Kevin is an experienced litigator who joined Shook in 1993 and has practiced in its San Francisco office for almost 20 years. He primarily defends companies facing complex class-action litigation, and his legal acumen and writing ability have generated excellent results before, during and after trial, as well as in numerous appeals. He is an experienced appellate practitioner who has briefed and argued cases before the Eighth Circuit, the Ninth Circuit, the Missouri and California Courts of Appeal, and the California Supreme Court.
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 “Hall of Fame” in 2015. Kevin is a frequent speaker on topics such as consumer law, legal ethics and legal writing.
Representative MattersClients have trusted Kevin to handle novel and important issues on appeal. For example, in 2019 he convinced the California Supreme Court and Court of Appeal to limit plaintiffs’ ability to bring cases in California that have little or no connection to the state. The case involved a bus accident in Arizona that fatally injured tourists from the People’s Republic of China. The plaintiffs sued the Indiana bus manufacturer and a California dealership, arguing California law should apply. The trial court held Indiana law—much more favorable to defendants—should apply, but the Court of Appeal reversed. Kevin convinced the California Supreme Court and then (on remand) the Court of Appeal that the trial court had it right the first time. Chen v. Los Angeles Truck Centers, LLC, 7 Cal. 5th 862 (2019); Chen v. Los Angeles Truck Centers, LLC, 42 Cal. App. 5th 488 (2019).
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’s most recent appellate win involved California’s “right of publicity” law, which was the basis for a $9.6 million verdict against The Coca-Cola Company and Monster Energy. The Court of Appeal reversed the judgment, and the California Supreme Court denied the plaintiff’s petition for review. Hansen v. The Coca-Cola Co., No. D077588, 2021 WL 2461175 (Cal. App. June 17, 2021).
Other representative appeals Kevin has handled include: Riley v. Ford Motor Co., No. F071226, 2017 WL 476619 (Cal. Ct. App. Feb. 6, 2017); Hoier v. Global Digital Media Xchange, Inc., No. B183060, 2006 WL 3423359 (Cal. Ct. App. Nov. 29, 2006); New Grade Int’l Inc. v. Automatic Sprinkler Corp. of Am., 205 Fed. App’x. 571, 2006 WL 3253846 (9th Cir. Nov. 9, 2006); R.J. Reynolds Tobacco Co. v. Shewry, 423 F.3d 906 (9th Cir. 2005); Budgery v. Lorillard Tobacco Co., No. B2700683, 2003 WL 21652278 (Cal. Ct. App. July 14, 2003); Armstrong v. Aetna Life Ins. Co., 128 F.3d 1263 (8th Cir. 1997).
In addition to his appellate work, Kevin has taken the lead on briefing complex issues in consolidated and class-action litigation at the trial-court level. For example, he convinced a court presiding over hundreds of cases in an MDL proceeding against Ford to dismiss all fraud claims based on the economic-loss rule. In re Ford Motor Co. DPS6 PowerShift Transmission Prods. Liab. Litig., 483 F. Supp. 3d 838 (2020). The dismissal of the fraud claims also eliminated claims for punitive damages, greatly reducing the risk to the company.
In another case, Kevin drafted the winning brief in a proposed nationwide class action against Ford claiming it illegally deducted certain costs from the amounts it paid to buy back allegedly defective vehicles. The court granted summary judgment. Sansoe v. Ford Motor Co., No. 13-5043 (N.D. Cal. Sept. 13, 2017).
In 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. 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. Kevin also represented PM USA on appeal to the Ninth Circuit, which affirmed the judgment.
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 two retrials followed. Ultimately the jury declined to award punitive damages. See 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.
Kevin Underhill, Melina Manetti, James Muehlberger and Amir Nassihi, “Food & Beverage Class Actions,” A Practitioner’s Guide to Class Actions, Third Edition, American Bar Association, November 2021.
Kevin Underhill, A Year of Lowering the Bar, Green Bag Almanac & Reader, 2009-2016.
Kevin Underhill, The Emergency Sasquatch Ordinance (and other real laws), Chicago: American Bar Association, 2014.
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, Can You Deduct a Pirate Ransom?, Forbes.com, Jan. 24, 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.
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, A Reasonable Consumer Would Know Crunch Berries Aren’t Real (and over 3,500 other posts), Lowering the Bar, June 2, 2009.
Behavioral Legal Ethics, Sanofi Annual Meeting, February 2020.
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.