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November 16, 2021

7 Due Diligence Issues to Avoid False Claims Act Lawsuits

Nelson Mullins partners Jennifer Malinovsky and Ed White join Alice Harris, an attorney with Nexsen Pruet, to go over the key compliance areas to look for in due diligence. 

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D. Larry Kristinik, III

D. Larry Kristinik, III

Partner

Meridian
1320 Main Street
17th Floor
Columbia, SC 29201
larry.kristinik@nelsonmullins.com

Larry practices in the areas of business litigation, class action defense, insurance coverage and bad faith claims, defense of investor securities claims, and FINRA broker-dealer arbitrations. Larry is co-chair of the firm's insurance industry practice group and also serves as the assistant group leader of the firm's litigation group. Since 2018, he has served as the...

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Larry practices in the areas of business litigation, class action defense, insurance coverage and bad faith claims, defense of investor securities claims, and FINRA broker-dealer arbitrations. Larry is co-chair of the firm's insurance industry practice group and also serves as the assistant group leader of the firm's litigation group. Since 2018, he has served as the Budget Officer of the ABA Section of Litigation.

Larry has been admitted pro hac vice in state and federal courts in Alabama, California, Georgia, Indiana, Kansas, Kentucky, New York, North Carolina, Utah, and West Virginia. He has also appeared in arbitration proceedings in seven states and D.C., and has had arbitration trials in South Carolina, North Carolina, and Massachusetts.

D. Larry Kristinik, III

Budget Officer of the ABA Section of Litigation.

Larry has been admitted pro hac vice in state and federal courts in Alabama, California, Georgia, Indiana, Kansas, Kentucky, New York, North Carolina, Utah, and West Virginia. He has also appeared in arbitration proceedings in seven states and D.C., and has had arbitration trials in South Carolina, North Carolina, and Massachusetts.

Larry practices in the areas of business litigation, class action defense, insurance coverage and bad faith claims, defense of investor securities claims, and FINRA broker-dealer arbitrations. Larry is co-chair of the firm's insurance industry practice group and also serves as the assistant group leader of the firm's litigation group. Since 2018, he has served as the... Budget Officer of the ABA Section of Litigation.

Larry has been admitted pro hac vice in state and federal courts in Alabama, California, Georgia, Indiana, Kansas, Kentucky, New York, North Carolina, Utah, and West Virginia. He has also appeared in arbitration proceedings in seven states and D.C., and has had arbitration trials in South Carolina, North Carolina, and Massachusetts.

Experience

Following is a selected sampling of matters and is provided for informational purposes only. Past success does not indicate the likelihood of success in any future matter.

Complex Litigation and Class Action Defense

  • Served as counsel in two multidistrict litigation proceedings (In re Industrial Life Insurance Litigation, MDL No. 1429 and In re Electrical Receptacle Products Liability Litigation, MDL No. 1595).
  • Served as counsel defending class actions involving the Telephone Consumer Protection Act ("TCPA"), electrical utilities, cable television services, insurance marketing practices, consumer finance, and economic loss ("no injury") products liability claims.
  • Served as lead counsel for a federal firearms licensee in consolidated wrongful death actions involving a convicted serial killer and the application of the Protection of Lawful Commerce in Arms Act (PLCAA).
  • Served along with other Firm attorneys as national coordinating counsel for three different companies.

Life, Health, and Disability Insurance

  • Represented life, health, and disability insurance companies in litigation and regulatory matters.
  • Defended bad faith claims, asserted rescission claims based on material misrepresentations, litigated beneficiary, policy administration, and dividend election issues, and brought interpleader actions in federal and state court.
  • Defended long-term disability claims involving employer sponsored welfare benefits plans and governed by the Employee Retirement Income Security Act of 1974 (“ERISA”).
  • Experienced in defending annuity suitability claims and claims involving variable and whole life products.
  • Litigated slayer statute issues, claims on conditional receipts, intoxication exclusions, suicide exclusions, mental disorder limitations, and accidental death and disability claims.
  • Provided advice with respect to claims investigations and decisions to pay claims.
  • Defended claims for both daily benefits and reimbursement benefits under long-term care insurance policies and investigated and prosecuted fraud claims against insureds under long-term care insurance policies.
  • Defended claims for benefits under limited benefit health insurance policies.

Insurance Regulatory Experience

  • Negotiated consent orders to terminate enforcement actions.
  • Advised insurers in their efforts to respond to market conduct examinations.
  • Negotiated terms for reinstatement of previously revoked licenses.
  • Lead trial counsel for contested case hearing seeking issuance of resident producer license before the Administrative Law Court.
  • Advised clients regarding reporting obligations to Department of Insurance.

FINRA Broker-Dealer Representation

  • Experienced in defending broker-dealers, registered investment advisors, banks, and wealth managers against customer claims involving ponzi schemes, supervision, suitability, unauthorized trading, churning, misrepresentation, selling away, and violation of state and federal securities laws.
  • Experienced with a variety of investment products, including variable prepaid forward contracts, unit investment trusts, variable annuities, variable life policies, mutual funds, limited partnership interests, oil and gas well interests, and stock options, as well as individual stocks and bonds.
  • Represented broker-dealers, RIAs, and banks with respect to investigations by state regulatory agencies and the Financial Industry Regulatory Authority (FINRA, formerly NASD).
  • Defended individual financial advisor wrongful termination claims, and claims for unvested deferred compensation, and prosecuted arbitrations to collect on promissory notes and bonus repayment agreements.
  • Defended U5 defamation claims and advised broker dealers about appropriate disclosures on the U5 Form.

Telephone Consumer Protection Act (TCPA) 

  • Defended TCPA class actions and individual actions in Alabama, California, Georgia, Florida, Indiana, New York, and South Carolina.
  • Successfully argued on motion to dismiss the application of the non-profit tax exempt exemption to certain TCPA liability.
  • Defended claims involving texting to mobile phones and calls to landlines and mobile phones, and revocation of consent.
  • Briefed and argued dispositive motions based on lack of vicarious liability for conduct of lead generators.
  • Provided advice on availability of insurance coverage for TCPA claims.

Education

  • University of South Carolina School of Law, JD, cum laude (1992)
    • National Moot Court Team
    • Member of the student editorial board of the ABA Real Property, Probate and Trust Journal
    • Order of the Coif
    • Order of Barristers
    • Order of Wig and Robe
    • Received the American Jurisprudence Award in Federal Practice
  • University of South Carolina, Honors College, BS, Accounting, magna cum laude (1989)
    • Phi Beta Kappa
    • Omicron Delta Kappa
    • Mortar Board

Admissions

  • South Carolina
  • U.S. Court of Appeals for the Fourth Circuit
  • U.S. District Court for the District of South Carolina

Practice Areas

Industries

The bar rules of some states require that the standards for an attorney's inclusion in certain public accolades or recognitions be provided. When such accolades or recognitions are listed, a hyperlink is provided that leads to a description of the respective selection methodology.

  • Co-Chair of the Task Force on Racial and Economic Justice for the ABA Section of Litigation (2021–present)
  • Budget Officer, ABA Section of Litigation (2018–2021)
  • Program Chair for the annual CLE conference of the DRI Life Health Disability & ERISA Committee in Boston (April 2018)
  • Former chair of the American Law Firm Association Insurance Law Practice Group (2011–2013)
  • Frequent speaker at national conferences sponsored by DRI, ACI, ECC, and ICA on disability and life insurance litigation
  • Member, Association of Life Insurance Counsel (2011–present)
  • Co-chair, Membership and Marketing Committee of the ABA Section of Litigation (2017–2018)
  • Member of the ABA Council for Racial and Ethnic Diversity in the Education Pipeline (2015–2017)
  • Member of the Council of the ABA Section of Litigation (2014–2017)
  • Fellow, American Bar Foundation (2014–present)
  • Managing Director for the ABA Section of Litigation (2012–2013)
  • Chair, Insurance Law Roundtable  for the 2007 ALFA Insurance Law Practice Group Conference in New York 
  • Chair of Steering Committee for DRI's Life, Health, and Disability Committee (2018–2020)
  • Served as a vice chair of the ABA Section of Litigation Committee on Corporate Counsel (2009–2011)
  • Served as co-editor of In-House Litigator, the quarterly journal for the Committee on Corporate Counsel (2005–2007)
  • Co-chair of the 2009 ABA Section of Litigation Annual Conference in Atlanta, Georgia
  • Served as a co-chair of the Content Management Committee of the ABA Section of Litigation (2010–2011) 
  • Served in the House of Delegates of the S.C. Bar (1999–2001)
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