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Theodore Boutrous, Jr., of Gibson, Dunn & Crutcher
Ted Boutrous had to wait more than a year, but he’s finally going to get another shot at reversing the largest class certification in history. Last Friday the Ninth Circuit Court of Appeals agreed to reconsider en banc whether to uphold a class that covers 1.6 million women in the sex discrimination case Dukes v. Wal-Mart Stores.
Boutrous, the appellate ace at Gibson, Dunn & Crutcher, has been trying to reverse the class certification order since 2004, shortly after it was issued by San Francisco federal district court judge Martin Jenkins. He came up empty in his first appeal before the Ninth Circuit, in 2005. But Boutrous kept at it and filed a petition for rehearing en banc in January 2008.
Boutrous told us Thursday that he’s looking forward to the oral argument, which has been set for the week of March 24. “This case presents many issues of wide-spread significance that have been the subject of a number of recent rulings around the country,” Boutrous told us.
Our Litigator of the Week got more good news Wednesday when the Tenth Circuit affirmed the dismissal of a securities class action against his client, The Williams Companies, related to the 2000 spin-off of its telecommunications subsidiary, Williams Communications Group. In that case, which Boutrous argued, the plaintiffs argued that Williams and certain of its officers hyped the prospects of WGC, which filed for bankruptcy in 2002. But the appellate panel found that the plaintiffs did not prove loss causation.
Akin Gump Sued by Famed San Diego Hotel Over Canceled Retreat
The Hotel Del Coronado in San Diego has hosted a long list of dignitaries, including 11 U.S. presidents, and royalty from at least ten countries. San Diego’s “beacon of grandeur and refinement,” a seaside resort and a National Historic Landmark, also was scheduled to welcome the partners of Akin Gump Strauss Hauer & Feld in April. But, given tough times, the firm canceled its partner retreat. Now the Del is suing.
The famed hotel filed a breach of contract suit against Akin Gump last week (which we read about on CourthouseNews), claiming it is entitled to $385,950 in liquidated damages for, among other things, “877 sleeping room nights” that were set aside for partners.
The lawsuit further states, “On or about January 30, 2009, the hotel made demand upon Akin Gump for a cancelation fee;” that demand has essentially been ignored. Firm administrators disputed the assertion that they have ignored the hotel and, before learning of the lawsuit this week, said they were under the impression negotiations to settle were ongoing.
“I got on a plane and flew cross-county to start negotiations face-to-face,” says James Leary, Akin Gump’s Washington, D.C.-based executive director. “We are surprised and disappointed it has come to this point. We got no warning they decided to file a lawsuit.”
Akin Gump chose the Del as the site of its 2009 partner retreat a couple years ago. But late last year, as the economy continued to skid, the firm decided it would be unseemly to gather firm partners at a luxury resort in Southern California.
A hotel spokeswoman declined to comment on the matter. John Josefsberg at Rudner Law Offices in Dallas is representing the hotel; he did not return a call and e-mail seeking comment about the lawsuit, which was filed in San Diego superior court on February 11.
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Banco Santander Says Most Clients Agree to Madoff Settlement
An effort by plaintiffs’ lawyers to scuttle Banco Santander’s $1.82 billion offer to clients who lost money in the Madoff scandal is looking more and more desperate. As we reported earlier this month, lawyers from Labaton Sucharow sought a preliminary injunction in Miami federal court to quash the deal, alleging it was “coercive” and that the bank had not told its clients about the existence of a pending class action.
But, according to a Reuters story, a majority of Satander’s clients want to accept the offer. Satander’s lawyer, Sam Danon of Hunton & Wiliams, told Miami federal district court judge Paul Huck that about 70 percent of Santander’s clients who were burned by Madoff had signed compensation agreements with the bank. (The agreement releases all parties from further liability.) “I believe somewhere in the area of 7 or 9 percent have rejected it,” Danon said. The Spanish bank’s clients have lost an estimated $3 billion through funds that the bank entrusted with Madoff.
Reuters reports that lawyers for the bank and the plaintiffs have agreed to send out notices about the class action to the 30 percent of Santader’s clients who didn’t settle. One looming question is whether the plaintiffs, most of them foreign, can bring their claims in the U.S.
“It seems to me there is an issue of whether I have jurisdiction,” Judge Huck said, according to Reuters.
In other Madoff-related news, we got our hands on the transcript of a motion to dismiss New York University’s suit against hedge fund manager J. Ezra Merkin, whose Ariel Fund and Gabriel Capital lost money with Madoff. The defendants’ motion to dismiss was argued Tuesday before New York Supreme Court justice Richard Lowe. Beth Kaswan of Scott+Scott argued for NYU; Andrew Levander of Dechert argued for Merkin and Gabriel; and Howard Schiffman of Schulte Roth & Zabel argued for Ariel. Here’s the Reuters story.
Microsoft Loses Ruling on Visual Studio Software Dispute
For the last few months, Microsoft has been trying to pick a fight with a company called WebXchange, but Tuesday a San Francisco federal district court judge ruled there was nothing to fight about and dismissed the action.
Microsoft was seeking a declaratory judgment that it was not liable for inducement of infringement by customers that used its Visual Studio software, which allows companies to create their own business applications. The reason: In March 2008, WebXchange had sued three companies–Allstate, Dell, and FedEx–that used Visual Studio for infringement of three patents for systems that facilitate real-time transactions on the Internet. Those three companies asked Microsoft to defend and indemnify them in the suits.
In November, Microsoft filed its complaint for a judgment in the Northern District of California. In addition to clearing itself of infringement, it sought to declare unenforceable and invalid the patents at issue. But Judge William Alsup dismissed the action on subject-matter jurisdiction grounds, noting that WebXchange had not made any infringement or inducement claims against Microsoft. Judge Alsup gave Microsoft an opportunity to amend its claims.
WebXchange is represented by Kasowitz, Benson, Torres, & Friedman attorneys Peter Toren, Lawrence Goodwin, Steve Chin and Charlotte Pontillo.
Microsoft is represented by John Vandenberg of Klarquist Sparkman and Michael Bettinger of K&L Gates.
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VitaminWater Maker on a Roll Against Would-Be Imitators
The Litigation Daily knows all about the appeal of VitaminWater. We drink a bottle of the stuff each day. We also know that Glacéau, the makers of VitaminWater, takes its brand seriously. Last September we wrote about a trade dress case Glacéau had brought against a company that wanted to sell shampoos and conditioners in packaging that looked a heckuva lot like VitaminWater’s two-tone labels with lowercase writing (fourth item).
In the March issue of Corporate Counsel, reporter Amy Miller examines Glacéau’s litigation strategy against would-be copycats. It’s worth reading. Glacéau, founded in 1996 and sold to Coca-Cola in 2007 for a staggering $4.1 billion, hasn’t lost a trademark case yet, reports Miller. The company’s success among consumers is due in no small part to VitaminWater’s colorful and entertaining bottles, so protecting the brand is its top priority. “There’s nothing more important to this company than its intellectual property,” Glacéau’s general counsel Joseph DiSalvo tells Miller. “Nothing.”
The job of identifying potential infringers is shared by all employees. DiSalvo tells Miller that every new hire is trained to spot VitaminWater rip-offs. But the company is selective about which targets it sues. DiSalvo, who works on strategy with David Bernstein of Debevoise & Plimpton, tells Miller that many trademark cases are resolved out of court. The cases that it chooses to litigate are “just the tip of the iceberg,” DiSalvo says.