1. Art and Diseño

Attorney
209 Capitol Street
Charleston, WV 25301
T: 304.345.6555
F: 304.342.1110
[email protected]
Practices
- High Stakes Litigation
- Complex Commercial Litigation
- Products Liability-Personal Injury
- Criminal Defense and Internal Investigations
- Class Actions-Mass Torts
- Energy and Environment
- Corporate & Finance
Benjamin L. Bailey
Biography
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. After ten years as a litigation partner at a large Charleston, West Virginia law firm, he and Brian
Glasser formed Bailey & Glasser in 1999. Ben plays a leading role in many of the firm's most
challenging cases. His recent work includes:
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Serving 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 more than $1.2 billion,
Representing the State of West Virginia in Washington, D.C., in its challenge to US EPA's most recent
efforts to restrict mountaintop mining in Appalachia,
Pursuing and defending claims for the FDIC in the collapse of Colonial Bank, one of the largest
mortgage warehouse lenders in the Southeast,
Winning, with a team of Bailey & Glasser lawyers, an acquittal in a federal prosecution of a coal
operator in southwestern Virginia, and
Arguing an appeal to the West Virginia Supreme Court of the largest punitive damages verdict against
a nursing home in West Virginia history.
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
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
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
Cases
Not guilty verdict for businessman in murder trial
Not guilty verdict of a funeral home owner accused of murder.
Not guilty verdict for doctor in overprescribing charges
Not guilty verdict for a doctor accused by federal authorities of excessive prescribing of painkillers.
Indictment of government contractor dismissed
The firm successfully represented a high-level manager of a state government contractor who provded
maintenance services under the state's abandoned mine lands program. After nearly two years of
investigation and discussion, and after the filing of two indictments, the firm ultimately convinced the
United States Attorney's Office to dismiss the case outright. The contractor returned to full participation
in the State's program.
Not guilty verdict for coal operator
In 2014, 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 threeweek jury trial, however, our client was found not guilty on all charges.
First degree murder defendant received alternative sentence
The firm represented a state court criminal defendant charged with first degree murder where the crime
was caught in full on surveillance camera. Counsel obtained a favorable plea agreement and then
argued for and obtained an alternative sentence, making it possible for defendant to serve as little as two
years.
State of West Virginia v. Microsoft Corporation
Our lawyers served as special assistant attorneys general for the State of West Virginia in antitrust and
consumer protection action against Microsoft Corporation; the case settled for a total value of $21
million.
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:
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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.
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.
Trinity Coal Corporation
Served as Special Assistant Attorneys General for the State of West Virginia in connection with Trinity
Coal’s Chapter 11 bankruptcy cases, representing the Department of Environmental Protection.
WP Steel, LLC
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.
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. Christopher Morris,
Ben Bailey, Patrick Muench, and Maryl Sattler of B&G handled this matter for the FDIC.
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, a case featured on CNN, the New York Times, and other national media. Ultimately, our lawyers
were appointed to key MDL leadership roles in what came to be 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 has 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; the personal injury claims
remain pending.
Patriot Coal Corp. Bankruptcy
Continuing our longstanding representation of the West Virginia DEP, and on behalf of the State
Insurance Commissioner, our lawyers serve as Special Assistant Attorneys General in the Patriot Coal
bankruptcy cases. The case represents the State’s most aggressive effort to protect its interests in
bankruptcy proceedings.
Rector v. Alliance Coal
Bailey & Glasser represented a group of heirs and successors to a partnership that proved up a 200million 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.
Morgantown Energy Associates v. Public Service Commission of WV
We successfully defended the West Virginia Public Service Commission against a lawsuit claiming
hundreds of millions of dollars in damages related to the ownership of West Virginia alternative energy
credits.
Education
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J.D., 1980 - Harvard Law School
B.A., 1975, magna cum laude - Washington & Lee University