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   3Gary M. EldenChicago(312) 704-7740GELDEN@shb.comGELDEN@shb.comShook Hardy & Bacon LLPwww.shb.comwww.shb.comeldengarym.jpgAntitrust LawCivil Appellate LawClass Action/Mass Tort Defense LawCommercial LitigationSecurities LawTrade Secret/Non-CompeteERISA
Gary M.
Shook Hardy & Bacon LLP
111 S Wacker Dr FL 51
Chicago IL 60606-4302
Ph.(312) 704-7740 Fx.(312) 558-1195
Recommended by peers in:    Extensive Experience in:
Antitrust Law    Securities Law
Civil Appellate Law    Trade Secret/Non-Compete
Class Action/Mass Tort Defense Law     ERISA
Commercial Litigation
Advisory Board Member
County:  Cook
Litigator:  Yes

Practice Description:  
For more than 35 years Mr. Elden has litigated complex commercial civil matters. Since 1978, he has been on trial at least two months out of every year. He has tried jury cases in more than a dozen jurisdictions from Washington, D. C., to San Francisco, California, to Helena, Arkansas (pop. 8,000). Most cases have alleged breach of contract, breach of fiduciary duty, and fraud. Many have sought punitive damages. Many have alleged a statutory violation; at least a dozen cases have involved statutes relating to each of the following: antitrust, consumer protection, consumer credit, state corporations laws (primarily Delaware and Illinois), ERISA, franchising, insurance, privacy, RICO, securities, or trade secrets. More than 50 have sought equitable relief (in particular, injunctions). More than 50 were class actions, of which Mr. Elden tried three to verdict, all successfully. He has been involved in dozens of claims arbitrated to conclusion.

Mr. Elden has handled (and usually argued) more than 50 appeals, mostly in Illinois state courts and the Seventh Circuit, but also in the Sixth, Eighth, Ninth, and Tenth federal circuits, the U.S. Supreme Court, and Michigan and California appellate courts.

During the last fifteen years, a majority of his time has been spent on cases with damage claims of eight or more digits. Although 75% of his work is for defendants, seven times his clients have received huge checks - two for nine-digit amounts, five for eight-digit amounts - three times after verdicts, twice after a month of trial but before verdict, twice before trial. In one case, his clients received from a Ft. Smith, Arkansas jury the largest verdict ever in the Western District of Arkansas which, with other recoveries, fully paid losses of thousands of claimants as well as legal fees and costs. In a 2001 trial, a Chicago jury awarded his computer consulting clients more than $6 million. He obtained directed verdicts after a three-month trial in 2003, and a one-week trial in early 2004. In the last case, the Court awarded $500,000 in attorney fees, including 100% of the time charged by his law firm's lawyers. On December 30, 2004, a court entered a defense judgment for his clients after an 11-day bench trial in a derivative suit seeking more than $20 million.

Mr. Elden has written and lectured on various litigation matters, mostly involving securities law, insurance coverage, and trial practice. Since beginning 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.

Mr. Elden'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 non-disclosure 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 non-compete 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 non-compete 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 IL and TX) and refusals to certify class actions (Seventh Circuit); imposed fraud liability on accountants; and created immunity from suit for Board of Trade arbitrators.

Notable Cases and Results:  
Reves v. Ernst & Young, 110 S.Ct. 945 (1990) and 113 S.Ct. 1163 (1993) (definition of security; limitation on RICO securities claims), partly affirming, partly reversing 856 F.2d 52 (8th Cir. 1988) (detailed explanation of trial and evidence)

Brainerd v. Beal, 498 F.2d 901 (7th Cir. 1974) (appellate practice)

Case & Co., Inc. v. Board of Trade of City of Chicago, 523 F.2d 355 (7th Cir. 1975) (upholding Board authority to suspend trading rules)

Continental Assurance Co. v. Cedar Rapids Pediatric Clinic, 957 F.2d 588 (8th Cir., 1992) (insurer not responsible for agent)

Lagorio v. Board of Trade of City of Chicago, 529 F.2d 1290 (7th Cir. 1976) (upholding Board authority to suspend trading)

Old Sec. Life Ins. Co. v. Continental Illinois Nat. Bank and Trust Co. of Chicago, 740 F.2d 1384 (7th Cir. 1984) (bank responsible for unauthorized transfer)

Reich v. Continental Casualty Co. , 33 F.3d 754 (7th Cir. 1994) (Department of Labor wrong to try to make insurer responsible for union officials)

Rutter v. Arlington Park Jockey Club, 510 F.2d 105 (7th Cir. 1975) (enforceability of damage limitation) Tamari v. Conrad, 552 F.2d 778 (7th Cir. 1977) (establishing immunity of arbitrators even if jurisdiction is challenged; case of first impression)

Winokur v. Bell Federal Sav. & Loan Ass'n. , 560 F.2d 271 (7th Cir. 1977) (mooting class action)

Disher v. Fulgoni, 464 N.E.2d 639 and 514 N.E.2d 767 (Ill. App. 1984, 1987) (under Illinois Securities law, voting trust certificate held "security," and insiders "underwriters"; confidentiality agreement void for overbreadth)

Perlman v. Time, Inc. , 478 N.E.2d 1132 (Ill. App. 1985) (class action disallowed)

Dow Chemical Co. v. Associated Indemnity Corp. , 1991 WL 568033, 724 F. Supp. 474 and 727 F. Supp. 1524 (E.D. Mich. 1989, 1991) (three insurance coverage opinions on significant issues)

Jaroslawicz v. Safety Kleen Corp., 151 F.R.D. 324 (N.D. Ill. 1993) (class representative and counsel held inadequate)

Payne v. AHFI/Netherlands, B.V., 522 F. Supp. 18 (N.D. Ill. 1980) (barring claim for oral employment contract, alleged fraudulent-inducement to enter it)

UNR Industries, Inc. v. Continental Ins. Co. , 942 F.2d 1101, 1110-11 (7th Cir. 1991) (our client National Surety prevailed on claim not timely pursued because National Surety won ten-week jury trial in absence of claim)

Bar Admissions:  
State of Illinois, 1969
United States Supreme Court, 1973
United States Courts of Appeal, 7th Circuit, 1973; 8th Circuit, 1988; 10th Circuit and 6th Circuits, 1990
Northern District of Illinois, 1969
Northern District of Illinois Trial Bar, 1982
Eastern District of Michigan, 1985
Eastern District of Wisconsin, 1992
Western District of Arkansas, 1985

Hourly Rate:  $501 or more/hour

Retainer:  Varies

Date of Birth:  1944

Law School:  Harvard University Law School, J.D., 1969Law School Honors/Involvement:  Magna cum laude

Undergraduate School:  University of Illinois, A.B., 1966
Undergraduate School Honors/Involvement:  
Summa cum laude
Phi Beta Kappa scholarship for outstanding liberal arts graduate
Merriam scholarships for outstanding political science sophomore, junior and senior
Phi Kappa Phi
Bronze Tablet
James Scholar
Illinois State Scholar

Representative Clients:  
American Express
Armstrong Foods (largest Canadian dairy cooperative)
Aon Corporation
Commonwealth Edison (now Exelon)
CNA Financial
Professor Richard Epstein (University of Chicago Law School)
Fireman's Fund Insurance Companies
Goldman Sachs
HMO America (now part of United HealthCare Corporation)
Household International (now part of HBSC)
IMC Global
Inland Steel (now part of Ispat International N.V.)
International Insurance Companies (former Xerox subsidiaries)
Loews Corporation
Lorillard Tobacco
Edward Miniat, Inc.
Photogen, Inc.
Pritzker family members and businesses
Ronin Capital
Snap-on, Inc.
Technology Solutions Company
U.S. Cellular
Wells Fargo

Four of the leading law firms in the country (as parties in major litigation)

Employment History:  
Kirkland & Ellis, 1969-78
Reuben & Proctor, 1978-86
Isham, Lincoln & Beale, 1986-88
Grippo & Elden, 1988-2015
Shook, Hardy & Bacon, LLC

Bar/Professional Association Involvement:  
American College of Trial Lawyers (since 1990); Appellate Lawyers Association (past director and officer)

Community Involvement:  
Trustee, Providence-St. Mel High School

Published Legal Writing:  
"Negligence is not Corruption: The Scienter Requirement of the Foreign Corrupt Practices Act," 49 George Washington Law Review 819, 1981; "How to be a Target Company," 23 New York Law Review 423, 1978; "Litigation under Illinois' Securities Laws," 60 Illinois Bar Journal 28, 1971; "?Forty Acres and a Mule,' With Interest: The Constitutionality of Black Capitalism, Benign School Quotas, and Other Statutory Racial Classifications," 47 Journal of Urban Law 591 (1970)

In 1975 Mr. Elden married Phyllis Mandler, who is now in practice as a social worker.
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