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OVERVIEW

William M. McErlean
Partner

Chicago, South Bend, Elkhart

One North Wacker Drive
Suite 4400
Chicago, IL 60606-2833
700 1st Source Bank Center
100 North Michigan
South Bend, IN 46601-1632
52700 Independence Court
Suite 150
Elkhart, IN 46514-8155

P 312-214-8820

F 312-759-5646

OVERVIEW

William M. McErlean
Partner

Chicago, South Bend, Elkhart

One North Wacker Drive
Suite 4400
Chicago, IL 60606-2833
700 1st Source Bank Center
100 North Michigan
South Bend, IN 46601-1632
52700 Independence Court
Suite 150
Elkhart, IN 46514-8155

P 312-214-8820

F 312-759-5646

Getting the right result is as important to Bill McErlean as it is to the clients he represents, and he has consistently obtained such results in his nearly four decades of litigation and trial practice. Bill is the Litigation Department Chair Emeritus and served for many years as Litigation Chair and on the Management Committee.

OVERVIEW

William M. McErlean Partner

Chicago

South Bend

Elkhart

One North Wacker Drive
Suite 4400
Chicago, IL 60606-2833
700 1st Source Bank Center
100 North Michigan
South Bend, IN 46601-1632
52700 Independence Court
Suite 150
Elkhart, IN 46514-8155

P : 312-214-8820

Getting the right result is as important to Bill McErlean as it is to the clients he represents, and he has consistently obtained such results in his nearly four decades of litigation and trial practice. Bill is the Litigation Department Chair Emeritus and served for many years as Litigation Chair and on the Management Committee.

A proven and consistently effective advocate, Bill has tried more than 40 commercial litigation cases, including the first civil RICO action in the Northern District of Illinois. He has handled a variety of complex, high-stakes commercial cases in courts and before arbitrators throughout the country, defending and prosecuting RICO, securities fraud and common law fraud claims at trial and on appeal.

Bill has also tried franchise, contract, professional malpractice, UCC, ERISA, lender liability, partnership and corporate dissolution and freeze-outs, trade regulation, trade secret, and real estate broker disputes. In addition, he has defended his client’s rights in business torts and construction and real estate disputes.

Bill regularly prosecutes and defends multimillion dollar cases, including bet-the-company cases where the result will determine whether or not his client stays in business.

Franchise Litigation

Whether shutting down “breakaway” franchisees, enforcing trade and service marks or trade secrets or operating procedures, enforcing a franchisor’s real estate and personal property rights through forcibles, replevin or UCC sales, pursuing franchisees through bankruptcy adversarial proceedings, or doing battle with disgruntled and powerful area franchisees or franchise associations, Bill has handled, as lead counsel, every type of litigation that occurs between franchisors and franchisees in federal and state courts and before arbitrators throughout the country.

Representative Matters

Accounting and Legal Malpractice
Handled the defense and prosecution of many claims of malpractice against accountants and law firm and attorneys.

Alliance 3PL Corp. v. Prime, Inc., Case No. 07-cv-04944
Represented as lead counsel Alliance 3PL Corp., a third-party logistics provider in the trucking industry, in its successful breach of contract action against a Missouri trucking company that had solicited business from one of Alliance's largest customers in violation of the contract between the two companies. After a week-long jury trial in federal court, Alliance obtained a $2.1 million jury verdict in its favor with assistance from Barnes & Thornburg.

Carlton Investments v. TLC Beatrice International Holdings, Inc., 1996 WL 189435
Represented TLC Beatrice International Holdings, Inc. and the Estate of Reginald F. Lewis as lead counsel in its successful defense in three related proceedings in which Carlton Investments, a former Drexel Burnham Lambert, Inc. sponsored partnership, sought over $300 million in damages and removal of the Board of Directors in a derivative suit in Delaware Chancery Court and a breach of contract claim in New York Supreme Court. TLC Beatrice's counterclaim in the New York Supreme Court led to a contempt proceeding in federal district court in the Southern District of New York before Judge Milton Pollack, the judge who had approved the settlement of all civil litigation against Drexel and Michael Milken. This, in turn, led to TLC Beatrice's challenge to the constitutionality of that settlement before the Second Circuit Court of Appeals in Presidential Life Insurance Co. v. Milken. All cases resolved one week before oral argument in the Second Circuit by the payment of a nominal sum by the Estate of Reginald F. Lewis to TLC Beatrice of which the Estate owned 60 percent.

Franchise Litigation
Whether shutting down 'breakaway' franchisees, enforcing trade and service marks or trade secrets or operating procedures or enforcing a franchisor's real estate and personal property rights through forcibles, replevin or UCC sales, pursuing franchisees through bankruptcy adversarial proceedings, or doing battle with disgruntled and powerful area franchisees or franchise associations, Mr. McErlean has handled as lead counsel every type of conceivable litigation that occurs between franchisors and franchisees in federal and state courts and before arbitrators throughout the country. Through the years, Mr. McErlean has represented as lead counsel Domino's Pizza, Burger King, Microsoft, Alphagraphics, Boston Market, Brown's Chicken, Popeye's, Century 21, Blockbuster, Roto Rooter and Subway in major litigated matters throughout the country.

Lance Honea v. Access One, Inc., et al., Case No. 08 CH 41120
Represented the plaintiff, Mr. Honea, in obtaining a favorable judgment from Cook County Chancery Court that ordered the corporate defendant to pay Mr. Honea more than $3.5 million for the fair value of his minority interest in the company after a fair value hearing. Mr. Honea filed a lawsuit against the company he founded and his two fellow shareholders, claiming that the company and his fellow shareholders removed him from the company in violation of a shareholders agreement and engaged in oppressive conduct in an attempt to freeze him out of the company.

Ocean Bank FSB, Case No. 06-cv-03522
Represented a national lender as its lead counsel in its successful defense of seven federal class actions alleging a total of more than $200 million in statutory damages under alleged violations of the Fair Credit Reporting Act arising from its financing contracts and practices. The seven class actions were consolidated by the federal panel on Multi-District Litigation and, after pre-trial motions and discovery, were resolved for less than $2 million and less than the limit of the client's insurance coverage.

Palmer v. Woods & Welty, United States District Court for Middle District of Florida
Tried a federal civil RICO and securities case on behalf of a client defrauded in connection with an investment in a hotel. After a two-week trial, judgment of $5 million was entered in the client's favor and when trebled under the RICO statute, resulted in a $15 million judgment.

Sequel Capital LLC v. Rothman, Case No. 1;03-cv-678 (N.D. Ill. Filed Jan. 29, 2003)
Represented a firm client in a Rule 10b-5 securities fraud case. The client received a multi-million dollar settlement.

Publications

"The Impact of Rule 11 on Franchise Litigation," ABA Franchise Law Journal (Winter 1989);

"What do Do When Your Client Lies," ABA Litigation Magazine (Winter 1989);

Co-author, "Privileges: How to Uncover the Facts," ABA Litigation Magazine (Winter 1997);

Co-author, "From Kahn to Carlton: Recent Developments in Special Committee Practice," The Business Lawyer, Vol. 53 (November 1997);

"Training an Associate: Garbage In, Garbage Out," ABA Litigation Magazine (Spring 1998);

"The Evolution of Witness Preparation," ABA Litigation Magazine (Fall 2010)

Honors

The Best Lawyers in America, 2014-2019

Illinois Super Lawyers, 2008, 2011-19

Leading Lawyers Network, Illinois Leading Lawyer

Publications

"The Impact of Rule 11 on Franchise Litigation," ABA Franchise Law Journal, Winter 1989

"What to Do When Your Client Lies," ABA Litigation Magazine, Winter 1989

Co-author, "Privileges: How to Uncover the Facts," ABA Litigation Magazine, Winter 1997

Co-author, "From Kahn to Carlton: Recent Developments in Special Committee Practice," The Business Lawyer, Vol. 53, November 1997

"Training an Associate: Garbage In, Garbage Out," ABA Litigation Magazine, Spring 1998

"The Evolution of Witness Preparation," ABA Litigation Magazine, Fall 2010
EXPERIENCE
  • Barnes & Thornburg attorneys successfully prosecuted a fee waiver claim in a declaratory judgment action in which a small pharmacuetical company sought to have a court declare that it qualified for a fee waiver under the FDCA. The fee waiver should have been applied to Client's new drug because Client's business met the statutory guidelines for a "small business" under the Act and the drug application in question was the first one submitted by the company. The FDA moved to dismiss the claim, but the court held that Client was entitled to relief under the Act and granted judgment to Client. Winston Labs., Inc. v. Sebelius, No. 1:09cv4572 (N.D. Ill., filed July 29, 2009).
  • A Barnes & Thornburg attorney successfully represented Client in a class action case brought under the Fair Credit Reporting Act and FACTA. Hurley v. Denison Parking, Inc., No. 4:08cv32 (S.D. Ind., filed Mar. 11, 2008).
  • A Barnes & Thornburg attorney represented a firm client in a Rule 10b-5 securities fraud case. The client received a multi-million dollar settlement. Sequel Capital LLC v. Rothman, No. 1:03cv678 (N.D. Ill., filed Jan. 29, 2003).
  • A Barnes & Thornburg attorney successfully defended client in a trademark case for psoriasis ointment. Case settled favorably for the client. Sirius Labs Inc. v. Rising Phar Inc., No. 1:03cv6965 (N.D. Ill., filed Oct. 1, 2003).
  • A Barnes & Thornburg attorney successfully defended client on breach of contract case brought by former heavyweight champion George Foreman by winning on summary judgment. Foreman v. Karibu Foods Inc., No. 1:04cv6803 (N.D. Ill., filed Oct. 21, 2004).
  • A Barnes & Thornburg attorney successfully prosecuted securities counterclaim in connection with securities fraud case. Zaghi v. Circle Group Holdings, Inc., No. 1:05cv7214 (N.D. Ill., filed Dec. 27, 2005).
  • Barnes & Thornburg Attorney successfully defended client in class actions on multiple consumer statues including Deceptive Practices Act. Cases were all dismissed before class certification. Melton v. Oasis Legal Finance, No. 2008-CH-35854 (Cir. Ct. of Cook County); Bowen v. Oasis Legal Finance, LLC, No. 2008-CH-001045.
  • Barnes & Thornburg attorneys represented a promotional products company in the defense of breach of contract claims and prosecuted counterclaim for fraud in California. After defeated motion to dismiss counterclaim, lawsuit settled favorably.
  • Barnes & Thornburg attorneys represented Crown Packaging International, a bottle packaging, manufacturing and distribution company, in a case involving a salesmen who started a secret, competing business while still employed by Crown and ran it for two-and-a-half years. During that time, he stole business which should have gone to our client and severely defamed Crown in an effort to alienate customers. Crown discovered the salesman's actions and brought suit,and obtained a Temporary Restraining Order against the salesman that remained in place during the seven months it took to have 9 days of a preliminary injunction hearing Most of the hearing dates concerned the salesman’s claim that Crown committed a prior material breach of his contract - and thus, his restrictive covenants - by alleged underpayment of commissions. The salesman’s defense was rejected and instead, Crown's restrictive covenant was enforced and Crown was granted preliminary injunction.
  • Barnes & Thornburg attorneys represented Rosalind Franklin University of Medicine and Science (RFUMS) obtaining a dismissal of a lawsuit brought by a graduate of the RFUMS podiatry school. The plaintiff graduated from the school with a Doctorate of Podiatric Medicine, but was unable to obtain a postgraduate residency, which most states require for licensure. Because the plaintiff was unable to obtain this prerequisite for licensure, he sued RFUMS alleging fraud, negligent misrepresentation and fraudulent concealment. Following one round of amendments, the court granted the firm's motion to dismiss with prejudice. The plaintiff had not properly alleged any misrepresentation or concealment by RFUMS and was unable to show that RFUMS had a duty to provide him with a postgraduate residency.
  • Barnes & Thornburg attorneys successfully arbitrated securities fraud claim for client, Dr. Thondavadi. Thondavadi v. Chandra, No. 1:09cv7730 (N.D. Ill., filed Dec. 14, 2009).
  • Barnes & Thornburg attorneys successfully defended and obtained case dismissal in a consumer class action case against Client who finances extended warranties. Sahim v. Dealers Warranty, LLC, No. 1:09cv4279 (N.D. Ill., filed July 16, 2009).
  • Barnes & Thornburg attorneys successfully defended client from Trustee’s claims. By removing from bankruptcy court, we exercised right to jury trial and prevailed on summary judgment in state court. CLC Creditors' Grantor Trust v. Iwanski, No. 1:06cv4794 (N.D. Ill., filed Sept. 5, 2006).
  • Barnes & Thornburg attorneys successfully defended Client in a consumer class action suit. The plaintiffs brought suit in Alabama in contravention of the forum selection clause in the contract between the parties, which stated that any suit must be filed in the Circuit Court of Cook County. The court refused to enforce the provision. Client appealed to Eleventh Circuit, which affirmed. Client petitioned for rehearing en banc, and en banc review was granted. The Eleventh Circuit reversed its opinion and entered judgment in favor of the client. Rucker v. Oasis Legal Fin., LLC, No. 2:09cv432 (N.D. Ala., filed Mar. 5, 2009).
  • Barnes & Thornburg attorneys successfully represented client, Resource Financial and Mark Teufel, in the prosecution of a claim of misappropriation of corporate assets. Resource Financial Corporation and Mark Teufel v. Russell Stepke, No. 11-CV-07159.
  • Barnes & Thornburg attorneys successfully settled a bad faith insurance case for our client before trial. Pekin v. The Paul Revere Life Ins. Co., No. 1:08cv3644 (N.D. Ill., filed June 26, 2008).
  • Barnes & Thornburg LLP attorneys represented Oasis Legal Finance, LLC in Hennepin County, Minnesota, in a case involving two individual plaintiffs who filed a putative consumer class action claiming that its legal funding purchase agreements with Oasis were champertous and void ab initio as contrary to Minnesota public policy. Oasis removed the case to federal court in Minnesota and moved to dismiss based on a forum selection clause in the agreements. The plaintiffs amended their complaint, asserting a host of new allegations designed to avoid the forum selection clause and adding a second putative class, consisting of attorneys representing the Minnesota consumers who had contracts with Oasis, claiming a need for guidance regarding the attorneys' obligations flowing from the agreements between Oasis and the consumers. Oasis again moved to dismiss all counts of the complaint, continuing to assert the forum selection clause as to the consumer class and also arguing that the attorney class lacked constitutional standing to assert its claims. The court agreed with our client Oasis, dismissing the consumer class' claims based on the forum selection clause and the attorney class' claims based on lack of constitutional standing, as the attorneys had suffered no injury in fact.
  • Barnes & Thornburg represented as lead counsel Alliance 3PL Corp., a third-party logistics provider in the trucking industry, in its successful breach of contract action against a Missouri trucking company that had solicited business from one of Alliance’s largest customers in violation of the contract between the two companies. After a week-long jury trial in federal court, Alliance obtained a $2.1 million jury verdict in its favor with assistance from Barnes & Thornburg. Alliance Logistics, Inc. v. New Prime, Inc., No. 1:07cv4944 (N.D. Ill., filed Aug. 31, 2007).
  • Barnes & Thornburg represented Builders Bank which had been the victim of a bank fraud involving millions of dollars which was engineered by a real estate developer and his business associates and facilitated by various appraisers and insiders and undetected by bank auditors. In three related lawsuits, against over 25 persons and entities, Barnes & Thornburg attorneys recovered millions of dollars in judgments and settlements for the Bank. Builders Bank v. 1st Bank & Trust Co., No. 1:03cv4959 (N.D. Ill., filed July 17, 2003).
  • Barnes & Thornburg successfully defended cotton cooperative client in contract and securities claim brought by Refco for hedging losses incurred. Refco LLC v. Tri-County Gin & Cotton, No. 1:03cv4963 (N.D. Ill., filed July 17, 2003).
  • Barnes & Thornburg successfully represented The Finish Line in a class action case brought under the Fair Credit Reporting Act and FACTA. Bonner v. The Finish Line Inc., No. 2:07cv152 (N.D. Ind., filed May 7, 2007).
  • Represented a national lender as its lead counsel in its successful defense of seven federal class actions alleging a total of more than $200 million in statutory damages under alleged violations of the Fair Credit Reporting Act arising from its financing contracts and practices. The seven class actions were consolidated by the federal panel on Multi-District Litigation and, after pre-trial motions and discovery, were resolved for less than $2 million and less than the limit of the client’s insurance coverage.

    Forrest v. Ocean Bank FSB, No. 1:06cv3522 (N.D. Ill., filed June 26, 2006)

    Sheridan v. Ocean Bank FSB, No. 2:07cv42 (E.D. Wis., filed Jan. 11, 2007)

    Tremble v. Ocean Bank, No. 1:05cv2624 (N.D. Ill., filed May 2, 2005)

    Phillips v. Home Loan Bank, No. 1:06cv3516 (N.D. Ill., filed July 16, 2006)
  • Represented Marathon Petroleum Company LLC (MPC) in a purported national class action, alleging violations of various States’ consumer protection statutes and unjust enrichment. The plaintiff claimed that MPC conspired with certain other major refiners to cause retail gasoline prices to be unfair and misleading. The court denied the plaintiff’s motion to certify an Illinois-only class of retail gasoline purchasers, agreeing with MPC and the other defendants, that individual questions predominated over any issues common to the class.
  • Represented the plaintiff, Mr. Honea, in obtaining a favorable judgment from Cook County Chancery Court that ordered the corporate defendant to pay Mr. Honea more than $3.5 million for the fair value of his minority interest in the company after a fair value hearing. Mr. Honea filed a lawsuit against the company he founded and his two fellow shareholders, claiming that the company and his fellow shareholders removed him from the company in violation of a shareholders agreement and engaged in oppressive conduct in an attempt to freeze him out of the company. Lance Honea v. Access One, Inc., et al., Case No. 08 CH 41120.
  • Represented TLC Beatrice International Holdings, Inc. and the Estate of Reginald F. Lewis as lead counsel in its successful defense in three related proceedings in which Carlton Investments, a former Drexel Burnham Lambert, Inc. sponsored partnership, sought over $300 million in damages and removal of the Board of Directors in a derivative suit in Delaware Chancery Court and a breach of contract claim in New York Supreme Court. TLC Beatrice’s counterclaim in the New York Supreme Court led to a contempt proceeding in federal district court in the Southern District of New York before Judge Milton Pollack, the judge who had approved the settlement of all civil litigation against Drexel and Michael Milken. This, in turn, led to TLC Beatrice’s challenge to the constitutionality of that settlement before the Second Circuit Court of Appeals in Presidential Life Insurance Co. v. Milken. All cases resolved one week before oral argument in the Second Circuit by the payment of a nominal sum by the Estate of Reginald F. Lewis to TLC Beatrice of which the Estate owned 60 percent. Carlton Investments v. TLC Beatrice Int'l Holdings, Inc. (Del. Chancery Court).
  • We have successfully handled the defense and prosecution of many claims of malpractice against accountants and law firm and attorneys. We recently represented a university in prosecuting a claim against a law firm in a corrupt real estate transaction that resulted in the conviction of former alderman Ed Vrdolyak.
  • Whether shutting down “breakaway” franchisees, enforcing trade and service marks or trade secrets or operating procedures or enforcing a franchisor’s real estate and personal property rights through forcibles, replevin or UCC sales, pursuing franchisees through bankruptcy adversarial proceedings, or doing battle with disgruntled and powerful area franchisees or franchise associations, Mr. McErlean has handled as lead counsel every type of conceivable litigation that occurs between franchisors and franchisees in federal and state courts and before arbitrators throughout the country. Through the years, Mr. McErlean has represented as lead counsel Domino’s Pizza, Burger King, Microsoft, Alphagraphics, Boston Market, Brown’s Chicken, Popeye’s, Century 21, Blockbuster, Roto Rooter and Subway in major litigated matters throughout the country.
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