Kevin Tharp’s diverse business and litigation practice focuses on the construction industry. Kevin counsels owners, general contractors and subcontractors, and represents them in disputes involving claims for payment, delay, and design and construction defects, as well as mechanic’s liens.
Kevin also counsels clients in the selection and formation of business entities, mergers and acquisitions, business selection planning, and general contractual matters.
Kevin previously served on the Firm’s Management Committee (2011-2013).
- Legal Lines, Indianapolis Bar Association
- Autumn Ridge Homeowners Association,President, Board of Directors, (2007-2018)
- Ace Mentor Program of Indiana, Board of Directors (2010-Present); Vice President (2011-2013)
- Prosecuted patent infringement claims on behalf of table pad manufacturer. Obtained summary judgment in favor of client, in which court found that client’s patent had been infringed, and that a competitor’s patent was invalid.
- Obtained preliminary injunction on behalf of distributor against its former employee and competitor, enjoining them from misappropriating trade secrets
- Defended consortium of pesticide distributors in a trademark opposition proceeding filed in the U.S. Patent and Trademark Office by a multi-national agribusiness company. Case settled favorably to client prior to trial.
- Defended internet marketing company against allegations of website content “scraping”. Case settled favorably prior to trial.
- Defended preliminary injunction proceeding against a manufacturer of outdoor grilling equipment in a trademark, trade dress and copyright infringement action. Preliminary injunction was denied, and case settled favorably to client.
- Obtained summary judgment on behalf of internet retailer against a suppliers claims of unfair competition, defamation, and breach of contract.
- Prosecuted dozens of trademark applications on behalf of clients in the construction, media, manufacturing, Internet, non-profit, and technology industries.
- Negotiated and drafted various service and licensing agreements for provider of Internet commerce tools.
- Assisted software developer with its sale of software solutions to Microsoft, including the negotiation and drafting of sale and related technology development agreements
- Defended subcontractor against claims of misappropriation of confidential information, tortious interference with contractual relations and unfair competition asserted by larger competitor. Obtained summary judgment in favor of client.
- Prosecuted UDRP actions to recover Internet domain names on behalf of international family of hotels.
- Negotiated commercial construction subcontracts for mechanical, electrical, automation, and glass subcontractors in amounts ranging from $1 million to $40 million.
- Negotiated joint venture agreements among subcontractors for scopes of work ranging from $10 million to in excess of $100 million.
- Defended general contractor against subcontractor’s claims for payment and delays in the construction of various telecommunications facilities across the Midwest. Case settled on terms favorable to client following arbitration hearing.
- Prosecuted large mechanic’s lien claim against general contractor and owner, seeking payment for construction of mixed-use development. Case settled favorably to client prior to trial.
- Defended paving contractor against IOSHA citations arising out of trench collapse involving serious injury to client’s employee. The citations were later withdrawn.
- Defended paving contractor against indemnity claim brought by consulting engineer. Case settled favorably to client prior to trial.
- Defended national construction management firm against claims of employment discrimination pending before the Equal Employment Opportunity Commission and in state and federal courts in multiple jurisdictions, including a defense jury verdict in federal court in Indianapolis.
- Asserted claims on behalf of subcontractors against payment bonds on various public projects across the State of Indiana.
- Defended general contractor against a subcontractors claims of breach of contract and anti-trust violations arising out of a bidding dispute. Case settled favorably to client prior to trial.
- Obtained defense verdict in favor of a contractor alleged to have negligently maintained a lift station that malfunctioned and caused damage to commercial property in excess of $1 million.
- Represented subsidiary of Wall Street firm in foreclosing a mortgage on an apartment complex and securing a $12 million judgment against guarantor: Ivankovich v. PAMI Grand Lake, LLC, 2009 WL 2044457 (Ind. Ct. App. 2009)
- Served as lead litigation counsel for lender in multi-state commercial mortgage foreclosure, and obtained favorable appellate ruling that foreclosure and other ancillary remedies were not subject to the parties’ agreement to arbitrate: Kohner Properties, Inc. v. SPCP Group VI, LLC, 408 S.W.3d 336 (Mo.App. E.D. 2013).
Business and Transactions
- Assisted start-up with sale of its assets to a competitor for a purchase price in excess of $30 million.
- Assisted technology-based startup company with acquisition of patent portfolio and related assets from a venture capital group, and with raising $3 million in capital through private stock offering.
- Assisted family in exiting its 100-year old business through the sale of its commercial real estate, inventory and related assets, and licensure of its trademark, to a real estate developer.
- Assisted family with exiting its outdoor advertising business through the sale of its stock to a publicly-traded competitor.
- Assisted litigant with obtaining litigation financing through multi-million dollar investment in case proceeds.
- Assisted real estate developer with the acquisition of numerous low-income housing properties from community development corporations using federal grant proceeds.
- Assisted an Estate with the sale of its 50% interest in a closely-held manufacturing business to the surviving shareholder, the defense of claims totaling $1.7 million against the Estate arising out of the decedent’s operation of the business, and the prosecution of a six-figure claim for shareholder distributions withheld from the Estate.
Publications & Presentations
5 Common Mistakes Made by Construction Project Managers and How to Avoid Them, RBE Blog (2019)
- I spend a significant amount of my time counseling general contractors and subcontractors through construction projects that have problems—most frequently, delays, cost overruns, and collection problems. The following are five of the most common mistakes I see Project Managers make. By avoiding them, Project Managers can help minimize the financial consequences to their companies associated with those problems. READ ARTICLE
Should Your LLC Change Its Operating Agreement to Address 2018 Tax Law Changes?, RBE Blog (2018)
- If your LLC has multiple members and is taxed as a partnership, you may want to amend your LLC’s Operating Agreement to respond to tax law changes in effect beginning with the 2018 tax year. The Bipartisan Budget Act of 2015 (“BBA”) made significant changes to the rules governing IRS audits of all business entities taxed as partnerships, effective on January 1, 2018. The effect of these changes is to make it easier for the IRS to audit partnerships, which will allow the IRS to use its existing resources to audit more partnerships. READ ARTICLE
Attorney-client privilege and business entities: Will your attorney-client communications be protected?, RBE Blog (2017)
- Clients should understand that their communications with their attorneys are privileged, to the extent those communications were made for the purpose of giving or receiving legal advice. This means that such attorney-client communications will not be revealed to third-parties in litigation, whether via the discovery process or via witness testimony at trial. The purpose of the privilege is to allow “a person to give complete and confidential information to an attorney, so that the attorney may be fully advised in his services to the client. At the same time, it assures the client that these confidences will not be violated. READ ARTICLE
Can subcontractors recover their attorneys fees from general contractors under Indiana's Mechanic's Lien Act?, RBE Blog (2016)
- In a recent decision interpreting Indiana’s Mechanic’s Lien Act, the Indiana Supreme Court strongly suggested that, in addition to allowing subcontractors to recover their attorneys fees from the owner’s property, the Act provides a basis for subcontractors to recover their attorneys fees from the general contractor. READ ARTICLE
Note, Federal Court Jurisdiction Over Private TCPA Claims: Why The Federal Courts of Appeal Got It Right, 52 FED.COMM. L.J. 189 (1999), cited in WRIGHT, MILLER & COOPER: FEDERAL PRAC. & PROC. & 3562, The Meaning of "Arising Under," n. 45.1.
The Abrogation of the Indiana Common Law Prejudgment Interest Doctrine in Tort Cases, 3 IN. CIV. LIT. REV. 243 (2006)
Indefinite Quantities Contracts Revisited, Indiana Lawyer (August 2007)
- "Setting Up a Business", Turner Construction Company (April 2019)
- "Business Law for Technical Managers", Rose-Hulman Institute of Technology, Department of Engineering Management, Adjunct Professor, (2011- 2015)
Awards & Recognition
Indiana Super Lawyers (2016 - Present), Rising Star (2010, and 2012-2015)
- Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.
Scribe Award for Excellence in Legal Research and Writing
- American Bar Association, (Forum on the Construction Industry and Intellectual Property Sections)
- Indiana Bar Association
- Indianapolis Bar Association
- Indiana University Maurer School of Law, J.D., Order of the Coif, magna cum laude (2000)
- Federal Communications Law Journal, Note Editor (1999-2000)
- Indiana University, B.S. Public Affairs—Environmental Science, with high distinction (1997)
- Indiana (2000)
- U. S. District Court, Southern District of Indiana (2000)
- U.S. District Court, Northern District of Indiana (2000)
- U.S. District Court for the Eastern District of Michigan (2019)