing both insurance companies and policyholders, plaintiffs suing large corporations on contingent fees, and large corporations defending claims on a hourly basis. He has also litigated these claims in courtrooms across the country, in trial and in arbitration, on appeal and in mediation.
Lawyers are also frequently asked what they specialize in. In his more than thirty years in practice, the better question might be what areas did Jonah not litigate? The list below provides some of the notable published decisions in cases he handled, and shows some of the areas in which he has recognized expertise.

Before the Utah Supreme Court

Jonah was the lead lawyer in ground breaking medical malpractice case before the Utah Supreme Court. A father, after taking several prescription psychotropic drugs, murdered his wife. The children sued the father’s medical providers, alleging that the negligently prescribed drugs were a cause of his violent conduct, and therefore the loss of their mother. The trial court dismissed, ruling that medical providers owe a duty only to their patients, not third-parties injured by their patients.
After oral argument, Mr. Orlofsky persuaded the Utah Supreme Court to reverse, ruling that medical providers owe a duty to third-parties injured by the violent acts of their patients, subject to proof that the provider’s negligence was a foreseeable cause of the violent conduct.

Press coverage of the case:

Insurance Coverage Litigation

Alstrin v. St. Paul Mercury Ins. Co., 179 F.Supp.2d 376 (D.Del. 2002)
Following a transaction in which Cole Taylor Bank spun off part of its business into a new, publicly held corporation, the officers and directors of Cole Taylor Bank were sued by both the trustee in bankruptcy and the shareholders of that new corporation when it went bankrupt shortly after the spin-off. Mr. Orlofsky successfully represented the officers and directors in an adversary action against four insurance carriers, securing in excess of $20 million of insurance coverage.

Private Bank & Trust Co. v. Progressive Cas. Ins. Co., 409 F.3d 814 (7th Cir. 2005)
Private Bank & Trust was the victim of a fraudulent check scheme. Mr. Orlofsky represented the bank in an attempt to get insurance coverage for the losses it suffered due to the fraud.

Class Actions

Klein v. O’Neal, Inc., 222 F.R.D. 564 (N.D.Tex. 2004)
Mr. Orlofsky represented a drug manufacturer defending a products liability class action.
Bellsouth Mobility LLC v. Christopher, 894 So.2d 1076 (Fla.4th DCA 2005)
Mr. Orlofsky represented the plaintiff in a class action against telephone company for unauthorized charges. He successfully challenged an arbitration clause as unconscionable and then secured a favorable settlement.

Ogg v. Mediacom, L.L.C., 142 S.W.3d 801 (Mo.App. W.D. 2004)
Mr. Orlofsky represented landowners in class against cable television company for trespass. The case was dismissed by the trial court, but Mr. Orlofsky secured a reversal of that ruling on appeal.

 

Zoning

Diamond B-Y Ranches v. Tooele County, 91 P.3d 841 (Utah App. 2004)
The Plaintiffs purchased a valuable gravel pit, but a zoning board refused to issue a permit for gravel mining operations. Mr. Orlofsky successfully sued the county under a Fifth Amendment takings theory and secured the necessary mining permit.

Wrongful Death

Elder v. Nephi City ex rel. Brough, 164 P.3d 1238 (Utah 2007)
Plaintiffs were the surviving family members of an individual killed by a train at a crossing. Mr. Orlofsky sued both the county that owned the land and the railroad company that operated the train. The Utah Supreme Court affirmed the claim against the county but dismissed the claim against the railroad company after addressing a number of legal issues of first impression.

Francis v. Utah, 248 P.3d 44 (Utah 2010)
Mr. Orlofsky represented the family of a child killed by a bear while camping in an area owned by the federal government, but where wildlife was managed by the state. The Utah Supreme Court rejected the state’s immunity defense and remanded the case for trial.

ERISA

Pickering v. USX Corp., 1995 WL 584372 (D.Utah 1995)
Mr. Orlofsky was co-counsel with legendary trial lawyer Gerry Spence in representing approximately 2000 laid off steel workers in mass ERISA action. The case required two trials, one on liability and one on damages. Mr. Orlofsky and his co-counsel prevailed on both and eventually settled the case for over $47 million.

Lindsay v. Thiokol Corp., 112 F.3d 1968 (10th Cir. 1997)
Mr. Orlofsky represented employees in ERISA class action based on change in normal retirement age. Mr. Orlofsky lost the case in the Tenth Circuit Court of Appeals.

Securities Fraud and Breach of Fiduciary Duty

In re Phar-Mor Securities Litigation, 875 F.Supp. 277 (W.D.Pa. 1994)
Mr. Orlofsky represented the stockholders in securities fraud class action.

The Northern Trust Co. v. MS Securities, 2006 WL 1843369 (N.D.Ill 2006)
Mr. Orlofsky represented the Northern Trust and its insurance carrier, American Casualty Company of Reading, PA, in action against Merrill Lynch. After defeating a motion to dismiss, a favorable settlement was secured.

Small v. Sussman, 306 Ill. App. 3d 639, 713 N.E.2d 1216 (Ill. App. Ct. 1999)
Mr. Orlofsky represented a minority shareholder in breach of fiduciary duty and derivative action against corporation and majority shareholder. The breach of fiduciary duty claim was dismissed, but the appellate court ruled that the dismissed claim could be presented in plaintiff’s concurrent valuation claim, which led to a favorable settlement of that action.

Martin v. Heinold, 643 N.E.2d, 163 Ill.2d 33 (1994)
Mr. Orlofsky was part of a team representing the plaintiffs in this breach of fiduciary duty action based on the sale of London commodities options. Plaintiffs prevailed at trial and the Illinois Supreme Court upheld an award that included punitive damages.

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