Foley & Lardner LLP

David B. Goroff

Partner

David B. Goroff is a partner with Foley & Lardner LLP. He currently serves as national co-chair of the firm’s Appellate Practice and previously served as chair from 2001 – 2010. He is also a member of the firm's Bankruptcy & Business Reorganizations and Antitrust Practices. He has substantial trial experience and an emphasis in appellate litigation, bankruptcy litigation, and antitrust litigation and counseling.

Mr. Goroff has 26 years of experience as an appellate lawyer and has worked on hundreds of appeals before the nation’s federal and state appellate courts, state supreme courts and the United States Supreme Court. He also has extensive experience with administrative appeals and a particular emphasis in bankruptcy appeals. As an appellate lawyer, he assists clients in all aspects of appellate practice, including preparing briefs, presenting oral arguments, drafting appellate motions, drafting petitions for certiorari, leave to appeal, rehearing, or en banc review, preparing amicus briefs, conducting moot courts and advising on appellate strategy.

Selected appellate representations include:

  • Rush University Medical Center v. Sessions, No. 112906 (Ill. Sup. Ct. 2012). Presently leading appeal on case before Illinois Supreme Court on question of whether a self-settled spendthrift trust is binding against creditors.
  • McKinstry v. Sergent, No. 7:11-CV-00133-ART (Bankruptcy appeal to E.D. Ky. March 21, 2012). Successfully represented trustee in coal bankruptcy in appeal brought by company’s former CEO contesting remand of Trustee’s claims to state court on abstention grounds.
  • Smith v. Sallie Mae, No. 11-2625, (6th Cir. 2012). Leading defense of appeal on behalf of educational loan lender concerning whether case is subject to mandatory arbitration.
  • In re Resource Technology, 662 F.3d 472 (7th Cir. 2011). Argued on behalf of claimant in appeal concerning whether Bankruptcy Court erroneously denied priority, post-petition claim against Chapter 7 Trustee for tortious conduct.
  • State of West Virginia ex rel. McGraw v. CVS Pharmacy, Inc., 646 F.3d 169 (4th Cir.), cert. denied, 132 S. Ct. 761 (Nov. 28, 2011). Argued on behalf of nation’s six largest pharmacy chains in appeal challenging remand of lawsuit removed under federal Class Action Fairness Act, 29 U.S.C. § 1332(d).
  • United States Steel v. Sandifer, No. 10-1821 (7th Circuit). Prepared proposed amicus brief on behalf of National Association of Manufacturers, American Meat Institute and Society for Human Resource Management on Fair Labor Standards Act matter. (amicus denied).
  • In re Worldcom, 424 Fed. Appx. 32 (2d Cir. 2011). Assisted with appeal contending that Bankruptcy Court had improperly denied benefit of the bargain damages to party injured by debtor’s breach of contract.
  • In re T.P.S., 954 N.E.2d 673 (5th Dist. 2011). Successfully represented non-biological de facto parent and guardian of minor children in appeal to establish her standing to contest biological mother’s petition to eliminate her guardianship rights. (Matter is now before Circuit Court of Williamson County Illinois on remand for evidentiary hearing.)
  • In re Farmland Industries, 639 F.3d 402 (8th Cir. 2011). Successfully represented liquidating trustee in case challenging dismissal of action by failed bidder for purchase of debtor’s refinery assets.
  • Appling v. Doyle, 2011 AP 1572 (Wisconsin Court of Appeals). Successfully represented group of Wisconsin domestic partner couples and ACLU of Wisconsin in opposing plaintiffs’ attempt to challenge the Wisconsin Domestic Partner statute in Wisconsin Supreme Court as matter of original jurisdiction. Then represented ACLU as amicus curiae when plaintiffs refiled case in Wisconsin Circuit Court, which granted summary judgment upholding statute. Now representing ACLU as amicus curiae on appeal to the Wisconsin Court of Appeals.
  • State of Michigan ex rel. Marcia Gurganus v. CVS Caremark Corp., Consol Appeal No. 299997-99 (Mich. Ct. App. 2011). Along with counsel for five other pharmacy chains, presently defending on appeal grant of motion to dismiss in favor of national pharmacy chain client in qui tam lawsuit and related class action lawsuit claiming violations of Michigan’s generic drug law.
  • Farahani v. Hingham Mutual Fire Ins. Co., (Mass. Ct. App.). Presently representing insurance services provider in appeal challenging dismissal of claims against client based on insurance company’s denial of homeowner’s insurance claims.
  • Kraft Foods Global, Inc. v. Spoerle, No. 10-580 (2010). Prepared petition for certiorari to United States Supreme Court in case raising whether federal law preempted the use of state and local law to override provisions in collective bargaining agreements settling whether time for changing into specialized work clothes would be compensable.
  • In re Northwest Airlines Corp., 2010 WL 3529239 (S.D.N.Y. Aug. 28, 2010). Successfully represented hotel owner in appeal confirming grant of summary judgment against airline’s claim for breach of contract regarding room rates and availability.
  • McConkey v. Van Hollen, 783 N.W.2d 855 (Wis. Sup. Ct. 2010). Represented Lambda Legal Defense Fund as amicus curiae in lawsuit that sought to challenge constitutionality of Wisconsin state amendment barring same-sex couples from marrying.

Mr. Goroff has substantial trial (jury and non-jury) and litigation experience in numerous areas of complex litigation, including RICO, antitrust, labor and employment, financial institution litigation, class action, director and officer, ERISA, and identity theft litigation.

Selected trial representations include:

  • Dynamed, Inc. v. Life Spine, Inc. (Baltimore, Md. City Court 2010). First-chair trial counsel representing medical device manufacturer in suit concerning alleged tortious interference with competitor’s covenant not to compete. Obtained judgment as a matter of law on behalf of client from trial court.
  • In re Resource Technology Corp., (Bankr. N.D. Ill. 2010). First-chair counsel in bankruptcy trial contesting denial of administrative claim based on tortious conduct attributable to Chapter 7 Trustee.
  • Peltz v. Arrow Electronics, 383 B.R. 139 (Bankr. E.D. Mo. 2008). Obtained $12.5 million victory as first chair in one-week bench trial on behalf of Plan Administrator for bankrupt information services company in preference lawsuit against opponent, a Fortune 100 company.
  • EEOC v. Custom Companies (N.D. Ill. 2006). Defended trucking firm in jury trial against claims of sexual harassment and retaliatory discharge (split verdict).
  • In re Old Naples Securities, Inc., 343 B.R. (Bankr. M.D. Fla. 2006). First-chair trial counsel representing Securities Investors Protection Act trustee in challenging Ponzi scheme and acts of fraud that led to collapse of brokerage firm.
  • Peltz v. Vancil, 302 B.R. 41 (Bankr. E.D. Mo. 2003). First-chair trial counsel in bankruptcy hearing challenging preference. (Reversed on appeal).
  • In re Safety Kleen (Bankr. D. Del. 2003 ). First-chair counsel for objectors to Section 363 sale of assets of waste disposal company.
  • Peltz v. Application Engineering, 287 B.R. 258 (Bankr. E.D. Mo. 2002). First-chair trial counsel in bankruptcy hearing upholding preference recovery.
  • In re Emerald Casino Co. (Bankr. N.D. Ill. 2002). First-chair counsel for petitioners at evidentiary hearing which upheld petition placing Illinois casino corporation into involuntary bankruptcy.
  • Peltz v. WorldNet, 280 B.R. 573 (Bankr. D. Del. 2002). First-chair trial counsel in bankruptcy hearing upholding preference recovery.
  • In re TWA (Bankr. D. Del. 2001). Successfully represented a consortium of airports in preliminary injunction evidentiary hearing challenging debtor-airline’s misuse of passenger facility charges.

Mr. Goroff is experienced in all facets of bankruptcy practice, including representing debtors, Chapter 11 and Chapter 7 Trustees, creditors committees, asset purchasers, claimants, secured lenders, plan administrators and liquidating trustees.

Selected bankruptcy representations include:

  • In re Black Diamond Mining Co.: Taft A. McKinstry, As Trustee Of The Board of Unsecured Creditors Trust v, Harold E. Sergent, et al., 11-cv-00133-ART (E.D. Ky, 2011).
  • In re Centrix Financial (D. Colo.). Representing liquidating trustee in bankruptcy concerning the failure of a multi-billion dollar subprime automobile lender. Leading litigation of suits challenging fraudulent transfers and acts of fraud and breach of fiduciary duty by directors and officers and to enforce fidelity bond.
  • In re Amerlink (M.D.N.C.). Represented the parents of the president of a bankruptcy company in defeating RICO claim brought by Trustee.
  • In re Bridge Information Systems (Bankr. E.D. Mo.). In bankruptcy of multi-billion dollar financial information services provider, originally represented Official Committee of Unsecured Creditors before plan confirmation and then court-appointed Plan Administrator after confirmation. Oversaw and supervised more than 400 lawsuits challenging preferences and fraudulent transfers and litigated objections to bankruptcy claims, some in eight figures.
  • In re Farmland (Bankr. W.D. Mo.). Represented Liquidating Trustee in bankruptcy of agricultural cooperative. Conducted investigation into possible claims against directors and officers.
  • In re USN Communications, Inc. (Bankr. D. Del.). Represented post-confirmation plan administrator in bankruptcy of telecommunications company. Supervised more than 100 lawsuits seeking estate recoveries, including for preferences and fraudulent transfer.
  • In re Emerald Casino (Bankr. N.D. Ill.). Represented Village of Rosemont as intended dock site and largest creditor of riverboat casino company in its Chapter 11 bankruptcy.
  • In re United Airlines (Bankr. N.D. Ill.) & In re TWA (Bankr. D. Del.). Represented consortiums of nation’s airports in airlines’ bankruptcies.
  • In re Ben Franklin Retail Stores. Represented Chapter 7 trustee in pursuing claims of professional malpractice against accountants.
  • In re Grabill (Bankr. N.D. Ill.). Represented Chapter 11 trustee in all facets of bankruptcy of corporate conglomerate.

Mr. Goroff’s antitrust counseling includes preparing antitrust compliance programs for clients, structuring joint ventures, advising clients regarding the application of antitrust laws to previously regulated industries, advising clients on trade association participation and assisting clients with the merger review process before the Federal Trade Commission and the U.S. Department of Justice. This has included the preparation of Hart-Scott Rodino filings, white papers, and other materials in response to agency "Second Requests" for information. His health care industry counseling has included issues regarding establishing managed care networks, provider contracts, mergers, joint ventures, most-favored nation clauses, exclusive provider contracts, staff privilege issues, medical device manufacturing and distribution, and medical records issues. He was previously vice-chair of the Books and Treatises Section of the American Bar Association Antitrust Section (1997-1998).

Selected antitrust litigation representations include:

  • McDowell Pharmacy, Inc. v. West Virginia CVS Pharmacy, LLC, (pending, Circuit Court of McDowell County, West Virginia). Defending pharmaceutical company against claims of market and customer allocation, group boycott and refusal to deal under West Virginia antitrust laws.
  • Green v. Peoples Energy Corp. (N.D. Ill. 2003). Successfully litigated dismissal of class action suit against Illinois natural gas utilities regarding rule mandating use of gas meters.
  • Sunguard Systems International v. WTD Consulting, 99 C 6987 (N.D. Ill. 2001). Represented client in defending against antitrust counterclaim filed in trade secret case.
  • Federal Trade Commission v. B.A.T. Industries (S.D.N.Y 1994). As second-chair counsel, represented American Brands in a Clayton Act Section 7 action brought by the FTC to enjoin the sale of a $1 billion division of American Brands to British American Tobacco. This matter included a week-long preliminary injunction hearing and settle on terms which allowed the client to complete its sale at the original price.
  • Marlowe v. HCM (Cook County Circuit Court, 1990). Successfully defended a medical records company in class action litigation brought under the Illinois Antitrust Act.

Mr. Goroff’s presentations, publications and articles include:

  • Presenter, Webinar, “How Best To Navigate The Thousands of Global Regulatory Changes As a Purchasing Executive,” ExecSense, April 19, 2012
  • Presenter, Webinar, “What Business Development Executives Need to Know About Clawback Provisions,” ExecSense, March 16, 2012
  • Presenter, Webinar, “Seminar on Appellate Practice,” Foley & Lardner Professional Development, January 31, 2012
  • Presenter, Webinar, “What Purchasing Executives Need to Know About Contracts Law Updates & Best Practices for 2012,” ExecSense, January 12, 2012
  • Presenter, Webinar, “International Contracts Law Insights & Essentials for Purchasing Executives," ExecSense, December 15, 2011
  • “Wither Bankruptcy Jurisdiction After Stern?” Law360, August 23, 2011
  • Co-author, “The Benefits of the Domestic Partner Law,” Milwaukee Journal Sentinel, July 8, 2011
  • Presenter, Webinar, “How to Draft and Deliver Effective Client Alerts as a Lawyer,” ExecSense, April 20, 2011
  • Presenter, Webinar, “Defending Against Claims of Third Party Identity Theft,” March 1, 2011
  • Presenter, Webinar, “What Antitrust Lawyers Need To Know About Recent Changes To Class Certification Rulings,” ExecSense, February 8, 2011
  • Presenter, Webinar, "The Best Books For Lawyers From 2010," ExecSense, December 17, 2010
  • Presenter, Webinar, "What To Learn From The Recent FTC Consent Orders Breaking Up Consummated Mergers," ExecSense, September 8, 2010
  • Presenter, Webinar, "The Crossroads Where RICO Meets Antitrust: What Litigation Under These Two Statutes Can Teach Practitioners," ExecSense, July 27, 2010
  • Webinar, "The Instant Impact on Antitrust Lawyers and Their Clients of the Ticketmaster-Live Nation Merger," ExecSense, March 16, 2010
  • Presenter, Webinar, "GM/Chrysler Bankruptcy Program," National Association of Subrogation Professionals, July 30, 2009
  • Presenter on constitutional law issues at Symposium: "Same-Sex Marriage: Past, Present, Future," Loyola University Law School, March 2009
  • Webinar, "Avoiding Antitrust Liability In Establishing Joint Ventures Strategies for Negotiations of Joint Venture Agreements," Strafford Publishing, February 5, 2009
  • Prepared instructional video for Reed Logistics on trade association antitrust issues, December 15, 2008
  • Webinar, "Seminar On Appellate Practice," December 12, 2008
  • Author, "One Dozen Important Points About Bankruptcy Appeals," Journal of Bankruptcy Law, March 2008
  • Co-authored, "The Transfer of a Health Insurance/Managed Care Business," Journal of Health Care Finance, Winter 2007 (with George Goodman)
  • Webinar, "Transfer of Health Insurance/Managed Care Business," Foley & Lardner Friday Focus Series, May 18, 2007
  • Webinar, "Avoiding Antitrust Violations in Competitor Collaborations," Strafford Publishing on October 14, 2008, September 25, 2007, March 28, 2007, November 1, 2006, July 19, 2006
  • Webinar, "Competitor Collaborations: Antitrust Questions And Issues," Foley & Lardner Friday Focus Series, November 18, 2005

Mr. Goroff is active in a variety of professional groups including the American Civil Liberties Union of Illinois, for which he serves on the board of directors and as a member of the executive committee. He also has frequently acted as cooperating counsel for the agency. Mr. Goroff has served as vice chair of the American Bar Association’s Antitrust Section and also as a member of the Books and Treatises Committee. He has served as an adjunct professor for the University of Illinois Law School and Chicago-Kent College of Law and also as an instructor for the Illinois Institute of Continuing Legal Education and the National Institute for Trial Advocacy.

Mr. Goroff is a graduate of Columbia University's Law School (J.D., 1985), where he was a Harlan Fiske Stone Scholar and a notes and comments editor of the Columbia Law Review. He received his bachelor's degree from the University of Illinois (B.A., summa cum laude, 1982), where he was elected to Phi Beta Kappa. Following law school, Mr. Goroff served as a law clerk for the Hon. Richard D. Cudahy of the U.S. Court of Appeals for the Seventh Circuit.

Mr. Goroff is admitted to practice in Illinois, the U.S. District Courts for the Northern District of Illinois, Central District of Illinois, the Eastern District of Michigan, the Western District of Michigan, the United States District Court for the District of Colorado, the United States District Court for the Western District of Wisconsin, the Eastern District of North Carolina, the U.S. Courts of Appeals for the Second, Third, Fourth, Sixth, Seventh, and Eighth Circuits, and the U.S. Supreme Court.

Mr. Goroff was selected for inclusion in the 2005, 2006, 2008–2013 Illinois Super Lawyers® lists.* He was also named a 2007, 2008, 2009, 2010 and 2011 Illinois "Leading Lawyer" by the Leading Lawyers Network.*

*The Illinois Supreme Court does not recognize certifications of specialties in the practice of law and no award or recognition is a requirement to practice law in Illinois.

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