Supreme & Appellate Courts

Goldberg Kohn attorneys from both the Litigation & Alternative Dispute Resolution and Bankruptcy & Creditors' Rights Groups have had substantial experience arguing many important cases in various appellate courts around the country. The firm's attorneys have successfully represented clients in the United States Supreme Court, the United States Court of Appeals for the Second, Third, Fourth, Fifth, Six, Seventh, Ninth, and Tenth Circuits, the Illinois Supreme Court, each of the five districts of the Illinois Appellate Court, as well as other state courts of appeal. The opinions rendered in these cases have sometimes changed the course of the law. Many times over the years, Goldberg Kohn attorneys have persuaded an appellate court to reverse the decision of a trial court, which is never an easy task.

The firm's approach towards all of the appeals it handles is consistent.  Goldberg Kohn attorneys narrow the issues, and present their arguments clearly, so that appellate judges will find the arguments intellectually sound and factually compelling. The briefs the firm files are always carefully conceived, researched, and written, and the firm's thoughtful preparation for oral argument includes understanding the predilections and relevant precedent of the judges on the panel. This allows Goldberg Kohn attorneys to engage conversationally with the judges during the argument, rather than being reduced to making speeches which tend to turn off appellate judges and their law clerks. As a result, Goldberg Kohn attorneys draw out the judges on the panel to uncover areas of concern so that they can address the court's issues directly and persuasively during the argument. The breadth and depth of the firm's appellate experience is demonstrated by the following descriptions of a sample of the cases Goldberg Kohn has handled for clients.

Representative Matters

Federal Court Experience: United States Court of Appeals (various Circuits)

• Hutt v. AbbVie Products LLC, -- F.3d --, No. 13-1481, 2014 WL 3033126 (7th Cir. July 7, 2014)(affirmance of decision granting summary judgment on claims under Age Discrimination in Employment Act, retaliation, and discrimination.

• Safeco v. AIG, 710 F.3d 754 (7th Cir. 2013)(representation of seven Settlement Class Plaintiffs on behalf of 1300 class members in the insurance industry suing AIG for fraud; after final judgment approving $450 million class action settlement was appealed by objectors and argued for 50 minutes, but before the issuance of a "merits" opinion, objectors voluntarily dismissed their Seventh Circuit appeals with prejudice without monetary or other consideration of any kind from Settlement Class Plaintiffs, and Court of Appeals entered judgment approving the dismissal of all appeals with prejudice).

• Woods v. Illinois Dep't of Children & Family Servs., 710 F.3d 762 (7th Cir. 2013) Steven Levy and Beata Brewster assigned counsel by the United States District Court for the Northern District of Illinois, represented Harlis Woods, who brought a claim pursuant to Section 1983 of the Civil Rights Act, alleging that he was sexually abused as a child while in the custody of the Illinois Department of Children and Family Services. Woods argued that Illinois' 20-year statute of limitations applicable to claims brought by victims of childhood sexual abuse should apply to his claim instead of Illinois' general 2-year statute of limitations, which is applicable to personal injury claims.  Although the United States Court of Appeals for the Seventh Circuit upheld the district court's dismissal of the claim as untimely, the court thanked counsel and the firm:  "Although the duties counsel accepted in response to the court's request terminated upon denial of the motion to reconsider, counsel also voluntarily pursued this appeal on Woods's behalf. We thank Beata G. Brewster and Steven A. Levy, of the law firm Goldberg Kohn Ltd., for their volunteered efforts and exceptional representation of Mr. Woods."

• In re Johns Manville, 600 F.3d 135 (2d Cir. 2010)  (on remand from the Supreme Court, the Second Circuit rejected remaining objections to and approved the firm's client’s $90 million settlement with Travelers Insurance Company in the leading asbestos-related bankruptcy case in history).
• In re Airadigm Communications, Inc., 547 F.3d 763 (7th Cir. 2008) (affirming the Bankruptcy and District Courts, the Seventh Circuit rejected the firm's argument regarding the addition of interest to a claim in bankruptcy).
• In re Airadigm Communications, Inc., 519 F.3d 640 (7th Cir. 2008) (in an important case involving a wireless telecommunications company, the Seventh Circuit accepted the firm's argument that its client’s Chapter 11 plan had been properly confirmed notwithstanding the objection of the FCC to the treatment of its secured and unsecured claims. The case is particularly noteworthy because of the court’s first-impression holdings (a) that a secured claim could be crammed down without a “due on sale” provision in the plan, and (b) approving a non-consensual release of a non-debtor party).
• In re Johns Manville Corp., 517 F.3d 52 (2d Cir. 2008) (later to be reversed by the Supreme Court in Travelers Indem. Co. v. Chubb Indemnity Ins. Co. 131 S. Ct. 644 (2010), the Second Circuit held that the firm's client’s $90 million settlement had to be rejected because the Bankruptcy Court lacked jurisdiction to approve it).
• Keck Garrett & Associates, Inc. v. Nextel Communications, Inc., 517 F.3d 476 (7th Cir. 2008) (vendor sued telecommunications company under blanket purchase order containing terms and conditions for services and payment; summary judgment in favor of telecommunications company affirmed on breach of contract and quantum meruit grounds because no specific services were ever requested and no actual value was provided).
• Kirsch v. The FINOVA Group, 2007 WL 4481158 (4th Cir. 2007) (reversing District Court and holding that bondholders' securities fraud class action was required to be submitted to binding arbitration).
• In re Ocwen Loan Servicing, LLC Mortg. Servicing Litigation, 491 F.3d 638 (7th Cir. 2007) (striking plaintiffs' complaint as a "hideous sprawling mess" and remanding for a determination of preemption under the Home Owners Loan Act)
• In re The Thaxton Group, Inc. Securities Litigation, 442 F.3d 188 (4th Cir. 2006) (reversing District Court's certification of securities fraud class).
• Wachovia Bank, N.A. v. Foster Bancshares, Inc., 457 F.3d 619 (7th Cir. 2006) (affirming District Court's entry of summary judgment for the firm's client Wachovia, the payor bank, in dispute with depository bank regarding respective liability of banks on an altered check; Seventh Circuit held that depository bank was liable on payment even though payor bank, following ordinary modern-day practices, had destroyed original altered check and preserved item by electronic means only).
• Daniels v. Bursey, 430 F.3d 424 (7th Cir. 2005), cert. denied, 548 U.S. 904 (2006) (rejecting challenge to individual settlement of putative class action).
• TruServ Corp. v. Flegles, Inc., 419 F.3d 584 (7th Cir. 2005) (hardware cooperative filed suit against former member to recover debt for supplies and equipment provided and loans made to member; summary judgment in favor of cooperative affirmed).
• In re UAL Corp., 411 F.3d 818 (7th Cir. 2005)  (The firm represented the financiers of United Airlines aircraft in a case involving the application of bankruptcy code provisions dealing with treatment of aircraft leases and security agreements. Affirming, the Seventh Circuit held that the Bankruptcy Court had not abused its discretion by rejecting the firm's argument that United had become bound to those leases and agreements by its own actions)
• United Airlines, Inc. v. U.S. Bank, N.A., 409 F.3d 812 (7th Cir. 2005) (in a very unusual appellate proceeding, Goldberg Kohn, on behalf of its aircraft financier clients, moved the Seventh Circuit to enforce its judgment in the case reported below; granting the firm's motion less than a week after it was filed, the Seventh Circuit issued a strongly worded opinion directing the lower courts to dismiss the proceeding against the firm's clients).
• United Airlines, Inc. v. U.S. Bank, N.A., 406 F.3d 918 (7th Cir. 2005) (in a case involving the intersection of bankruptcy and anti-trust law as applied to commercial aircraft financings, the Seventh Circuit ruled in favor of our clients, reversing the bankruptcy and district courts, and holding that the firm's clients, the aircraft financiers, had not violated anti-trust restrictions by collectively bargaining for the treatment of their claims. The court also reversed the lower courts’ refusal to enforce provisions of the bankruptcy code that allow repossession of aircraft unless the applicable leases and security agreements are honored in full).
• BEM I, L.L.C. Anthropologie, Inc., 301 F.3d 548 (7th Cir. 2002) (dispute over commercial lease and construction project for multi-tenant building leased by national retailer; arbitration award after two-week hearing confirmed by District Court and affirmed by Seventh Circuit).
• Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771 (7th Cir. 2001) (affirming jury verdict awarded in favor of client in race discrimination case).
• Help At Home Inc. v. Medical Capital, 260 F.3d 748 (7th Cir. 2001) (upholding dismissal of plaintiff's claims for breach of loan agreement on the grounds that the claims were barred by the Illinois Credit Agreements Act).
• Central States, Southeast and Southwest Areas Pension Fund v. Fulkerson, 238 F.3d 891 (7th Cir.), cert. denied, 534 U.S. 821 (2001) (reversal of District Court's ruling under ERISA concerning liability of company's owners for "withdrawal liability" from multi-employer pension plan).
• In re Frain, 230 F.3d 1014 (7th Cir. 2000)  (reversing District Court and Bankruptcy Court, Seventh Circuit ruled that corporate president of a closely-held corporation was a "fiduciary" for purposes of determining the non-dischargeability of debt incurred as a result of defalcation by the fiduciary under the Bankruptcy Code).
• Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323 (7th Cir. 2000) (reversing dismissal of plaintiff's overshadowing claim under the Fair Debt Collection Practices Act).
• Trident Inv. Management, Inc. v. Amoco Oil Co., 194 F.3d 772 (7th Cir. 1999) (affirmance of $1.85 million jury verdict in favor of pension plan whose shopping center was environmentally contaminated by gas station, destroying fair market value of property).
• Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853 (7th Cir. 1997) (summary judgment for Sun-Times affirmed in case involving reverse discrimination against newspaper and its union).
• Gammon v. GC Services Ltd. Partnership, 27 F.3d 1254 (7th Cir. 1994) (suit for violation of Fair Debt Collection Practices Act dismissed for lack of subject matter jurisdiction; Seventh Circuit reversed, holding that debtor stated claim under newly construed statute).
• Jackson v. Roth, 24 F.3d 1002 (7th Cir. 1994) (habeas corpus petition denied, though "Jackson's main argument, forcefully presented by his able appointed counsel [from Goldberg Kohn] is that the due process clause of the Fourteenth Amendment entitles him to be resentenced….").
• Boulevard Bank Nat. Ass'n v. Philips Medical Systems Intern. B.V., 15 F.3d 1419 (7th Cir. 1994) (affirmance of District Court's grant of summary judgment on guaranty of commercial loan, including affirmance of attorneys' fees and costs award of $328,000).
• Matter of Chicago, Milwaukee, St. Paul & Pacific R. Co., 974 F.2d 775 (7th Cir. 1992) (successor to debtor railroad sought enforcement of consummation order continuing injunction against late filed claims with regard to CERCLA suit brought by Washington State Department of Transportation; Seventh Circuit held that: (1) CERCLA claims arose prior to consummation order, so that consummation order barred claims, and (2) DOT was not "known creditor," and thus, notice by publication was sufficient).
• Matter of Chicago, Milwaukee, St. Paul & Pacific R. Co., 961 F.2d 1260 (7th Cir. 1992) (railroad's reorganization plan was approved by District Court, and Seventh Circuit affirmed; subsequently, government filed motion seeking interest on tax debt accrued prior to reorganization; District Court ruled that interest ceased to accrue on government's tax claim when plan was confirmed by final, appealable order, and Seventh Circuit affirmed, holding that District Court did not engage in unreasonable or implausible interpretation of plan).
• Goldberg v. Sweet, 488 U.S. 252 (1989) (Illinois' Telecommunications Excise Tax Act imposed 5% tax on gross charges of interstate telecommunications originated or terminated in the State and charged to an Illinois service address; Illinois state trial court held that tax violated Commerce Clause of the U.S. Constitution in a class action brought by Illinois residents; Illinois Supreme Court reversed, ruling that tax complied with Commerce Clause, and the United States Supreme Court affirmed).
• Matter of Iowa R. Co., 840 F.2d 535 (7th Cir.), cert. denied, 488 U.S. 899 (1988)) (interline railroad creditors of debtor railroad sought determination that their claims were entitled to preference over railroad's general unsecured creditors; District Court held that interline freight balances were trust funds, with corresponding priority, and trustee appealed; Seventh Circuit reversed, holding that any such balances were general unsecured debts, which were not entitled to priority).
• Cronson v. Clark, 810 F.2d 662 (7th Cir.), cert. denied, 484 U.S. 871 (1987) (State Auditor General, who wished to conduct "full" audit of Illinois Supreme Court, brought action challenging commencement of mandamus proceeding in state Supreme Court to compel him to perform “partial” audit; District Court denied Auditor General's request for preliminary injunction that would have forbidden oral argument in state Supreme Court; Seventh Circuit held that due process clause did not confer on Auditor General right to conduct the more extensive audit of Supreme Court and, therefore, he suffered no injury on which suit could be based).

State Court Experience: Illinois Supreme Court

• Comprehensive Community Solutions, Inc. v. Rockford School Dist. No. 205, 216 Ill.2d 455 (2005) (affirming school district's right to deny a charter school application based on the district's financial condition).
• King v. First Capital Financial Services Corp., 215 Ill.2d 1 (2005) (holding that claims against lenders for unauthorized practice of law based on lender's charging for loan documents failed as a matter of law).
• Graham v. Illinois State Toll Highway Authority, 182 Ill.2d 287 (1998) (class of users of Illinois toll highway system contended that spending provisions of Toll Highway Act, which authorized spending without annual appropriation, violated the Illinois Constitution; trial court held that challenged provisions violated the Illinois Constitution, and Toll Highway Authority and Trustee for issued bonds appealed directly to Illinois Supreme Court which reversed, holding that Toll Highway Act's spending scheme was valid authorization of spending by Legislature and did not violate Illinois' Constitution).
• People v. Jackson, 149 Ill.2d 540 (1992), cert. denied, 507 U.S. 973 (1993) (defendant sentenced based on pending but yet unproven charges in second case, which subsequently resulted in acquittal; post-conviction petition seeking new sentencing hearing denied, and denial affirmed on appeal based on conclusion that due process was afforded defendant through post-conviction process).
• Goldberg v. Johnson, 117 Ill.2d 493 (1987) (action brought challenging constitutionality of Illinois tax on interstate telecommunications; trial court found statute unconstitutional, and Director of Revenue appealed; Illinois Supreme Court reversed and held that:  (1) the tax was on interstate telecommunications and not on the local sale of interstate communications; (2) tax did not violate Commerce Clause; and (3) tax did not violate equal protection guarantees of state and federal law).

State Court Experience: State Appellate Courts

• Tobias v. Lake Forest Partners, LLC, 402 Ill.App.3d 484 (1st Dist. 2010)(inchoate claim for post-judgment attorneys' fees was not secured by prior lien of judgment, resulting in the firm's client having the superior right to recover from the judgment-debtor).
• Cohen v. Compact Power Systems, LLC, 382 Ill.App.3d 104 (1st Dist. 2008) (affirming dismissal of consumer class action complaint against the firm's client Nextel, among other defendants, on grounds that named plaintiff was tendered the relief requested before class was certified, and plaintiff failed to expeditiously pursue class certification; ruling established important foundation in case law regarding what constitutes diligent pursuit of class certification -- plaintiff's delay of over eight months to file class certification motion was not sufficiently diligent, and claims were thus mooted by tender and delay).
• DOD Technologies v. Mesirow Ins. Services, Inc., 381 Ill.App.3d 1042 (1st Dist. 2008)  (Appellate Court affirmed in part, and reversed in part, trial court's dismissal of class action complaint premised on insurance broker's receipt of alleged undisclosed contingent commissions; case of first impression interpreting the Illinois Insurance Placement Liability Act, which limits circumstances under which an insurance broker may be held liable under a fiduciary standard).
• CITGO Petroleum Corp. v. McDermott Intern., 368 Ill.App.3d 603 (1st Dist. 2006) (fire at oil refinery caused $600 million in property damage and business interruption losses, and refinery owner sued manufacturer of defective equipment, who brought third party contribution action against prior owner who constructed refinery; third party action dismissed before trial on grounds of Construction Statute of Repose, and dismissal affirmed by Appellate Court two days after jury verdict in underlying case awarded $387 million against defendant/third party plaintiff).
• Comprehensive Community Solutions, Inc. v. Rockford School Dist. No. 205, 351 Ill.App.3d 1109 (4th Dist. 2004) (affirming school district's right to deny a charter school application based on the district's financial condition).
• P.J.'s Concrete Pumping Service, Inc. v. Nextel West Corp., 345 Ill.App.3d 992 (2d Dist. 2004)(cellphone customer filed class action challenging collection of taxes from customers located in unincorporated areas; trial court certified class of cellphone company's customers residing in 17 states, but certified question for interlocutory review; Appellate Court refused to review, Supreme Court vacated the refusal, and Appellate Court affirmed certification order).
• Tru Serv Corp. v. Bess Hardware and Sports, Inc., 346 Ill.App.3d 194 (2d Dist. 2004) (hardware cooperative sued former member for unpaid merchandise and services, and member counterclaimed for full redemption value of shares in cooperative, or setoff against any debt to cooperative; trial court granted summary judgment to cooperative on its claim and to former member on its counterclaim, and Appellate Court reversed ruling for member, holding that under Delaware law, cooperative was prohibited from remitting redemption price for member's stock).
• Goldberg v. Michael, 328 Ill.App.3d 593 (2d Dist. 2002) (affirming the legality of a condominium board's actions and election).
• Royal Ins. Co. of America v. Insignia Financial Group, Inc., 323 Ill.App.3d 58 (1st Dist. 2001)  (Goldberg Kohn took over insurance coverage dispute on appeal and obtained reversal of the dismissal of general liability carrier; Appellate Court held that exclusion in general liability policy for consequential injuries did not relieve general liability carrier of duty to defend lawsuit involving in utero injuries suffered by minor when employee received electrical shock on the job).
• St. George Chicago, Inc. v. Murges, 296 Ill.App.3d 285 (1st Dist. 1998) (reversal of trial court's partial rulings and remand for second jury trial on damages incurred under commercial lease; issues involved valuation of skyscraper office space in Chicago's Loop market).
• Oregon Community Unit School Dist. No. 220 v. Property Tax Appeal Board, 285 Ill.App.3d 170 (2d Dist. 1996) (local governments appealed decision of Property Tax Appeal Board assessing machinery and equipment at nuclear power plant as personal property; Appellate Court affirmed decision in favor of utility, holding that evidence sustained finding that pre‑1979 classification of equipment as real property was inconsistent and thus unlawful, so Board's reclassification was lawful and proper).
• Adams v. Meyers, 250 Ill.App.3d 477 (1st Dist. 1993) (condominium association members brought action against association board asserting that board's procedures regarding notice of annual meetings, solicitations of proxies, and board elections, violated the Illinois Condominium Property Act; trial court dismissed complaint and Appellate Court affirmed, holding that members' claims, while "inventive", were not proscribed by the act and since "Courtsare not legislative bodies," absent relevant statutory authority, they will not impose burdens the legislature deliberately omitted).
• Carson v. Northwest Community Hosp., 192 Ill.App.3d 118 (1st Dist. 1989) (physician sought damages and mandatory injunction reinstating him to full staff privileges at hospital; trial court dismissed complaint, and Appellate Court affirmed holding that scope of judicial review was limited, and participants in review committee were immune from civil liability for alleged tortious interference with contractual relations and antitrust violations).

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