Kevin is an experienced litigator who joined Shook in 1993 and has practiced in its San Francisco office for over 15 years. He specializes in defending companies facing complex class-action litigation and has represented numerous clients in product-defect and consumer-fraud actions in California and elsewhere. Kevin’s expertise, strategy and legal writing has generated excellent results before, during and after trial, as well as on appeal. Kevin is an experienced appellate practitioner who has argued before the Eighth Circuit, the Ninth Circuit, the Missouri and California Courts of Appeal, and the California Supreme Court. He also assists the firm’s Public Policy Group with amicus briefing in California. Kevin is also a frequent speaker on topics such as consumer law, legal ethics and legal writing, among others.
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, among others. 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 was part of the trial team that obtained summary judgment on 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 held 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 was also part of the team representing Elaina Novoa, who sought 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. Kevin drafted a petition for review that was granted by the California Supreme Court, and argued the case before the court on March 3, 2015. State Dept. of State Hospitals v. Superior Court (Novoa), 61 Cal. 4th 339 (2015).
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.
"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).