John Kern
Partner
Overview
John Kern is an attorney in Holland & Knight's San Francisco office, where his practice focuses on representing healthcare, financial services and technology companies — from startups to Fortune 100 companies — in commercial, healthcare and intellectual property (IP) litigation matters in federal and state court. Mr. Kern also has significant experience representing companies in a broad range of government investigations brought by the U.S. Department of Justice (DOJ), State Attorneys General and regulators in a wide range of practice areas, including securities/banking, managed care, healthcare fraud and abuse, and drug price calculation and reporting. He has been responsible as lead trial counsel in managing large teams of partners and associates in successful state and federal court jury trials and dozens of arbitrations.
Mr. Kern has developed vast knowledge in the healthcare industry with two decades of experience representing large healthcare organizations, individual hospitals and hospital systems, pharmaceutical companies, and healthcare data and publishing companies. Mr. Kern is an experienced litigator who has litigated pricing disputes, rate cases, managed care contract disputes, privacy breaches, unfair competition cases, False Claims Act (FCA) litigations, data/privacy and Health Insurance Portability and Accountability Act (HIPAA) cases, government investigations and other complex healthcare disputes.
Mr. Kern represents clients in copyright, trademark and trade secret disputes as well as various related contractual matters and state law unfair competition claims. Mr. Kern has represented and counseled clients in a variety of industries regarding their IP rights, including healthcare, financial services, technology and music. Mr. Kern has extensive experience counseling clients on IP matters, including negotiating, drafting and litigating IP licensing and nondisclosure agreements.
Mr. Kern's successful recent matters include:
Healthcare Litigation
- Advised California’s largest public healthcare district on an innovative structural reorganization to partner with a newly created nonprofit management services organization
- Obtained favorable rulings for healthcare providers/hospitals in managed care litigation against health plans
- Obtained favorable rulings for a healthcare provider in an antitrust, trade secrets and pricing dispute case, in both the Superior Court and California Court of Appeal, as well as in the U.S. District Court for the Northern District of California
- Obtained dismissal for healthcare data publisher in unfair competition case in U.S. District Court for the Northern District of California
- Successfully defended pharmaceutical companies and healthcare companies in dozens of False Claims Act qui tam cases and government investigations
Copyright/Trade Secret Litigation
- Prevailed in a federal jury trial representing the nation's largest publisher of continuing education materials for healthcare professionals in a copyright and trade secrets dispute
- Prevailed in a federal court jury trial representing software company in copyright infringement dispute
- Successfully defended healthcare publisher in federal court copyright infringement and defamation case
- Successfully defended financial services company in multiple state court trade secret trials
Privacy Counseling and Litigation
- Counseled healthcare, technology and financial services companies on wide variety of data privacy laws, including Health Insurance Portability and Accountability Act (HIPAA), Confidentiality of Medical Information Act (CMIA) and the California Consumer Privacy Act (CCPA)
- Represented technology and healthcare companies in federal court privacy class actions
During law school, Mr. Kern was General Editor of the Cornell International Law Journal. Prior to attending law school, he worked an International Trade Analyst for the U.S. Department of State's U.S. Trade and Development Agency in Washington, D.C.
Representative Experience
- Representing hospitals and hospital systems in business disputes and managed care disputes with health plans/private payers
- Representing, for more than a decade, the nation’s largest publisher of pharmaceutical drug pricing information in dozens of federal and state government investigations and private payer lawsuits involving allegations fraud and false claims in the reporting of pharmaceutical drug data (e.g., Average Wholesale Price (AWP) and Wholesale Acquisition Cost)
- Representing and counseling the nation’s second largest drug store chain in its response to subpoenas and investigations concerning its use of AWP and its reimbursement policies and practices
- Counseling a pharmaceutical manufacturer on the meaning and impact of new Centers for Medicare & Medicaid Services (CMS) pricing benchmarks, including Average Manufacturer Price (AMP), Average Sales Price (ASP) and Best Price, and advising the company in the implementation of new government price reporting practices and policies
- Defending a generic drug manufacturer in qui tam litigation and a related U.S. Department of Justice (DOJ)/State Medicaid investigation alleging violation of the Federal False Claims Act, stemming from the company's self-disclosed, accidental misclassification of an innovator drug under the Medicaid Drug Rebate Program. Assisted in the negotiation of a settlement of all claims for an amount equal to the exact underpayment plus interest — with no penalties and no imposition of a Corporate Integrity Agreement
- Representing a drug manufacturer in an investigation by the U.S. Department of Health and Human Services Office of the Inspector General (HHS-OIG) into allegations the company had failed to and/or inaccurately reported ASP pricing to the U.S. Department of Veterans Affairs (VA) and HHS, leading to potential statutory penalties in excess of $80 million. Assisted with successful negotiation of a settlement under which the company submitted revised, accurate ASP data and paid a de minimis penalty
- Representing a search engine software company in a successful copyright infringement jury trial against one of its competitors
- Prevailed in a federal court jury trial representing the nation's largest publisher of continuing education materials for healthcare professionals in a copyright and trade secrets dispute
- Successfully defended financial services company in multiple state court trade secret trials
- Counseled and defended dozens of technology and startup companies on intellectual property (IP) matters ranging from the negotiation and drafting of IP license and nondisclosure agreements to defending them in copyright infringement, trademark infringement and trade secret misappropriation litigation
- Prevailed in multiple arbitration hearings for financial services and software companies in trade secret and unfair competition cases
- Successfully defended aviation company in federal court unfair competition bench trial
- Acting as outside general counsel and lead litigation defense counsel for one of the nation's largest third-party administrators of self-directed Individual Retirement Accounts. Defended the company in dozens of litigation matters and government investigations, including U.S. Securities and Exchange Commission (SEC), U.S. Department of Justice (DOJ) and Internal Revenue Service (IRS) investigations, as well as dozens of state regulator investigations. Acted as legal advisor for the company on all aspects of its business operations, including corporate governance, data privacy, labor and employment issues, licensing agreements, vendor contracts, protection of intellectual property and on business combinations
Credentials
- Cornell Law School, J.D.
- University of Virginia, M.A., Foreign Affairs and Political Economy
- Grinnell College, B.A., Political Science
- California
- All Federal Courts in California
- All State Courts in California
- U.S. Court of Appeals for the Ninth Circuit
- The Legal 500 USA, Healthcare: Service Providers, 2022, 2023