Former Callaway General Counsel Takes Another Swing at Law Firm Life

Sara Randazzo

The Am Law Daily

06-12-2012

After 19 years at Gibson, Dunn & Crutcher, Steven McCracken left private practice in 1994 to take on the challenge of working in-house for client Callaway Golf, then a relatively new San Diego–based company breaking into the golf equipment market.

Eighteen years later, McCracken is making a reverse commute. He left Callaway on May 15 and two weeks later took an of counsel position with Fish & Richardson, the firm his former employer relied on throughout the years-long patent dispute with rival Acushnet that came to be known as the "golf ball wars."

The litigation—which centered on the claim that Acushnet's Titleist Pro V1 infringed Callaway design patents that helped make the latter's balls travel further without sacrificing control—settled earlier this year before going to a third trial. Though the settlement's terms are confidential—and though, as The Am Law Daily reported at the time, the last court decision in the case was a major win for Acushnet—McCracken says the final outcome was "very much a success" for Callaway. He pointed specifically to a 2007 jury verdict in Callaway's favor and the subsequent injunction barring Titleist balls from being sold anywhere in the world for a year as high points. (The injunction was later reversed.)

Fish & Richardson partner Frank Sherkenbach, who, along with Fish partner Roger Denning, worked closely with McCracken over the years, says the Acushnet litigation—which included several suits beyond the initial complaint—didn't end the way either company envisioned. "It was maybe not as great a financial success as we thought it might be," he says, "but that’s hardly surprisingly in litigation."

The mixed outcome notwithstanding, the relationship McCracken formed with Sherkenbach and Denning along the way helped lead him to his new job, he and his new colleagues say.

During his first law firm stint, McCracken was a trial lawyer focused primarily on antitrust, trade secrets, and patent cases. Working with Callaway as outside counsel, he helped the company establish an anticounterfeiting program and build and enforce its intellectual property portfolio. After moving in-house, his work expanded to include corporate and transactional assignments and learning to think about IP's significance beyond the courtroom.

Sherkenbach says McCracken's prior experience at Gibson Dunn made him an ideal general counsel to work with: "He could provide useful input, but he never said 'Do it my way,' even though he had done it his way for a number of years in his own right."

At Fish, McCracken expects to play more of a counseling role than he did at Gibson Dunn. "I don’t see myself as the lead trial lawyer anymore," he says. "I’ve been out of that game a long time. To think I would get back up to speed with [the trial lawyers at Fish] quickly would be dreaming." (Asked whether he considered returning to Gibson Dunn, from which his wife retired as a partner and where his son works as an associate, McCracken said the "short answer" was that "they do not have a San Diego office.")

McCracken, 61, resigned from Callaway, which brought in $887 million in revenues last year at a time when the golf gear maker is undergoing an internal restructuring. Callaway has struggled to regain profitability in the wake of the recession, according to SEC filings, and last year the company's CEO and two of its senior vice presidents resigned. A search for a new permanent CEO led to Oliver "Chip" Brewer III, who took over the job on March 5.

Callaway promoted from within to replace McCracken as GC, tapping Brian Lynch to head the company's six-attorney legal department. A press representative for Callaway did not immediately return a request for comment Friday.

McCracken says the restructuring did not figure into his decision to leave the company, nor did financial consideration (he earned more than $965,000 in salary and benefits last year, according to SEC filings). More important, he says, was the opportunity to move into what he described as a third phase in his career. Part of the genesis for the change, he says, came from Callaway's founder, Ely Reeves Callaway Jr., who himself had five or six totally separate careers in industries as diverse as wine, textiles, and, of course, golf.

"I would say he both mentored and inspired me to try to do new things periodically," McCracken says. "To stay young and challenge yourself."

McCracken says his position at Fish is intended to be part-time, and that he is also working as a business consultant to Top Golf, a chain of sports entertainment centers. Still, he says, "If you know me, part-time means 40 hours a week." That said, he might find some time to work on his own golf game.

"I actually play on the weekends," he says. "I just don't play it very well."

This article originally appeared in The AmLaw Daily.