Michael Kelly is one of the top trial lawyers in the country. He has litigated hundreds of high-profile cases nationally in both state and federal courts, including commercial and other civil disputes, shareholder suits, toxic torts, product liability, environmental, antitrust, Hatch Waxman and other intellectual property cases. He has brought more than 300 of these cases to trial and argued countless appeals, including over 20 cases before the Delaware Supreme Court. Mr. Kelly is a Fellow of the American College of Trial Lawyers.
His most recent victory in the Delaware Chancery Court made new law. In Cigna v. Audax, Mr. Kelly brought suit on behalf of Cigna, a preferred Audax stockholder whose shares were extinguished by a merger that closed in February 2014, and secured a declaration permitting it to tender its shares and receive merger consideration without adopting conditions imposed by the buyer. Siding with Cigna, the Court held that these conditions were invalid and that substantial components of the Merger Agreement violated Delaware General Corporation Law. This decision has significant potential ramifications for future mergers under Delaware law.
Also in 2014, in the First Circuit, Mr. Kelly served as co-counsel in defense of AstraZeneca's Hatch-Waxman Act settlements with generic drug manufacturers from multiple MDL antitrust class actions. The classes, consisting of end users, distributors and retailers, claimed that AZ's settlements with generic manufacturers over its patented drug Nexium harmed competition by artificially delaying generic entry. It is the first “pay-for-delay” case to reach trial since the U.S. Supreme Court's ruling in FTC v. Actavis. Pretrial practice and tactics limited the scope of the claims and created what proved to be an insurmountable hurdle on the issue of causation. After six weeks of trial, a Massachusetts jury found that there was no causation between the settlements and no proof that a generic could have entered the market earlier than the date permitted under the settlements. Mr. Kelly was instrumental in devising the strategy of the case and led settlement discussions.
A recent landmark case was the Seroquel® litigation, one of the largest pharmaceutical mass tort suits ever. Mr. Kelly served on AstraZeneca’s National Senior Management Team for the case and was lead trial counsel in Delaware. Mr. Kelly obtained summary judgment in the first Seroquel case filed in Delaware (Hopkins v. AstraZeneca) and a sweeping statute of limitations decision (Burrell et al v. AstraZeneca). These decisive victories paved the way to over 28,000 settlements in similar cases, at a fraction of the cost of the settlements of comparable tort cases. Mr. Kelly served as lead negotiator in the settlement negotiations. Mr. Kelly also serves on the national trial team for the In Re Risperdal Products Litigation for Johnson and Johnson. In October—December 2015, Mr. Kelly was lead trial attorney in the Philadelphia Court of Common Pleas case, Stange v Johnson and Johnson et al, which resulted in the lowest monetary award to date.
Mr. Kelly was also lead defense trial counsel in the In re Metoprolol antitrust litigation, which involved alleged damages in excess of $3 billion. In a 2005 Lanham Act trial, Mr. Kelly won not only a favorable judgment in excess of $100 million, but $12 million in attorney's fees, one of the largest fee awards in Delaware history. Mr. Kelly represents numerous Fortune 100 companies and for many years was the attorney for former boxing heavyweight champion “Smokin’ Joe” Frazier.
He has been a leader in the Delaware legal community for decades and currently serves on the State of Delaware Judicial Nominating Commission. Early in his career, he was General Counsel of the Resins Group at Hercules Incorporated, after serving as the company’s chief environmental litigator. Mr. Kelly started out as a trial attorney at the Wilmington firm of Pricket, Jones, during which time he served as Treasurer of the Delaware State Bar Association and cofounded the Defense Counsel of Delaware. A popular speaker for both his trial experience and extensive knowledge of Delaware law, Mr. Kelly lectures on litigation and trial strategy, and has appeared as a legal commentator on live national television and radio. He has testified as an expert at trial and offered legal commentary in Newsweek, Barrons and The Wall Street Journal. He frequently contributes articles to legal publications and is on the faculty of the University of Virginia Law School Trial Advocacy Institute. Mr. Kelly also serves on the boards of numerous charitable organizations.
In addition to his role as a trial attorney and commitment to his clients, Mr. Kelly is Chairman of the Firm and serves on McCarter’s Executive Committee and Compensation Committee.
He was recognized as a Chambers USA “Leaders in their Field” lawyer for 2014-2015.