When disaster strikes, panic often follows.
Many people can’t function in a crisis. Mistakes happen, details get lost, organizations falter and the best-laid plans are rendered useless in a dynamic and dangerous situation. In times like these, every general counsel needs the number of a good outside lawyer who knows how to handle a crisis.
To assemble a list of such experts, InsideCounsel dreamed up several types of corporate crises–white-collar scandal, antitrust action, employment and product-liability class actions and an IP challenge–and polled several dozen corporate lawyers and legal consultants to identify the best attorneys for each type of situation. Then we researched each suggestion and selected those that stand out for their demonstrated skill and experience.
The result is the InsideCounsel “Crisis Rolodex,” profiling five law firm lawyers with the right stuff to manage high-stakes legal challenges like those facing U.S. companies today. This is one Rolodex nobody ever wants to use, but one everybody will find invaluable if disaster strikes.
Government investigators are closing in on your company’s top executives, and plaintiffs’ lawyers are circling like vultures.
Who to Call: Theodore V. (Ted) Wells Jr.
Firm: Paul, Weiss, Rifkind, Wharton & Garrison
Title: Partner and Co-chair, Litigation Department
Education: JD, Harvard Law School (’76), MBA, Harvard Business School (’76), BA, College of the Holy Cross (’72)
Key Clients: I. Lewis (Scooter) Libby, Michael Milken, ExxonMobil Corp., Philip Morris Corp.
When Scooter Libby needed a lawyer to defend himself against the government’s perjury and obstruction-of-justice charges, he called a defense attorney who is famous for getting high-profile clients out of a jam: Ted Wells at Paul, Weiss in New York.
Widely considered one of the most adept courtroom lawyers in the country, Wells has taken on some of the toughest white-collar and corporate-defense cases in U.S. history. In addition to leading Scooter Libby’s defense team, Wells is Merck’s lead counsel in all federal investigations arising from its Vioxx liability cases.
Wells’ experience dealing with high-profile cases goes back to the 1980s. He represented Junk Bond King Michael Milken in court battles that resulted in a 10-year sentence being reduced to less than two years. In the 1990s Wells helped former Agriculture Secretary Mike Espy beat bribery charges, and New Jersey Senator Robert Torricelli avoid prosecution for campaign-finance allegations.
More recently, Wells won a mistrial and partial acquittal for Charles McCall, a former McKesson HBOC executive charged with securities and accounting fraud. He negotiated a deferredprosecution agreement for Frank Quattrone, the former CSFB investment banker indicted on charges of impeding a federal investigation. And he defended ExxonMobil Corp. against environmental charges by the state of New Jersey.
The common thread among Wells’ cases is their high degree of difficulty. In the courtroom, Wells’ opponents admire (and
fear) his grasp of complex concepts, his indomitable work ethic and his folksy, jury-disarming style.
For his part, Wells says the key to success in managing a white-collar crisis is the ability to marshal an overall defense against what is bound to be a multifaceted set of legal issues. Challenges won’t come only from a U.S. Attorney’s office, but also the SEC, state AGs, shareholders, auditors and even congressional committees. “What you need in a lawyer is really a senior strategist, who can step back and understand how all the moving parts fit together,” Wells says.
As one of America’s most celebrated corporate defense lawyers, Wells is the ideal senior strategist for any company facing a white-collar scandal.
WHO ELSE TO CALL
Andrew Levander, Dechert
Obtained acquittal for Adelphia’s Michael Rigas; represented AIG, Citigroup
Tom Hanusik, Crowell & Moring
Former assistant chief in DO J’s criminal division
Nina (Nicki ) Locker, Wilson Sonsini Goodrich & Rosati
Extracted Brocade Communications in backdating mess
The FTC has been reviewing your company’s megamerger, and you just learned the case has been referred to the DOJ Antitrust Division for civil and criminal prosecution.
Who to Call: Donald Flexner
Firm: Boies, Schiller & Flexner
Title: Managing Partner
Education: LL .B, New York University Law School (’67), BA, New York University (’64)
Key Clients: American Express, AT&T, DuPont, Northwest Airlines
Don Flexner’s partner David Boies is something of a rock star in the litigation world.
Boies led the government’s antitrust suit against Microsoft. He represented George Steinbrenner and the Yankees against Major League Baseball. He won a half-billion dollar settlement in the Sotheby’s and Christie’s price-fixing lawsuit. And then there was a little case called Bush v. Gore. (Boies represented Al Gore.) But if Boies is a rock star, Flexner is a neurosurgeon–or rather the neurosurgeon–the miracle worker you want to see when you wake up in traction and you can’t feel anything below the tracheotomy.
Flexner is the specialist for high-stakes antitrust defense, because he knows antitrust inside and out–literally. He spent 12 years at the DO J prosecuting antitrust cases as deputy AG and sometimes as chief of the antitrust division. He left in 1980 and spent another 19 years as a partner with Crowell & Moring, chairing its antitrust group, before joining Boies Schiller as a name partner in 1999.
Countless clients have called on Flexner to help them survive life-or-death antitrust matters over the past 27 years. He’s been a go-to lawyer for AT &T, SBC and its predecessor Southwestern Bell Telephone since before the breakup of Ma Bell. He’s helped Northwest Airlines fight numerous antitrust challenges (such as the government’s suit preventing the merger of NWA and Continental), and represents American Express in its antitrust suit against Visa and MasterCard.
“We get retained precisely because there is a bet-the-company kind of situation,” Flexner says. His approach is to treat such situations like emergency-room medicine.
“You’ve got a very dangerously sick patient that needs fulltime attention,” he says. “You throw all your resources, energy and creativity into supporting the patient. It’s a round-the-clock proposition, and not everybody has the background and ability to function effectively in that arena.”
Not everybody, but Flexner does. Like a world-class neurosurgeon who has brought patients back from the brink and had them dancing a jig again, Flexner is the lawyer to call in an antitrust emergency.
WHO ELSE TO CALL
Steve Bernstein, Weil, Gotshal & Manges
12 years at FTC; saved Alliant Techsystems’ acquisition of Olin Ordnance
Mark Leddy, Cleary Gottlieb Steen & Hamilton
Former top litigator in DO J anititrust division
William Baer, Arnold & Porter
Former FTC competition division chief; represents GE, Pfizer, Cisco Systems
Employment Class Action
An individual lawsuit from a disgruntled worker just turned into a class action, alleging widespread employment discrimination.
Who to Call: Barbara B. Brown
Firm: Paul, Hastings, Janofsky & Walker
Title: Partner, Washington Office Chair and Senior Employment Lawyer
Education: JD, Yale University Law School (’71), BA, Radcliffe College (Harvard) (’68)
Key Clients: Boeing ?’ Ford Motor Co., Microsoft ?’ American Red Cross
Few types of lawsuits are more damaging for employers than class action discrimination suits. An adverse verdict can cost hundreds of millions of dollars in damages and fees and seriously tarnish a company’s reputation. Thus when a handful of angry employees multiplies into a mob of plaintiffs, only a top-tier employment attorney will do.
Barbara B. Brown is just such an attorney.
As the senior employment lawyer in the Washington, D.C., office of Paul, Hastings, Janofsky & Walker, Brown is a leader among leaders. As a firm, Paul Hastings is preeminent in the field of labor and employment law, handling some of the biggest discrimination and harassment suits in history for a long list of huge employers, such as Boeing, Ford Motor, Motorola, UP S and Wal-Mart. And in many of the most important cases, Brown has either led the defense or played a key role on the team.
In Donaldson et al. v. Microsoft, for example, Brown successfully defeated class certification in a $5 billion gender and race discrimination suit led by Johnnie Cochran. The suit implicated Microsoft’s system for evaluating employees with a type of forced-ranking system. Such systems have given rise to class actions against many employers, but Brown convinced the court that no class existed, and the judge dismissed the suit.
Similarly, in Grosz v. Boeing, Brown defeated class-certification in a multi-jurisdiction employment discrimination suit, establishing an important precedent for opposing claims of “excessive subjectivity” in pay practices. Brown showed the plaintiffs weren’t a class because their claims of excessive subjectivity implied treatment that varied depending on location and job category–by definition not a shared grievance.
“It’s critical to use creativity in thinking about the ways a case does not fit the criteria for a class,” Brown says. “We take a very case-specific approach, the opposite of a cookie cutter.
It requires a level of digging into detail that most people don’t think about, but that detail is what persuades judges.” And persuading judges is where Brown excels. “She is simply the best employment lawyer in the country,” says the chairman of the employment department at a law firm in Washington, D.C., who spoke on condition of anonymity. “She’s practical, smart and presents extremely well. She has helped many a large company through an employment class-action crisis.”
WHO ELSE TO CALL
Nancy Abell, Paul Hastings
Parachuted into Dukes v. Wal-Mart; represents Microsoft, GE, Oracle
Allan King, Littler Mendelson
Department chair at world’s largest employment law firm; represents U.S. Bancorp
Nancy Patterson, Baker Hostetler
Prevailed in numerous employment cases; represents Bayer, Chevron Corp.
You just saw a late-night TV commercial soliciting plaintiffs who “have been exposed to” your company’s allegedly defective product.
Who to Call: Chilton Varner
Firm: King & Spalding
Education: A.B., Smith College (’65), JD, Emory University (’76)
Key Clients: GlaxoSmithKline, Purdue Pharmaceuticals, General Motors, 3M
Birth defects, suicide, sudden cardiac arrest … these are a few side effects from taking antidepressant Paxil, according to product liability suits filed against GlaxoSmithKline.
The number of those suit increased after government hearings in late 2004 publicized the link between antidepressants and suicidal behavior, and increased again in 2005 when the drug maker issued a recall for some lots of Paxil.
The lawsuits were headed for class-action certification, but King & Spalding Partner Chilton Varner prevented that. In January 2007 she defeated class certification by showing each plaintiff had individual issues not typical of the others.
Prevailing in the face of scandalous allegations is Varner’s specialty as a defense attorney. During her 30-year tenure with King & Spalding, she has shown remarkable skill at defeating class certifications and obtaining favorable outcomes–particularly in product-liability lawsuits involving terrible circumstances.
In one case, for example, Varner successfully defended General Motors against allegations a seat belt jammed after a crash and trapped the driver in a burning car. And in a series of OxyContin lawsuits, plaintiffs have alleged the drug turns patients into junkies, some of whom overdose by crushing the time-release tablets and snorting the powder to get high.
Varner overcomes such challenges (400 of them so far in the OxyContin case) by applying her extraordinary facility with evidence rules and court testimony.
She demonstrated this strength most clearly in 1999, when she successfully defended her client’s victory in Allison v. McGhan Medical and 3M, a precedent-setting breast-implant liability case. Varner convinced the 11th Circuit Court of Appeals to affirm a lower court’s exclusion of expert testimony on the basis it was not “scientifically reliable”–establishing a roadmap for impeaching shaky science in the process.
Her strength with evidence also has enabled Varner to clear the fog of confusion for jurors, bringing the light of day into the courtroom. “I am not a scientist by training,” Varner says. “As a result I rarely make assumptions about how much jurors will understand. This has proved helpful in making cases comprehensible”–as well as successful for her clients facing product-liability nightmares.
WHO ELSE TO CALL
Jay Mayesh, Kaye Scholer
Defended DaimlerChrysler in first U.S. airbag case; represents Pfizer
Lanny Davis, Orrick Herrington & Sutcliffe
Former Clinton special counsel; well known crisis manager
Steve Kohn, Reed Smith
Defends Eli Lilly in DE S and Prozac lawsuits; represents 3M, Medtronic
A competitor claims your company stole its patented technology for a critical component of your flagship product.
Who to Call: John W. Keker
Firm: Keker & Van Nest
Education: AB, Woodrow Wilson School / Princeton (’65), LL .B, Yale Law School (’70)
Key Clients: Google, Genentech, Xilinx, U.S. DO J (vs. Oliver North)
Good patent at torneys are easy to fi nd; most major corporate law firms have strong IP departments, and numerous boutiques offer world-class IP representation. But finding a patent attorney who also is a gifted trial lawyer is significantly more difficult.
That’s because patent lawyers tend to be scientists at heart, and scientists generally aren’t great at talking to juries. That’s where John Keker comes in. He isn’t a patent attorney; he’s a trial attorney–widely considered one of the toughest in America–who specializes in patent and trade-secret cases.
Keker earned his reputation through his involvement with high-profile civil and criminal cases. He led the government’s prosecution of Lt. Col. Oliver North in the 1989 Iran-Contra trials (Keker himself is a retired U.S. Marine Corps lieutenant whose elbow was blown off in Vietnam). Keker obtained a partial dismissal and hung jury for Frank Quattrone, ex-investment banker for CSFB, in the government’s securities-fraud case. He also helped Enron CFO Andrew Fastow limit his jail sentence to only six years.
But such cases belie Keker’s depth of experience in IP law. For example, he won an infringement verdict for Xilinx Inc. against high-tech rival Altera Corp. in 2000, and two years later helped Genentech thwart a $300 million patent challenge from biotech competitor Chiron. Also in 2002, he helped negotiate a $265 million settlement between electronic-design companies Cadence and Avant! to resolve patent and trade-secrets disputes. And in 2005 he secured a settlement for Google and the CEO of its Chinese affiliate in a trade-secret theft and non-compete lawsuit Microsoft brought.
In each case Keker’s combination of patent savvy, trial acumen and general toughness led him to favorable outcomes for his clients.
“With patent cases you are looking for something juicy the jury can bite into,” Keker says. “If you can allege theft of material it elevates the case–gives the plaintiff an opportunity to get the judge and jury excited, and creates a more dangerous situation for the defense.” As a veteran trial lawyer who thrives in such dangerous situations, Keker is a superlative champion for fighting a bet-the-company IP challenge.
WHO ELSE TO CALL
James Wallace, Jr., Wiley Rein & Fielding
Secured settlement in RIM/BlackBerry case; former DO J prosecutor
Morgan Chu, Irell & Manella
Obtained post-eBay injunction in TiVo v. EchoStar
Charles Lipsey, Finnegan Henderson Farabow Garrett & Dunner
Infringement victories for Eli Lilly, Matsushita