| | Michael Freeborn's Practice Areas:
Antitrust Litigation
Commercial Litigation
Employment Law
Environmental Litigation
Product Liability
Securities Litigation
His commercial litigation has included the
following cases --
 | Commonwealth Edison v. Banctec
ComEd, the electric utility in northern Illinois, receives millions
of checks annually from customers paying their electric bills. The
checks are typically, though not always, accompanied by stubs from the bills
earlier sent to the customers. Sometimes checks are received on behalf
of multiple customers at once, such as when a landlord pays for the
tenants.
Efficiently processing the payments is a challenge. Since the total
dollar amounts are large, any delay in depositing the revenue can be costly
to the company.
Banctec, a company headquartered in Dallas which had experience selling
remittance-processing hardware and software to banks and credit card
companies, sold such a system to ComEd. Unfortunately, it did not work
as efficiently as represented.
Michael represented ComEd in a multimillion dollar suit filed by the company
in federal court in Chicago. Although the initial complaint against
Banctec relied on traditional theories of recovery like breach of express
and implied warranty, Michael argued that discovery in the case revealed a
basis for more than garden variety contractual claims.
ComEd then alleged that there had been a pattern of repeated fraudulent acts
by Banctec, which justified treble damages and attorney fees under the
federal RICO statute. Shortly after moving to amend the complaint to
add these claims, the case settled on terms satisfactory to ComEd.
|
| Coordinated Asbestos Insurance Coverage Litigation
Michael's practice has included insurance coverage suits by
policyholders against their insurers. For example, he assisted
Johns-Manville Corporation in the massive litigation against its insurers,
which was consolidated with cases by other such policyholders in a
coordinated proceeding before Judge Ira Brown in California state court.
Johns-Manville had been sued by thousands of individuals for injuries and
disease allegedly caused by exposure to asbestos and asbestos-containing
products sold by the company. Due to the latency period for such
disease to occur, the time between exposure and filing of suit was in many
cases several decades. When the company tendered the cases to its
insurers , they balked.
There were disputes regarding the date when coverage should be triggered,
since progression of the disease was gradual. In addition, there were
disputes regarding whether claims could be aggregated to meet policy
deductible amounts, or whether instead each claim was so small that the
deductible amounts were rarely, if ever, met. These are common issues
in insurance coverage litigation.
In addition, however, some insurers argued that Johns-Manville should
be denied coverage because it "expected or intended" to incur
these liabilities, or "fraudulently concealed" them when obtaining
the insurance. The insurers relied on allegations and evidence
presented by individual plaintiffs in the underlying cases, which they said
demonstrated that Johns-Manville had known for years that asbestos was
dangerous, but had consciously concealed the dangers from the public,
including the insurance companies themselves.
Michael assisted the company in rebutting these defenses. Prior to
conclusion of the litigation, Johns-Manville and its insurers reached
settlements by which the insurers paid approximately $750 million.
These proceeds were used to fund a trust -- the Manville Personal Injury
Settlement Trust -- which was established to pay individual claimants in the
underlying cases.
|
| Eljer v. Aetna
Eljer is a well-known manufacturer of plumbing fixtures, offering a
complete line of toilets, sinks and tubs, as well as fixtures made of cast
iron, steel and acrylic materials. (The company was started back in
1904 by Raymond ELmer Crane and his cousin, Oscar JERome
Backus, from whose middle names "Eljer" was coined.)
Its products have included polybutylene plumbing fixtures for use in mobile
and modular homes. Unfortunately, this polybutylene plumbing is
alleged to leak, causing water damage to the walls and structures in which
it was installed.
This has resulted in numerous lawsuits against the company, including some
class actions. Eljer believes that it has insurance coverage for these
cases, but its insurers have resisted.
Michael and his colleagues are assisting the company in its litigation against the insurers,
pending in Chicago. More than $500 million is at stake in this
litigation.
(By the way, if you think insurance coverage litigation is dull, we
disagree. Once in a while you can encounter an amazingly entertaining court
opinion on this subject.)
|
| Lucas v. Gulf & Western v. Noranda
The widow of a New Jersey broker alleged that her deceased husband
was owed a $150,000 commission for services rendered in connection with sale
of a phosphate property in Florida.
Michael, while a partner in a previous law firm, represented the third party
defendant Noranda Mines Limited. Noranda is a Canadian natural resource
company which had a subsidiary in the United States that owned the property
in question.
The defendants denied that the sale resulted from Lucas' brokerage
activities. However, the district court found it unnecessary to reach
the merits of that controversy because the defendants instead were granted
summary judgment on the basis of Florida's Real Estate License Law.
That law invalidates agreements to pay commissions to unregistered brokers,
and Lucas was not registered as a broker in Florida.
In addition, Michael argued that Noranda was not subject to jurisdiction
under New Jersey's long-arm statute because it did not do business in the
state. Although the trial court denied Noranda's motion to dismiss on
the ground that there was purportedly a factual basis for long-arm
jurisdiction, the U.S. Court of Appeals for the Third Circuit vacated that
order and remanded for further proceedings, finding that there was
insufficient evidence in the record to support the finding of jurisdiction.
The case was ultimately concluded in Noranda's favor.
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| Phoenix v. Sahara
Sahara Coal Company was at one time a miner of coal in the Illinois
Basin. Unfortunately, economic conditions eventually required Sahara
to discontinue its operations in southern Illinois.
A smaller independent coal miner known as Phoenix Mining Company had earlier
contracted to provide Sahara some of the coal it needed. Yet, even
Phoenix could not economically operate and it ultimately shut down as well.
Phoenix, rather than acknowledge the fact that it had misjudged the economic
feasibility of its mining operation, instead sued Sahara for over $6 million
in damages, alleging that Sahara had secretly decided to get out of the coal
mining business altogether, and that when it no longer needed the coal from
Phoenix, Sahara caused Phoenix to fail by refusing to provide a surface
lease that was purportedly essential to successful mining of the reserves
controlled by Phoenix.
Michael defended Sahara in state court in southern Illinois, and the case
was settled on terms satisfactory to the company shortly before trial.
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