Gary litigates complex business cases. He has tried more than 50 cases, arbitrated more than 20, and handled (usually arguing) more than 70 appeals. He has tried jury cases in more than a dozen jurisdictions from Washington, D.C. and New York to San Francisco, including trials in Fayetteville, Ft. Smith, and Helena, Arkansas; Hartford, Connecticut; and Detroit and Bay City, Michigan. His appeals have been mostly in Illinois state courts and the Seventh Circuit, but also in the Fourth, Sixth, Eighth, Ninth, and Tenth federal circuits, the U.S. Supreme Court, and Michigan, New York, and California state appellate courts.
Most of his cases have alleged breach of contract, breach of fiduciary duty, and fraud. As to each of the following, he has handled more than 50 cases: injunctions; class actions or derivative suits; insurance coverage; punitive damages; corporation law (primarily Delaware and Illinois); franchising; and securities. As to these, at least a dozen: trade secrets, consumer protection, consumer credit, ERISA, privacy, and RICO.
Although most of his work has been for defendants, nine times his clients have received huge checks—three for nine-digit amounts, six for eight-digit amounts—three times after verdicts, twice after a month of trial but before verdict, and four times before trial.
Since 2013: (1) International arbitrators after trial made favorable rulings on cross-allegations of tortious interference and breaches of fiduciary duty and of the covenant of good faith and fair dealing regarding a Mexican joint venture. Confirmed, ECF No. 70, No. 1:13-cv-01129-GBD (S.D.N.Y. Oct. 9, 2014). (2) Gary represented a class of insurance companies suing for fraud and RICO; settled for $450 million. (3) Gary represented plaintiffs in two legal malpractice cases which settled for substantial confidential sums.
Selected trials from 2003–2012: (1) In what the trade press described as a “landmark” insurance coverage case, the New York Appellate Division first affirmed dismissal of counterclaims against Gary’s insurer client and in a later opinion partially reversed the trial court (after a four-month trial), resulting in rulings entirely in favor of his client. (2) In a bench trial of a derivative suit, a judge found in favor of his clients, president and chairman of a corporation. (3) A Chicago jury awarded his computer consulting clients a verdict, producing $8 million (with prejudgment interest). (4) His client defendant insurance broker obtained a directed verdict after three months of trial; a co-defendant was held liable for more than $50 million. (5) A Denver federal court, after trial, decided preliminary injunction and venue issues favorably to his client in a trade secret case (which then settled). (6) A three-week federal jury trial in Charlotte, North Carolina, followed by an appeal to the Fourth Circuit, produced a satisfactory result in a dispute over workers compensation programs. (7) His client (an apartment co-op) obtained a directed verdict in a construction dispute with a tenant and then was awarded a substantial fee.
Gary's appellate cases have helped shape securities law. He has won: a leading U.S. Supreme Court case defining "security" (to include demand notes); the leading Illinois state case defining "security" and "underwriter" (to include insiders creating voting trust); the leading Seventh Circuit case denying liability for alleged nondisclosure of pending legal proceedings (defendant utility won summary judgment though unpredicted administrative action caused $1 billion stock loss); as well as other significant decisions.
On trade secret and noncompete contracts law, one of his cases invalidated an overbroad agreement in an Illinois case of first impression. Numerous published cases have largely established the law in cases of noncompete contracts and theft of trade secrets by departing representatives of broker-dealers and insurers. On arbitration law, he has won more than a dozen motions or appeals, producing published opinions: upholding challenged arbitration provisions, especially in franchising agreements; precluding class actions due to arbitration provisions; and determining what issues are for courts and what for arbitrators in NASD arbitrations.
On ERISA issues, he has tried five cases to verdict and argued three appeals resulting in published opinions. In one, his client defeated the Department of Labor concerning the duties of liability insurers issuing fiduciary policies to ERISA trustees. In the others, the Eighth and Tenth Circuits disagreed on the responsibilities for third-party administrators and their affiliates. Successful trial court decisions clarified the law on variable annuities, guaranteed benefit contracts and the liabilities of fiduciaries with limited defined duties.
Other significant published decisions in favor of his clients: established rules limiting insurance coverage (numerous opinions) and limiting a principal's liability for fraudulent actions of an agent; upheld decertifications of class actions for failure to pay notice costs (in Illinois and Texas) and refusals to certify class actions (Seventh Circuit); imposed fraud liability on accountants; and created immunity from suit for Board of Trade arbitrators.
Gary has written and lectured on various litigation matters involving securities law, insurance coverage, class actions and trial practice. Since shortly after he graduated, he has worked pro bono on civil rights lawsuits, including a series of federal court trials that led to published opinions integrating the Chicago Police Department.
Principal clients include: American Express; Armstrong Foods (largest Canadian dairy cooperative); Aon; Arryx (outside directors); Edward Bass Discretionary Trust (derivative suit plaintiff); Commonwealth Edison (Exelon); Continental Insurance; CNA Financial; Crum & Forster; Ed Miniat, Inc.; Envestnet; Fireman's Fund; GATX; GETCO (Global Electronic Trading Co.); Goldman Sachs; Harbinger Capital Partners (hedge fund); Heitman real estate interests; Horace Mann Insurance; HMO America (now part of United HealthCare Corporation); Household International (now part of HSBC); IMC Global; Inland Steel (now part of Ispat International N.V.); International Insurance (former Xerox subsidiaries); Loews; Lorillard; MetLife; Mesirow; Nalco; National Surety; Ohio Casualty; Pritzkers - family members and businesses; Professor Richard Epstein (University of Chicago Law School); RealNetworks; Ridge real estate interests; Ronin Capital LLC; Safety-Kleen; Safeco Insurance; Salomon Smith Barney; Snap-on, Inc.; Stafford Trading; Technology Solutions Company (TSC); True Value; U.S. Cellular; Wells Fargo; five of the leading law firms in the country (as parties in major litigation); three parties who recovered from major law firms.
Selected Publications and Presentations
Judicial Perspectives on the Management of Class Action Cases, Class Action Litigation Conference (May 6-7, 2015).
Trying Class Actions to Verdict, Chicago Bar Association (Feb. 26, 2014).
Developing Trial Strategies and Approaches, Law Seminars International: Litigating Class Actions (2013), with Mark DiCello and Ralph Palumbo.
Developing Trial Strategies: The Defendant Perspective, Law Seminars International: Litigating Class Actions (2012), with Van Bunch.
Voir Dire, Jury Selection, and Openings (2012).
Ethical Issues in the Sacco-Vanzetti Case (2011).
Witness Examinations (2010).
Selecting a Jury and Closing Statements (2008).
Witness Examinations (2008).
Advanced Trial Techniques for Commercial Litigators (2008).
Where We Stand in Light of Keasbey, Mealey’s Asbestos Insurance Teleconference (2007).
Trials, Metropolitan Club Chicago (2006).
Insurance Coverage (2003).