May 2, 2007
It stands to reason that high-profile cases attract high-profile attorneys—including some who relish the technicalities that make other attorneys' eyes glaze over. We take a look at the six California lawyers who enjoyed star status last year. By Susan E. Davis
This past year's hottest cases put the spotlight on some of the best and brightest in California's legal profession. We take a look at who took care of the Big Ones?shakeups in baseball, scandals in Silicon Valley, and, yes, battles over digital recording technology?and just why they were hired.
The list of high-profile cases that Morrison & Foerster senior partner James Brosnahan has worked on over the years is long: As a U.S. Attorney he prosecuted former defense secretary Caspar Weinberger for his role in the Iran-Contra conspiracy (before Weinberger's executive pardon). As a defense attorney he has represented Michael DeDomenico, in one of the largest single-year tax-evasion cases ever filed in California; Arizona religious groups sheltering Central American refugees; Irish nationalist Kevin Artt, convicted of murdering a prison warden; and John Walker Lindh, the young American who fought for the Taliban in Afghanistan.
Brosnahan's passion and commitment made him a natural to represent Patricia Dunn, the former Hewlett-Packard chair who was recently indicted for her role in an investigation of a board leak to journalists that relied on unethical?if not illegal?methods.
The leaked information concerned HP's long-term business plans. The methods used by the outside investigators to discover the source of the leaks included "pretexting"?investigators impersonated board members, employees, and journalists to get copies of their telephone records. These methods, though perhaps not illegal (as eavesdropping or recording clearly would be) are certainly distasteful. (Then?Attorney General Bill Lockyer, in fact, described the tactics used as both "colossally stupid" and "stupid cubed.") But they are par for the course in some corporate circles and are usually considered very effective.
Dunn, one of four HP execs who faced felony counts in the matter, claims she had been told pretexting was legal. And Brosnahan maintained that the media had greatly overblown Dunn's role in the scandal. "In the United States we tend to have electronic executions of people even before any evidence comes in," he said in February. "In this case, the fact that we had so many excited utterances about Pattie Dunn early on was not accidental."
In mid-March all of the charges against Dunn were dismissed. Brosnahan was exultant. "Her ordeal with the courts is over," he said. "We had been working on convincing the attorney general's office for weeks that the case should be dismissed ... and the judge finally agreed."
Brosnahan himself doesn't pull punches. Known for his support of unpopular causes, Brosnahan on several occasions has been accused of further politicizing his already-political cases. Conservative critics charged, for instance, that he and independent prosecutor Lawrence Walsh indicted Weinberger just days before the 1992 presidential election?and released damaging evidence about just how much George Herbert Walker Bush knew of the arms-for-hostages deal?to swing voter sentiment. And his defense of Lindh (who eventually entered a plea bargain and is serving a 20-year sentence) led the National Review to label Brosnahan the "American Tali-Lawyer." But when it comes to criticism, Brosnahan can give as good as he gets. In late February, after HP board member Tom Perkins publicly alluded to Dunn as the cause of HP's problems, Brosnahan issued a statement calling Perkins both "cowardly" and "a bully."
Brosnahan seems to thrive on just these sorts of confrontations. "I knew I wanted to be a trial lawyer in law school," he says. "And I knew I wanted to work on interesting cases. My very first trial was a first-degree murder case. Since then ... I've been doing what I like."
Cris Arguedas, of Berkeley-based Arguedas, Cassman & Headly, is widely considered one of the finest defense attorneys in the nation, with clients ranging from former Oakland Raider Darrell Russell (who faced sexual assault and rape charges in 2002) to former U.S. attorney general Ed Meese's associate W. Franklyn Chinn (in the Wedtech defense-contracting scandal). Other notable clients have included Nancy Heinen (former Apple general counsel) and Timothy Belden (the chief energy trader for Enron). One of the most famous anecdotes about Arguedas is that during her mock cross-examination of O. J. Simpson, he performed so badly that his attorneys decided to keep him off the stand.
"We're the cavalry," Arguedas says. "When people get into really serious trouble, they come to us because they know their problem will become our top priority." So when Ann Baskins, general counsel for Hewlett-Packard, got drawn into the HP spying scandal, she chose Arguedas to represent her.
Arguedas says she likes complicated cases?and the challenge that when she presents them to the jury, "the cases have to seem simple." But the fact that a particular matter may have become high profile "is not a plus," she says. Nor is the fact that a case may be one of the dozens of white-collar criminal cases flooding the courts these days.
"I think most of these white-collar crimes shouldn't even be criminal cases," she asserts. "A lot of times you've just got U.S. Attorneys who are making a name for themselves or they're trying to apply today's rules to practices that occurred five, six, or seven years ago. It's unbelievably unfair. These people weren't selling drugs or hitting people over the head. They're just doing their jobs, living their lives."
Arguedas represented Baskins before the U.S. House Committee on Energy and Commerce, where Baskins invoked her Fifth Amendment right against self-incrimination when asked about the scandal. In documents filed with the committee, Baskins said that she, too, had been told that pretexting was legal, but that she wished, in hindsight, she had "more actively inquired about the methods being used and taken steps to halt any that were inconsistent with HP's high ethical standards."
Much has been made of litigator John Keker's experience as a Marine platoon leader in Vietnam; he himself emphasizes it when recounting his life story. "What's absolutely necessary in combat is to overcome fear, to act well under pressure, to be alert and focused, to take care of the people who are fighting with you, and to make no mistakes," he told the Yale Law Report last year. "That self control and control of your performance is something that you have to do in a trial."
That war mentality is also just what a client might need if he or she were involved in one of the hottest corporate cases of the past several years?like, say, Enron. Andrew Fastow, the firm's former CFO, retained Keker after it came to light that he had engineered multiple "special purpose entities" to transfer Enron's debt to outside companies, inflating the firm's value on the stock market. His deals earned a lot of money for a lot of people (including himself). But when Enron's financial house of cards collapsed in 2001, it left the firm bankrupt and thousands of employees bereft of jobs (and pension incomes). It also left Fastow facing 98 criminal counts, including conspiracy, fraud, insider trading, and money laundering.
As a litigator, Keker, of San Francisco's Keker & Van Nest, is known as "relentless," "fearless," and "deadly." He has represented a number of high-profile clients in high-profile cases, including Google (against Microsoft), Genentech (in a $300 million patent dispute with Chiron), and Xilinx (in its patent suit against Altera). Earlier in his career he was the chief prosecutor in United States v. Oliver North in the Iran-Contra investigation; his criminal-defense clients have included Wall Street banker Frank Quattrone, attorney Patrick Hallinan, and one-time Black Panther Eldridge Cleaver.
Keker helped arrange a plea bargain for Fastow, in which Fastow received a reduced sentence for helping U.S. Attorneys understand the accounting chicanery that occurred at Enron. And help them he did: Fastow's 1,000 hours of what one U.S. Attorney termed "unflappable, remarkably consistent" testimony helped the government to convict former Enron chief executives Jeffrey K. Skilling and Kenneth L. Lay, as well as recover billions of dollars from Enron's banks.
Keker, who has a reputation for being gruff, does have a softer side. He showed it at Fastow's sentencing hearing, when he told the judge that he had seen Fastow grow "from a man in denial to a man who has faced up to what he has done and became disgusted by it and recoiled and has been trying to fix it ever since, from a man who made excuses to a man who is desperate to make amends, from a man running from his mistakes to a man who is now cataloging them because he thinks it will help bring justice both in the criminal cases and [to] the victims."
The judge ended up reducing Fastow's sentence from ten years to six.
Morgan Chu's notoriously relaxed demeanor with both colleagues and jurors belies a penchant for legal and technical complexities. Genetics may be involved-he has one brother who won a Noble Prize in physics and another who teaches biochemistry and medicine at Stanford. Chu himself managed to talk his way into UCLA?after dropping out of high school?and then went on to earn a BA in political science, a PhD in urban studies, and both a JD and an MSL. Yet attitude also clearly plays a role: Despite years of book learning, Chu still thinks of himself as a student.
"I like complicated cases because I get to sit down with really smart people, have them teach me about what they're doing, and make them answer all my dumb questions," he says modestly. "First I'm learning about phased-ray radar systems, then I'm learning about biotech and some new drug that can kill cancer cells. I'm a hound for the facts."
That sort of interest in complexity made Chu, a partner at Irell & Manella, a natural to represent TiVo in the lawsuit it launched against EchoStar Communications in 2005. TiVo, which pioneered the digital devices that allow television viewers to record one show while watching another (as well as rewind and replay live shows), sued EchoStar because, TiVo claimed, EchoStar's subsidiary, satellite TV provider Dish Network, had used TiVo's "time-warping" software in its own set-top boxes, infringing on the patent.
Chu is also well known for the giant sums he tends to get for his clients (for example, a $1 billion settlement for the plaintiff in Texas Instruments v. Samsung, and a jury verdict of more than $500 million in City of Hope v. Genentec). Yet even with Chu on board, the TiVo case seemed like a long shot to some legal analysts. Many observers assumed that not-yet-profitable TiVo launched the lawsuit solely to get cash flowing?whether through a verdict or through licensing fees to other cable outfits whose customers wanted TiVo-like services. Chu himself likened his small client to a "David against many Goliaths." But within two weeks the trial ended and the Texas jury awarded $73.9 million in damages to TiVo. EchoStar has both countersued and appealed the verdict.
"It has been a little more complicated than most patent cases," Chu concedes, chuckling. "But we're having a good time."
Who do you turn to if you're accused of illegally distributing steroids and laundering money?and you're being connected to major professional athletes such as Barry Bonds, Marion Jones, and Jason Giambi?
Greg Anderson, one of the primary distributors for the Burlingame-based Bay Area Laboratory Cooperative (BALCO), originally retained Tony Serra for his case. Serra crafted a plea bargain in which Anderson pleaded guilty to illegal steroid distribution and money laundering. In October 2005, Anderson headed off to prison for four months, figuring that would be the end of the matter. In April 2006, however, the feds subpoenaed Anderson to testify before a grand jury investigating whether or not Barry Bonds perjured himself when he testified he hadn't taken steroids.
Anderson refused, saying his original plea bargain specified that he wouldn't have to help the government. But with Serra behind bars for willful failure to pay federal taxes, Anderson turned to defense attorney Mark Geragos, who in recent years had defended some of the biggest criminal cases around.
Geragos gladly took on Anderson's case. "I have an affinity for civil contempt cases," he says, "because they bring up such fascinating issues. Most of my criminal clients will do anything to stay out of jail. Civil contemnors believe they're adhering to a principle, and they're willing to be imprisoned for it."
After serving three months for his original criminal conviction in the BALCO steroid case, Anderson was sent to jail at the Federal Correctional Institute in Dublin for refusing to testify before the second grand jury. He was released two weeks later, when the grand jury session ended. But when the government convened a third grand jury and again subpoenaed Anderson as a witness, he refused to go, was found in contempt, and was imprisoned for a third time. Geragos got Anderson released for six weeks through an appeal to the Ninth Circuit. However, Anderson was subsequently sent back to prison for a fourth time. He could stay there for the duration of the third grand ?which could be until February 2008.
Geragos's first major case was defending Susan McDougal, in the Whitewater scandal in 1992 (she was convicted and imprisoned before Geragos represented her; he won acquittals for her in both state and federal court, and then went on to win an end-of-term pardon from President Clinton). From that trial, Geragos's career snowballed into one high-profile case after another: He defended Winona Ryder against shoplifting charges; won a dismissal of the felony kidnapping, arson, and criminal-threats charges against hip-hop star Nathaniel Hale, a.k.a. Nate Dogg; won dismissal of alcohol-related counts against Bill Clinton's brother, Roger Clinton Jr.; led federal class actions against two life insurance companies for not paying out on policies issued to Armenians that had been written before and during the genocide by Turkey during World War I; and simultaneously defended Michael Jackson in the early stages of his molestation charges and Scott Peterson when he was charged with killing his wife and unborn child.
Geragos says he loves being in court. "There's nothing better," he says. "Aside from my children, I have no hobbies." He also says he's become immune to the media frenzy his cases set off, but that he's been pleasantly surprised at the reporting on the BALCO scandal. "I think the reporters have gotten the issues better than they do in most cases," he says. "I think there's an element of 'there but for the grace of God go I.' "
Although relatively new to the glittering world of high-profile cases, Richard Marmaro, head of Skadden, Arps, Slate Meagher & Flom's SEC enforcement and white-collar defense practice on the West Coast, has, during the past 20 years, represented clients in matters relating to insider trading, accounting and disclosure irregularities, stock-option backdating, market manipulation, financial fraud, sexual harassment, and wrongful termination. He's considered bold and aggressive?some even refer to him as brilliant.
But Greg Reyes had never heard of the ace litigator when he was charged in Brocade Communication's stock-option investigation in 2006. When Reyes, who by then was no longer Brocade's CEO, started talking to friends and colleagues about who might represent him,"Richard's name kept coming up," he says.
As an attorney who especially enjoys representing "the underdog" against the government, Marmaro gladly took on Reyes's case. "This is a classic example of the government turning innocent business conduct into securities fraud," he says.
Reyes is under investigation for Brocade's practice, during the dot-com boom, of "backdating options"?or giving employees stock options dated to a day when the stock price was particularly low. This practice, which was common among Silicon Valley firms competing for workers in the late 1990s (and is perfectly legal if reported accurately in the company's financial statements), can make an employee a lot of money when the stock hits a high. But the practice can muddy up profit-and-loss statements unless it's accounted for properly. Reyes and Stephanie Jensen, the company's former VP of human resources, are the first executives to face criminal charges (for securities fraud) in the backdating scandals that are now sweeping Silicon Valley. Both also face civil SEC enforcement actions.
For Marmaro, who worked as an assistant U.S. Attorney for four years in the early 1980s, this is a clear case of the feds overstepping their bounds. "At worst, what happened in Brocade is that technical accounting rules may not have been followed," he says. "Books and records may have been incorrect. The government has turned that into a securities-fraud allegation."
In an unusual move, Marmaro filed a summary judgment motion in the case, saying that all charges should be dropped because no one benefitted from the backdating practice. "Ninety-five percent of the options at Brocade were never exercised," he says. "This whole mess is about a hypothetical accounting statement."
That's a bold argument, and one that may or may not sway U.S. District Judge Charles Breyer. But in the past, Marmaro has succeeded using just that legal strategy. In the past five years, federal judges have dismissed on summary judgment?a highly unusual result?lawsuits brought by the SEC against two of his clients (first, former Fidelity National Financial director J. Thomas Talbot and then former Gateway CEO Jeffrey Weitzen). "I tried to convince the government not to file," Marmaro says, "but they didn't listen."
Reyes, who confesses to having been "extremely disoriented by the Kafkaesque nature of the internal investigations," calls Marmaro the "one blessing in this entire nightmare. He's brilliant, he's principled, he's tireless, he's aggressive, and he believes in me. I sleep well at night knowing that Richard is representing me."
Contributing writer Susan E. Davis is a freelance journalist based in the Bay Area. Her last article, "Business Travel Nightmares," appeared in the March issue.