Kevin is also a writer whose work has been featured in the San Francisco Chronicle, The Wall Street Journal, The Recorder and The Daily Journal, among others. He has been a contributor to Forbes.com, The Huffington Post and National Public Radio. Kevin also writes about strange-but-true legal news on his legal humor website, Lowering the Bar, which the ABA Journal selected for its “Blawg 100” list several years running before elevating it to the “Hall of Fame” in 2015. Kevin is a frequent speaker on topics such as consumer law, legal ethics and legal writing, among others.
Representative MattersKevin recently handled the successful appeal of a decision applying unfavorable California law to claims with no connection to that state. The case involved a bus accident in Arizona that seriously injured tourists from the People’s Republic of China, two of whom were killed. The bus driver caused the accident, and he and his employer settled early. But plaintiffs also sued the Indiana bus manufacturer and a California dealership, alleging the bus was defective under California law. The trial court held Indiana law applied, and refused to reconsider after the Indiana corporation settled just before trial. The Court of Appeal held, however, that it should have reconsidered. Kevin argued the matter before the California Supreme Court after it granted review, and that court reversed. Chen v. Los Angeles Truck Centers, LLC, 7 Cal. 5th 862 (2019). Kevin then briefed and argued the remanded case to the Court of Appeal, which reversed its prior choice-of-law decision. Chen v. Los Angeles Truck Centers, LLC, 42 Cal. App. 5th 488 (2019). The outcome will make it more difficult for out-of-state plaintiffs hoping to take advantage of California’s more favorable laws.
Kevin also appeared before the California Supreme Court in a case seeking to compel a state agency to comply with “Jessica’s Law” by conducting a psychological evaluation of certain violent criminals before their release from prison. The result was a partial victory that resulted in a favorable settlement. State Dept. of State Hospitals v. Superior Court (Novoa), 61 Cal. 4th 339 (2015).
Kevin drafted the winning brief in a proposed nationwide class action against Ford, claiming the automaker violated the Song-Beverly Act by deducting abnormal wear-and-tear costs from the amounts it paid to buy back allegedly defective vehicles. Both plaintiffs had accepted the buyback offers and returned their trucks to Ford, agreeing they would be responsible for abnormal wear and signing releases for all vehicle-related claims. The court granted summary judgment, holding that the repair costs were part of the settlement contracts, such agreements can’t be partially enforced and the challenged provisions weren't severable. Sansoe v. Ford Motor Co., No. 13-5043 (N.D. Cal., Sept. 13, 2017 ) .
In 2015 and 2016, Kevin successfully persuaded first the Northern District of California and then the Northern District of Illinois to dismiss a proposed nationwide class action against Nissan North America. Plaintiffs alleged a defect in the Nissan Altima made the car’s floorboards rust “prematurely,” but could not successfully allege their various fraud and warranty claims. After the second dismissal in Illinois (the third overall), the plaintiffs chose not to replead (but are appealing). DeMaria v. Nissan N. Am., No. 15 C 3321, 2016 WL 374145 (N.D. Ill. Feb. 1, 2016).
Kevin was part of the trial team that won a defense verdict in Pooshs v. R.J. Reynolds, Inc., a smoking-and-health case that went to trial in early 2016. Shook represented Philip Morris USA in the case. Kevin supervised and managed PM USA’s motion practice for the case and also drafted and argued the jury instructions and verdict form. He is representing PM USA on appeal.
Kevin drafted a petition asking the California Supreme Court to review Bankhead v. ArvinMeritor, which involved the correct measure of “financial condition” evidence offered to support a punitive damages award and the use of the U.S. Supreme Court’s third “guidepost” when reviewing such an award. Bankhead v. ArvinMeritor, Inc., 205 Cal. App. 4th 68 (2012).
Representing Philip Morris USA in the Whiteley tobacco case, Kevin’s work focused on the defense of claims for fraud and punitive damages. Whiteley was first tried in 2000 and resulted in a verdict for the plaintiff, but the Court of Appeal reversed in 2004 and remanded for a limited retrial and punitive claims. In the retrial, the second jury found compensatory liability but deadlocked on punitive damages as to Philip Morris USA. After a retrial limited to punitives alone, the third jury found in Philip Morris USA’s favor. Whiteley v. R.J. Reynolds Tobacco Co., No. A119345, 2009 WL 3299595 (Cal. Ct. App. Nov. 4, 2009). In both retrials, Kevin led the briefing efforts and drafted and argued the jury instructions on behalf of Philip Morris USA.
In 2006 Kevin successfully defended a summary judgment in favor of Scott Technologies. New Grade Int’l Inc. v. Automatic Sprinkler Corp. of Am., 205 Fed. App’x. 571, 2006 WL 3253846 (9th Cir. Nov. 9, 2006).
Other representative matters include Hoier v. Global Digital Media Xchange, Inc., No. B183060, 2006 WL 3423359 (Cal. Ct. App. Nov. 29, 2006) (briefed and argued; court affirmed nonsuit); R.J. Reynolds Tobacco Co. v. Shewry, 423 F.3d 906 (9th Cir. 2005) (appeal involving First Amendment compelled-speech issues); Budgery v. Lorillard Tobacco Co., No. B2700683, 2003 WL 21652278 (Cal. Ct. App. July 14, 2003) (argued; court affirmed dismissal based on forum non conveniens); Armstrong v. Aetna Life Ins. Co., 128 F.3d 1263 (8th Cir. 1997) (argued appeal on behalf of pro bono client seeking benefits under ERISA).
Mark Behrens, Kevin Underhill, Cary Silverman, Erin Sparkuhl & Christine Edwards, Asbestos Litigation “Magnet” Courts Alter Procedures: More Changes on the Horizon, 27:8 Mealey’s Litig. Rep.: Asbestos 1 (May 16, 2012).
Kevin Underhill & Ashley Cornwall, Hill v. Roll International: Labels Matter, But Some More Than Others, SHB Class Action & Complex Litigation Working Paper, Summer 2011; reprinted in iCounsel Newsletter, a Bar Association of San Francisco Quarterly Publication for In-House Counsel, August 2011.
Victor E. Schwartz, Mark A. Behrens & Kevin Underhill, Litigation Tourism Hurts Californians, 21:20 Mealey's Litig. Rep.: Asbestos 41, Nov. 15, 2006.
Kevin Underhill, Preferential Trial Settings, Summary Judgments Clash, San Francisco Daily Journal Extra, Dec. 22, 2003, at 7.
Mark A. Behrens & Kevin Underhill, A Call for Jury Patriotism: Why the Jury System Must Be Improved for Californians Called to Serve, 40 Cal. W. L. Rev. 135 (2003).
Kevin Underhill, The Emergency Sasquatch Ordinance (and other real laws), Chicago: American Bar Association, 2014.
Kevin Underhill, A Year of Lowering the Bar, Green Bag Almanac & Reader, 2009-2016.
Kevin Underhill, A Reasonable Consumer Would Know Crunch Berries Aren’t Real (and over 3,500 other posts), Lowering the Bar, available at http://www.loweringthebar.net (2006-present).
Kevin Underhill, Can You Deduct a Pirate Ransom?, Forbes.com, Jan. 24, 2012.
Kevin Underhill, Illinois Golfer Not Liable for Errant Tee Shot, Forbes.com, Feb. 27, 2011.
Kevin Underhill, United States v. One Moon Rock, Forbes.com, July 8, 2010.
Kevin Underhill, If Great Literary Works Had Been Written by Lawyers II, 4 Green Bag 2d 119, Autumn 2000.
Kevin Underhill, If Great Literary Works Had Been Written by Lawyers, 2 Green Bag 2d 449, Summer 1999.
“Behavioral Legal Ethics,” Adobe Legal Summit, Denver, Colorado, September 2019.
"The Psychology of Legal Ethics, or Why Smart Lawyers Do Dumb Things," DRI's Class Actions: Latest Developments in Law and Practice, Washington, D.C., July 23-24, 2015.
“How Did So Many Lawyers Get Involved In Something Like This?,” In-House Counsel Institute, Louisville, Kentucky, June 17, 2014, (discussing legal-ethics lessons of Watergate).
“Lowering the Bar on Ethics,” Defense Research Institute, Washington, D.C., May 9, 2014.
“The Ethics of E-Discovery,” Electronic Discovery Institute, Santa Monica, California, Oct. 17, 2013.
“Legal Editing: Improve Your Work and That of Those Who Work For You,” Pincus Continuing Legal Education, San Francisco, California, Jan. 24, 2013.
“Legal Ethics Update,” Association of Corporate Counsel, Orange County, California, Oct. 11, 2012.