Bailey & Glasser LLP

Attorney

Brian, a Rhodes Scholar and a founding partner in the firm, started his career as purely a civil and criminal trial and appellate lawyer. He has tried cases in ten different states and been personally involved in litigation in twenty-six states. His consistent involvement in high-stakes commercial litigation expanded his practice to include negotiating and managing the execution of billions of dollars worth of business transactions.Today, Brian maintains a diverse practice. While managing and supervising many of the firm’s lawyers, he remains deeply involved in our clients’ most pressing issues. Brian has been featured in a variety of publications throughout his career, including the articles listed here:

Here are a few examples of Brian’s work:

     2019

  • In the DISH Network case discussed below, the United States Court of Appeals for the Fourth Circuit upheld the $61.34 million trial verdict.
  • Obtained, as co-trial counsel, an arbitration award of over $10 million for client S&N Communications, Inc. against Bechtel Infrastructure Corporation for breach of contract in the engineering and construction of a high-speed fiber optic network.

     2018

  • In the Allegheny Energy case discussed below, the Ohio Court of Appeals upheld the $2 million trial court judgment.
  • Obtained, as co-trial counsel, an arbitration award of over 1.9 million on behalf of Protech Solutions, Inc. against Conduent State & Local Solutions, Inc., for breach of a Strategic Alliance for teaming on the design, development and implementation of a custom software solution.
  • Resolved damage suits for more than $800 million arising out of events of force majeure, alleged lease defaults, and for lost coal, against Hillsboro Energy LLC and Macoupin Energy LLC for approximately $190 million, paid over 15 years.

     2017

  • Obtained, as co-trial counsel, a verdict on behalf of ERISA plan participants of approximately $29.7 million against Wilmington Trust for breach of fiduciary duty in the valuation and purchase of a defense contractor on behalf of an ESOP plan. Memorandum Opinion
  • Obtained, as lead trial counsel, a verdict on behalf of a class of consumers of approximately $20.5 million against DISH Network, Inc., for over 51,000 violations of the Telephone Consumer Protection Act for calling numbers protected by the National Do Not Call registry. Verdict Sheet The Court then increased the jury award up to $61.34 million because we proved willfulness. Memorandum Opinion and Order
  • Obtained, as lead trial counsel, a verdict for more than $2 million against Allegheny Energy, Inc., in a uniform commercial code case over breach of a contract for the sale of goods.

     2016

  • In the Yellowstone Mountain Club case discussed below, the United States Court of Appeals for the Ninth Circuit rejected all defendant Tim Blixseth’s challenges to the verdict and reversed the trial court’s reduction to $40 million, reinstating the original fraud judgment for more than $286 million.
  • In the Yellowstone Mountain Club BLX case discussed below, the United States Court of Appeals for the Ninth Circuit upheld the trial court’s breach of contract judgment for over $219 million against Tim Blixseth.
  • In the Sallyport case discussed below, the United States Court of Appeals for the Second Circuit upheld the trial court verdict for more than $21 million.

     2015

  • Lead counsel to Foresight Reserves, L.P., in the sale of a non-controlling 50% interest in its subsidiary Foresight Energy L.P. (NYSE: FELP) to Murray Energy Corporation for $1.375 billion.
  • Lead counsel to Kameron Collieries ULC in its acquisition of 100% of the Donkin Project, a large undeveloped coal reserve in the Cape Breton region of Nova Scotia, Canada, from Glencore Xstrata, a global mining and trading company based out of Barr, Switzerland and Morien Resources Corporation, a Canadian royalty company.

     2014

  • Obtained, as Trustee of the Yellowstone Club Liquidating Trust, judgment against Tim Blixseth for $219.8 million for breach of a promissory note contract.
  • Served as counsel to Foresight Reserves, L.P., in the $2.4 billion initial public offering of common units of its subsidiary Foresight Energy Partners, L.P. (NYSE: FELP). https://www.youtube.com/watch?v=5FnxjsLh7Cg
  • Obtained, as lead trial counsel, a $21.1 million dollar verdict against Sallyport Global Holdings, Inc., in a breach of contract valuation case in federal court in New York City. Published Decision »

     2013

  • Counsel to Foresight Energy LLC in connection with its $1.55 billion refinancing, involving a bond, term loan and revolver combination.
  • Served as Trustee for the Yellowstone Club Liquidating Trust.

     2012

  • Served on the Board of Directors of Tory Burch, LLC as the Chris Burch designee during the period of a contentious dispute over investor rights. The case was resolved by agreement.
  • Counsel to the issuer in Foresight Energy LLC’s $200 million bolt-on financing.

     2011

  • Lead counsel defending International Industries Inc. from a $127 million breach of contract claim. After five years of litigation, the Court limited the plaintiff’s maximum recovery to $2 million and the case was quickly resolved.

     2010

  • Co-lead trial counsel in the Yellowstone Mountain Club fraud case in Montana, obtaining a $286 million verdict against property developer and former owner Tim Blixseth for fraud. The trial court reduced the judgment to $40 million and upon defendant’s appeal, we cross-appealed.
  • Lead counsel in Foresight Energy, LLC’s $690 million refinancing.

     2009

  • Lead trial counsel in a case of first impression respecting the power of the United States Mine Safety and Health Administration to impose ventilation plans on mine operators.
  • Lead counsel for Colt LLC’s sale of $255 million in coal reserves.
  • Lead counsel for Macoupin Energy LLC’s sale/leaseback of $143.7 million in coal reserves.

     2008

  • Retained by the Trustee of the Refco Liquidating Trust and obtained a significant confidential settlement on his behalf.
  • Served on trial team in major nationwide product liability case that settled prior to trial.

     2007

  • Lead counsel for Adena Minerals LLC’s sale of coal and transportation assets in return for a significant percentage of Natural Resource Partners, LP (NYSE: NRP) and a 22% interest in NRP’s general partner.
  • Lead counsel for the West Virginia class and coordinating/lead negotiator for multistate class in a $62.5 million settlement with H&R Block (NYSE: HRB). The West Virginia share was $32.5 million.
  • Served as sell-side counsel in a significant private equity investment by Riverstone Holdings, LLC, a private equity fund manager, in Foresight Reserves, L.P.

Earlier Matters

  • Co-lead trial counsel for plaintiffs in a mass action under the Surface Coal Mining and Reclamation Act obtaining compensation for damage to water wells and homes.
  • Lead trial counsel for the plaintiffs in a mass action of first impression under the Surface Coal Mining and Reclamation Act, establishing rights for off-permit damages from dust fall.
  • Served as co-counsel in the Petition and Briefing stage at the United States Supreme Court in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001).
  • Special Assistant Attorney General for the State of West Virginia in the Mountaintop Removal, Cumulative Hydrologic Impact Analysis, and Bonding Litigations from 1999-2003. This series of cases involved several injunction hearings and numerous complex federal and state issues resulting in fundamental changes in the mining and environmental laws of West Virginia and the region.
  • Tried numerous civil and criminal cases to verdict in state and federal court, in arbitration, and before state and federal agencies.

Complex Commercial Litigation
Energy and Environment
Products Liability-Personal Injury
Criminal Defense and Internal Investigations
Corporate & Finance
Bankruptcy & Insolvency
Cyber-security & Global Data Protection

Noteworthy

  • Selected by his peers for inclusion in The Best Lawyers in America© for Commercial Litigation and Criminal Defense: White-Collar (2010-2020)
  • Recognized within Chambers & Partners USA Guide in General Commercial (2015-2019) and Corporate/Commercial (2018-2019)
  • Chosen as one of the Top 100 Trial Lawyers by the National Trial Lawyers organization
  • Recognized in 2019 by The Best Lawyers in America© as one of the Lawyers of the Year within Criminal Defense: White Collar
  • Selected to the list compiled by Super Lawyers® for General Litigation and Business Litigation (2007 – 2017)

Hillsboro Energy LLC, Permit No. 399

In 2009, several individuals and environmental groups sought administrative review of the Illinois Department of Natural Resources’ issuance of a Surface Mining Control and Reclamation Act permit. After our successful defense of the petitioners’ summary judgment motion, we sought and obtained a complete dismissal.

Not guilty verdict for doctor in overprescribing charges

Not guilty verdict for a doctor accused by federal authorities of excessive prescribing of painkillers.

DeClue v. Illinois Department of Natural Resources and Macoupin Energy LLC

In 2010, after the Illinois DNR renewed our client’s mining permits, two citizens petitioned for administrative review. We prevailed on a motion to dismiss for failure to state a claim, and our client was enabled to continue operating under the permit.

DuBose v. Illinois Department of Natural Resources and Sugar Camp Energy LLC

In 2012, petitioner DuBose sought administrative review of a major revision to a mining permit. We successfully argued in a motion to dismiss that the petitioner lacked standing to bring the action.

Macoupin Energy, LLC

The Illinois Department of Natural Resources issued our client a permit to allow underground disposal of slurry created from the coal mining processes.  An individual and an environmental group sought administrative review of the permit. We settled with the environmental group agreeing to modification of the permit.  In early 2014, we obtained summary judgment for our client as to the individual’s claims.

Cummins v. H&R Block, Inc.

In a case litigated for five years in venues ranging from the West Virginia trial and appellate courts, to federal district courts in West Virginia and Illinois, to the United States Supreme Court, our lawyers served as lead counsel in winning a $62.5 million multistate class action settlement against H&R Block. The case involved first-impression claims relating to the application of West Virginia’s credit-services organization statute to Block’s refund anticipation loan product. Other firms across the country litigated cases against Block alleging similar claims, without success, for more than ten years. West Virginia’s share of the settlement was $32.5 million.

Dynamic Energy, Inc., v. International Industries, Inc.

We were lead counsel defending International Industries from a $127 million breach of contract claim. After five years of litigation, the Court limited the plaintiff’s maximum recovery to $2 million, and the case was quickly resolved.

State of West Virginia v. USEPA, No. 12-5150

Bailey & Glasser counsel served as Special Assistant Attorneys General for West Virginia in the groundbreaking environmental litigation filed in the State from 1999-2003--the Mountaintop Removal, Cumulative Hydrologic Impact Analysis, and Bonding Litigations.  Almost a decade later, Bailey & Glasser lawyers again represented the State against USEPA in these actions:

  • Mingo Logan Coal Co. v. EPA, 714 F.3d 608 (D.C Cir. 2013);
  • National Mining Association, et al. v. Gina McCarthy, et al., 758 F.3d 243 (D.C. Cir. 2014); and
  • WV Highlands Conservancy, Inc., et al. v. Randy C. Huffman, 651 F. Supp. 2d 512 (S.D. W.Va. 2009).
This series of cases involved several injunction hearings and numerous complex federal and state issues addressing fundamental changes made by EPA in the mining and environmental laws of West Virginia and the region.

BPI Energy, Inc. v. Colt LLC

We served as lead trial counsel for a mining company defending $395 million claim. After a successful injunction trial, the plaintiff paid the firm’s client $3 million to settle the case.

Paint Creek Coal Co. v. Panther Coal Co., Inc. and Chris Cline

The firm was lead trial counsel in this complex commercial arbitration. Our client was sued for more than $50 million, and “lost” $1 million by the arbitration verdict. The plaintiff’s appeal was dismissed.

Trinity Coal Corporation

Served as Special Assistant Attorneys General for the State of West Virginia in connection with Trinity Coal’s Chapter 11 bankruptcy cases, representing the Department of Environmental Protection.

UST Litigation & Related Proceedings

We serve on the management committee of a consortium of firms representing 22 governors, state attorneys general, and underground storage tank funds pursuing claims against the major oil companies for overpayments of UST cleanup costs. This ongoing endeavor has returned over $100 million dollars to the various states.

Tory Burch, LLC

Brian A. Glasser served on the Board of Directors of Tory Burch, LLC as Christopher Burch’s designee during the period of a contentious dispute over investor rights. The case was resolved by agreement.

Foresight Energy Bolt-On Financing

We served as counsel to the issuer in Foresight Energy LLC’s $200 million bolt-on financing.

Foresight Energy Refinancing

We served as counsel in Foresight Energy, LLC’s $690 million refinancing.

Colt, LLC

We were lead counsel for Colt, LLC’s sale of $255 million in coal reserves.

Macoupin Energy, LLC

We were lead counsel for Macoupin Energy, LLC’s sale/leaseback of $143.7 million in coal reserves.

Adena Minerals, LLC

We were lead counsel for Adena Minerals, LLC’s sale of coal and transportation assets in return for a significant percentage of Natural Resource Partners, LP (NYSE: NRP) and a 22% interest in NRP’s general partner.

Raven Energy LLC

We were lead counsel for Raven Energy LLC with respect to a $185 million financing for capital improvement projects at the Convent Marine Terminal.

Southern Land Co. L. P./Dickinson Properties, LLC

We were lead counsel for Southern Land and Dickinson Properties with respect to the corporate reorganization of certain jointly owned coal reserves and other assets in southern West Virginia.

Anderson v. Elk Run Coal Company, Inc.

We won a six-week jury trial against a Massey Coal subsidiary alleging nuisance from coal preparation plant; total recovery of approximately $2.4 million, plus injunctive relief valued at more than $10 million. The case was featured in National Geographic magazine and other national media outlets.

Patriot Coal Corp. Bankruptcy

Our lawyers served as Special Assistant Attorneys General in both Patriot Coal bankruptcy cases, the first in the Southern District of New York and Eastern District of Missouri and the second in the Eastern District of Virginia. They represented the West Virginia Department of Environmental Protection as well as the West Virginia State Tax Department and Offices of the Insurance Commissioner. For the DEP, our lawyers helped secure a settlement valued at $50 million for the State to help ensure funding of reclamation and water treatment. On behalf of the Tax Department, our lawyers obtained dismissal of the Patriot trustee’s $5-plus million suit to recover alleged tax refunds due.

WP Steel, LLC

On behalf of the West Virginia Offices of the Insurance Commissioner, firm lawyers served as Special Assistant Attorneys General for the State of West Virginia in connection with the Chapter 11 case of RG Steel, LLC. After RG Steel defaulted on its workers’ compensation obligations, firm attorneys obtained relief from the automatic stay to allow the Insurance Commissioner to obtain $7 million in funds to pay workers’ compensation claims.

Brundle v. Wilmington Trust

Bailey & Glasser recovered $30 million for the participants in the Constellis Employee Stock Ownership Plan following a two-week trial. The court’s decision set important new standards for ESOP trustees representing plans and participants in ESOP transactions.

Gatling Ohio, LLC v. Allegheny Energy Supply Company, LLC

Obtained, as lead trial counsel, a verdict for more than $2 million against Allegheny Energy, Inc., in a uniform commercial code case over breach of a contract for the sale of goods.

Charron v. Sallyport Global Holdings, Inc.

Charron v. Sallyport Global Holdings – Bailey & Glasser obtained affirmance in the United States Court of Appeals for the Second Circuit of a $20 million judgment in a commercial dispute regarding sale of a government contracting company.

Kameron Collieries ULC – Acquisition of Donkin Coal Mine, Nova Scotia, Canada

We served as lead counsel to Kameron Collieries ULC in its acquisition of 100% of the Donkin Project, a large undeveloped coal reserve in the Cape Breton region of Nova Scotia, Canada, from Glencore Xstrata, a global mining and trading company based out of Barr, Switzerland and Morien Resources Corporation, a Canadian royalty company.

Foresight Reserves, L.P.

The firm served as lead counsel to Foresight Reserves, L.P., in the sale of a non-controlling 50% interest in its subsidiary Foresight Energy L.P. (NYSE: FELP) to Murray Energy Corporation for $1.375 billion.

Foresight Reserves, L.P. Initial Public Offering

The firm served as counsel to Foresight Reserves, L.P., in the $2.4 billion initial public offering of common units of its subsidiary Foresight Energy Partners, L.P. (NYSE: FELP)

Foresight Energy LLC

The firm was counsel to Foresight Energy LLC in connection with its $1.55 billion refinancing, involving a bond, term loan and revolver combination.

Cline Group

The firm provides legal counsel and advice to the Cline Group, a group of related investment companies based out of Palm Beach, Florida, on contracts, mergers and acquisitions, and corporate governance.

KC Euroholdings S.a.r.l.

The firm served as lead counsel to KC Euroholdings S.a.r.l. in its acquisition of Coalspur Mines Limited, a coal development company with approximately 55,000 hectares of coal leases located in the Hinton region of Alberta, Canada.

Yellowstone Club Liquidating Trust

Served as Trustee for the Yellowstone Club Liquidating Trust.

Krakauer v. Dish Network. L.L.C.

Obtained a $20.5 million verdict in a class action trial against Dish Network. The class, led by class representative Dr. Thomas Krakauer of Bahama, North Carolina, alleged Dish was liable for more than 51,000 telemarketing calls placed by a defunct DISH dealer to persons whose telephone numbers were on the National Do Not Call Registry. The jury found DISH liable for all calls, and awarded $400 per violation of the Telephone Consumer Protection Act. The Court then increased the jury award up to $61.34 million because we proved willfulness.

Raven Energy Holdings, LLC

The firm was lead counsel to Raven Energy Holdings, LLC in the sale of its subsidiary, Raven Energy, LLC, and the Convent Marine Terminal in Convent, Louisiana to SunCoke Energy Partners, L.P. for total consideration in excess of $412 million.

Charron v. Sallyport Global Holdings, Inc.

Obtained a $21.1 million dollar verdict against Sallyport Global Holdings, Inc., in a breach of contract valuation case in federal court in New York City. Satisfaction of Judgment.  In 2016, the United States Court of Appeals for the Second Circuit upheld the trial court verdict against Sallyport Global Holdings, Inc. for more than $21 million.

Bar Admissions

West Virginia, 1994
District of Columbia, 2014

Government Experience

Law Clerk, Hon. M. Blane Michael, U.S. Court of Appeals for the Fourth Circuit, 1994-1995

Memberships and Affiliations

West Virginia State Bar
Hon. John A. Field, Jr., Inn of Court (President), 2008-2009
Permanent Member, Judicial Conference for the U.S. Court of Appeals for the Fourth Circuit

Publications

Brian Glasser and Eric Snyder, “Payday Lending-The Litigation and Legislation That Regulate It,” 11th Annual Consumer Financial Services Litigation Institute, Vol. 1., Practicing Law Institute, New York: 2006.

Lectures

“West Virginia Coal Law,” National Business Institute, 2014.

Court Admissions

U.S. Supreme Court
U.S. Court of Appeals for the First Circuit
U.S. Court of Appeals for the Second Circuit
U.S. Court of Appeals for the Third Circuit
U.S. Court of Appeals for the Fourth Circuit
U.S. Court of Appeals for the Sixth Circuit
U.S. Court of Appeals for the Seventh Circuit
U.S. Court of Federal Claims
U.S. District Court for the Northern District of West Virginia
U.S. District Court for the Southern District of West Virginia