Spencer Smith is a trial lawyer whose practice covers a wide range of business litigation matters, including shareholder disputes, intellectual property claims, lender liability, trust administration, securities fraud claims, and contract and insurance disputes in both state and federal courts, as well as various arbitration forums, including AAA and FINRA. He also has experience defending companies against product liability claims and litigating construction disputes.
During the course of his career, Spencer has represented individuals as well as public and closely held entities in a variety of industries, including technology, banking, energy and telecommunications.
Spencer’s achievements as a trial lawyer have earned him recognition as a “Local Litigation Star” by Benchmark Litigation as well as inclusion in The Best Lawyers in America (banking and finance litigation; construction litigation; securities litigation) and Oklahoma Super Lawyers.
Prior to joining McAfee & Taft in 2004, Spencer was a business litigation associate with Vinson & Elkins in Austin, Texas.Download Bio (PDF)
Banking and Trust Administration:
- 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.
- Defended financial institution in AAA arbitration against claims that terms of participation agreement were breached. Following a multi-day hearing, the panel ruled in favor of our client.
- Represented bank in Dallas County Court against lender liability claims by commercial borrower in connection with the sale of multiple loans. Obtained summary judgment for the majority of the asserted claims and, shortly thereafter, settled remaining claim on favorable terms.
- Defended financial institution in Oklahoma County District Court against claims by borrower related to financing relationship. Matter settled on favorable terms.
- Representing bank to enforce guaranties against more than 40 guarantors in Oklahoma County District Court.
- Represented former officer of failed bank in connection with investigation by the Federal Deposit Insurance Corporation (FDIC) of the circumstances regarding the bank’s failure. Matter resolved on favorable terms.
- Defending individual trustee in Grant County District Court against breach of fiduciary duty and unjust enrichment claims in connection with the administration of multiple trusts.
- Represented corporate trustee in Oklahoma County District Court in connection with claims related to the administration of a trust. Obtained dismissal of all claims.
- Representing corporate trustee in Pottawatomie County District Court in connection with claims related to administration of trust in.
- Representing one of the world’s largest computer manufacturers in connection with a putative class action brought by purchasers who allege violations of the Oklahoma Consumer Protection Act in connection with the company’s tax collection practices. The Lincoln Court District Court granted our motion to strike plaintiffs’ class allegations. Ruling currently on appeal in front of the Oklahoma Court of Civil Appeals.
- Representing owner of closely-held entity in prosecution of individual and derivative claims against multiple parties, including co-owner of entity, for breach of fiduciary duty, breach of contract, unjust enrichment, corporate usurpation, tortious interference, defamation and fraud in Canadian County District Court.
- Represented 50% owner of oil service provider in AAA arbitration against other 50% owner and entities he had created and prosecuted claims for breach of fiduciary duty, fraud and breach of contract in connection therewith. Following multi-day hearing, the panel entered an award in favor of client in excess of $3 million and dismissed all claims against client.
- Represented a surgical center and its members against claims brought in Cleveland County District Court by former partners for breach of the partnership agreement as well as various business torts. Settled on favorable terms.
- Defending the manufacturer of desktop monitors and LCD TVs against breach of contract and warranty claims in Oklahoma County District Court.
- Defended a food broker and its majority owner against breach of contract and various tort claims brought by former competitors who sought to recover more than $1 million in actual damages in addition to attorneys’ fees and punitive damages. Following a five-day trial in Oklahoma County District Court, the jury returned a verdict in favor of the defendants on several of their counterclaims and found the defendants liable for only a fraction of the amount plaintiffs were seeking. Defendants abandoned their appeal following a favorable post-trial settlement.
- Represented a limited liability company and its members against breach of contract and business tort claims related to the purchase of real estate. The Canadian County District Court granted the clients’ motion for summary judgment, and the decision was upheld on appeal.
- After liability had been established against a real estate developer in an arbitration proceeding, stepped in to defend the developer in the damages phase of the trial. Obtained a judgment for substantially less than the millions being sought by the claimant.
- Represented a municipal authority in connection with claims by landowners whose property was condemned for urban renewal. Following a multi-day bench trial in Oklahoma County District Court, the court found in favor of the municipal authority.
- Defended a leading copy machine manufacturer against breach of contract and tort claims. The Travis County District Court granted the defendant’s motion for summary judgment, which resulted in the dismissal of plaintiff’s claims.
- Represented the inventor of a heart catheter in a patent infringement action against a large pharmaceutical manufacturer in the Western District of Oklahoma. After a two-week trial, the jury returned a verdict for the client in excess of $14 million, which included exemplary damages.
- Represented an aerial camera company in pursuit of claims for misappropriation of trade secrets, copyright infringement, and other business torts in the Northern District of Oklahoma against the client’s former chief engineer and the aerial camera company that he formed. Following a three-week trial, the jury returned a verdict in favor of our client against both defendants that included an award of punitive damages against the former employee.
- Represented multi-national energy company in prosecution of copyright claims against former distributor in the Southern District of Texas. Settled on favorable terms.
- Prosecuted trademark infringement, unfair competition, and deceptive and unfair trade practice claims on behalf of restaurant chain. Obtained permanent injunction in favor of client as well as an award of attorneys’ fees in the Western District of Oklahoma.
- Defended the manufacturer of mobile communication towers against patent infringement and misappropriation of trade secret claims in the Northern District of Oklahoma. The parties reached a settlement in order to pursue a joint venture.
- Represented the state’s largest newspaper in pursuing claims for, among other things, trademark, trade dress and copyright infringement in the Western District of Oklahoma. Obtained a favorable settlement.
- Obtained summary judgment in the Western District of Oklahoma for oil and gas company in federal putative class action where plaintiffs alleged violations of Sections 11, 12(a)(2), and 15 of the Securities Act of 1933, because a registration statement for an offering was alleged to be materially false and misleading. Affirmed by Tenth Circuit Court of Appeals.
- Represented an institutional investor in connection with its securities fraud claims in the Western District of Oklahoma against a broker-dealer which made misrepresentations and omissions related to the sale of leveraged non-recourse securities. The case settled on favorable terms for the client.
- Represented a broker in a FINRA arbitration proceeding in defense of Oklahoma Securities Act and other tort claims related to allegations by the broker’s clients, which were comprised of three trusts and an individual, that the broker diverted more than $1 million of securities from the clients’ brokerage accounts to cover margin calls in the broker’s individual account. The claimants sought more than $1 million in actual damages as well as attorneys’ fees and punitive damages. Following three days of trial, the three-member panel only found the broker liable for less than $25,000 in actual damages.
- Represented three groups of investors in a securities fraud action against AXA Advisors. After a two-week trial, an NASD panel of three arbitrators returned a verdict of approximately $1 million, including $350,000 in punitive damages. A subsequent arbitration proceeding related to the same conduct was pursued on behalf another group of three investors. That arbitration settled favorably after three days of a scheduled 10-day hearing.
- Represented a major airline in defense of securities fraud class action in the Southern District of Texas. Obtained the dismissal of the securities fraud claims brought in federal court seeking millions of dollars of damages.
- Defended a public accounting firm in class action shareholder litigation in the Southern District of Texas alleging that the accounting firm failed to discover revenue recognition fraud. Obtained dismissal of the securities fraud claims.
- Obtained dismissal of 1933 and 1934 Securities Act claims filed in federal court in San Diego, California, against a former outside director and largest shareholder of a software company after the company restated revenue by more than $500 million.
- Represented the claimant in a AAA hearing against the prime contractor in a complex multimillion-dollar construction dispute involving the extensive remodel of a luxury hotel in Houston, Texas. The panel awarded the claimant almost $300,000 in delay damages, a $160,000 reduction in certain invoices, and the dissolution of a pending mechanic’s lien in excess of $4 million filed by the prime contractor, an international construction company.
- Represented the owner of a wastewater treatment plant in connection with its claims against the general contractor and its surety for the faulty installation of water and wastewater lines. Following a multi-day trial, the AAA panel entered an order awarding the owner the majority of its damages. Obtained a favorable settlement in connection with the remaining damages from the surety on the eve of a jury trial.
- Represented more than 90 Texas corn farmers in arbitration and administrative appeals before the National Appeals Division of the USDA involving federally reinsured crop insurance. The NAD determined that the Risk Management Agency (a department within the USDA) acted arbitrarily and capriciously, which led to the payment of more than $3 million plus attorneys’ fees and costs to the client group.
- Represented a group of Texas wheat farmers in an administrative appeal before the National Appeals Division of the USDA in which the Risk Management Agency attempted to recalculate indemnity payments. Following an evidentiary hearing, the NAD determined that the RMA’s demands were without merit and awarded the attorneys’ fees incurred by the group.
Challenges to Statutes and Administrative Rules:
- Represented a major pharmaceutical manufacturer in a successful challenge to Texas State Board of Pharmacy rules regarding generic drugs.
- Represented the Texas Governmental Risk Pool in successfully challenging the constitutionality of various provisions of the Texas Workers’ Compensation Act.
Honors and Awards
- Named a “Local Litigation Star” by Benchmark Litigation
- Selected by peers for inclusion in The Best Lawyers in America (banking and finance litigation; construction litigation; securities litigation)
- Listed in Oklahoma Super Lawyers
- Named to Oklahoma Super Lawyers’ list of “Top 50 Lawyers”
Professional Organizations and Memberships
- Oklahoma County Bar Association
- Oklahoma Bar Association
- American Bar Association
- State Bar of Texas
- William J. Holloway, Jr. American Inn of Court