Effective Dispute Resolution for the International Commercial Lawyer
Edited by Campbell & Summetheld, Kluwer Law and Taxation Publisher, pp. 59-66 (1989) (Chapter on "The Litigation Battle, Discovery Procedures in United States Federal Courts against Foreign Parties")
Sample Jury Instructions in Criminal Antitrust Cases
Co-author, American Bar Association (1984)
Handbook on Antitrust Grand Jury Investigations
Second Edition, Co-author, American Bar Association (1988)
Fair is Fair: Implied Covenants in Commercial Leases
PP.68-72, with Crain, Andrew D., The Real Estate Review (Fall, 1995)
Know Thyself As You Know Thy Enemy: Setting Goals And Keeping Focus When Mediating IP Disputes
Akron Law Review, vol. 37 No. 2 at 329 (2004)
Selecting An Appropriate Damages Expert In A Patent Case: An Examination Of The Current Status Of Daubed
Akron Law Review, vol. 38 No. 2 at 357 (2005)
Money to Burn
A novel published in 2002 by Putnam and co-authored by Judge James Zagel. It is a fictional account of a federal judge masterminding a robbery of the Federal Reserve Bank.
Partial List of
- U.S. v. Irali, 503 F2d 1295 (7th Cir. 1974) cert. denied 420 U.S. 990 (1975)
This was one of the first successful public corruption cases involving direct cash payments in City Hall. Silvio Irali was. employed in the liquor license department of the City Collector's Office and was extorting cash payments from liquor license applicants. The significant issues dealt with creating federal jurisdiction because the bar for which the license was required obtained liquor from out of state. Since the payments "facilitated" service we established that such payment became extortionate when the recipient held public office.
- U.S. v. Marzano, et al.
I headed the investigation and participated in the trial of the Purolator robbery which was, at that time, the largest cash robbery in United States history. The robbery involved a theft from the vault at Purolator's offices with the proceeds being disbursed to various locations both inside and outside of the United States. Former FBI Special Agent Ray Stratton and I originated the notion that cash in transit to a bank constituted protected bank property, which provided federal jurisdiction. It was the first such extension of federal jurisdiction. The case involved cooperative efforts by the FBI, the Chicago Police Department and British police authorities on Grand Cayman Island. The robbery was planned and carried out by organized crime figures and most of the approximately $4.3 million stolen was recovered.
- Massa, et al. v. Eaton, 109 F.R.D. 312 (W.D. Mich. 1985).
1 represented Eaton Corporation in a group of alleged wrongful discharge cases in the U.S. District Court for the Western District of Michigan. The law prior to the decision in UPJOHN V. U.S. 449 U.S. 383 (1981) (I wrote an amicus brief in the U.S. Supreme Court on behalf on the Chicago Bar Association) UPJOHN is the seminal case on privilege/work product issues involving internal corporate investigations and my brief argued for the prevailing side) was that corporate employees could be interviewed ex parte by lawyers with claims adverse to the corporation. I created an argument that UPJOHN had effectively changed the rules and that managerial level corporate employees (defined as those whose statements might bind the corporation) who made statements in interviews might be held to have made admissions within the meaning of Rule 801 (d)(2)(D), F.R.Evid. and therefore they should not be subject to EX PARTE interviews. The court granted our motion for a protective order and the prohibition restricting such ex parte interviews is now an established rule of law.
- Northrop Corporation v. AIL Systems, Inc., 959 F.2d 1424 (7th Cir. 1992); 218 I II. App.3d 951 (1991).
This group of cases was brought by Northrop Corporation against AIL Systems and Eaton Corporation and involved a teaming agreement to develop and produce electronic countermeasure defensive avionics for the B-lB bomber. The more significant aspect of the government contract law in these cases involved the federal case in which Northrop tried to utilize federal common law as a basis for asserting federal question jurisdiction between non-diverse parties. The federal case established new law regarding the enforceability of teaming agreements (now held to be agreements to agree and thus unenforceable) in defense contracts and further refined the scope and jurisdictional use of the federal common law.
- Semetex Corporation et al. v. UBAFArab-American Bank, 51 F.3d 13 (2" Cir. 1995); 853 F. Supp. 759 (S.D.N.Y., J. Sand, 1994).
This case involved significant questions regarding the independent obligations of a bank which issued a confirmation of an international letter of credit and the impact on that confirmation of the Presidential Executive Orders which froze Iraqi assets as a consequence of Iraq's invasion of Kuwait. The case strengthened the independence principle in international letter of credit transactions. UBAF had issued a confirmation of a letter of credit in favor of the plaintiffs for the purchase of an ion implanter by Iraqi interests. The letter of credit was collateralized by Iraqi assets held by UBAF, which were "frozen" by the applicable Executive Orders and regulations after the Iraqi invasion. The bank tried to avoid paying the sellers since the bank's collateral was unavailable to fund the draw. The bank argued it was effectively prohibited from paying the draw since it had no source to fund the payment without access to the collateral. The district and appellate courts held the payment obligation was absolute regardless of the status of the collateral and was thus an "independent" obligation of the bank.
- Diskont Und Kredit AG, et al. v. Dieter Mueller, et al., 82 C 6796 (N.D. Ill 1982).
Certain German banks were defrauded by a German national in connection with several airplanes that were to be sold on behalf of the banks. The defendant was in the U.S. and out of reach of German courts. The jurisdictional problem was that one foreign national cannot sue another foreign national in U.S. federal court since there is no diversity as a matter of law. I based our jurisdictional claim on treaty rights that arose from an international treaty to which both the U.S. and Germany were parties. Our claim was the first use of the treaty to create federal jurisdiction between non-diverse partners. I also coordinated an investigation with the FBI and U.S. Attorney's office in Milwaukee that resulted in the indictment and conviction of Mr. Mueller.
- Folding Carton Antitrust Litigation, MDL 250.
I represented a corporate defendant in both the MDL litigation and the criminal indictment that arose from price-fixing allegations in the folding carton industry. I represented the only corporate defendant that went to trial in the criminal case and handled all the civil litigation that was coordinated as multidistrict litigation. There were approximately 20 corporate defendants. Almost every major Chicago law firm was involved as well as many prominent firms from New York and Washington, D.C.
- The Corrugated Container Antitrust Litigation, MDL 3 10.
I represented a corporate defendant in both the civil and criminal cases brought in Houston, Texas. These MDL cases were the largest antitrust cases brought in the U.S. The affected sales were in the multibillion-dollar range and the various settlements were in the hundreds of millions of dollars. The significance of both the Folding Carton and the Corrugated Container litigations was a combination of both the sheer magnitude of the amount of money at risk and the superb quality of the lawyers involved. Balancing the defense of the criminal investigations and later indictments with the enormous civil exposure created innovative approaches to almost every issue that can arise in complex litigation.
- Eaton Corporation v. L.D. McDonald, et. al., District Court of Buffalo County,
Nebraska, Case No. 10068.
My client discovered a toxic spill from underground storage tanks at its plant in Kearney, Nebraska. A lawyer began representing several of our employees but would not disclose the names of his clients. The spill triggered investigations by various agencies including OSHA, EPA, state EPA and the Environmental Crimes Section of the Department of Justice. The plant's remedial efforts were hindered by its concern that some of the employees assisting in the defense of the various investigations and the remediation efforts could actually be adverse to the company since they might have been represented by counsel intent on filing claims against the company. We sued the lawyer and obtained a TRO that forced him to disclose the names of the employees he was representing. Ultimately we gained sufficient control of the situation to effectively respond to the investigation (there were no indictments), defeat the individual claims (every case was dismissed) and most importantly clean the ground water and area impacted by the leak.
- Albright, et al. v. Aeroquip Corporation, et al., District Court of Jefferson County, Texas,
Case No. B-146, 864.
On September 3, 1991, a fire broke out at the Imperial Foods plant in Hamlet, N.C. The fire, which received extensive national press coverage, caused 25 deaths and 55 injuries, in part because all emergency exits had been locked by the plant owner. My client had several hydraulic motors on the equipment in the plant, including two in the immediate vicinity of the fire. The 220 plaintiffs filed their original petition in the District Court of Jefferson County, Texas, on the explicit basis that East Texas juries return large verdicts. The defendants coordinated their defense and I was elected to serve on the defendants steering committee. There were many jurisdictional and other procedural issues that were the responsibility of the steering committee and the litigation involved state and federal courts (including Bankruptcy Court) in Texas and North Carolina. All claims against my client were dismissed.
- BP Corporation North America, Inc. Savings Plan Investment Oversight Committee, el. al, v. Northern Trust Investments, N.A., et al., 1:08-CV-06029 (N.D.IL 2008).
This case involved efforts by the BP employees pension fund to transfer approximately one billion dollars in managed accounts from Northern Trust during the financial crisis in 2008. Northern refused to allow the transfer. There were injunction hearings on multiple complex issues. The issues included bank regulations, potential bank solvency, and fiduciary duties among others. The matter settled and the BP employees received all their pension money. I was lead counsel for BP.