David G. Hymer

Alabama Law Foundation, Fellow  American Board of Trial Advocates, Life Fellow Litigation Counsel of America, Fellow Alabama State Bar Award of Merit, 2015 President's Award, 2014-2015 Listed in Chambers USA, Litigation: General Commercial, 2020-2025 Listed in The Best Lawyers in America® Bet-the-Company Litigation, 2010-2025 Commercial Litigation, 2007-2025 Listed in Mid-South Super Lawyers Business Litigation, 2016-2024 Listed in Alabama Super Lawyers, Business Litigation, 2012-2015 Listed in Benchmark Litigation: Guide to America's Leading Litigation Firms and Attorneys "Local Litigation Star," Alabama, 2010-2021 "Litigation Star", 2023-2024 Alabama Case of the Year, 2012 Listed in LMG Life Sciences, "Life Sciences Star," 2019-2020, 2022 The National Law Journal, Defense verdict recognized as one of the nation's "Top Defense Verdicts" in annual listing Listed in Birmingham Business Journal "Best of the Bar," 2024 Listed in Birmingham Magazine, "Top Attorneys," Civil Litigation, 2016 Obtained favorable jury verdicts for clients in numerous multimillion-dollar lawsuits, including matters involving commercial, environmental, antitrust, and product liability claims.  As lead counsel for HealthSouth (now Encompass), obtained one of the largest judgments in Alabama history against the company's former CEO for breach of fiduciary duty arising out of a massive accounting fraud scandal. Public Nuisance Arising Out of the Opioid Epidemic National discovery counsel for a national retail chain pharmacy defending thousands of opioid cases pending in an MDL and in various state courts throughout the United States. These cases were brought by governmental entities (i.e., cities, counties, and states), hospitals, third-party payors, and the Federal Drug Enforcement Administration. The lawsuits alleged that prescription opioid manufacturers, prescription opioid distributors, and national retail chain pharmacies contributed to the creation of the opioid epidemic by improperly marketing, distributing, or filling prescriptions for opioid medications. Breach of Fiduciary Duty Steven McKinney, individually and derivatively on behalf of Primus, LLC v. Thomas Pinter (Circuit Court of Jefferson County, Alabama) Obtained a complete victory on all claims and counterclaims in a jury trial in favor of defendant/counterclaim plaintiff, a 50% owner of a manufacturing company, against his 50% co-owner in an action in which each asserted claims for breach of fiduciary duty and breach of the LLC operating agreement against the other. Copyright Section 304(c) Notice of Termination and Breach of Licensing Contract Dramatic Publishing Co. v. The Estate of Nelle Harper Lee (American Arbitration Association) Represented the Estate of Harper Lee in an arbitration proceeding relating to the stage rights in the theatrical dramatization of Ms. Lee’s Pulitzer Prize winning novel To Kill a Mockingbird. Ms. Lee had given a license to Dramatic Publishing Company to write a stage adaptation of the novel and to license the production in stock and amateur theaters. The core issues in the arbitration were the meaning of “stock and amateur” in the license agreement and the effect of a notice of termination under Section 304(c) of the Copyright Act. Copyright Infringement Michel Keck v. Alibaba.com Hong Kong, Ltd., 369 F. Supp. 3d 932 (N.D. Cal. 2019) Represented plaintiff on behalf of a class of visual copyright holders (i.e., artists) against Alibaba companies for contributory and vicarious copyright infringement. Alibaba is a Chinese company that operates e-commerce web platforms similar to Amazon. The Alibaba IPO was the largest in history, and the company is one of the top 10 most valuable companies in the world. Hundreds of thousands of counterfeit products, including artwork, are sold over the Alibaba platforms. The case involved counterfeit goods originating in China. The lawsuit touched on significant U.S. trade issues and addressed whether companies like Alibaba can hide behind the Digital Millennium Copyright Act’s safe harbor while knowingly providing platforms for and facilitating the sale of counterfeit goods. The case addressed the use of class action litigation to enforce copyrights, and class-wide damages claims that totaled hundreds of millions, if not billions, of dollars. A confidential settlement was reached by the parties. Breach of Restrictive Covenants Cobbs, Allen & Hall, Inc. v. EPIC Insurance Brokers and Consultants(Circuit Court of Jefferson County, Alabama) Lead counsel for plaintiff, an insurance brokerage, in an action against four former executives asserting claims for breach of anti-piracy, non-compete, and confidentiality covenants. The lawsuit also asserted claims against their new employer for tortious interference with contractual relations. The trial court awarded $1.1 million in sanctions in favor of the plaintiff because of discovery abuses committed by the defendants. The Bradley team discovered that defendants were engaged in a scheme to conceal documents from production by placing spaces between letters of words in emails so the documents would not be found using electronic word searches. After years of contentious litigation, which included hundreds of thousands of pages of paper discovery and more than 40 depositions, the parties reached a settlement on the day the trial was to begin. Breach of Fiduciary Duty Scrushy v. Tucker, 70 So. 3d 289 (Ala. 2011) Lead counsel for a national inpatient rehabilitation hospital that obtained a $2.8 billion judgment in a non-jury trial of claims against national inpatient rehabilitation hospital’s former CEO for breach of fiduciary duty arising out of a multibillion-dollar accounting fraud. Fraud and Professional Negligence HealthSouth v. UBS Investment Bank (Circuit Court of Jefferson County, Alabama); HealthSouth v. Ernst & Young, LLP (AAA Arbitration) Lead counsel for HealthSouth in Scrushy-related litigation brought against its former New York investment banker for assisting to facilitate the fraud, and its former Big Four auditing firm for failing to catch the fraud. In a settlement with the investment banker, HealthSouth received cash and other consideration totaling $133 million. The claims against the Big Four accounting firm were concluded following a 100-day arbitration. Personal Injury Environmental Claims Wayne v. Pharmacia Corp. (Circuit Court of Jefferson County, Alabama) Obtained a jury verdict in favor of defendant Pharmacia on multimillion-dollar claims brought by five plaintiffs for personal injury (diabetes and arthritis) allegedly resulting from exposure to PCBs. This trial was a bellwether trial involving five of several thousand lawsuits that had been filed. Insurance Coverage Metric/Kvaerner Fayetteville v. Federal Insurance Co.,403 F.3d 188 (4th Cir. 2005) Successfully overturned summary judgment in favor of insurer that had been entered in coverage action on grounds of untimely notice of claim. Property Damage Environmental Claims Russell Corp. v. Sullivan, 790 So. 2d 940 (Ala. 2001) Obtained victory for a textile manufacturer in an environmental action alleging trespass and nuisance claims relating to discharge of textile wastewater into a public lake. On appeal from a jury verdict in favor of the plaintiffs, the Alabama Supreme Court reversed the judgment in favor of the plaintiffs and rendered judgment in favor of the textile manufacturer. Fraud and Breach of Contract MT Packaging v. CVS Corp. (U.S. District Court for the Northern District of Alabama) Obtained victory in favor of national retail pharmacy in bench trial of a case brought by a supplier of merchandise bags to the pharmacy, which had recently purchased another pharmacy chain. The supplier sued for breach of contract after the acquiring pharmacy stopped accepting bags from supplier under a long-term contract. The pharmacy asserted a counterclaim for fraud in connection with the supply of the bags when it was discovered through discovery that the supplier had surreptitiously reduced the thickness of the bags to save on resin costs. Following a bench trial, the court entered a judgment in favor of the pharmacy on the plaintiff's claim and awarded pharmacy over $300,000 on its fraud counterclaim. Executive Compensation Dispute Moore v. Home Therapy Associates (Circuit Court of Jefferson County, Alabama) Obtained a jury verdict in favor of company’s former president against the company in an action seeking to recover for nonpayment of commissions and dissolution of business. Personal Injury Galloway v. Crown Central Petroleum Corp. (Circuit Court of Jefferson County, Alabama) Obtained jury verdict in favor of defendant petroleum company in a personal injury burn case arising out of an explosion at the defendant's gasoline tank farm. Breach of Construction Contract Washington Public Power Supply System v. Pittsburgh-Des Moines Corp., 1995 WL 729490 (9th Cir. Dec. 7, 1995) Obtained victory on all claims in a Washington federal court jury trial in favor of the defendant construction company in an action by the owner alleging breach of a construction contract. The project was for the construction of a nuclear power plant containment vessel. The plaintiff sought more than $100 million for the cost of repairing allegedly defective work. The defense verdict was recognized by the National Law Journal as one of the nation's top defense verdicts of that year. Price-Fixing Antitrust Coleman v. Home Oil Company (U.S. District Court for the Northern District of Alabama) Defended a Chevron gasoline jobber in a civil antitrust class action alleging price fixing by gasoline retailers in Dothan, Alabama. Plaintiffs sought to recover in excess of $25 million. Following a six-week trial, the jury returned a verdict in favor of the plaintiffs for $1. Product Liability Swindall v. Ford Motor Company (U.S. District Court for the Northern District of Alabama) Obtained jury verdict in favor of a farm equipment manufacturer in a product liability action involving debilitating injury to farmer's arm while operating corn picker machinery.