Law Office Management

Mar. 2, 2012

2012 California Lawyer Attorneys of the Year

We recognize 55 lawyers throughout the Golden State for 25 extraordinary achievements in 2011.

With this year's CLAY Awards, we recognize lawyers throughout the state whose legal work made a significant impact in 2011. They include state and county prosecutors, sole practitioners, and lawyers from large international firms. The awards identify 25 accomplishments in 19 areas of legal practice, ranging from criminal law and intellectual property to personal injury, and appellate work at the California Supreme Court, the Ninth Circuit, and the U.S. Supreme Court. These victories reflect the breadth and depth of the work performed by California lawyers. Congratulations to all the winners.

Appellate Law

Theodore J. Boutrous Jr.
Gibson, Dunn & Crutcher
Los Angeles

The moment oral argument ended last March in Wal-Mart Stores, Inc. v. Dukes, it was clear that Boutrous was going to win big at the U.S. Supreme Court. The only question was how many votes he would get. The justices ruled unanimously in favor of his client, Wal-Mart, to deny class certification to 1.5 million women employees who said they were discriminated against in the workplace. The June decision reversed the Ninth U.S. Circuit Court of Appeals, which held in 2010 that the claims for back pay could proceed (Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)).

Although the Court's vote was unanimous, Justice Antonin Scalia's majority opinion - which four other justices joined - went further, making clear that in the future plaintiffs attorneys will have a harder time certifying huge class actions against big companies. Scalia stressed the need for "commonality" of claims. In other words, the bigger the company and the more its authority is decentralized around the country, the harder it will become to certify a nationwide class action.

"Because respondents provide no convincing proof of a company-wide discriminatory pay and promotion policy," Scalia wrote, "we have concluded that they have not established the existence of any common question." The minority opinion, written by Justice Ruth Bader Ginsburg, stated that the plaintiffs should have had the opportunity on remand to show that common questions of fact predominated under Rule 23(b)(3). The ruling's ramifications have already been felt in other cases, with big companies having an easier time defeating class certification. They have Boutrous to thank.

Appellate Law

Martin N. Buchanan
Law Offices of Martin N. Buchanan
San Diego

Sole practitioner Buchanan won a unanimous U.S. Supreme Court decision holding that a seat-belt defect claim under state common law was not preempted by federal motor vehicle safety regulations (Williamson v. Mazda Motor of America, Inc., 131 S. Ct. 1131 (2011)). The case was brought by the family of a woman who died after an auto accident from abdominal injuries caused by a lap-only belt installed in an aisle seat of a Mazda minivan.

Mazda asserted in a demurrer that the state-law claims were preempted by a National Highway Traffic Safety Administration (NHTSA) standard (since revised) that had given manufacturers a choice of installing either a simple lap belt or a lap-and-shoulder belt on any aisle seats in a van. The trial court sustained the demurrer, and the court of appeal affirmed the judgment in 2008.

When the California Supreme Court denied review, Buchanan filed a petition for certiorari with the U.S. Supreme Court. But with no conflicts among the federal circuits on the preemption issue, he chose to argue that the lower courts had simply misinterpreted a section of the 1966 National Highway Safety Act that explicitly preserves state common law actions.

In 2009 the U.S. Supreme Court issued a "call for views of the solicitor general." Buchanan and trial counsel David R. Lira of Girardi & Keese in Los Angeles then presented their case at a meeting with representatives of the Department of Justice, the Department of Transportation, and the NHTSA. Subsequently, the federal agencies submitted a joint brief urging the Court to grant review and to find for the petitioners on the merits.

With assistance from Allison M. Zieve of the Public Citizen Litigation Group in Washington, D.C., Buchanan organized briefs from the petitioners' amici, including the attorneys general of 23 states and the District of Columbia. He also answered briefs from the respondent's amici, which included the National Association of Manufacturers and the U.S. Chamber of Commerce. The November 2010 oral argument was Buchanan's first appearance before the Court.

Justice Stephen Breyer wrote the February 2011 majority opinion holding that the NHTSA regulation does not preempt a state tort action. Justices Sonia Sotomayor and Clarence Thomas wrote concurring opinions. Williamson, the only unanimous preemption case of the Court's entire 2010 term, has been remanded for trial later this year.

Consumer Rights

Gene J. Stonebarger
Stonebarger Law
Folsom

In a case that reverberated through checkout lines from San Diego to Crescent City, Stonebarger scored a major victory when the state Supreme Court ruled unanimously that retailers violate a state consumer protection statute when they record a customer's zip code at the cash register. The practice had been utilized by retailer Williams Sonoma, which also used customized computer software to perform "reverse searches" that ultimately revealed the customer's home address - information that the company maintained in its database for later use in targeted advertising (Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524 (2011)). The information unearthed through the collection of zip code data was also potentially available to other retailers.

Stonebarger persuaded the justices to reverse two lower court opinions. The court specifically noted that "the Legislature intended to provide robust consumer protections by prohibiting retailers from soliciting and recording information about the cardholder that is unnecessary to the credit card transaction."

Overall, consumers have filed more than 150 related class actions in trial courts around the state in the wake of the Pineda ruling. The decision itself was controversial in the commercial community and sparked immediate calls for a legislative solution to enable certain retailers to gather data to help prevent credit card fraud. Lawmakers responded quickly. In October, the governor signed into law AB 1219, which creates an exception to the Pineda ruling so that gas stations can collect zip code data from card users at the pump. Stonebarger's victory serves as an important reminder that even in this digital age, personal information belongs to the consumer, not the retailer.

Criminal Law


Deborah Brazil Los Angeles County District Attorney's Office	David B. Walgren Los Angeles County District Attorney's Office

In the pressure cooker of a trial under TV lights and with a mob of music fans outside the courthouse, Brazil and Walgren scored a major prosecution victory in one of the most closely watched criminal cases of the year. The jury's conviction of Dr. Conrad Murray of involuntary manslaughter in the drug death of the "King of Pop," Michael Jackson, came after 49 witnesses and 23 days of trial spread over six weeks. More than 2,200 reporters from around the world obtained credentials to cover the proceedings - more than for the O. J. Simpson and Scott Peterson murder trials, combined.

The scientific challenges of the trial required the prosecutors to become experts in anesthesiology and the proper use of the drug propofol, which was found at high levels in Jackson's system after his death. Propofol is commonly used during surgery, but Murray administered it as an at-home sedative for Jackson.

During the trial, Walgren questioned most of the prosecution's 33 witnesses. He also handled both the opening statement and closing argument.

Though both Brazil and Walgren have significant experience with homicide cases, a death from propofol toxicity was unknown to them and to the coroner's office. Lead trial lawyer Walgren focused on the science, presenting a clear picture to jurors that Murray had been infusing Jackson with propofol nightly for weeks to help him sleep, even though the doctor was not well trained in its use and failed to monitor Jackson once the drug was administered. Brazil presented witnesses at trial and helped to devise the county's legal strategy.

Criminal Law


Jan L. Handzlik Venable Los Angeles	Janet Levine Crowell & Moring Los Angeles

Handzlik and Levine so relentlessly raised questions about the prosecution's conduct of the Foreign Corrupt Practices Act case against their clients that when the judge finally overturned the verdict in December, he chastised himself for not spotting the problems sooner.

Electrical transmission products maker Lindsey Manufacturing - along with company president Keith E. Lindsey and vice president and CFO Steven Lee - was accused of paying bribes to Mexican officials of a state-owned utility, allegedly to increase Lindsey's business with the utility. Handzlik, then an attorney for Greenberg Traurig, represented Lindsey and the company, while Levine represented Lee.

The two lawyers won a stunning reversal for their clients in what had been the first trial and conviction of a corporation in an FCPA case. The defendants were originally convicted in a five-week trial in Los Angeles of conspiracy to violate the FCPA.

But the attorneys didn't give up and filed a motion to dismiss the indictment and vacate the conviction. Ultimately, District Court Judge Howard Matz found a pattern of serious prosecutorial misconduct in the case, including numerous Brady violations. He determined that one FBI agent inserted false information into affidavits supporting a search warrant for the company and fabricated her testimony to a grand jury on material points; the defense was given only redacted transcripts of that testimony. In addition, Matz found that prosecutors asked witnesses questions that violated court orders and made misrepresentations to the court.

Matz acknowledged in his order that he had been overwhelmed by the pace of the case and thus unable to see the gravity of the Justice Department's misconduct earlier. With the time and effort devoted to a fast-moving case and its numerous rulings, a judge may "miss the proverbial forest for the trees. That is what occurred here," Matz wrote.

The defense lawyers' tenacity paid off. The court agreed with 8 of their 15 specific allegations of misconduct by the trio of prosecutors, threw out Lee's and Lindsey's convictions before sentencing, and dismissed the indictment with prejudice (U.S. v. Noriega, No. 10-CR-1031 (C.D. Cal. order granting dismissal Dec. 1, 2011)).

Education Law

Todd A. Goluba
Atkinson, Andelson, Loya, Ruud & Romo
Pleasanton

Serving as chief labor negotiator, Goluba helped forge a groundbreaking agreement between the Lucia Mar Unified School District and its teachers' union to implement a new system using student achievement gains to help determine year-end teaching bonuses.

The agreement, finalized in February 2011, is the first of its kind in California. It is funded by a $7.2 million federal grant from the Teacher Incentive Fund that supports innovative plans to improve teacher quality and student achievement at seven of the schools in the district with the greatest needs.

Jim Hogeboom, the district's superintendent, championed the comprehensive plan, which contains measures designed to improve training, conditions, and careers for teachers. They include mandatory annual teacher evaluations based on at least four observations by a team of educators and administrators, new career pathways through the addition of master teaching slots, increased compensation, weekly meetings with a mentor, and bonuses for transferring to or staying at a participating school.

The grant's mandate of tying pay bonuses to high evaluations and student test scores was the most controversial component. Usually teachers strongly resist such a requirement, most objecting that it unfairly ties their compensation to factors unrelated to their teaching skills, such as students' aptitudes and home environments.

"Todd was able to reach an unprecedented agreement on cutting-edge issues [that] has become a hallmark for local school districts throughout the state," says Keith Bray, general counsel for the California School Boards Association. "It's a testament to the willingness of both parties to tread new ground - but especially, of his skills as a negotiator."

And the deal was reached with surprising efficiency: during six meetings held over less than three months. "We couldn't have done it without Todd," says Michelle Ellis, the district's assistant superintendent of human resources. "His ability to work through difficult situations while being down to earth helped establish a good rapport with both sides of the table. It was like having a great teacher and coach who has a passion and connection to the people and situation in the room there with us."

Employee Benefits


Joseph A. Creitz Law Offices of Joseph A. Creitz San Francisco	Joseph Garofolo Garofolo Law Group San Francisco

The Employee Retirement Income Security Act of 1974, commonly known as ERISA, contains restrictions on when litigation can be filed to secure benefits, as well as on who can be sued and how much can be recovered. One uncertainty that lingered for years was the issue of whether an ERISA plaintiff seeking benefits can name the plan's insurer as a defendant, or whether the claimant is limited to suing only the plan sponsor and administrator. Creitz and Garofolo won a ruling that reverses 27 years of Ninth Circuit precedent, establishing the right of ERISA plan beneficiaries to name the plan's insurer as a defendant in benefits litigation. Both lawyers argued plaintiff Laura Cyr's appeal before a three-judge panel, but when the case was later reassigned to the en banc court, Garofolo was responsible for oral argument.

The decision gives Cyr a more direct route to securing benefits (Cyr v. Reliance Standard Life Ins. Co., 642 F.3d 1202 (9th Cir. 2011)), and ERISA litigation will be more straightforward for other claimants who have been wrongfully denied their due.

The case drew strong support from Washington, D.C., as the Solicitor of Labor submitted an amicus brief asserting that to grant effective relief to ERISA beneficiaries, the party responsible for deciding and paying claims must be a party before the court.

After the ruling, Secretary of Labor Hilda L. Solis said in a statement that she was gratified by the court's decision, which she said "is in keeping with the language of the statute and with common sense."

Entertainment Law


Tamerlin J. Godley Munger Tolles & Olson Los Angeles	John W. Spiegel Munger Tolles & Olson Los Angeles

In response to actor Charlie Sheen's bizarre antics, attorneys for Warner Bros. moved quickly in early 2011 to shut down the studio's very public dispute with him by exercising the arbitration provisions in his contract. He was fired from TV's top-rated sitcom, Two and a Half Men, after missing rehearsals, amid charges that substance-abuse problems were affecting his work.

In the entertainment industry, few legal issues are of more importance than whether a contract creates a duty for the parties to arbitrate in private rather than litigate in public. No Hollywood studio wants its dirty laundry aired on Twitter, or to have prying eyes pour over its contracts and financial data. And no studio wants disputes to go before juries, which often side with celebrities - even the kooky ones.

So when Sheen sued Warner Bros. in federal court last March for $100 million, alleging he was improperly terminated, the studio's defense team - led by Spiegel with Godley as second partner on the case - immediately moved to compel arbitration.

Marty Singer, Sheen's lawyer, responded by attacking the broad arbitration clause as "unconscionable" - a non-negotiable element of Warner Bros. talent contracts that he argued is unreasonable on its face and against public policy.

"According to Mr. Sheen, he makes $2 million for a 22- minute episode of television," Spiegel countered. The idea of courts having to step in to protect Sheen's interests "is frankly absurd," he said. The presiding federal judge ruled the next month that all of Sheen's complaints "clearly and unmistakably [are] required to be referred to an arbitrator."

Sheen and the studio settled their dispute behind closed doors soon thereafter. The actor reportedly received $25 million for his work on episodes already filmed, in addition to part of the syndication rights to nearly 200 past shows.

Environmental Law

Morgan Gilhuly
Barg, Coffin, Lewis & Trapp
San Francisco

In the latest effort at clarifying how to assess liability for environmental contamination, Gilhuly secured a Ninth U.S. Circuit Court of Appeals ruling that limits the exposure of property owners who are not directly involved in the violation. Gilhuly argued the case before the court, with help from a team including firm partners John Barg and Donald Sobelman. The June decision held that Gilhuly's clients, BNSF Railway Company and Union Pacific Railroad Company, were not liable for petroleum contamination that had seeped from an adjoining site onto land in Stockton where they had formerly maintained railroad tracks.

The case featured a complex interplay of statutes: the federal Comprehensive Environmental Response, Compensation, and Liability Act (commonly known as Superfund), the California Polanco Redevelopment Act, and state nuisance law.

The Redevelopment Agency of the City of Stockton, which wanted to develop the entire site, spent almost $2 million on remediation and other costs after the contamination was discovered in 2004. The agency sued the railroads a year later, seeking to recover some of what it had spent. In 2007, U.S. District Judge John A. Mendez of the Eastern District of California found the railroads liable under state law.

But in the appeals court's opinion, Judge Richard C. Tallman made it clear that the railroads could not be held liable merely because they had built a French drain on their property, into which the petroleum had leaked from the adjoining site. "We decline to hold that an otherwise innocent party who builds or installs a conduit or structure for an unrelated purpose which happens to affect the distribution of contamination released by someone else is nonetheless liable," he concluded. The Ninth Circuit further rejected the notion that the railroads could be liable under state nuisance law based on the assumption that they knew or should have known about the contamination. "The law of nuisance evolved to protect a person from his neighbor's activities, not to render him liable for them," Tallman observed (Redev. Agency of Stockton v. BNSF Ry. Co., 643 F.3d 668, 67576 (9th Cir. 2011)).

False Claims


Justin T. Berger Cotchett, Pitre & McCarthy Burlingame	Niall P. McCarthy Cotchett, Pitre & McCarthy Burlingame	Vincent DiCarlo California Attorney General's office Sacramento

Dennis Fenwick (retired, not pictured)
California Attorney General's office
Sacramento

McCarthy, the lead lawyer for a whistleblower along with cocounsel Berger, helped Deputy AG DiCarlo secure the largest False Claims Act recovery in California history: a $241 million settlement from the biggest provider of medical laboratory testing for the state's Medi-Cal program. When the May settlement is combined with those made by other defendants, the whistleblower action brought in nearly $300 million.

Chris Riedel of Hunter Laboratories, a competitor, approached McCarthy in 2005 with accusations that Quest had systematically overcharged the state's Medi-Cal program for more than 15 years. The allegations included claims that the firm gave illegal kickbacks in the form of discounted or free testing to doctors, hospitals, and clinics that would refer Medi-Cal patients and other business to its labs and submitted more than 42 million false claims to California. Deputy AG Fenwick (now retired) began working on the case in 2006, spending more than two years investigating the allegations. Fenwick, McCarthy, and Riedel found that Quest had charged Medi-Cal nearly $9 for the same blood-count test it offered to other customers for less than $1.50.

Although the Attorney General's office typically takes over as lead counsel in whistleblower actions, as the state's lead litigator DiCarlo (brought on in 2008) worked closely with McCarthy and Berger. Rather than merely dropping the whistleblower claims against Quest at the AG's door and sitting back to watch, the private attorneys were actively involved in motions, briefings, and court appearances to show the extent of damages.

DiCarlo says McCarthy and his firm's support of the case were critical. "They were with us every step of the way, working closely, strategizing, and dividing up the work."

Riedel initially complained to McCarthy that his company simply couldn't compete against Quest's low private-payor prices for lab tests.

Family Law


Shawn A. McMillan Law Offices of Shawn A. McMillan San Diego	Sondra S. Sutherland Law Offices of Sondra S. Sutherland Escondido

McMillan and Sutherland's battle to reunite a mother and her daughters finally ended last April when the U.S. Supreme Court let stand the underlying judgment in their favor, with millions in damages. The case alleged that Orange County and its workers violated Seal Beach mother Deanna Fogarty-Hardwick's constitutional right to familial association by bullying her and falsifying evidence that ultimately ended her custody rights to her two daughters, ages 6 and 9 when they were taken from her in 2000.

The action arose from the misconduct of Orange County Child Protective Services worker Marcie Vreeken and her supervisor, Helen Dwojak, in a juvenile dependency proceeding that began when Fogarty-Hardwick's oldest daughter alleged that her father had abused her. Vreeken threatened both girls that they would be "put into a home" if they didn't visit with their father, and she lied that Fogarty-Hardwick had caused them to miss a mandatory visit. Vreeken also withheld evidence from the court about the girls' mental state in an apparent attempt to persuade the court to extend their placement in foster care. Dwojak backed the deceitful behavior. The girls were released from foster care after Fogarty-Hardwick was pressured to relinquish custody to the father; she eventually regained it more than six years later.

Sutherland originally received the case on referral in 2005, and the county refused her initial settlement offer of $500,000. Two years later she approached McMillan to be lead counsel at the jury trial and appeal. Sutherland did opening statements, took depositions, and examined the professional witnesses. The county lost and appealed at every turn - driving up the cost from the original $4.9 million jury verdict and $1.6 million in attorneys fees to a total of $9.65 million, after additional legal fees and accrued interest.

Neither social worker was disciplined. Dwojak retired with full benefits; Vreeken was promoted to a supervisory position. But for lawyers who focus on child protective services cases, the final verdict signals a sea change. "The case has shown that there's a price to pay - both for the social workers and the counties who employ them. They now understand they're at serious risk financially if they do not treat parents and children the way they should," says Oceanside lawyer Donnie R. Cox, who, along with Dennis Atchley, assisted on appeal.

Government


Michael P. Brown Law Offices of Michael P. Brown San Francisco	Ernest Galvan Rosen, Bien & Galvan San Francisco

Brown and Galvan won a watershed ruling at the California Supreme Court that it doesn't take an express contract or a specific vote by elected officials to create a binding commitment for vested public employee benefits (Retired Employees Ass'n of Orange County, Inc. v. County of Orange, 52 Cal. 4th 1171 (2011)). Instead, the court found in November, vested rights can be implied from the circumstances. As a result of their win, thousands of employees around the state can now argue that past practices, and a generation of consistent conduct, create a binding agreement that their former government employers cannot change.

Although the core issue was one of state law, the case began in federal court when retired Orange County employees sued to block cuts to their health plan benefits. The dispute made its way to the Ninth Circuit, which made a referral to the California Supreme Court for a definitive ruling on the state law question. The litigation has returned to a federal trial court to determine whether the underlying facts in Orange County support a vested right claim.

Other employee groups around the state were quick to take notice of the ruling. Jeffrey G. Lewis of Lewis Feinberg Lee Renaker & Jackson in Oakland, who represents nearly 1,400 retirees in Sonoma County, expects the decision to revive his clients' lawsuit over a similar benefits cutback there.

The precedent established by the case is sure to be cited for years to come as the fate of vested benefits for public employees - granted long ago and currently amounting to billions of dollars in potential liability - hangs in the balance.

Human Rights

Conal F. Doyle
Willoughby Doyle
Beverly Hills

In a shocking case that sparked calls for reform and drew an admission of negligence from the Department of Immigration Health Services, Doyle settled a tort claim with the federal government for $1.95 million in April - one year after winning a jury verdict in state court in a parallel case.

In both state and federal lawsuits, Doyle represented the family of Francisco Castaneda, a Salvadoran national who, as a child, entered the United States illegally. Convicted in 2005 of possessing methamphetamine, Castaneda spent four months at the North Kern State Prison in Delano before being transferred to a federal immigration detention center in San Diego. During his incarceration Castaneda complained about a painful lesion on his penis, but despite recommendations by medical staff at both facilities that he receive a biopsy, DIHS's response was simply to increase his weekly allotment of boxer shorts.

Castaneda died of cancer in February 2008, but not before telling his story to a congressional committee and to CBS's 60 Minutes. Doyle won a $1.73 million jury verdict for Castaneda's surviving family in state court. He also tried the case before the district court and argued its appeals on statutory liability issues all the way to U.S. Supreme Court, setting the stage for his settlement talks with the federal government. (See Hui v. Castaneda, 130 S. Ct. 1845 (2010).) Doyle was assisted by Thomas M. Dempsey, a lawyer in Beverly Hills, and by managing attorney Adele Kimmel and fellow Amy Radon at the Public Justice Foundation in Washington, D.C.

"Before this case, not a lot of attention was paid to the medical conditions at immigration detention centers," says Megan McLemore, an attorney with Human Rights Watch. And even though Congress has not yet moved to impose stricter medical standards on these centers, observers note that the facilities' guidelines have been strengthened in recent months and that officials are now far more likely to approve medical tests for detainees.

Intellectual Property


Eric M. Acker Morrison & Foerster San Diego	Sterling A. Brennan Workman Nydegger Irvine	Michael A. Jacobs Morrison & Foerster San Francisco

Defending Novell against a hard-fought seven-year lawsuit, Acker and Jacobs prevailed in August when the Tenth Circuit upheld a 2010 jury verdict securing for their client the copyright ownership of early versions of the Unix computer operating system. At the time, rival SCO had been planning to pursue billions in licensing fees from users of the open-source alternative operating system Linux, which SCO claimed improperly contained some Unix commercial code. SCO's lawsuit sought hundreds of millions from Novell.

In 2008 SCO lost at a bench trial in a Utah federal court and was ordered to pay Novell $2.5 million. SCO appealed, and the Denver-based Tenth Circuit sent the case back for a 2010 trial. Heading into a face-off against SCO's local legal team, including the son of Utah's popular Senator Orrin Hatch, Novell called on its own counsel with local roots, Brennan of Workman Nydegger, a Salt Lake City firm. Brennan had a long-term relationship with Novell when he worked at Morrison & Foerster before leaving for Workman Nydegger's Irvine office. He was tapped to handle the opening and closing of the Salt Lake City jury trial. Jacobs and Acker carried the bulk of the case through discovery and motions, and shared questioning of trial witnesses. They won the jury verdict in March 2010.

On the Tenth Circuit appeal Jacobs and Acker took over the yeoman's work, and last August the verdict was unanimously upheld. "Novell's board of directors adopted a resolution approving the sale [of Unix] which specifically mentioned the copyrights were to be retained by Novell," the judges wrote (The SCO Group, Inc. v. Novell, Inc., 439 Fed. Appx. 688, 697 (10th Cir. 2011)). SCO declined to pursue further appeal.

Intellectual Property

Robert T. Haslam
Covington & Burling
Redwood Shores

Haslam managed to take scandalous accusations against one of China's largest companies and turn them on their head, ultimately forcing technology giant Motorola Solutions Inc. to pay licensing fees to his client, Huawei Technologies.

In 2008 Motorola filed a federal suit in Chicago that accused its wireless network rival Lemko Corp. of conspiring to misappropriate trade secrets. By July 2010 Motorola added its former partner, Huawei, as a defendant, alleging that Huawei conspired to funnel Motorola's trade secrets to Lemko.

Huawei dug in its heels and with Haslam and the help of Stan Young, his Silicon Valley partner at Covington, mounted an aggressive defense. The company produced more than 90 million lines of source code from several products to prove it used no Motorola code.

As the case progressed, Motorola announced plans to sell its wireless networks business to Nokia Siemens Networks for $1.2 billion. This would involve the transfer of some of Huawei's proprietary information to rival Nokia, against Huawei's interest. Huawei countersued in February 2011 and won a preliminary injunction from U.S. District Judge Sharon Coleman Johnson in Chicago blocking Motorola's transfer of the information to Nokia. Haslam pressed his client's fight for its intellectual property rights and showed the legitimacy of its claim to licensing fees.

Last April, Motorola and Huawei reached a confidential joint settlement of both parties' claims; Motorola paid fees to Huawei, paving the way to close its wireless deal with Nokia.

Intellectual Property


Dion Bregman Morgan, Lewis & Bockius Palo Alto	Daniel Johnson Jr. Morgan, Lewis & Bockius Palo Alto/San Francisco	Michael Lyons Morgan, Lewis & Bockius Palo Alto

Bregman, Johnson, and Lyons managed to win one of the five largest patent damage awards in the United States last year, carrying a small technology company to a $140 million victory over telecom giant Verizon. Together with their assembled trial team, they convinced a Virginia jury that Verizon violated ActiveVideo Network's patents related to on-demand video and other interactive television services. Johnson was lead counsel and delivered both the opening statement and closing argument in the three-week trial. Bregman and Lyons handled the electrical patent side of the case, and Johnson and Lyons questioned witnesses, with help from team members Brett Schuman and Nathan McCutcheon.

The San Josebased ActiveVideo develops interactive TV platforms that include video on demand. Six years ago, when Verizon moved to expand its fiber-optic cable system, it reached out to ActiveVideo for help. The company readily shared its technology with Verizon engineers in the hope of attracting an investment. But Verizon went in a different direction, choosing other companies to provide similar services. In August, a jury found that Verizon's FiOS TV system infringed four ActiveVideo patents, though its actions were not willful.

On top of the jurors' $115 million damages award, Judge Raymond A. Jackson added nearly $35 million in supplemental damages. The court also ordered Verizon to cease using ActiveVideo's technology as of May 2012, and to pay the company monthly royalties of $2.74 per subscriber in the interim - even while Verizon pursues an appeal.

Legislation

SB 201

W. Derrick Britt Doty Barlow Britt & Thomas Palo Alto	R. Todd Johnson Jones Day Palo Alto	Susan Mac Cormac Morrison & Foerster San Francisco
AB 361

John Montgomery Montgomery & Hansen LLP Menlo Park	Donald Simon Wendel Rosen Black & Dean Oakland	Jonathan Storper Hanson Bridgett LLP San Francisco

The fiduciary duty that corporations have to maximize profit sometimes comes at the expense of the greater good. But last year California lawmakers passed a pair of bills that make it possible for a corporation to be socially responsible without running afoul of its obligations to shareholders. Senator Mark DeSaulnier (DConcord) and Assemblyman Jared Huffman (DSan Rafael) introduced the two complementary bills, SB 201 and AB 361 respectively, which set new standards for corporate success.

Attorneys Britt, Johnson, and Mac Cormac cochaired the ten-member working group that drafted SB 201, which allows an existing company - by a shareholder vote of two-thirds - to fold social and environmental responsibility into its articles of incorporation (dissenters have rights to compensation).

These new "flexible purpose" corporations must report annually on their objectives and progress. The bill was based on research into new corporate forms by Mac Cormac, who worked more than 500 pro bono hours on the legislation over the course of three years.

For the companion Assembly bill, which is similar in intent, the working group of Montgomery, Simon, and Storper incorporated independent measures of accountability. Companies that file under AB 361 as "benefit corporations" can include special purposes in their bylaws, redefining the fiduciary duties to include the ability to consider environmental or social factors.

To demonstrate to shareholders that these corporations are fulfilling their chosen duties, each also must designate a comprehensive third-party standard to adhere to - such as Ceres's Roadmap to Sustainability or Green Seal's Business Certification. The corporation can choose to evaluate itself or have the third party audit its performance. To date at least 18 companies have filed as benefit corporations, starting with Patagonia. Eleven others have filed to become flexible purpose corporations.

Litigation


Annette L. Hurst Orrick, Herrington & Sutcliffe San Francisco	Jennifer L. Keller Keller Rackauckas Irvine	Thomas S. McConville Orrick, Herrington & Sutcliffe Irvine

Denise M. Mingrone Orrick, Herrington & Sutcliffe Menlo Park	William A. Molinski Orrick, Herrington & Sutcliffe Los Angeles	Allison H. Shalinsky Keller Rackauckas Irvine

The long-running legal battle between MGA Entertainment and Mattel over the popular Bratz dolls finally came to a close last year. In April this team of lawyers first persuaded a federal jury to reject Mattel's copyright infringement and trade secret claims against MGA Entertainment - and then convinced jurors that Mattel was the party that engaged in corporate espionage against MGA, stealing its trade secrets at toy fair meetings.

The litigation began in 2004 when Mattel accused a former employee of creating the Bratz doll line for MGA while he was still working for Mattel. (Skadden, Arps, Slate, Meagher & Flom represented MGA at the time.) In 2008 Mattel won a $100 million copyright infringement judgment and an injunction preventing MGA from selling Bratz products anywhere in the world. On appeal, the Ninth Circuit remanded the case for retrial because of errors committed by the jury and trial judge.

Orrick attorneys Hurst, McConville, Mingrone, and Molinski began their work while the case was on appeal. A core team of about 20 Orrick lawyers helped them handle more than 200 volumes of depositions and put together a massive motion to compel on some 900 document requests. Molinski discovered key Mattel documents and deposed a former Mattel manager who admitted to engaging in corporate spying, which enabled Hurst and McConville to introduce MGA's counterclaim of trade secret violations.

In November 2010 Hurst and McConville won a summary judgment that knocked out many of Mattel's claims. Then, just two weeks before the trial began in January, MGA and its CEO Isaac Larian tapped Keller, a criminal defense attorney from a three-lawyer firm, to join the trial team. Keller handled opening and closing arguments and examined about a third of the more than 60 witnesses; Hurst and McConville examined the rest.

Mingrone provided key back-office support at Orrick. Shalinsky prepared Keller's examination outlines, opening statement, and closing argument. After a nearly four-month trial and eight days of deliberation, the jury rejected Mattel's claim and rendered a sweeping verdict in favor of MGA, including $88 million in damages. Although district court Judge David O. Carter shaved that amount to $85 million, he also doubled it by awarding punitive damages. With legal fees, the total award was nearly $310 million.

Orrick's Warrington Parker in San Francisco and Keller's partner Kay Rackauckas in Irvine also worked on the case.

Personal Injury

Robert F. Tyson Jr.
Tyson & Mendes
La Jolla

Hundreds of millions of dollars were at stake as the California Supreme Court wrestled with how much money a personal injury plaintiff is entitled to recover for medical expenses that stem from an accident. In a precedent-setting case, Tyson successfully argued on behalf of a tort defendant that plaintiffs cannot recover the full amount of a medical provider's bill, but rather can only be reimbursed for the sum actually paid for services and treatment (Howell v. Hamilton Meats & Provisions, Inc., 52 Cal. 4th 541 (2011)).

In many injury cases, medical providers collect much less than they bill, especially when the payout is governed by an insurance policy with contractual billing limits. By a vote of 61 the high court clarified that the collateral source rule means a plaintiff cannot recover from a negligent party special damages that exceed the amount paid for care, regardless of how much was billed.

When the controversial decision was issued, Tyson noted that the ruling should help keep down insurance rates. Any other approach, he maintained, would result in a windfall to accident victims, which is not the purpose of the state's evidentiary rules for calculating damages.

The Howell appeal attracted amicus briefs from more than 20 parties on both sides of the aisle and drew extraordinary attention from the personal injury bar, which branded the decision a setback. The defense bar praised the ruling. "This was a succinct and needed clarification of the collateral source rule," said Dean Petrulakis, a Modesto trial attorney who coauthored one of the amicus briefs on behalf of various insurance-related entities. "It assures [that] accident victims are reimbursed for incurred expenses and not for amounts that were written off by a medical provider." The precedent that resulted from Tyson's advocacy may be the most significant California tort ruling since Li v. Yellow Cab Co. (13 Cal. 3d 804 (1975)) ushered in the era of comparative fault more than 35 years ago.

Pro Bono

Ruth D. Kahn
Steptoe & Johnson
Los Angeles

Patience, persistence, and sensitivity were among the tools Kahn used to help more than 30 Holocaust survivors win reparations from the German government last year.

Kahn embraced the pro bono work as part of the Holocaust Survivors' Project initiated by Bet Tzedek Legal Services in Los Angeles. Her clients, ranging in age from 75 to 92, are among the dwindling number of living survivors who were forced by the Third Reich during World War II to leave their homes and live in cramped ghettoes, where they performed tough manual work for German soldiers and were never compensated for their labor. Kahn's clients now live in Los Angeles County, most of them on fixed incomes, and the money she secured for them has elevated their standards of living and sense of healing.

Although Kahn's usual legal practice focuses on defending toxic tort and product liability cases, this pro bono work made her a quick study in the German laws that provide pensions and payments to Holocaust victims and their survivors. Advocating and securing benefits for her clients required Kahn to coax exacting and emotionally painful details from them about their past locations, the nature of the work they performed during the war, and the history of their persecution. Visiting their homes to spare them the inconvenience of office visits and teasing out evidence over countless cups of tea, Kahn overcame the problem of proof for many of the victims who no longer have their original immigration papers or other documentation needed to qualify for reparations.

"Most people will handle one or two of these cases, but Ruth has done about 35," says Barbara Kagan, public service counsel and pro bono program manager at Steptoe & Johnson. "It's not only the way she embraced this work that's so impressive, it's her commitment to pro bono and willingness to be a mentor for others."

Pro Bono


Laurel G. Kaufer Kaufer Mediation Services Calabasas	Douglas E. Noll Noll Associates Clovis

Kaufer and Noll were the only California lawyers who responded to a prisoner's desperate plea for free help with how to reduce the conflict at Valley State Prison in Chowchilla, reputed to be the most violent maximum security prison for women in the world.

The two longtime mediators accepted the challenge and devised a twelve-week curriculum for their Prison of Peace project to teach communication, mediation, and "peacemaking" skills to lifers and long-term inmates. Next, they persevered through prison bureaucracy to get the project approved. Since training began in 2010, more than 200 inmates have participated.

The program begins with an eight-week peacemaking and communication course. Prisoners who complete that training have the option to take a second four-week course to learn mediation skills. Those who complete the full curriculum and lead three mediation sessions can then be certified as trainers. Last year, Prison of Peace reached a milestone when a cadre of 15 trainer/inmates in turn began training others within the prison, making the project self-sustaining.

Kaufer and Noll return weekly to train and supervise and to monitor results. For Kaufer, that's eight hours of driving each week; the pair estimate that between them they put in the equivalent of a full-time job on the project - all pro bono.

The simple skills they teach - learning to listen, trying not to fight, helping others solve problems - have special resonance for the 3,600 women housed in a facility meant for half that many inmates, and where conflicts, violent arguments, physical fights, and lockdowns are common. Participants report greatly improved relationships with staff and other inmates - and the personal feeling of becoming more open, balanced, and confident.

Pro Bono


Eric H. MacMichael Keker & Van Nest San Francisco	Daniel E. Purcell Keker & Van Nest San Francisco

An excellent memory and the tenacious pursuit of documents helped MacMichael and Purcell exonerate a man who spent 18 years in California state prison, wrongfully convicted of a 1989 double homicide. Caramad Conley's two life-without-parole sentences were thrown out after the dedicated duo showed that San Francisco police had withheld from his trial lawyers evidence that the prosecution's star witness was paid thousands of dollars by police.

Purcell, the lead lawyer on the case, pieced together a compelling story of how police systematically suppressed the evidence that witness Clifford Polk benefited financially, withheld from Conley's original defense team the existence of the payments, and then sat by silently as Polk lied about them during testimony. Purcell, MacMichael, and their Keker legal team - including Zachary Bookman - dedicated 900 hours of pro bono time, spread over five years, to win Conley's release. MacMichael worked closely with Purcell from the beginning and was heavily involved in establishing the factual record and handling witness testimony.

In 2003 Purcell represented another wrongfully convicted man (John Tennison) in a habeas proceeding and unearthed evidence of a paid police informant. It took digging through unmarked boxes, under piles of debris in a police warehouse, to find the undisclosed witness-protection pay records bearing not only on Tennison's case but also on other cases in which homicide officers had paid testifying witnesses.

Years later when the Northern California Innocence Project asked Purcell to take on Conley's case, he remembered that some of the receipts discovered during the Tennison case were for payments made to Polk, the key witness against Conley. He persuaded the court to relax the protective order for Polk enough to allow him access to the pay records that would help Conley.

Purcell was able to show that homicide investigators Napoleon Hendrix and Earl Sanders (who later became police chief) began paying Polk three months before Conley's trial and continued payments throughout the trial and after. The evidence persuaded San Francisco Superior Court Judge Marla Miller to overturn the conviction.

Public Interest

B. Robert Allard
Corsiglia McMahon & Allard
San Jose

Allard has filed a series of lawsuits that are helping crack the long-held code of silence about the pervasive sexual abuse of young athletes by coaches in the sport of swimming. Last October, Allard secured an undisclosed settlement for a 15-year-old girl who was sexually abused by Andrew King, former head coach of the San Jose Aquatics. Earlier, King had been sentenced to 40 years in prison after pleading no contest to 20 charges of child molestation.

Named as a defendant in the civil case was U.S. Swimming, the national governing body and its affiliates that regulate conduct in competitive swimming, from neighborhood pools to the Olympics. Allard amassed evidence that more than 100 of its coaches have abused swimmers, most of them minors, going back at least to 1968. He showed that as the coaches molested, sexually assaulted, raped, and sodomized the young swimmers, U.S. Swimming violated its duty to protect minor athletes by failing to screen the coaches or report incidents of abuse to authorities (Doe v. U.S. Swimming, Inc., Santa Clara Cty. Super. Ct. No. 109CV149813).

Many of the coaches involved enjoyed long and lauded careers; several were inducted into the International Swimming Hall of Fame - despite multiple complaints and even lawsuits alleging sexual molestation, rape, and sodomy.

In the wake of Allard's litigation, more than 75 coaches have been accused or convicted of sexual abuse - and the number continues to grow. Allard is currently involved in several additional cases against U.S. Swimming in California and other jurisdictions, collaborating with Indianapolis attorney Jonathan Little and Kansas City attorney Lynn Johnson.

Allard's advocacy prompted the U.S. Olympic Committee to implement its first-ever guidelines aimed at addressing abuse and molestation by coaches. And his San Jose lawsuit spurred changes: U.S. Swimming now publicly posts lists of coaches whose memberships have been revoked or suspended and has adopted a policy of reporting all sexual misconduct complaints involving a minor to law enforcement.

The lawsuits are not the end game for Allard, however. He is seeking congressional support for comprehensive legislation to clamp down on future abuse in the sport.

Securities


Rick Atwood Jr. Robbins Geller Rudman & Dowd San Diego	Randall J. Baron Robbins Geller Rudman & Dowd San Diego

Through skilled advocacy, Atwood and Baron secured an $89 million settlement for shareholders of Del Monte Corporation. Experts describe the December settlement as among the largest in recent years arising from a shareholder lawsuit. Both attorneys were involved in all key aspects of the litigation, from initiating the case and formulating strategy to taking depositions and negotiating the resolution.

Alleging conflicts of interest by a bank advising Del Monte, shareholders challenged last year's $5.3 billion buyout of the food company by Kohlberg Kravis Roberts, Centerview Partners, and Vestar Capital. The complaint charged that Barclays Capital was advising Del Monte while also financing the buyers - a practice known as "staple financing," where the seller's bank steers the acquisition by lending money to a favored buyer.

Banks advising a company rarely end up as defendants in such cases, and originally Barclays wasn't even named in the suit. However, as Delaware Chancery Court Judge Travis Laster stated in his opinion, Barclays "secretly and selfishly manipulated the sale process to engineer a transaction that would permit Barclays to obtain lucrative buy-side financing fees" and "protected its own interests by withholding information from the Board," which could have resulted in Del Monte retaining a different bank or pursuing another alternative (In re Del Monte Foods Co. Sh. Litig., 25 A. 3d 813, 817 (Del. Ch. 2011)).

Barclays, which admitted no wrongdoing, will contribute $24 million to the settlement while Del Monte pays shareholders $65.7 million. The settlement puts banks and M&A practitioners on notice that courts may not look kindly on staple financing, and the practice could prove to be costly. Atwood and Baron led a team of lawyers grounded in merger- and-acquisition law and ready to take a case through trial.

Transactional Law


Julia Cowles Davis Polk & Wardwell Menlo Park	Daniel G. Kelly Jr. Davis Polk & Wardwell Menlo Park	Keith Flaum Dewey & LeBoeuf East Palo Alto

Jane Ross Dewey & LeBoeuf East Palo Alto	John Savva Sullivan & Cromwell Palo Alto

eBay's acquisition of the publicly traded GSI Commerce Inc. was one of the ten largest transactions led by California lawyers in 2011. In this highly complex $2.4 billion deal, Cowles, Kelly, and a team of Davis Polk & Wardwell lawyers - including New Yorkbased litigation partner Dennis E. Glazer, three associates, and five advising attorneys - represented a special committee of directors from GSI, which provides interactive marketing services. Savva led a team of more than a dozen lawyers to represent founder and CEO Michael Rubin. Advising eBay were Flaum and Ross at the head of an 18-member Dewey & LeBoeuf team. The giant online auction marketplace agreed to pay GSI shareholders $29.25 a share, a 51 percent premium over the Pennsylvania-based company's stock price at the time of closing.

The complicated transaction also involved the divestiture of all of GSI's sports merchandising business, which provides e-commerce services for major U.S. sports leagues, and 70 percent of the Rue La La and ShopRunner online retail sites. Those assets will be sold to a new holding company that Rubin will lead, thanks to $475 million in financing from eBay. The Silicon Valleybased Internet auction site also acquired 30 percent of certain divested GSI assets. Though the deal provoked a number of conflict-of-interest lawsuits from shareholders, most of them have been resolved.

The successful acquisition boosts eBay's distribution capabilities and gives it access to more than 2,000 GSI clients, including the National Football League, Major League Baseball, Nascar, Polo Ralph Lauren, and Toys "R" Us.

#282318

Kari Santos

Daily Journal Staff Writer

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