Kevin Heaphy

Biography

Kevin excels at helping individuals and businesses achieve practical, efficient, and business-oriented results in the face of legal disputes. He advises a diverse array of clients with business interests, from small startups and multinational corporations to financial professionals, entrepreneurs, and professional athletes and coaches. His focus is on offering the best advice and representation to resolve disputes and help his clients focus on their business goals.  

Technology-Related Disputes. Kevin helps businesses navigate legal issues that arise through the use and innovation of emerging technologies and the internet. His experience includes:

• Assisting companies making Initial Coin Offerings to prepare white papers and comply with state and federal securities regulations.
• Resolving disputes over ownership, licensing, and use of proprietary sales data, including alleged trade secrets.
• Resolving disputes over IT Vendor agreements and SOW agreements, including analysis of work performed and various change-order procedures.
• Helping businesses and individuals pursue claims originating in an online environment, such as defamation, false advertising, or tortious interference, including removing adverse content.
• Analyzing electronic information systems to identify potential sources of relevant information and procedures for preserving, collecting, and producing the same.

General Commercial Litigation. Kevin helps defend a number of commercial clients to protect their business needs and advance their interests. Some of Kevin’s recent engagements include:

• Defending a local manufacturing company against claims of sexual harassment and hostile workplace stemming from dress code violations and corrective actions.
• Defending a non-profit consumer protection organization against claims of defamation and libel seeking several million dollars in damages.
• Obtaining injunctive relief in favor of a local business that learned one of its members was embezzling money from daily deposits and negotiating a settlement that removed the member.
• Defending a landlord/seller against claims by a tenant for breach and misrepresentation of a purchase-option contract.

Securities Industry Litigation. Kevin helps broker-dealers, investment advisers, and other professionals in the financial services industry litigate and defend claims before state, federal, and regulatory tribunals, including the Financial Industry Regulatory Authority (FINRA) and the Arizona Corporation Commission (ACC). Some of Kevin’s engagements include:

• Defending an investment advisory firm against claims of control-person liability for “selling-away” interests in an unapproved REIT. 
• Defending insurance salespeople against regulatory enforcement actions for the unlicensed sale of unregistered securities related to Foreign Currency Exchange (Forex) investments.
• Defending a broker-dealer against suitability claims initiated by consumers.
• Litigating claims for solicitation under employment agreements with broker-dealers or investment advisers and pursuant to the Protocol for Broker Recruiting (Broker Protocol).

Financial Institution Litigation. Kevin helps lending and finance clients, including some of the country’s largest banks, enforce loans and defend against claims asserted by borrowers. His experience includes:

• Litigating and enforcing lenders’ rights with respect to commercial loans, including collecting judgments against borrowers and guarantors through garnishment, attachment, foreclosure, and related proceedings.
• Negotiating modification, settlement, and forbearance agreements on behalf of lenders to amicably resolve loan defaults.
• Obtaining injunctive relief to proactively enforce lenders’ rights including preventing borrowers from disposing of collateral and assets and enforcing loan covenants requiring minimum asset reserves.
• Litigating claims of successor liability and fraudulent transfers where borrowers and guarantors devise schemes to avoid repayment.
• Appointing receivers to assist with protecting and selling collateral in favor of secured lenders.

Product Liability Litigation. Kevin helps product manufacturers defend against claims by consumers that products were knowingly hazardous or failed to include adequate warnings. Kevin’s experience with product liability defense includes:

• Researching supply chains and distribution of his client’s products to specific geographic areas as far back as the 1960s and 1970s.
• Coordinating large-scale discovery projects to analyze liability, prepare discovery requests, and prepare corporate witnesses.
• Conducting depositions of claimants and other fact witnesses to investigate product use and memory.
• Retaining and deposing expert witnesses to prove or disprove the state-of-the-art knowledge at the time of manufacture and causation.
• Preparing complex cases for trial on accelerated schedules.

Electronic Discovery (eDiscovery). Kevin has worked with the firm’s eDiscovery practice since 2007. He began by researching state and federal document retention and privacy laws to assist corporate clients in developing defensible information governance policies. Kevin’s eDiscovery experience includes:

• Researching and reviewing trends and opinions in case law nationwide affecting the obligations and responsibilities of clients and counsel with regard to the discovery of electronic information.
• Analyzing eDiscovery issues for litigation clients, including litigation holds, potential spoliation sanctions, preservation obligations, and objecting to overbroad and costly subpoenas.
• Drafting litigation hold policies to safeguard against discovery sanctions during litigation.
• Authoring the firm’s eDiscovery blog.
• Writing articles and presenting CLE courses on eDiscovery issues.

Advising Startups and Growing Businesses. Kevin enjoys advising startups and entrepreneurs in how to avoid legal risk in the early stages of business growth, including:

• Providing advice regarding formation, capitalization, management, and documenting agreements.
• Reviewing contracts, vendor agreements, employment agreements, SOWs, and other contractual documents to identify potential legal risks.
• Reviewing marketing materials to ensure compliance with state and federal regulations.
• Providing comprehensive legal analysis of innovative ideas to ensure compliance and reduce the risk of costly litigation.

International Domestication and Collection Litigation. Kevin helps judgment creditors from foreign countries collect judgments from judgment debtors in the United States and pursue claims for fraudulent transfers. Some of Kevin’s recent engagements include:

• Domesticating a Hong Kong judgment in Arizona, Colorado, and several other states, engaging in aggressive discovery efforts to locate assets of the judgment debtor, and enforcing the judgment against the judgment debtor’s real property assets that were fraudulently transferred to a shell charity.
• Domesticating and enforcing a Canadian judgment in Arizona and pursuing claims that the judgment debtor’s real property was fraudulently transferred to avoid collection.

Publications

• "Arizona Supreme Court Establishes Factors to Distinguish Home Improvement Loans from Construction Loans When Considering Anti-Deficiency Protection," Ryley Carlock & Applewhite Legal Alert, September 2020
• "Arizona House of Representatives Proposes New Privacy Law," Ryley Carlock & Applewhite, February 2020
• "My Business Is In Arizona, Why Do I Care About California Privacy Laws? How the CCPA Impacts Arizona Businesses," January 2020
• "Five Key Considerations to Developing Defensible AI," Ryley Carlock & Applewhite, September 2019
• "California Holds That Internet Service Providers, Such As Yelp, Can Disobey Orders To Remove Defamatory Posts – So How Can Companies Remove False Reviews From The Internet?," February 2019
• "Troll Hunting: Practical Strategies for Businesses to Combat Anonymous Online Trolls," Ryley Carlock & Applewhite, August 17, 2017
• "Arizona Court of Appeals Deals Fatal Blow to "Take-Home" Asbestos Exposure Lawsuits," Ryley Carlock & Applewhite Client Alert, September 2016
• "Arizona Enacts New Asbestos Trust Claim Disclosure and Evidence Statute," Ryley Carlock & Applewhite Client Alert, April 2015
• "Supreme Court Unanimously Rules That Police Officers Cannot Search the Contents of Cell Phones Incident to Arrest Without Obtaining a Search Warrant," Ryley Carlock & Applewhite Client Alert, June 2014
• "Non-Parties and Electronic Discovery: Limiting the Scope and Cost of Responding to Invasive Rule 45 Subpoenas," Ryley Carlock & Applewhite Client Alert, May 2014

Speaking Engagements

• "Empowering Your Business to Overcome Legal Challenges," PHX Startup Week, March 2019
• "My Business is Under Attack by Anonymous Internet Users! How to Identify Online Trolls & Remove Harmful Online Content," Association of Corporate Counsel Arizona Chapter, July 2018
• "Troll Hunting!," Techstars Startup Week, February 2018
• "Preservation Obligations Case Law Update," Co-Presenter, September 2011
• "Preventive Legal Care: 4 Steps to Identify and Reduce Your Business' Risk of Getting Sued," Association of Corporate Counsel, Co-Presenter, October 2015

Memberships

• Friends of the Phoenix Public Library, Board Member
• International Technology Law Association (ITechLaw)