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Kenneth C Johnston
University of Mississippi
University of MississippiAdmitted to the State Bar of Texas in:
Admitted to the State Bar of Mississippi in: 1991
Mr. Johnston, a Director, focuses his practice on class-action and general commercial litigation with an emphasis on financial services, insolvency and creditor rights. He routinely represents financial institutions in a variety of matters, including general bank operations, material defensive litigation, and credit risk management. Mr. Johnston also represents parties on both sides of cases involving oil and gas, partnerships, securities, and corporate governance, as well as investor groups in Ponzi scheme matters. Specific areas include the following:
- General bank operations, with emphasis on claims under Articles 3 (negotiable instruments), 4 (deposits and collections), and 4A (funds transfers) of the Uniform Commercial Code.
- Lender liability defense, including claims arising from non-disbursement of loan funds, termination of credit facilities, charging default rates, legality of fees and charges, refusing to extend loans, purported oral loan commitments, and rejecting loan payments after default.
- Defensive litigation, including securities fraud, fiduciary duty, mortgage lending practices, and class actions.
- Statutory and regulatory compliance litigation, including the anti-tying provisions of the Bank Holding Company Act, the Equal Credit Opportunity Act, the Truth in Lending Act and Regulation Z, usury under the National Bank Act and State laws, the Real Estate Settlement Procedures Act, and CERCLA.
- Insolvency and creditors' rights, encompassing every aspect of insolvency - ranging from debt restructuring, collection, foreclosures, workouts, involuntary bankruptcies, and distressed asset sales to pre-packaged bankruptcy, plan negotiations, confirmation litigation, and avoidance actions.
- Inter-bank liability, including the resolution of disputes between agents, participants, and syndicate members.
Mr. Johnston also practices in the Firm's Energy and Investment Fraud Practice Groups. He regularly represents individual and corporate investors in oil and gas fraud matters. He has developed significant expertise in both investigating and prosecuting claims for large investor groups arising from Ponzi schemes. He also represents parties on both sides of cases involving oil and gas, partnerships, securities, and corporate governance.
Scope of Practice:
Creditors' rights, banking, financial services litigation, business litigation and bankruptcy.
- Recognized by Lawyer Monthly in the Leading Lawyer Global 250 Guide, an annual guide of lawyers whose knowledge and experience continue to influence the wider profession, and who have achieved recognition through other notable honors. (2014).
- Named as one of the Best Lawyers in Dallas in Banking and Finance by D Magazine (2013, 2015).
- Received Law Awards 2011 for Commercial Litigation Firm of the Year, USA by Finance Monthly.
- Ranked by Chambers USA: America's Leading Lawyers for Business as being among the top litigation lawyers in the United States (2009-2010, 2013, 2015).
- Named in Texas Super Lawyers® and Texas Monthly magazines as one of the top banking attorneys in Texas selected by Law & Politics (2006 - 2014).
- Named as one of the Best Lawyers Under 40 in 2006, an exclusive list of 176 attorneys published by D Magazine.
- Named by Law and Politics as an outstanding young lawyer in 2004 & 2006 Texas Rising Stars magazine, a designation given to lawyers under 40 who are viewed by their colleagues as preeminent in their respective practice areas; also published in Texas Monthly and online at superlawyers.com
- Elected to the Board of Advisors for the University of North Carolina School of Law, Center for Banking and Finance.
- AV Peer Review Rated by Martindale-Hubbell.
- Earned spot among The Defenders, an annual listing of the top 15 business defense attorneys in North Texas recognized by Dallas Business Journal in the June 12, 2008 issue.
- Currently representing Regions Bank in investment fraud case.
- Currently representing lenders and funds in securities fraud matters related to the financial products, which are at the core of the economic recession.
- Currently representing secured lender in Stanford Financial receivership.
- Currently representing lenders on a variety of preemption matters under the National Bank Act, the Home Owners Loan Act, and the Depository Institutions Deregulation and Monetary Control Act.
- Successfully defended a lender in a bank tying case.
- Routinely representing lenders in RESPA, FDCPA, TILA, FRCA, wrongful foreclosure, fraud and related mortgage litigation.
- Successfully defended class certification in financial services case (Finley v. Washington Mut. Bank, F.A., 2008 WL 2008850) (E.D.Tex. May 08, 2008) ("... the Court agrees with Defendant that Plaintiff has failed to show how individual issues will not overwhelm this case... Moreover, Defendant has submitted a detailed and comprehensive predominance analysis to show the many individualized issues implicated by Plaintiff's claims.").
- Established criteria for examining and disgorging excessive executive compensation paid on the eve of bankruptcy: Grigsby v. Carmell, 238 B.R. 758 (Bankr. N.D. Ill. 1999) ($4,032,845 judgment in a multi-week trial).
- Successfully defended an $8 million breach of fiduciary duty claim in multi-district litigation in Federal courts in Minnesota, Missouri and Texas.
- Successfully defended a Dallas Independent School District Trustee in a multi-million dollar defamation claim by the former DISD Superintendent, Waldemar Rojas ($135,000 mediated settlement on the eve of trial).
- After obtaining judgments for fraud in an oil and gas Ponzi scheme, successfully "busted" a Texas resident's unlimited homestead exemption.
- Obtained securities fraud and racketeering judgments in excess of $100 million, which ultimately led to the imprisonment of two defendants.
- Imposed a constructive trust on 400+ oil and gas wells located throughout the United States and in the Gulf of Mexico.
- Successfully defended a casino in a declaratory judgment action where a patron claimed that a multi-million dollar gaming debt violated Texas' public policy against gambling (Phillips v. Grand Casinos of Mississippi, Inc.-Biloxi, 2004 WL 2533589 (N.D. Tex.) (appeal dismissed)).
- Directed an international fraud investigation, tracing several million dollars throughout the United States, the Caribbean, Europe, Asia, Central America and South America.
- Successfully defended a multi-million dollar lender liability claim (failure to lend) by establishing fraud in connection with the claimant's loan application.
- Successfully defended a financial institution in a forged endorsement check case involving hundreds of checks ($9,000 settlement on the eve of trial).
- Successfully defended a corporate executive on a multi-million dollar Title VII sexual harassment claim - prior to the suit, the EEOC made findings of historical and present sexual harassment by the executive ($30,000 mediated settlement on the eve of trial).
- Successfully defended a financial institution in a race discrimination case under the Equal Credit Opportunity Act (dismissed for failure to state a claim).
- Successfully prosecuted numerous actions on behalf of bankruptcy trustees and creditors to prevent bankruptcy discharges.
- Successfully represented an energy company in the defense of an involuntary bankruptcy petition, which resulted in an out-of-court creditor composition that provided the company with a 40% reduction of its short and long term unsecured debt.
Dallas Bar Association. Pro Bono College of the State Bar of Texas. American Bankruptcy Institute. Texas Association of Bank Counsel. Texas Young Lawyers Association. Dallas Association of Young Lawyers. The American Law Institute.
U.S. Supreme Court. State Bar of Texas (1995). Mississippi State Bar (1991). United States Court of Appeals for the Fifth Circuit. United States District Courts for the Northern, Southern, Eastern and Western Districts of Texas. Northern and Southern Districts of Mississippi.
Contributing author to Cybersaurus Lex, a Cyber Security Law blog - part of the KRCL blog network; Co-presenter, Understanding Cybersecurity Awareness for Insurance Companies, LIVE Webcast The Knowledge Group, June 1016, Co-author, “The February 2016 California Attorney General's Data Breach Report Sets A Standard For "Reasonable Security" – What Does This Mean For Cybersecurity Litigation?”; American Bar Association, May 2016 Business Law Today, Speaker, Hot Topics in Dealing with Banking Cyber Security, webinar presented by The Knowledge Group (June 2014). Speaker, Bank Claims for Target-Type Breaches: Leveraging Litigation Theories, Assessing and Pleading Damages, webinar presented by Strafford (May 2014). Speaker and panel moderator, Negotiating the Storm: Least Cost Bank Resolution, 2009 Banking Institute in Charlotte, North Carolina. Author, Oil and Gas Investment Schemes, Presentation at the North American Petroleum Accounting Conference, May 15, 2008. Co-author, Tough Times on the Auction Block, Texas Lawyer (May 2008). Co-author, The Subprime Morass: Past, Present and Future, 12 N.C. Banking Inst. 125 (March 2008). Co-author, How the Takeover of Fannie Mae and Freddie Mac Will Fuel New Credit Crisis Litigation, Andrews Financial Crisis Litigation Reporter, ANFCLR 4 20081016, October 16, 2008 (also published in Andrews Subprime Litigation Reporter, ANSPRLR 5 20081017); Author, Resolution of Banks and Savings Associations During the Financial Crisis of 1908-1994, Presentation at the University of North Carolina School of Law, Center for Banking and Finance Conference (March 2009). Author, Ponzi Schemes and Litigation Risks: What Every Financial Services Company Should Know, 14 N.C. Banking Inst. 29 (March 2010).
United Way of Metropolitan Dallas (Priority Needs Grant Panel). Obtained membership in the Pro Bono College of the State Bar of Texas – including a pro bono appeal to the United States Court of Appeals for the Fifth Circuit; Ducks Unlimited. The Children's Trust. Board Member, Dallas Providence Homes, Inc. Board of Directors, 2010 SMU Athletic Forum.
University of Mississippi School of Law (J.D. May 1991); Judicial Externship (1991). United States Department of Justice Honor Program (1991). Journal of Space Law (1989-1991). Mississippi Model Jury Instruction Committee, Internship (1990). University of Mississippi School of Business (B.B.A. with major in Banking and Finance (1988).