Michael K. Avery

Representative Experience

• Obtained judgment on behalf of a regional bank in a proposed class action relating to overdrafts associated with alleged irregularities concerning the manner in which transactions were posted to online and mobile bank statements. The putative class representative asserted claims against the bank for fraud (both actual and constructive), false representation/deceit,  breach of fiduciary duty, breach of contract, and unjust enrichment, all of which were dismissed by the United States District Court for the Western District of Oklahoma. On appeal, the Tenth Circuit affirmed the dismissal of all counts except the breach of contract claim, which was remanded to the district court. On remand, the district court granted summary judgment to the bank on the contract claim and this ruling was later affirmed by the Tenth Circuit, leading judgment to be entered in favor of the bank on all claims.
• Successfully represented a large Oklahoma bank in a putative class action where plaintiff accountholders alleged that multiple fees were inappropriately charged on a single item. Secured dismissal of breach of good faith and fair dealing claims and obtained favorable settlement of breach of contract claims. 
• Obtained $978,425.75 judgment following jury verdict on behalf of a real estate development company that sought just compensation in a condemnation case involving the taking of property by the Oklahoma Department of Transportation for the purpose of reworking the interchange of two interstate highways. The jury award exceeded the court-appointed commissioners’ award by 137%.
• Following a bench trial in the U.S. District Court for the Western District of Oklahoma, obtained judgment on all claims relating to liabilities associated with corporate income taxes (including breach of contract and declaratory judgment) and an award of nearly $1 million in favor of clients who had sold their ownership interests in an oilfield services business to an international leader and competitor in the field.
• Following a bench trial in the Oklahoma County Court, obtained judgment and full damages sought on plaintiff’s claims for breach of contract, as well as judgment against defendant’s counterclaim for negligence, in a lawsuit filed by a crane operator for work performed on wind farm turbines in west Texas.
• Obtained summary judgment on behalf of Oklahoma Youth Exposition, Inc. in a qui tam action alleging that payments made to the nonprofit corporation by a state agency for the express purpose of hosting an annual statewide youth stock show violated provisions of the Oklahoma Constitution. Judgment affirmed on appeal.
• Obtained summary judgment on behalf of Western Famers Electric Cooperative in breach of contract action related to rights to hydroelectric power generated by the federal government for which the plaintiff sought in excess of $80 million in damages. Judgment affirmed by the U.S. Court of Appeals for the Tenth Circuit.
• Obtained reversal of adverse jury verdict of $700,000 in actual and punitive damages on post-trial motion for judgment as a matter of law on behalf of a major insurance company accused of bad faith in handling an uninsured motorist claim. Decision affirmed by the U.S. Court of Appeals for the Tenth Circuit.
• Successful representation of physician surgical group in qui tam action by obtaining summary judgment on more than 2200 allegedly false claims involving multiple alleged schemes to defraud Medicare.
• Represented Oklahoma mental health counseling service company in case in which the federal and state government alleged client had submitted in excess of $1 million worth of false claims.
• Successful representation of several physicians in regulatory matters initiated by the Oklahoma Board of Medical Licensure.
• Successfully settled putative nationwide consumer class action for online retailer.