Kenneth C. Johnston

Partner

Kenneth Johnston, known by many as KJ, focuses his practice on class action and general commercial litigation with an emphasis on financial services, insolvency, and creditor rights. He routinely represents financial services companies in a variety of matters, including general bank operations, material defensive litigation, and credit risk management.

Moving to Texas in 1994, Kenneth knew that he would learn about the energy business. Since that time, Kenneth has developed a long and successful track record of energy litigation, regularly representing individual and corporate investors in oil and gas fraud matters. He has also developed significant expertise in investigating and prosecuting claims for large investor groups arising from Ponzi schemes.

When asked what he does, Kenneth sometimes says “I fight hard for other people.” He brings that fight to his general commercial litigation matters, to energy issues, and to partnership and corporate governance disputes.

Specific practice areas include:

  • Prosecution and defense of professional negligence claims arising from failed financial transactions, including claims against law firms, accounting firms and investment banks.
  • Prosecution and defense of claims in multi-lender transactions such as loan syndications and participations, including claims by or against arrangers, administrative agents, and loan participants.
  • 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, usury, refusing to extend loans, purported oral loan commitments, and rejecting loan payments after default.
  • Defensive litigation, including securities fraud, the False Claims Act, 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, CERCLA, the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, and the Telephone Consumer Protection Act.
  • 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.
  • Corporate governance disputes under Delaware, Texas, and Nevada laws, among other states.

Practice Focus

Complex Commercial Litigation, Cyber Security, Bankruptcy, Investigations, Compliance, Energy

Education

  • University of Mississippi, J.D., 1991
    • Judicial Externship (1991)
    • United States Department of Justice Honors Program (1991)
    • Journal of Space Law (1989-1991)
    • Mississippi Model Jury Instruction Committee, Internship (1990)
  • University of Mississippi, B.B.A., 1988
    • Major in Banking and Finance

Admissions

  • State Bar of Texas, 1995
  • United States District Courts for the Northern, Southern, Eastern and Western Districts of Texas
  • State Bar of Mississippi, 1991
  • United States District Courts for the Northern and Southern Districts of Mississippi
  • United States District Courts for the Northern District of Florida
  • United States Court of Appeals for the Fifth Circuit
  • United States Court of Appeals for the Eleventh Circuit
  • U.S. Supreme Court

Honors

  • AV Preeminent® Rating by Martindale Hubbell
  • Super Lawyers by Thomson Reuters (2006–2016)
  • Texas Rising Stars by Thomson Reuters (2004, 2006)
  • Best Lawyers in Dallas published by D Magazine, Banking and Finance (2013–2016)
  • Ranked in Chambers USA Guide, Texas, Litigation: General Commercial (2009–2010, 2013–2016)
    • 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)
    • Received Law Awards 2011 for Commercial Litigation Firm of the Year, USA by Finance Monthly
    • Named as one of the Best Lawyers Under 40 in 2006, an exclusive list of attorneys published by D Magazine
    • Earned spot among The Defenders, an annual listing of the top 15 business defense attorneys recognized by Dallas Business Journal (2008)
    • Litigation Counsel of America, Member
    • American Law Institute, Elected Member since 2010
      • Principles of the Law, Data Privacy—Members Consultative Group
      • Rest. Third, Torts: Economic Torts and Related Wrongs—Members Consultative Group

Experience

Clients are impressed by the legal and client service skills of litigator Kenneth Johnston, saying that he “demonstrates a keen eye for detail, is very responsive to questions and demonstrates an in-depth knowledge of the law.” His practice in commercial dispute resolution focuses particularly on representing clients in the financial services industry. (Chambers USA 2016).

  • Represented appellee bank in appeal to Eleventh Circuit Court of Appeals, defending trial victory for lead bank on a $35 million participated loan facility. Following oral argument, the Eleventh Circuit affirmed the judgment, writing that the trial court applied the correct standards and rightly found that the plaintiff loan participant failed to prove any damages. Opinion available here.
  • Currently representing agent bank in claims against an investment bank in failed loan syndication.
  • Currently representing bank syndicate in accounting malpractice claims against regional accounting firm in failed loan syndication.
  • Currently representing bank in claims against a law firm for professional negligence arising from the bank’s role as documentation agent.
  • Represented lenders and funds in securities fraud matters related to various junk bond offerings.
  • Currently representing primary secured lender in Stanford Financial receivership.
  • Routinely represents 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 super-regional bank in federal court against claims brought by a loan participant. Plaintiff sought approximately $10 million in damages resulting rom the alleged breach of a participation agreement involving a failed mixed-use development in Northwest Florida. Although the court issued summary judgment against the bank on breach of contract, after a five-day trial, the court entered a “take nothing” judgment, resulting in a complete victory for the bank (2016).
  • Won significant discovery ruling from federal court that analyzed privileges arising from Suspicious Activity Report regulations and applied the privileges to protect thousands of pages of sensitive bank documents from production in Ponzi scheme litigation seeking to hold bank liable for aiding and abetting securities fraud (2014).
  • Achieved dismissal with prejudice of federal qui tam complaint that alleged the fraudulent management of a $16 billion commercial loan portfolio (2014).
  • Successfully defended a lender in a bank tying case (2012).
  • Routinely represents companies in disputes under 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, the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, and the Telephone Consumer Protection Act.
  • 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.

Representative Clients

  • Branch Banking & Trust Company
  • Comerica Bank
  • Hancock Bank
  • Hancock Holding Company
  • JP Morgan
  • McGriff, Siebels & Williams, Inc.
  • Regional Acceptance Corporation
  • Regions Financial Corporation
  • Regions Bank
  • Sheffield Financial
  • Trustmark National Bank
  • Wells Fargo
  • Whitney Bank

Testimonials

“I have had the rare opportunity to work with Kenneth as his legal associate and as his client. Kenneth consistently stands above his legal peers with his unique ability to understand his clients’ interests and balance them against the legal framework that so often distracts others from crossing the goal line. Kenneth achieves results, and I highly recommend him.”

-Adam Williams, Co-Founder & Managing Partner and Denali Properties


“Kenneth Johnston is a remarkable attorney. His knowledge and close attention to detail is like no other attorney I have worked with. I feel like he had my backside covered at all times. Integrity is the one word I would use to describe Kenneth.”

-Chad Gross, VP at RTI, Inc.


“Kenneth is a good, professional attorney who maintains an appropriate perspective on the representation and who acts in an ethical fashion.”

-Todd White, Rockwall Attorney


“Kenneth is a top-notch Texas trial lawyer. He and I worked together as counsel on a complex multi-million dollar commercial litigation matter involving several dozen lawsuits in five states arising out of the post-Enron collapse of Arthur Andersen. Kenneth did an excellent job, and h is now my go-to banking and litigation counsel whenever I need to refer a matter in Texas.”

-Mark Wilson, Partner at FisherBroyles, LLP


Clients are impressed by the legal and client service skills of litigator Kenneth Johnston, saying that he “demonstrates a keen eye for detail, is very responsive to questions and demonstrates and in-depth knowledge of the law.” His practice in commercial dispute resolution focuses particularly on representing clients in the financial services industry.

Chambers and Partners 2016 USA Guide


Kenneth Johnston is recommended for his handling of financial services litigation, which he handles as part of a broader commercial litigation practice. Sources say: “He’s got a really good style, he gets to the point of things and has a good business head too.”

Chambers and Partners 2015 USA Guide


Kenneth Johnston frequently represents financial institutions in regulatory investigations, qui tam cases and consumer class actions. Clients describe him as “very confident, personable, connected and cost-effective. The complete package.”

Chambers and Partners 2014 USA Guide


Kenneth Johnston continues his highly reputed general commercial litigation and class action practice. He has particular expertise in bankruptcy related litigation and matters occurring in the financial services arena. Impressed clients describe him as “very responsive, and very client-oriented.”

Chambers and Partners 2013 USA Guide


Kenneth Johnston plays a pivotal role in its litigation offering. He is admired as “timely and upfront”and, as one of group’s leaders, has “found an excellent balance between managing his team and letting them run the cases as needed.”

This Dallas-based group has a strong focus on financial services litigation. It has recently been representing Trustmark in connection with a number of banking disputes relating to the Stanford fraud cases, and in negotiations with the SEC receiver Ralph Janvey. The team has also been acting for Regions Bank in a putative class action concerning account overdraft practices. Sources say: “The group is fast, effective and straightforward, and the client’s agenda is its agenda.”

Chambers and Partners 2010 USA Guide


This team concentrates the majority of its dispute work on financial services litigation. Headed by the partner Kenneth Johnston, the ten-lawyer team “thinks both offensively” and “defensively,” and the lawyers are extremely thorough in their preparation and appropriately aggressive in the protection of their clients’ interests. Johnston “is a calm, collected attorney”, “dedicated to his clients,” report commentators.

Key highlights included the successful defense of Washington Mutual in a first-wave subprime class action case, and the prosecution of a defendant class action for Capital One to circumvent and consolidate a series of state court securities litigation cases.

Chambers and Partners 2009 USA Guide

Publications

  • 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).
  • Author, Ponzi Schemes and Litigation Risks: What Every Financial Services Company Should Know, 14 N.C. Banking Inst. 29 (March 2010).
  • 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).
  • 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, 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).

Presentations

  • Panelist, 2017 UNC Banking Institute, “Syndicated Credit Agreements – Current Issues and Best Practices” (March 2017)
  • Co-presenter, Managing Class Action Risks for Financial Services Firms: 2016 Perspective, LIVE Webscast, The Knowledge Group (December 2016)
  • Co-presenter, Understanding Cybersecurity Awareness for Insurance Companies, LIVE Webcast, The Knowledge Group (June 2016)
  • 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
  • Presentation at the University of North Carolina School of Law, Center for Banking and Finance Conference (March 2009)

Associations

  • 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

Community

  • United Way of Metropolitan Dallas (Priority Needs Grant Panel)
  • pro bono appeal to the United States Court of Appeals for the Fifth Circuit
  • The Children’s Trust
  • Board of Directors, SMU Athletic Forum
  • Ducks Unlimited, Sponsor
  • Board of Advisors for the University of North Carolina School of Law, Center for Banking and Finance.