Orrick didn’t just make law in 2013, it made headlines.
From closely watched copyright decisions to the Stockton municipal bankruptcy to a starring role in NPR’s coverage of patent troll litigation, Orrick, Herrington & Sutcliffe did its best work when the world was watching.
“We are building a reputation for successfully handling high-profile matters,” said Orrick litigation chief Stephen Foresta. “Nothing feeds the beast more than good results.”
Orrick’s signature win came before the U.S. Supreme Court in the copyright case Kirtsaeng v. John Wiley & Sons. The high court ruled 6-3 that the “first sale” doctrine, under which the buyer of copyrighted works can resell them, applies to books even when they’re marketed overseas at discounted prices.
Publisher’s Weekly said the decision heralds the demise of territorial rights in an age of global e-commerce, and the Electronic Frontier Foundation called it “a major victory for consumers,” libraries, used bookstores and other lenders and resellers of merchandise.
The high court had just split 4-4 on the same issue two years earlier. Columbia law professor Ronald Mann wrote for Scotusblog that at oral argument, Orrick partner E. Joshua Rosenkranz “managed to directly confront, and apparently defuse, the concerns of several justices who seemed opposed to his position. This well might be the rare case of a victory at oral argument.”
Arguing for the publishers? Just some guy named Theodore Olson.
Clearly, that kind of win­—against such formidable opposition—makes an impression on fellow lawyers. But Orrick also notched victories of the sort that impress clients.In Fox Broadcasting Co. v. DISH Network, Rosenkranz and partner Annette Hurst persuaded the U.S. Court of Appeals for the Ninth Circuit to reject TV networks’ attempt to block DVR technology that lets TV viewers skip commercials. The Washington Post’s Wonk Blog called it a “landmark decision” and “a big deal.”
DISH general counsel Stanton Dodge said the company chose Orrick knowing it was in for an epic battle. The networks introduced a complex preliminary injunction record with no notice and little time to respond, Dodge recalled, but Orrick was already prepared with its own comprehensive record and expert reports. “Orrick then translated the complex record into a simple and compelling story that resonated with both the trial and appellate courts,” he said. “They outworked, outmaneuvered and outsmarted the other side every step of the way.”
Orrick also played a leading role in a case that National Public Radio used to put so-called patent troll litigation under the spotlight. The firm represented EMC Corp. in a case chronicled in the NPR series “When Patents Attack.” Orrick partner Chris Ottenweller obtained a defense verdict against Oasis Research, a patent holding company associated with Intellectual Ventures and represented by Desmarais at trial. (Foley & Lardner represented codefendant Carbonite.)
While those results were generating buzz in the intellectual property bar, Orrick’s restructuring and public finance teams were methodically grinding out less glamorous but extremely high-stakes wins for the city of Stockton. Orrick persuaded a bankruptcy judge that he could not enjoin Stockton from eliminating retiree health benefits during its Chapter 9 proceeding and, separately, that the city could pay some debtors to the disadvantage of others without judicial pre-approval.
Those two groundbreaking decisions paved the way for a settlement where bondholders and insurers took haircuts of up to 50 percent, retirees kept their pensions and the city put a 3/4-cent sales tax on the ballot, which voters approved Nov. 5.
Stockton City Attorney John Luebberke said the challenge was finding a West Coast firm that could bring “the entire package” of municipal bankruptcy, public finance and complex litigation capabilities, without conflicts of interest from representing financial institutions holding Stockton’s paper. Partner Marc Levinson brought credibility in the bankruptcy arena “at a very high level,” Luebberke says. Partner John Knox was “to my mind, always the strongest person in the room” when it came to creditor negotiations, and Orrick’s litigation team “allowed us to put our money where our mouth was and fight when we needed to against extremely formidable opposition.”
Sidley Austin, Winston & Strawn, Jones Day and Mintz, Levin, Cohn, Ferris, Glovsky & Popeo were among the firms squaring off with Orrick in the bankruptcy.
More headlines are likely headed Orrick’s way in 2014. The firm represents Apple in a patent dispute over touchscreen technology at the International Trade Commission. And it has picked up Oracle’s appeal of a 2012 decision that said Java programming interfaces borrowed by Google are not copyrightable.
Whether the press is cheering or booing, says Foresta, Orrick will “cut through all that and get down to what your best arguments are.”
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