Charles S. Bergen G&E. Education. Admissions. Senior Counsel

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1 Charles S. Bergen Senior Counsel For more than 30 years, Chuck Bergen has represented clients in some of their most complex and financially important cases. As a senior trial lawyer at Grippo & Elden, Chuck has handled business and financial cases across myriad substantive disciplines and helped clients successfully achieve their objectives through litigation, arbitration and mediation, as evidenced, in part, by recognition in the National Law Journal's annual survey of the nation s Top 100 Verdicts. Included within Chuck s practice are complex contract actions, claims involving allegations of fraud and breach of fiduciary duties, insurance coverage litigation, antitrust litigation and intellectual property matters. Although his caseload tends towards representation of defendants, he has won and collected multiple judgments in excess of $50 million. Clients represented include well-known companies such as American Express, Redbox, British Airways, Hanover Direct, Segway, Inc., Fireman s Fund Insurance Company, Republic Tobacco and the National Hockey League Players Association. He has also represented a variety of private equity, financial trading and other nonpublic firms in complex litigation. A member of the Trial Bar of the Northern District of Illinois for over 25 years, Chuck has averaged several weeks in trial each year. He has also briefed dozens of appeals and regularly argued them in a variety of federal and state courts, including the Sixth and Seventh Circuits and the Education Harvard Law School, J.D., 1981 Recipient of Harvard Graduate National Scholarship and Rotary Foundation Fellowship Harvard College, A.B., 1977 John Harvard Scholar Admissions State of Washington (1981) State of Illinois (1984) United States Supreme Court (2003) Northern District of Illinois, Trial Bar (1985) United States Courts of Appeals for the Third, Sixth, Seventh, and Ninth Circuits Western District of Washington Eastern District of Michigan

2 state courts of California, Texas, Michigan and Illinois. Over the past 10 years, Chuck has been selected by peers as a Member of the Leading Lawyer s Network, an Illinois SuperLawyer, a Fellow of the Litigation Counsel of America, and as one of Chicago's Best Lawyers. Experience Examples of Chuck's work include the following matters: As lead counsel for DVD-kiosk-rental pioneer Redbox, filed actions against three major studios, Universal/NBC, Twentieth Century Fox and Warner Brothers under the Sherman Act, the Copyright Act and state common law, seeking to assure Redbox a steady supply of new-release DVDs to rent to consumers in the face of industry action to bar sales to Redbox by downstream distributors and retailers. A motion to dismiss was denied and, as discovery began, negotiations successfully resolved all three actions. See Redbox Automated Retail LLC v. Universal City Studios LLLP, et al., No (RBK) (D. Del. Aug. 17, 2009). Served as lead counsel in a case awarding our client the largest general damages verdict ever recorded in Illinois on a defamation claim. Republic Tobacco, L.P. v. North Atlantic Trading Co., Inc., 254 F. Supp. 985 (N.D. Ill.), aff d 381 F.3d 717 (7th Cir.) (but reducing damages award to equal the prior record amount). After a competitor alleged that the client had market share of over 80 percent in an alleged Southeastern U.S. market, and that the client s marketing incentive programs violated the antitrust laws, we obtained summary judgment on the antitrust claims for the client, establishing before trial that the relevant geographic market was national in scope. The competitor had also told our client s wholesale customers that participation in our client s marketing programs could expose them to Honors & Awards Selected by peers as a Member of the Leading Lawyer s Network Selected by peers as an Illinois Super Lawyer Selected by peers as a Fellow of the Litigation Counsel of America Selected for Best Lawyers in U.S. News & World Report

3 potential antitrust liability. We countersued for defamation on behalf of our client and, after prevailing on the antitrust claims, won a verdict of $18.6 million. As lead counsel for American Express, won the first reported cases dealing with privacy rights in the context of electronic databases. Three class actions against the Company arose from alleged violations of Cardmembers privacy through the use of electronically stored cardholder-purchasing information to create profiles of its customers. American Express prevailed in each of the three class actions filed against it. The first case decided on the merits, Dwyer v. American Express, 273 Ill. App. 3d 742 (1st Dist.), has been described as the leading case in the database-privacy field. Two other class actions filed against American Express in Texas and New Jersey were later dismissed on procedural grounds. Served as trial counsel to Fireman s Fund Insurance Co. in one of the first injury-in-fact insurance coverage cases to go to trial. The suit, brought by Dow Chemical against its primary insurer, sought coverage for damages caused by a Dow building product called Sarabond (with claimed damages in excess of $500 million). At trial, the parties selected 20 sample buildings and the court considered technical facts and expert testimony related to the sample to determine how and when damage occurred. The trial court then fashioned a formula for determining generally when damage occurred (and thus which policy, if any, would provide coverage) for the remaining buildings at issue. Applying this formula, only two of more than 120 buildings were found to have suffered damage during Fireman s Fund s coverage period. Moreover, Fireman s Fund won a judgment on its counterclaim, ordering Dow to repay tens of millions of dollars Fireman s Fund had spent defending the underlying cases, plus

4 interest. See Dow Chemical v. Associated Indemnity Corp., 1991 WL (E.D. Mich.). Represented as lead counsel Chicago-based private trading group in a breach of contract action against AXA/Equitable, seeking damages for defendant s breach of multiyear contracts that guaranteed our clients unlimited trading. After hard-fought discovery, in which sanctions were imposed on our opponents five separate times for various discovery and protective order violations, we prevailed, won summary judgment on liability and resolved the matter favorably at mediation prior to the damages trial. See Emerald Investments L.P. v. The Equitable Life Assurance Soc., 2005 WL (N.D. Ill. Dec. 19, 2005). Acted as lead counsel in three purported class actions, one in California, one in New Jersey and one in Oklahoma, challenging our client s subsidiaries practice of charging a fee for insurance as part of their mail-order product delivery practices. We successfully defended our clients, charged with fraud and/or unfair or deceptive trade practices, in all three cases, including one which went to trial, one decided on appeal of a class certification order and one resolved on motion in the trial court. See Wilson v. Brawn of California, Inc., 132 Cal. App. 4th 549 (Cal. Ct. App. 2005) (decided on the merits); Martin v. Hanover Direct, Inc., No. IN (Okla. Ct. App. 2005) (reversing trial court s certification of class); Morris v. Hanover Direct, Inc., No (Bergen Cnty., N.J. Feb. 14, 2005) (denial of class certification). Represents a number of private equity funds in litigation and arbitration of post-closing disputes, generally involving allegations of fraud, misrepresentation, breach of warranties and breach of fiduciary duties, as well as commercial litigation for portfolio companies. Also served as trial counsel for privately held trading groups in litigation and

5 arbitration arising from breaches of trading agreements and allegedly mishandled orders. Acting as lead counsel, successfully obtained multiple temporary restraining orders and preliminary injunctions protecting our clients from rip-off artists and counterfeiters in trademark protection actions relating to such diverse areas as paper products, professional sports, lighting products, tobacco and tobacco-related products. Successfully defended an action filed against the NHL Players Association in a California court stemming from the NHLPA s trading card licensing program. CQL Original Products v. National Hockey League Players Ass n, 39 Cal. App. 4th 1347 (Cal. Ct. App. 1995). On behalf of the Chicago Wolves professional hockey team in Rosemont Hockey Partners, L.P. v. Benoit and World Wrestling Enterprises, No. 04 C 0966 (N.D. Ill.), literally sued the pants off a former professional WWE wrestler who misappropriated a trademarked image belonging to the Wolves.