Michael M. Conway

Michael M. Conway is a partner at Foley & Lardner LLP. He is a member of the firm's Business Litigation & Dispute Resolution and Appellate Practices.

Mr. Conway has been Peer Review Rated as AV® Preeminent™, the highest performance rating in Martindale-Hubbell's peer review rating system. He is a fellow of the American College of Trial Lawyers and is listed in Chambers USA: America’s Leading Lawyers for Business (2008-2012). Since 1991, he has been selected for inclusion in The Best Lawyers in America® in the field of first amendment law* and has been selected for inclusion in the Illinois Super Lawyers® lists (2005, 2007-2013). Only five percent of the lawyers in the state are named by Super Lawyers.* For 38 years, he has focused his practice on media, commercial arbitrations, business disputes, corporate and federal tax litigation with a particular emphasis on emergency injunctive cases. More than 200 reported decisions in the federal and state court systems have involved civil cases in which he had primary litigation responsibility at the trial court or on appeal, including First Amendment, commercial, business tort, ERISA, RICO, airport environmental, and federal tax disputes:

• Mr. Conway was lead trial counsel in two federal tax "test cases" for the credit union industry challenging recent IRS determinations that the sale of debt protection and financial service products by credit unions are subject to unrelated business income tax (UBIT). In Community First Credit Union v. United States (E.D. Wis.), after a four-day, 15 witness trial, a unanimous federal court jury in Green Bay returned a special verdict on May 14, 2009 ruling in favor of Community First on all claims and rejecting the Government’s UBIT position. See 2009 U.S. Dist. LEXIS 60283. In the second tax refund suit, Bellco Credit Union v. United States, in U.S. District Court in Denver, Colorado, the district court on November 12, 2009 granted partial summary judgment that revenues received by Bellco from the sale of financial services and investment products to its members are not subject to UBIT, either. See 2009 U.S. Dist. LEXIS 106087. Following a bench trial, the district court ruled on April 2, 2010, that Bellco’s revenues from the sale on credit insurance on both direct and indirect lending were not subject to UBIT and that revenues received from a direct mail offering of accidental death and dismemberment insurance by a third party were royalties also exempt from UBIT. 735 F. Supp. 2d 1286 (D. Colo. 2010). The Department of Justice withdrew its appeal and the judgment is final.
• Mr. Conway assisted his partner, Michael Tuteur, on October 12, 2012, in heading a team of firm attorneys who defeated a series of motioned for class certification of a putative nationwide class of health care providers in an ERISA action in PCA v. BCSA. An earlier omnibus motion for class certification had been defeated on December 28, 2011. 2011 U.S. Dist. LEXIS 148689 (N.D. Ill.) and on January 23, 2012, obtained summary judgment on the claims of a subscriber plaintiff who sought to represent a class of health care subscribers. 2012 U.S. Dist. LEXIS 7257.
• On September 12, 2012, the U.S. District Court in Maryland dismissed five of six counts of a putative state law class action alleging consumer fraud claims relating to the sale of single serve coffee cartridges on the basis that the plaintiff (a Maryland resident) lacked standing to assert claims for consumers in four other states. Zaycer v. Weis Markets, 2012 U.S. Dist. LEXIS 129791. Mr. Conway, assisted by Rebecca Hanson, defeated an argument that the standing issue should be deferred until a ruling on class certification.
• On July 5, 2012, the Illinois Appellate Court affirmed the dismissal of a defamation lawsuit against a newspaper website and its employees. Mr. Conway successfully argued that the federal Communications Decency Act provided absolute immunity to the web site operator for anonymous comments submitted to the web site by members of the public. Gaines v. QC Online (3-11-0594) (Ill. App.)
• On May 11, 2009, Mr. Conway won a 7th Circuit ruling that a Canadian corporation is not subject to ERISA liability in the U.S. courts. GCIU Employees v. Goldfarb Corp. (7th Cir. 2009).
• In March 2009, Mr. Conway assisted his partner, Michael Lockerby, in winning a landmark franchise law ruling in FMS, Inc. v. Volvo Construction Co., 557 F.3d 758 (7th Cir. 2009), reversing a jury verdict for plaintiff and holding that Volvo properly terminated plaintiff’s Samsung dealership when Volvo bought Samsung and discontinued that line of equipment.
• In January 2009, Mr. Conway won a ruling from the Illinois Appellate Court reversing the circuit court’s interpretation of the "fiduciary shield doctrine." Femal v. Square D. Company, 338 Ill.App.3d 134 (1st Dist. 2009) and remanding for hearing regarding personal jurisdiction which was held and resulted in a dismissal for lack of personal jurisdiction.

Mr. Conway has been principal trial attorney in a wide variety of civil matters. The Seventh Circuit Court of Appeals affirmed summary judgment on behalf of The New York Times, New York Daily News and Boston Globe which Mr. Conway represented in a $125 million defamation lawsuit brought by Global Relief Foundation, an Islamic charity. The court of appeals ruled that the newspapers' articles reporting on governmental investigations of Global ties to terrorists were substantially true. Global Relief Foundation, Inc. v. The New York Times, et al., 390 F.3d 973 (7th Cir. 2004).

He has won libel cases for the Chicago Tribune, ABC, Kankakee Journal, Muhammad Ali, news magazines and other news organizations. In 2004, he obtained the dismissal of a suit based upon an Illinois newspaper’s publication of the names on a state police list of sex offenders on the basis that an Illinois statute conferred absolute immunity against claims based upon the republication of such lists. The two appellate opinions in Desnick Eye Center v. ABC – both argued on appeal by Mr. Conway – provide important protections for news organizations from liability for claims related both to news gathering and news content. Desnick Eye Services v. ABC, 233 F.3d 514 (7th Cir. 2000) and 44 F.3d 1345 (7th Cir. 1995).

In his ERISA practice, he successfully defended a money manager against a $10 million ERISA claim brought by a pension fund. The federal district judge granted a defense verdict. Wsol v. FMA (N.D. Ill. 2000). This verdict was affirmed by the Seventh Circuit Court of Appeals in an appeal argued by Mr. Conway, 266 F.3d 654 (7th Cir. 2001).

Mr. Conway was also lead trial attorney in 2005, successfully representing an LLC in a commercial arbitration relating to the dismissal of a member for cause. Mr. Conway has also represented a public company in a multimillion-dollar arbitration before a retired federal district judge. That claim was brought by the former chairman of the board of a NYSE-listed company against the client for breach of contract and related claims. The arbitrator awarded the plaintiff nothing.

Mr. Conway has successfully represented insurance companies, software companies and other employers in injunction lawsuits for breach of fiduciary duty and trade secret misappropriation.

In 2004, he successfully represented Wirtz Corporation d/b/a Judge & Dolph Ltd. in the Illinois Supreme Court, having a consumer class-action dismissed which had sought to force J&D to pay its state liquor tax under protest. Wexler v. Wirtz, 211 Ill.2d 18 (2004).

In his representation of airport proprietors, Mr. Conway has successfully represented airports in Chicago, Denver, Albuquerque and Cleveland in challenges to FAA approvals of airport developments.

Mr. Conway has tried bench or jury trials in the United States District Courts in Chicago, Detroit, Kalamazoo, Green Bay, Denver, Minneapolis, and New Orleans, as well as the United States Tax Court, United States Claims Court, the circuit courts of Illinois and in arbitration proceedings. Mr. Conway has also tried, on behalf of both employers and employees, preliminary injunction cases asserting claims under non-competition agreements and the Illinois Trade Secret Act.

Mr. Conway has supervised Firm associates in pro bono federal appellate work.

Mr. Conway is a graduate of Yale Law School (J.D., 1973) and Northwestern University (B.S., 1968). He is a charter member of Northwestern University's Medill School of Journalism Hall of Achievement. Aside from his service as counsel to the United States House Judiciary Committee in the Impeachment Inquiry of President Richard M. Nixon in 1974, Mr. Conway was with Hopkins & Sutter until its merger with Foley & Lardner LLP on February 1, 2001. He was an elected delegate to the 2008 Democratic National Convention, as well as in 1996.

Mr. Conway was admitted to the Bar in 1973. He is admitted to practice in Illinois and before the U.S. District Courts for the Northern, Central and Southern Districts of Illinois, the Eastern District of Michigan, the Northern District of Indiana, the Eastern District of Wisconsin, the District of Colorado, the U.S. Courts of Appeal for the First, Second, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Federal Circuits, the U.S. Tax Court, the U.S. Claims Court, and the U.S. Supreme Court.

Mr. Conway’s publications include:

• Author, Business and Commercial Litigation in Federal Courts (3d Ed. 2011), Ch. 120, Tax (ABA).
• Co-author, "Court Rejects Heightened Standard in Pre-Suit Petitions to Unmask Anonymous Internet Commenters," Media Law Letter (June 2010).
• Author of a chapter in "The Attorney's Guide to the Seventh Circuit Court of Appeals," State Bar of Wisconsin CLE Books (2010, updated yearly).
• Co-author, "A Win for the Team," The Deal (August 20, 2009).
• Co-author, "Third Party Subpoenas In Arbitration," BNA’s Corporate Counsel Weekly (September 10, 2008).
• Co-author, "The Illinois Supreme Court and the Fair Report Privilege: A Free Press Victory," 94 Illinois Bar Journal 414 (August 2006).
• Co-author, "The ‘Talking Point’ Wars: Don’t Neglect the Battle Over Public Opinion," Midwest In-House (January 23, 2006).
• Co-author, "Media Law Litigation, The Effective Use of Depositions," Juris Publishing (2004).

*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.