Kenneth M. Kliebard

Described by Legal 500 as having “an excellent reputation for defending clients in consumer finance cases,” Ken has successfully defended banks and other businesses in cases involving the Telephone Consumer Protection Act (TCPA), the Electronic Communications Privacy Act (ECPA), the Fair Credit Reporting Act (FCRA), the Truth in Lending Act (TILA), the Credit Repair Organizations Act (CROA), the Electronic Fund Transfer Act (EFTA), the Fair Debt Collection Practices Act (FDCPA), the Racketeer Influenced and Corrupt Organizations Act (RICO), the United States Bankruptcy Code, the Sherman Antitrust Act, California’s Business and Professions Code § 17200, state consumer protection and UDAP laws, and state privacy laws. He has won full dismissals, defeated class certification, obtained favorable summary judgment results, and won appeals in significant class action matters. In addition, Ken has considerable experience litigating the enforceability of consumer arbitration agreements, including associated issues relating to click-wrap and browse-wrap agreements.

Ken also represents clients in regulatory and compliance matters, including investigations and enforcement matters initiated by the Federal Trade Commission, the Consumer Financial Protection Bureau, the Office of the Comptroller of the Currency, the Commodity Futures Trading Commission, and state Attorneys General.

Ken has appeared on major news outlets to discuss a range of legal issues. He has spoken to CNBC, the National Law Journal, The Recorder, and Law360, as well as various trade publications.

• Successfully defended an online marketing company in a class action challenging online marketing where the consumer agreed (through acceptance of online terms and conditions) to share their data. Our client’s marketing practice was the subject of a highly critical US Senate investigation. The plaintiffs alleged claims under RICO, ECPA, and state consumer protection laws. We won an early motion to dismiss, which disposed of the RICO claims. At the summary judgment phase the court agreed with us that the plaintiffs were not deceived because the terms of the transactions were fully disclosed. Our win was affirmed by the US Court of Appeals for the Second Circuit.
• Successfully represented one of the nation’s largest retail pharmacy store chains in a consumer class action challenging our client’s taxation of retail products. Even though our client publicly acknowledged the mistake, we won dismissal in the trial court under the common law voluntary payment doctrine. Although that decision was unanimously overturned by the Illinois Appellate Court, we persuaded the Illinois Supreme Court to issue a rare grant of discretionary review. The Illinois Supreme Court recently ruled in our favor in a 6-1 decision, which effectively ended dozens of consumer tax class actions pending in Illinois.
• Successfully represented one of the largest US retail banks in defending a series of qui tam lawsuits and class actions filed by municipalities throughout the country concerning real estate transfer taxes following real property foreclosures. We defeated all of the lawsuits, including victories in the US Court of Appeals for the Sixth Circuit and the Oklahoma Supreme Court.
• Successfully represented an online retailer in obtaining an eight-figure judgment against a business partner in a contract dispute. The lawsuit involved novel issues of the enforceability of liquidated damages provisions, and the decision was affirmed by the New York Appellate Division.