Stephen E. Embry
Stephen is a member of Frost Brown Todd LLC and is a member of the firm's Class action, Privacy and Mass Tort groups. He frequently defends participants in consumer class actions and mass tort litigation. Stephen is a national litigator and advisor who is experienced in developing solutions to complex litigation and corporate problems. He is the former chair of Frost Brown Todd’s mass tort practice group. Stephen is also a member of fbtTECH, the firm’s technology industry group that focuses on the future and anticipating the ways in which technology will impact the legal system and the issues facing our clients.
Stephen has dealt with a broad range of problems; his mission is to find simple, successful and elegant solutions to the problems posed by complex and substantial litigation, primarily in the mass tort and consumer class actions, and more recently, the privacy and data breach arenas. As a philosophical matter, Stephen approaches litigation by early identification and development of comprehensive visions and strategies that, while often outside the bounds of common litigation handling and management techniques, have consistently yielded successful results.
Some of Stephen's own significant experiences are:
- Representing an entertainment industry service provider in litigation involving the collapse of the stage at Indiana State Fair immediately prior to a performance by the group Sugarland in which seven people were killed and hundreds injured.
- Representing a construction product manufacturer in a consumer class action seeking recovery of over $1 billion in Federal Court in California. Stephen's team defeated four certification motions and ultimately successfully brought a motion to summary judgment on the pleadings.
- Preparing Amicus Brief before the U.S. Supreme Court on behalf of the National Chamber of Commerce, the National Association of Manufacturers, the Center for Class Action Fairness, the National Association of Homebuilders the American Architectural Manufacturer's Association, and Window and Door Manufacturer's Association. The Brief urged certiorari of a Seventh Circuit decision in a products liability class action.
- Representing insurers in consumer class litigation involving the use of software programs to review and evaluate property damage exposure in state Court.
- Serving as National Coordinating Counsel to a large international insurer and its insureds in thousands of individual consumer claims involving a commonly used building cladding product. Assuming the role of National Coordinating Counsel several years in advance of actual litigation, Stephen undertook responsibility for developing the overall defense plan and strategy, including the selection and retention of experts who devised an inexpensive fix to the problem. As a result, Stephen was able to develop a process whereby most of the cases could be directed to early mediation before significant costs were incurred. The plan required an upfront investment of time and effort to create the general defenses, and the development of an overall litigation plan and format for evaluating each individual exposure. He also formulated an alternative billing arrangement that shared the risks of the transactional costs between the lawyers and the carrier that allowed an aggressive litigation approach at a practical cost.
- Representing a nationwide group of fast food franchisees seeking to recover commercial damages due to the alleged inappropriate sale and distribution of a genetically engineered product. Stephen developed a strategy by which three disparate mass and class actions involving the claims of various members of the plaintiff group were brought. By matching the strengths of the various plaintiffs to the jurisdiction in which the law, the judicial philosophy and demographics were most favorable, the clients ultimately were able to settle the litigation for an amount in excess of the actual damages (tens of millions) suffered.
- Representing a group of businesses in a multimillion dollar coverage dispute that ultimately led to a finding of coverage using an innovative argument under a food borne illness policy and recovery against a food supplier.
- Serving as a lead defense counsel in the One Meridian Plaza Litigation in Philadelphia which involved damages in excess of $400 million for construction related claims, and co-chaired the product and services defendants steering committee. Stephen engineered the development of a defense group composed of various service providers that successfully presented an overall defense to the substantial claims presented by the building owner and focus their energies on a common theme.
- Representing a number of parties in a series of multi million-dollar commercial construction claims concerning alleged defects in prefabricated metal buildings and residential foundations. Stephen grouped various cases together for discovery purposes to reduce transactional costs and developed a legal strategy designed to obtain favorable legal rulings on various contractual clauses upon which the designers of the buildings relied. Once this was achieved, the matters were favorably resolved.
- Playing a lead role in the defense of several product and service providers in the San Juan Dupont Plaza Litigation, which arose out of a fire which caused the deaths of 97 people and injured hundreds more. The Firm's National Litigation Group pioneered a strategy of an initial on site investigation of the fire on behalf of unnamed product defendants who anticipated lawsuits and the formulation of a joint defense group between and among that group. These efforts culminated in the ability to effectively and successfully try the case without the incurrence of back breaking transactional costs that historically provided settlement leverage to the plaintiffs’ lawyers in single incident mass torts. The litigation arising out of the fire constituted the largest mass disaster lawsuit in history and included 1,470 plaintiffs seeking $1.8 billion in damages from 226 defendants. The case was tried to a defense verdict after 13 months.
Stephen has played a lead role in a number of other matters in which his creative and innovative approaches led to solutions that worked as opposed to those that just generated more conflict and cost. From the formulation of group defense strategies that brought together disparate group of entities to pursue a common theme, to alternative billing, to trial where necessary and at the right place and right time, to formulation of mediation strategies and procedures, and to every place in between, Stephen has formulated and implemented unique and successful strategies for dealing with complex litigation. Stephen and his team remain devoted to a simple mission: finding litigation solutions that make sense and solve problems.
Highlights & Recognitions
- The Best Lawyers in America®, Mass Tort Litigation/Class Actions - Defendants, 2012-2018
- Chair, Data Breach, Privacy and Cyber Insurance Section of Federation of Defense and Corporate Counsel, 2016
- Vice Chair, Legal Technology Resource Center of American Bar Association, 2016
- Member, Law Practice Today Editorial Board and Law Leadership Committee of American Bar Association, 2015
- Kentucky Super Lawyers® 2008
- AV® Rated, Martindale-Hubbell®
Memberships & Affiliations
- American Bar Association
- Kentucky Bar Association
- West Virginia Bar Association
- Louisville Bar Association
Recent Blog Posts
- Spokeo, Inc. v. Robins: A Well Executed Punt?
- Tyson Foods v. Bouaphakeo: A Retreat From Dukes or Just a Spoliation Case?
- Tyson and the Supreme Court: Much Ado About Nothing?
- O’ Standing, Where Art Thou? Robins v. Spokeo Oral Argument
- The Erosion of the Law: Let’s Just Certify a Class...Any Class
- Opening the Rule 23 Floodgates Redoux: Did Plaintiffs Just Hit the Data Breach Bulls-Eye?
- Class Certification of the Uber Drivers: Our Litigation System Run Amuck or Vindication?
- Data Breach Litigation: The Sky is Falling or a Failure of Proof?
- Dow Chemical, Tyson Foods, Wal-Mart and Allstate Insurance: Will SCOTUS Clean Up its Class Action Mess?
- Google Wallet: What’s Your Privacy Really Worth and Do You Have the Class Action Standing to Protect It?
- AI is Surging: Are We Ready for the Fallout?
- Exploring Legal Issues Surrounding Artificial Intelligence (AI)
- When Private is Not Private: Privacy Expectations in the Brave New World
- Sometimes, Cases Just have to be Tried
- “Why DOES Radio Shack Ask for Your Phone Number When You Buy Batteries?“
- High Court Strengthens Class Action Requirements and Eliminates Massive Nationwide Class Action
- California District Judge Declines to Certify Class for Third Time in Alleged Water Damage/Mold Cases
- Biglaw attorney reengineering the defense of mass tort claims
- Tennessee to Clarify Breach Notice Encryption Exemption
- Data Breach and Standing: A Royal Mess
- Lawyers, The Quartz Crisis and Swatch Watches: A Lesson On Disruption
- So a Lawyer Walks into CES
- Litigation and T.A.R.
- Does FTC flexing its data-breach muscles equal trouble for businesses?
- Tennessee Enacted the Toughest Data Breach Law Yet
- The Erosion of the Law: Let's Just Certify a Class...Any Class
- Data theft today poses indefinite threat of "future harm"
- United States: On The Brink Of A Class Action Sea Change? SCOTUS To Hear Robins And Critical Standing Issues
- Supreme Court to Hear 'Non-Injury' Privacy Class Action
- A.I. is Surging: Are We Ready for the Fallout?
- The ADA and Website Accessibility
- Data Privacy Rx
- Data Privacy and Security in the Crosshairs: Are You Covered?
- Classless Actions Revisited: Fallout from the Supreme Court's Recent Class Action Decisions
- Classless Actions: Practical Impacts of Recent Supreme Court Decisions
- Stephen Embry Receives the John Appleman Award by the Federation of Defense & Corporate Counsel
- 161 Frost Brown Todd Attorneys Listed in The Best Lawyers in America© 2018
- Stephen Embry Appointed Chair of FDCC Substantive Law Section
- 168 Frost Brown Todd Attorneys Listed in The Best Lawyers in America© 2017
- 175 Frost Brown Todd Attorneys Listed in The Best Lawyers in America© 2016
- 175 Frost Brown Todd Attorneys Listed in The Best Lawyers in America© 2015
- 172 Frost Brown Todd Attorneys Recognized in 2014 Best Lawyers®
- 167 Frost Brown Todd Attorneys Recognized in 2013 Best Lawyers®
- 150 Frost Brown Todd Attorneys Recognized in Best Lawyers® 2012 Edition
Non-FBT Publications and Events
- Law Practice Today: AR/VR Technology: Where We’ve Been, Where We’re Going (June 14, 2017)
- Apps in Law Podcast: AiL009 – Stephen Embry annotates transcripts on his iPad (TranscriptPad) even during Derby Week! (June 1, 2017)
- The Lawyerist: Microsoft SQL 2017: Improvements, Advanced Analytics and What It May Mean for Lawyers (May 23, 2017)
- The Lawyerist: When it Comes to Reading, Should You Go Paperless? (April 25, 2017)
- Abacus Next: ABA Techshow: Professionals on a Mission (March 21, 2017)
- Abacus Next: It’s March Madness: It Must Be TECHSHOW Time (March 15, 2017)
- The Lawyerist: Lawyers, The Quartz Crisis and Swatch Watches: A lesson on Disruption (February 23, 2017)
- Abacus Next: So a Lawyer Walks into CES (January 10, 2017)
- ABA TechReport 2016: Litigation and T.A.R. (Article included in the annual publication.)
- Law Practice Today: Why Alternative Litigation Financing is Poised to Disrupt Litigation (December 14, 2016)
- Louisville Business First: Does FTC flexing its data-breach muscles equal trouble for businesses? (December 1, 2016)
- Law Technology Today (LTT): The Brave New World of Screenless Technology (October 20, 2016)
- Legal Talk Network (podcast): On the Road with Legal Talk Network : Clio Cloud 2016: How Cons Can Improve Your Practice (September 22, 2016)
- ABA Blueprint: State Data Breach Notification Laws Just Got Crazier (September 1, 2016)
- LinkedIn Pulse: Data Analytics and Predictive Modeling: Game Changer For How You Manage Claims... And View Your Lawyer (August 26, 2016)
- LinkedIn Pulse: You’ve Had a Data Breach? Harm Presumed and Inherent: The LabMD Ruling (August 4, 2016)
- Law Technology Today (LTT): Spokeo Inc v. Robins (May 19, 2016)
- LinkedIn Pulse: Spokeo v. Robins: A Well Executed Punt? (May 16, 2016)
- LinkedIn Pulse: Tyson Foods v. Bouaphakeo: A Retreat From Dukes or Just a Spoliation Case? (May 5, 2016)
- Law Technology Today (LTT): State Data Breach Notification Laws Just Got Crazier (April 19, 2016)
- LinkedIn Pulse: Law and Technology Disconnect: Tennessee Just Killed Encryption Safe Harbor (April 7, 2016)
- LinkedIn Pulse: fbtTECH @ SxSWi 2016: The Big Take Aways (March 16, 2016)
- Law Practice Today: Cyber Insurance: Panacea or Pandora’s Box? (January 14, 2016)
- Law Technology Today (LTT): Legal disruption tipping point: Why do I feel like a taxicab driver? (November 23, 2015)
- Advisen: Google Wallet: What’s your privacy really worth; Do you have the class-action standing to protect it? (June 18, 2015)
- Advisen: Why does Radio Shack ask for your phone number when you buy batteries? (May 7, 2015)
- Advisen: Hackability as a Defect? (March 18, 2015)