It is billed as the most important patent case of the decade, and the companies on each side, eBay Inc. and MercExchange, a one-time online auction site, have fought tooth and nail. Both hired top counsel to fight the case, but when they needed to move to the Supreme Court, eBay wasn’t taking any chances.
The question, how easy it should be for a patent holder to win an injunction against an infringer, was too important. Too important, apparently, to leave only to Jeffrey Randall, a veteran litigator now with megafirm Skadden, Arps, Slate, Meagher & Flom.
Instead the online auction giant reached for a familiar high court advocate, Carter Phillips of Sidley Austin, whose argument before the Supreme Court on Wednesday on behalf of eBay will be his 49th.
At MercExchange, Phillips’ hire had a ripple effect. The company shoved aside Hunton & Williams for its Court argument, hiring Seth Waxman, the former Clinton administration solicitor general.
MercExchange’s lawyers got it. “When you get to the Supreme Court it’s a very small club, and you want people who are polished practitioners,” says Scott Robertson, Hunton’s lead partner on the case.
It’s standard operating procedure for clients in high-stakes corporate cases before the Court — snagging a member of that exclusive entity known as the high court bar. The increasing savvy of clients like eBay and MercExchange has helped foster an elite cadre of practitioners who have effectively cornered the market and, in a sense, serve as sort of unofficial gatekeepers to the Court.
#QUOTE#But now, more firms are trying to buy their way into the Supreme Court club.