Hugh J. Totten

AREAS OF EMPHASIS

• Complex commercial litigation
• Construction and design law
• Appraisal and valuation disputes
• Insurance coverage

Mr. Totten is an experienced and well-recognized trial lawyer. His successes include many multi-million dollar settlements, judgments and awards, including one for $165 million. He has been extensively quoted and profiled in international media, including The New York Times, The Financial Times, The Washington Post, The Times of London, The Chicago Sun-Times, The Chicago Tribune, Law.com, Nationallawjournal.com, The Globe and Mail, The National Post (Canada), major wire services and hundreds of associated web sites. He regularly appears on the Canadian legal affairs television program, "The Verdict," and has also appeared on Bloomberg Radio and Television, CNN International, Business News Network, ITV Global Network, various programs for the Canadian Broadcasting Corporation's television network, National Public Radio and all of the Chicago affiliates of CBS, NBC, ABC and Fox.

REPRESENTATIVE MATTERS

• Represent U.S. bankruptcy trustee in advesary proceeding regarding claims arising out of $140 million sale of aluminum smelter
• Defend seller of real estate title company against claims of fraud and in insurance coverage litigation
• Represent international A/E firm in high-profile foreclosure/receiver litigation
• Advise two major New Orleans hotel owners regarding insurance coverage claims in excess of $300 million
• Represent investors in $10million+ malpractice claim against law firm and individual lawyers
• Represent amici Nobel Prize economists in attack on EPA cap-and-trade regulation
• Represent national park concessioner in valuation dispute involving the transportation of passengers to Liberty and Ellis Islands
• Defend major Florida real estate developer of 15,000-home community in lawsuits pertaining to alleged defects in common areas and related insurance coverage issues
• Defend major Florida real estate developer in purported class action alleging roof design and construction deficiencies
• Defend construction products distributor in hundreds of asbestos personal injury cases (pending)
• Amfac Parks & Resorts, Inc. v. National Park Service, AAA arbitration in Chicago, Ill. and Phoenix, Ariz. (arbitration to determine the value of lodging, retail, commercial and support concession assets and rights at the Grand Canyon National Park (South Rim) involving 350 structures and including 150 listed on the National Register of Historic Places and five national landmarks – awarded $165 million versus Park Service's proposed value of $49 million)
• Hamilton Stores, Inc. v. Delaware North Companies, Inc., AAA arbitration in Denver, Colorado (arbitration to determine the value of retail concession assets and rights at the Yellowstone National Park – awarded $36 million versus proposed value of $14.5 million)
• IPSCO Steel, Inc. v. Mannesmann Dematic Corp., No. 3-99-CV-90095, USDC S.D. Iowa (pursue equipment defect and construction delay claims involving $500 million Greenfield, discreet plate steel mill – favorable settlement)
• Lakes of the Meadow Village Homes Condominium Nos. One, Two, Three, Four, Five, Six, Seven, Eight and Nine Maintenance Ass'n, Inc. v. Arvida/JMB Partners, L.P., No. 95-23003-CA-08, Cir. Ct. of the 11th Judicial Circuit in and for Miami-Dade County, Fla. (represent developer of portion of 115-building, 458-unit condominium development declared structurally unsafe by the Miami-Dade County and the subject of a class action; also advise client re insurance coverage issues in related litigation in Chicago, Illinois)
• United Air Lines, Inc. v. GEC-Marconi, Cir. Ct. Cook County, Illinois (represent airline in suit against firm hired to design and develop in-flight entertainment system with integrated telephony and 309-seat "flying network" for Boeing 777 aircraft – favorable settlement)
• In re Homelife Corporation, U.S. Bktcy, Del. (contested motions and hearings on a wide range of bankruptcy issues)
• On behalf of a major interstate vintner, successfully challenged the constitutionality of an Illinois law that would have entrenched Illinois distributors and made it virtually impossible to fire them. Client, Jim Beam Brands Co.; awarded nearly $100,000 in fees
• Led a team of lawyers involving several different law firms in an attack on extensive, new Department of the Interior regulations that resulted in significant withdrawals, changes, modifications and clarifications to the Department’s regulations
• Represented a joint venture partner in a multi-million dollar trademark royalty dispute
• Represented United Airlines in a $1 billion dispute that involved the development of a complex, in-flight entertainment system for the new Boeing 777 wide-body aircraft
• Negotiated the purchase of the Denver International Airport baggage system, negotiated the contract for its repair, litigated against the contractor and negotiated the settlement. Since then, negotiated the purchase contracts for approximately $100 million worth of baggage systems at the San Francisco, Los Angeles and Dulles airports. In each project, led the change order and project close-out negotiations
• Represented the design team in the litigation of alleged design deficiencies at the International Terminal at O’Hare Airport, one of Chicago’s largest public works projects
• Led a team of law firms representing one of Florida’s largest developers in connection with several independent class actions, numerous individual lawsuits, state and federal criminal investigations, administrative licensing proceedings and insurance coverage disputes arising from Hurricane Andrew’s devastation of a planned urban development called “Country Walk.”

Specific Practice Areas and Cases

Valuation Disputes

• Arbitrated the "sound value" of national park concessionaires' "possessory" interests" in structures, fixtures, improvements and contract rights located on federal park lands. Statutory and contractual provisions required a determination of the cost to construct exact duplicates, less physical depreciation, not to exceed "fair market value." Disputes involved hotels, motels, restaurants, gas stations, tour operations, various forms of employee housing, single-family homes, laundries, mule barns, historic properties, national landmarks and related businesses. Obtained awards of $165 million at the Grand Canyon National Park (South Rim) (versus the National Park Service's proposed value of $49 million), $37 million at Yellowstone National Park (versus the replacement concessionaire's proposed value of $14.5 million) and very favorable confidential settlement at the Statute of Liberty
• Conducted various arbitrations regarding Boeing 727 aircraft leases.
• Counseled regarding the valuation of a steel mill melt shop and caster in a complex sale-leaseback transaction.

Construction and Design

• Block 37 Foreclosure (represent international A/E firm in proceeding to collect substantial fees)
• Weston (Florida) Common Area Defect Litigation, Broward County, Fla. (represent developer of 15,000-home community near Fort Lauderdale, Fla. In claims by certain homeowner associations that landscape materials do not meet applicable grades and standards, are causing damage to streets, sidewalks and other property and must be removed and replaced)
• Rothal v. Arvida/JMB Partners, Broward County, Fla. (represent developer in class action alleging construction and design defects)
• Chase Manhattan Bank, N.A. v. Turner & Newall, S.D. N.Y. (defended third-party defendant Skidmore, Owings & Merrill in $180 million asbestos property damage suit)
• Lakes of the Meadow Village Homes v. Arvida/JMB Partners, L.P., Dade County, Fla. (represented developer in claim by condominium class that in excess of 100 buildings and 400 units were structurally defective)
• IPSCO v. Mannesmann Demag, USDC, Iowa (represented owner in claim against turnkey design and construction firm alleging design and construction deficiencies and delay in construction of a $500 million greenfield mini-mill)
• United Air Lines, Inc. v. BAE, USDC, Denver, Colo. (represented owner in claim against EPC contractor alleging design and construction deficiencies and delays associated with the Denver International Airport automated baggage handling system)
• Hurricane Andrew Litigation, Dade County, Fla. (represented developer of 1,100-unit PUD that was rendered uninhabitable as a result of Hurricane Andres; various state, federal administrative, criminal and civil proceedings as well as insurance coverage matters)
• McCartin McAuliffe v. Midwest Gas Storage, Cir. Ct. Clay County, Ind. (counsel for defendant in multi-million dollar pipeline construction defect litigation and arbitration)
• City of Chicago v. Group One Design, Cir. Ct. Cook County, Ill. ($40 million construction defect claim against designer of the new International Terminal at O'Hare Airport; coordinated defense with co-defendants' counsel, negotiated settlement with insurer and City)
• Royal Insurance a/s/o GLF v. United States Coast Guard, Fla. (government contract claim; multi-million dollar claim for unpaid base contract balance and delay damages in construction of aircraft fueling station and pipeline)
• Texaco v. Skidmore, Owings & Merrill, Orleans Parish, LA (represented A/E in property damage case resulting from fire)
• Grand Ohio Venture v. Skidmore, Wings & Merrill, Cir. Ct. Cook County, Ill. (represented A/E in property damage case resulting from water infiltration into building with brick and mortar façade)
• Milwaukee Theatre District Litigation, Milwaukee, WI (represented A/E in suit involving numerous alleged architectural and structural design deficiencies and delay claims)
• Michalatos v. Skidmore, Owings & Merrill, Orleans Parish, LA (represented A/E in personal injury case resulting from alleged failure to design access to mechanical equipment for building workers)
• 801 South Plymouth Court Condominium Ass'n v. Dearborn Park Corp., Cir. Ct. Cook County, Ill. (represented A/E in case involving alleged water infiltration in brick building)
• Tom Winner Glass v. Skidmore, Owings & Merrill, Palm Beach County, Fla. (represented A/E in claim by subcontractor that skylight that permitted water infiltration into library was defectively designed)
• Perich v. Hyatt and Skidmore, Owings & Merrill, Cir. Ct. Cook County, Ill. (represented A/E in personal injury suit involving decorative pool in hotel lobby)
• Dispute between cooperative president and cooperative board of directors and shareholders in dispute over construction project cost overrun

Government Contracts and Regulations

• Amfac Parks & Resorts, Inc. v. U.S. Department of the Interior, D.C. Cir. (successfully challenged certain regulations issued by the U.S. Department of the Interior's National Park Service pursuant to the Concession Reform Act of 1998)

Complex Commercial Litigation

• Brandt v. Alcoa, (pending), U.S. Bktcy, N.D.Ill. (advesary claim arising from $140 million sale of aluminum smelter which was part of a $4 billion merger)
• D/C Distribution Asbestos Litigation, San Francisco, Cal. (represent distributor of building products allegedly containing asbestos in several hundred personal injury suits)
• W.W. Grainger Asbestos Litigation, N.J., Mich., Tex., Ill., Cal. (coordinated 1,000 personal injury suits against distributor of construction and building products allegedly containing asbestos)
• Jim Beam Brands Co. v. Branson, et al., USDC, N.D. Ill. (represented major vintner in successful challenge to the constitutionality of an Illinois statute that would have made it virtually impossible to terminate wine and distilled spirit distributors in Illinois; case has served as a model for similar challenges across the United States)
• United Air Lines, Inc. v. BAE, USDC Dallas, Tex. and Denver, Colo. (represented owner of Denver International Airport baggage system in multi-million dollar suit against the system designer and constructor; also, represent the owner in dealings with the City of Denver)
• United Air Lines, Inc. v. GEC-Marconi, Cir. Ct. Cook County, Ill. (represent purchaser of in-flight entertainment system and computer network for 300+ seats on Boeing 777 aircraft against system designer, software engineer and installer)
• Arvida/JMB Managers, Inc. v. The Walt Disney Company, Cir. Ct. Cook County, Ill. (represented buyer in $30 million breach of contract suit involving accounts payable improperly paid under purchase and sale agreement; suit also involved certain indemnification claims over environmental matters)
• U.S. Gypsum v. Admiral, Cir. Ct. Cook County, Ill. (represent insured in claims against various primary and excess carrier’s regarding their duty to defend and indemnify insured in asbestos property damage cases)
• Miles Inc. v. Scripps Clinic & Research Foundation, et al., S.D. Cal. (represented plaintiff joint venture partner in conversion claim growing out of patent infringement suit involving patented process for making highly purified human Factor VIII:C)
• Superior Fuels, Inc. v. Amoco, S.D. Tex. (represented seller in alleged breach of oral contract to sell 400,000 bbls of fuel oil)
• Racing Champions Litigation, various venues (represented privately-held company in connection with shareholder litigation, provide counseling regarding potential IPO)

Antitrust

• USDA Mad Cow Regulations (advise Canadian cattle ranchers regarding U.S. beef industry challenges to USDA regulations that would have allowed the importation of Canadian beef into the United States after the discovery of mad cow disease in certain Canadian herds)
• Advise Premark International regarding acquisitions of food equipment manufacturers; successfully defend DOJ second request
• Advise Weyerhaeuser Company in connection with a $600 million purchase of pulp mills, timberlands and sawmills from Procter & Gamble
• Advise Brown & Williamson regarding the acquisition of a competitor and/or the competitor’s cigarette brands
• Advise Vulcan Materials regarding the acquisitions of aggregate facilities
• Advise NL Industries regarding $1.2 billion sale of Baroid Drilling Fluids, Inc., assets and DOJ second request

Intellectual Property

• Dun & Bradstreet v. Walter, N.D. Ill. (represented plaintiff in copyright infringement claim involving database of U.S. businesses)
• Ranney v. Rand McNally & Co., Cir. Ct. Cook County, Ill. (represented defendant in dispute over royalties allegedly due author under contract incorporating Copyright Act)
• Casey v. Rand McNally & Co., N.D. Ill. (represented defendant in copyright, trademark and RICO counterclaim to libel suit)
• Marshall v. Miles Inc., Cir. Ct. Noble County, Ind. (represented defendant in alleged theft of trade secrets for production process)
• Thomas v. ARC/AMS, Midwest Insurance Group v. ARC/AMS and Mueller-Forir v. ARC/AMS, St. Louis, Mo. (represented seller in breach of warranty involving sale of computer system to insurance agencies)

Non-compete Litigation

• Rand McNally v. Pezze, L.A. Sup. Ct., Cal. (represented employer in suit to enjoin unfair competition against former manager)
• Applied Learning Int’l v. The Roche Group, Cir. Ct. Cook County, Ill. (defend former officers in suit to enforce noncompete agreements)
• Black Dot Graphics, Inc. v. Poden, Cir. Ct. Cook County, Ill. (represented employer in suit against former officers to prevent unfair competition under common law)
• The Clarinda Co., Inc. v. Sly, USDC, Minn. (represented former employer in suit against former president and other former employees for breach of noncompete agreement, breach of fiduciary duty and unfair competition)

Pro Bono

• Williams v. Lane, N.D. Ill. (represented pro bono class (3,096 present and former inmates)) for injunctive and monetary relief; extensive injunctive relief was granted under the supervision of a special master (Prof. Norval Morris of the University of Chicago Law School); substantial monetary damages also were awarded to class members for denial of their constitutional rights)

Bankruptcy

• In re Homelife Stores Bankruptcy, U.S. Bktcy, Del. (represented debtor in all litigation and contested matters in Chapter 11 liquidation)
• Envirodyne v. Gruss Partners, Bktcy, N.D. Ill. (represented creditor who forced debtor into bankruptcy in $150 million suit for breach of trust indentures and other bankruptcy code theories; coordinated defense with two co-defendants and directed briefing on successful motion to dismiss that resulted in major written opinion on trust indentures)
• In re Metalwood Corp., Bktcy, N.D. Ill. (represented debtor in preference action against creditor, Alumax Mill Products, Inc.)

Other Lawsuits, Disputes and Counseling

• Represent Chicago-based structural engineering firm and its president in arbitration to remove minority shareholder as a director and employee
• In Re The Marriage of Malkin, Cir. Ct. Cook County, Ill. (represented husband on Forbes “500 wealthiest” list in dissolution action)
• Advised disappointed bidder in dispute with City of Chicago that resulted in City canceling the award and agreeing to re-solicit bids
• Advised 50% shareholder regarding sale of leading sports apparel manufacturer to competitor
• Counseled Fortune 100 company regarding various disputes with employee-owners regarding wage scales and ESOP
• Travis v. Metromedia Telecommunications, Inc., N.D. Ill. (represented employer in sex and race discrimination claim)
• Swapsy v. Skidmore, Owings & Merrill, EEOC, Chicago, Ill. (represented former employer in race discrimination claim)
  

RELATED EXPERIENCE

Perkins Coie, LLP, Chicago, Partner, 2004-2008
Kirkland & Ellis, Associate, 1986-91; Partner, 1991-2004
Law Clerk to Hon. John Grady, Chief Judge, United States District Court for the Northern District of Illinois, 1985-86

SPEECHES AND PUBLICATIONS

• Author, Combating Expert Appraiser Bias, to be published in Journal of Taxation and Regulation of Financial Institutions
• Author, Discovery of Electronically Stored Information: A Primer
• Author, Overview of E-discovery Sanction and Spoliation Cases; Practical Advice To Avoid Common Problems
• Speaker and Panelist, E-Discovery "A-to-Z" Workshop, September 18-20, 2006 Seattle, WA and June 12-13, 2007 Chicago, IL (sponsored by West Legalworks' Kroll On Track)
• Speaker, Email: The Smoking Gun in Discovery, May 25, 2006 (national webcast)
• Speaker, Electronic Discovery And Upcoming Changes In The Federal Rules of Civil Procedure, Commercial Litigation National Practice Group, Annual Meeting , Perkins Coie, LLP, April 21, 2006, Phoenix, AZ; Products Liability National Practice Group Annual Meeting, Perkins Coie, LLP, August 5, 2006, Los Angeles, CA; Perkins Coie Legal Training Seminar, January 24, 2007 (national webcast).
• Speaker, Discovery of Electronic Data, The Washington Group 2004 Corporate Counsel Workshop, Boise, Idaho, June 10-11, 2004
• Co-chair, Perkins Coie Task Force on Electronic Discovery Products And Outsourcing
• “In a Bankruptcy, Who Owns Insurance Proceeds?” The National Law Journal (Jan. 7, 2002)
• “Appraiser Malpractice,” published by the National Business Institute in June 2004

PROFESSIONAL RECOGNITION
Awarded the Highest Rating in a major national legal directory
Annually selected as a Leading Lawyer and Super Lawyer in Illinois
Fellow, Royal Institution of Chartered Surveyors

EDUCATION
Northwestern University School of Law, J.D., 1985
Editor-in-Chief, Northwestern Journal of International Law and Business, 1984-85
Purdue University, B.A., (Political Science) 1980
The University of Chicago Graham School, Certificate in Project Management Strategy, 2003

ADMITTED TO PRACTICE
Illinois
United States Courts of Appeal: Seventh Circuit; Ninth Circuit

CHARITABLE AND COMMUNITY LEADERSHIP

Leukemia & Lymphoma Society (President, Illinois Chapter; Member, Corporate Leadership Council; numerous other positions) 1984-present
Constitutional Rights Foundation of Chicago (member of the board of directors and member of the executive committee of this organization dedicated to teaching high school students about the United States Constitution)
Purdue Exponent (member of the board of the Exponent Education Endowment, a 501(c)(3) charity, and chairman of the strategic planning committee for this 17,000 daily newspaper serving Purdue and Greater Lafayette, Indiana)