Cases of Note

Oracle Corporation v. Google Inc.

Keker & Van Nest represented Google in a high-stakes patent and copyright infringement trial brought by the Oracle Corporation, billed as the "smartphone trial of the century." The case was a battle between two of Silicon Valley’s most respected and powerful companies in which Oracle initially sought nearly $6 billion in damages and an injunction forcing Google to change the way it used and distributed the popular Android operating system, which powers more than 300 million smartphones and tablet computers. However, prior to trial, we were able to significantly narrow the scope of the case and potential damages claims, by having five of the seven patents Oracle asserted against Google ruled invalid by the U.S. Patent and Trademark Office. A sixth was ruled invalid on a preliminary basis.

Filed in U.S. District Court in San Francisco, Oracle alleged that the Android technology Google developed for smartphones and tablets infringed Oracle's Java API patents. Oracle bought the Java programming language through its acquisition of Sun Microsystems in January 2010. On behalf of Google, we argued that unlike complete programs, the APIs are simply building blocks that are comparable to letters or words in a language, and therefore aren't covered under U.S. copyright law because they aren't a form of creative expression. If Oracle had prevailed, it could have created havoc in the software industry by throwing up legal hurdles to the common use of APIs.

Following repeated rounds of motions and briefing, the judge dismissed the bulk of Oracle’s copyright claims, and at trial the jury rendered a unanimous verdict rejecting all claims of patent infringement. Although the jury decided that Google infringed an Oracle copyright on nine out of millions of lines of source code, the case is considered a sweeping victory for Google, with zero damages. 

State of New York v. Intel Corp.

We were lead trial counsel for Intel Corp. in a high-profile antitrust case. The New York Attorney General claimed Intel violated federal and state antitrust statutes by maintaining an illegal monopoly in the microprocessor market since at least 2001. New York sought damages for every computer purchased by New York consumers, as well as computers purchased by state agencies, totaling hundreds of millions of dollars. KVN came in as lead trial counsel in March of 2011. We won several key motions in late 2011 that "effectively eviscerated the State's damages claims." New York settled shortly thereafter with a payment by Intel of only $6.5 million in partial repayment of some of New York's costs. As part of the settlement, Intel did not admit to any violations of the law or change how it conducts business. "We have always said that Intel's business practices are lawful, pro-competitive and beneficial to consumers, and we are pleased this matter has been resolved," said Doug Melamed, senior vice president and general counsel at Intel.

Company Founders v. Majority Shareholder..... ....

We defended the founders of an environmental startup company with the ambitious goal of creating biofuels from algae, in a breach of fiduciary lawsuit in San Mateo Superior Court. Soon after investing, the company’s majority shareholder lost interest, abandoned his position on the company’s board, and set about trying to get investment back. He used a “blocking right” to thwart future fundraising in an effort to force the company to either liquidate or be pushed into bankruptcy, so he could secure a generous buy-out. When that failed, the majority shareholder filed a derivative lawsuit accusing the founders of breaching their fiduciary duties. We successfully moved to dismiss those claims with prejudice, and moved forward with our counterclaims alleging breach of fiduciary duty, fraudulent concealment, promissory fraud, and breach of the covenant of good faith and fair dealing. High profile experts weighed in on the fiduciary duties of majority shareholders, including a former Delaware Supreme Court justice and the author of a leading treatise on oppression of minority shareholders. The case settled shortly before trial with a substantial payment to the founders. 

Securities and Exchange Commission v. Brian Stoker

We defended former Citigroup executive Brian Stoker in one of the rare financial crisis cases to go to trial. Mr. Stoker, who worked on the structuring desk at Citigroup, was charged with securities fraud in connection with Citigroup’s 2007 marketing of a $1 billion collateralized debt obligation (CDO) backed by assets tied to the housing market. In its enforcement action the SEC contended that Citigroup had played a role in the selection of the CDO’s underlying mortgage securities and had taken a short position in those securities. The SEC contended that Mr. Stoker was negligent for not disclosing information about Citigroup’s actions in its marketing materials. After a two-week jury trial in the Southern District of New York with Judge Rakoff presiding, the federal jury rejected the SEC’s case and found Mr. Stoker not liable on any of the SEC’s claims. 

VS Technologies LLC v. Twitter Inc. 

By winning a defense verdict in this federal jury trial, we protected Twitter Inc. from a patent infringement suit and a $40 million damages claim. Virginia-based VS Technologies had obtained a patent on creating “an interactive virtual community of famous people,” and sued Twitter over its virtual community technology. Twitter refused to settle – even after a jury in the same courthouse awarded over $100 million in an unrelated patent case -- and it hired Keker & Van Nest to handle its first trial. With an accelerated schedule of just over five months between the initial case management conference and the trial, we zeroed in on the key arguments and evidence, and on driving down the potential damages. We moved to strike the plaintiff’s damages report, which the Court denied, then moved in limine to exclude certain elements of the damages analysis, which the Court denied without prejudice. Despite the rulings, we made our point. Before the plaintiff’s damages expert testified, the Court allowed us to voir dire him, and then made decisions that effectively limited the potential damages to $8 million – just days after the plaintiff’s counsel told the local press that damages would exceed $40 million.

In addition to our focus on damages, our team crafted compelling arguments to explain invalidity and non-infringement to the jury, and seriously damaged the plaintiff’s credibility with a powerful opening statement and cross-examination.

After the six-day federal trial, the jury awarded us a sweeping victory on every element of the case. They found that every asserted claim of the patent was invalid on three separate grounds, and that Twitter didn’t infringe the patent.

Department of Justice v. Major League Baseball Players Association

We scored a sweeping victory for the Major League Baseball Players Association in its high-profile battle with the U.S. government. During a federal investigation of Bay Area Lab Cooperative for suspected steroid distribution, federal agents obtained a search warrant for records pertaining to 10 baseball players. When the warrant was executed at a testing facility in Long Beach, however, the government seized and promptly reviewed the drug testing records of hundreds of players in Major League Baseball. Agents also seized urine samples from samples from a facility in Las Vegas.

We successfully convinced three federal judges that the government had violated the players’ Fourth Amendment rights. We then went on to argue the case twice before the U.S. Circuit Court of Appeals for the Ninth Circuit—first before a three-judge panel and then before an 11-judge en banc panel of the court. In 2009, the en banc panel ruled that federal investigators unlawfully seized drug testing records and urine samples of the athletes. In 2010, the court issued a revised opinion, upholding its finding in favor of the ball players. This victory helped lead partner Elliot Peters earn the Recorder's "Attorney of the Year" award.

John J. Tennison v. City and County of San Francisco

Following our representation of John Tennison in his habeas corpus case, where we unearthed exculpatory evidence hidden by the police which proved Mr. Tennison’s innocence - including the taped confession of another man, we pursued Mr. Tennison’s civil rights claim against the City and County of San Francisco and the police and prosecutor responsible for his wrongful conviction. After several years of hard-fought litigation, we settled the civil rights case for $4.6 million. According to the San Francisco Chronicle, it was the largest amount the city has ever paid to a wrongly convicted person.

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