Practices
-High Stakes Litigation
-Complex Commercial Litigation
-Products Liability-Personal Injury
-Criminal Defense and Internal Investigations

Benjamin L. Bailey

Ben is a trial and appellate lawyer. His favorite legal habitat is the courtroom. He spent his first eight years following law school in public service -- two years as a law clerk to the Honorable John T. Copenhaver, Jr., two years as a federal prosecutor, and four years as Counsel to the Governor of West Virginia. Because no good deed goes unpunished, Ben has been trying cases, or preparing to try them ever since, for plaintiffs and defendants. He and Brian Glasser formed Bailey & Glasser in 1999. Ben plays a leading role in many of the firm's most challenging cases. His current and recent work includes:
  • Currently serving as one of twenty-three lawyers on the Plaintiffs' Steering Committee for the Volkswagen Diesel Emissions MDL pending in the Northern District of California, the largest automotive class action in history, with settlements projected to exceed $10 billion,
  • Currently serving as one of six plaintiffs’ coordinating lawyers in the Freedom Industries Chemical Spill litigation in the Southern District of West Virginia, with a settlement process underway which will provide up to $150 million to over 300,000 affected residents and businesses,
  • Leads a team of law firms prosecuting a civil antitrust/monopolization action for the State of West Virginia against the largest provider of asphalt and paving services in the State, if not the world,
  • Served as one of nine lawyers in the country on the Plaintiffs' Lead Counsel Committee for the Economic Loss Cases in the Toyota Sudden Acceleration MDL in the Middle District of California, which settled for $1.6 billion, and handled more than a dozen related death and serious injury cases,
  • Retained to take an appeal from an adverse arbitration decision rendered by the West Virginia Business Court. The State of West Virginia’s Investment Management Board brought a breach of contract action against an annuity provider seeking damages of approximately $100 million. The case also presents novel constitutional and structural issues involving the composition of, and public access to, arbitration in the Business Court,
  • Successfully handled the appeal for the defendant of a $93 million punitive damages verdict against a nursing home in West Virginia, then implemented a strategy to resolve, and win at trial, the client’s remaining cases,
  • Representing the Chief Justice of the West Virginia Supreme Court of Appeals in impeachment proceedings, the first in West Virginia in more than 140 years, and
  • Leads a team which regularly represents lawyers and doctors in defending malpractice claims, professional licensure proceedings, and criminal investigation.
Ben is a permanent member of the Judicial Conference of the U.S. Court of Appeals for the Fourth Circuit, a founding member of the Charleston Chapter of the American Inns of Court, and a Fellow of the American Bar Association. He serves on the national board of the Public Justice Foundation. He is AV rated in Martindale-Hubbell. Chamber U.S.A.'s Guide to America's Leading Business Lawyers rates him in the first tier of General Commercial Litigators in West Virginia and described him as an "outstanding litigator and go-to guy." He lectures occasionally on legal ethics and trial practice issues.   Professional Involvement Bar Admissions West Virginia, 1981 District of Columbia, 2014 Government Experience Counsel to the Governor of West Virginia, 1984-1988 Assistant U.S. Attorney for the Southern District of West Virginia, 1982-1984 Law Clerk, Hon. John T. Copenhaver, Jr., U.S. District Court for the Southern District of West Virginia, 1980-82 Memberships and Affiliations Hon. John A. Field, Jr., Inn of Court Permanent Member, Judicial Conference for the U.S. Court of Appeals for the Fourth Circuit Fellow, American Bar Association Fellow, West Virginia Bar Foundation Court Admissions U.S. Supreme Court U.S. Court of Appeals for the Fourth Circuit U.S. Court of Appeals for the D.C. Circuit U.S. District Court for the Northern District of West Virginia U.S. District Court for the Southern District of West Virginia Supreme Court of Appeals of West Virginia Representative Cases Volkswagen “Clean Diesel” Marketing, Sales Practices, and Product Liability Litigation Ben Bailey serves as one of twenty-three lawyers on the Plaintiffs' Steering Committee for the Volkswagen Diesel Emissions MDL pending in the Northern District of California. The Bailey & Glasser team played a central role in developing the technical and engineering parts of the case. The first round of claims in the case, involving vehicles with 2.0 liter diesel engines, settled for more than $10 billion. Mr. Bailey also served on the settlement team dealing with vehicles with the 3.0 liter engines; the settlement of that portion of the case was worth at least $1.2 billion. A $327.5 million settlement with German auto electronics supplier Robert Bosch has also been approved. Toyota Unintended Acceleration Marketing, Sales Practices, and Product Liability Litigation In 2009, we filed one of the first wrongful death actions alleging sudden-acceleration defects in a Toyota Camry. Ultimately, our lawyers were appointed to key MDL leadership roles in what came to be, at the time, one of the largest products liability cases ever filed. Ben Bailey served on the plaintiffs’ lead counsel committee pursuing economic-loss damages; Eric Snyder serves in the same capacity on the committee pursuing personal injury claims. The firm played a leading role in developing expert testimony on the sudden acceleration defect in 2002-2010 Toyota vehicles. The economic-loss claims settled for $1.6 billion. Hundreds of personal injury claims have also been settled; dozens remain pending. State of West Virginia v. USEPA, No. 12-5150 Bailey & Glasser counsel served as Special Assistant Attorneys General for West Virginia in the groundbreaking environmental litigation filed in the State from 1999-2003--the Mountaintop Removal, Cumulative Hydrologic Impact Analysis, and Bonding Litigations. Almost a decade later, Bailey & Glasser lawyers again represented the State against USEPA in these actions:
  • Mingo Logan Coal Co. v. EPA, 714 F.3d 608 (D.C Cir. 2013);
  • National Mining Association, et al. v. Gina McCarthy, et al., 758 F.3d 243 (D.C. Cir. 2014); and
  • WV Highlands Conservancy, Inc., et al. v. Randy C. Huffman, 651 F. Supp. 2d 512 (S.D. W.Va. 2009).
This series of cases involved several injunction hearings and numerous complex federal and state issues addressing fundamental changes made by EPA in the mining and environmental laws of West Virginia and the region. Rector v. Alliance Coal Bailey & Glasser represented a group of heirs and successors to a partnership that proved up a 200- million ton coal-reserve and assigned it to Alliance’s predecessors in a 1977 contract in exchange for royalties. After a two-week bench trial, our client was awarded nearly $3.9 million in unpaid royalties, plus an order of specific performance to pay future royalties. Verdict affirmed on appeal and judgment for $6.5 million entered. Not guilty verdict for coal operator The firm obtained a full acquittal for a coal operator charged in a twenty-three count federal indictment. Our client was accused by the United States of participating in a tax fraud conspiracy involving more than $10 million, as well as engaging in prohibited currency transactions. The United States also sought the forfeiture of more than $10 million from our client. The government's investigation spanned several years, resulting in felony convictions for twenty-five defendants. After a nearly three week jury trial, however, our client was found not guilty on all charges. Citizens Against Pollution v. Ohio Power We served as lead trial counsel for citizens’ group in environmental lawsuit against Ohio Power. The dispute centered on sulfuric acid emissions from AEP's Gavin Power Plant, and involved dozens of depositions, multiple experts in toxic air emissions, and a complicated regulatory scheme at the intersection of RCRA and CERCLA. After years of litigation and two days of trial, the case resulted in a creative consent decree which provided relief otherwise unavailable in a trial. Bank of America, NA v. FDIC-Receiver The firm was retained to represent the FDIC in its capacity as receiver of Colonial Bank. The case was resolved favorably to the FDIC as part of a multi-case, multi-agency settlement for $16.65 billion, the largest single-company settlement in U.S. history. The FDIC's portion of the BoA total settlement, which includes payment for FDIC's counterclaims in this case, amounts to $1.031 billion. Patriot Coal Corp. Bankruptcy Our lawyers served as Special Assistant Attorneys General in both Patriot Coal bankruptcy cases, the first in the Southern District of New York and Eastern District of Missouri and the second in the Eastern District of Virginia. They represented the West Virginia Department of Environmental Protection as well as the West Virginia State Tax Department and Offices of the Insurance Commissioner. For the DEP, our lawyers helped secure a significant settlement for the State to help ensure funding of reclamation and water treatment. On behalf of the Tax Department, our lawyers obtained dismissal of the Patriot trustee’s $5-plus million suit to recover alleged tax refunds due. WP Steel, LLC On behalf of the West Virginia Offices of the Insurance Commissioner, firm lawyers served as Special Assistant Attorneys General for the State of West Virginia in connection with the Chapter 11 case of RG Steel, LLC. After RG Steel defaulted on its workers’ compensation obligations, firm attorneys obtained relief from the automatic stay to allow the Insurance Commissioner to obtain $7 million in funds to pay workers’ compensation claims. State of West Virginia v. Microsoft Corporation Ben represented the State of West Virginia in a consortium of states which pursued state-law antitrust and consumer protection claims against Microsoft Corporation. West Virginia’s case settled for a total value of $21 million. Not guilty verdict for businessman in murder trial Not guilty verdict by reason of self-defense of a funeral home owner accused of first-degree murder. Education
  • J.D., 1980 - Harvard Law School
  • B.A., 1975, magna cum laude - Washington & Lee University