Philipp Smaylovsky is a senior associate in the Complex Litigation and Dispute Resolution Group and represents foreign and domestic clients in all aspects of complex commercial litigation in the federal and state courts, including securing provisional remedies, as well as in appellate matters and arbitration.
Before joining Orrick, Philipp worked in the New York office at Salans, an international law firm headquartered in Paris, where he represented individuals and companies in the telecommunications, natural resource extraction, fashion, and the luxury/retail sectors.
He also interned at the Moscow Helsinki Group, one of the oldest human rights NGOs operating in the Russian Federation.
Phillip's representative engagements include:
- Representing major software company asserting claims for breach of a licensing agreement and declaratory judgment in federal litigation against a Korean hardware manufacturer.
- Representing major European bank in state court litigation involving claims of misappropriation of confidential information, breach of non-disclosure agreements, injunctive relief, and tortious interference.
- Representing premium finance lenders and life settlement investors in state and federal court litigation involving claims on partially recourse and non-recourse financed life insurance policies, including asserting and defending against claims for breach of contract, fraud, unfair trade practices, violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and breach of fiduciary duty.
- Representing major European bank in federal court litigation involving alleged RICO violations, fraud, aiding and abetting fraud, conversion, tortious interference, and other common law tort claims.
- Representing an insured in an arbitration concerning a lender protection insurance policy which guaranteed loans collateralized with non-recourse financed life insurance policies.
- Representing the buyer in Delaware Chancery litigation arising from the sale of an international auditing and certification firm, and involving claims of breach of contract, misappropriation of trade secrets, unfair competition, conversion, and other common law tort claims.
- Representing several electric cooperatives in separate disputes concerning sale and lease-back transactions.
- Representing life settlement investor in breach of contract and fraudulent conveyance action to recover life insurance policies.
On October 12, 2016, the United States Court of Appeals for the Seventh Circuit, in an opinion authored by Judge Richard Posner, affirmed a district court decision finding that securities intermediary U.S. Bank, N.A. is entitled to $6 million in life insurance policy proceeds, plus statutory interest and bad faith damages, from insurer Sun Life Assurance Company of Canada. In its decision in the case, Sun Life Assurance Co. of Canada v. U.S. Bank National Association, as Securities Intermediary, the Seventh Circuit made clear that, pursuant to applicable Wisconsin statutory law, an insurance company cannot avoid its obligation to pay the death benefit on a life insurance policy, even if the policy was issued to a stranger lacking an insurable interest in the insured life. And if it fails to timely pay a claim on such a policy, a carrier may be held liable for statutory interest and additional damages for acting in bad faith. The ruling applies to policies governed by Wisconsin law that were issued prior to November 1, 2010, when the Wisconsin legislature amended the applicable law.
The insurance policy in this case was issued in 2007 by Sun Life on the life of wealthy octogenarian Charles Margolin. In 2011, U.S. Bank purchased the policy on behalf of an investor (i.e., as securities intermediary), and in 2014, Mr. Margolin died. Even though Sun Life had collected $2.5 million in premiums and knew about all of the transactions concerning the policy that occurred between 2007 and 2014, it refused to pay the policy proceeds without first investigating the policy’s validity. U.S. Bank, as the owner and beneficiary of the policy, invoked a Wisconsin statute requiring the insurer to pay claims within 30 days and brought a lawsuit against Sun Life to force a payment.