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Firm Bi Keker & Van Nest Al Davis, the renegade owner of the Oakland Raiders, made his reputation on the football field, where he prowls the sidelines like a mob enforcer looking for thumbs to break. But he’s hardly a rookie in the courtroom, having spent many years tweaking and taunting the National Football League establishment. So he was favored by at least a touchdown when he sat down for a deposition with a mild-mannered lawyer named Robert Van Nest. Hired by the heirs of one of Davis’s Raiders partners, Van Nest was trying to get Davis to concede that the partnership agreement meant what it said; in this case, that his clients were limited partners and were entitled to review the team’s books and put a value on their shares, estimated to be in the ballpark of $300 million. The session, which was held last June, didn’t go well for Davis. He tried blustering: “Don’t keep pointing at me like that. � You’re lecturing me. � Don’t sneer at me. � Don’t threaten me!” But Van Nest kept up the offensive. Eventually, Davis made the innocuous but damning concession that there was no ambiguity in the partnership agreement: “But, yeah, I think it’s pretty clear — sure do — for someone like me. I don’t know what isn’t.” A few months later, the trial judge ruled for Van Nest’s clients. The experience seems to have soured them — they’re now seeking a sale of the team because of “irreconcilable differences” with Davis. In many ways, the case is typical of those handled by Keker & Van Nest. The stakes are high. Opposing counsel is prominent: Davis used Stuart Lipton, the managing partner of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, and noted plaintiff lawyer Joseph Cotchett. And Van Nest was brought in late, with his side already behind. The Raiders case is just one piece of a caseload that is rivaled by only a few firms in the country. (And those firms employ hundreds of lawyers.) Keker & Van Nest lawyers handle cases of national importance in criminal law, antitrust and intellectual property, and the success they’ve achieved over the last two years is the reason they’re Recorder affiliate The American Lawyer’s choice as the litigation boutique of the year. Not only do they win consistently, they do so while working in an environment that is a model for the legal industry in the areas of diversity and pro bono. Also, the partners like each other, or do a great job of disguising any animosity beneath a shower of banter and playful teasing. No one wins them all, not even our designated champions. And in our time period, Keker & Van Nest suffered a serious defeat: the conviction of Frank Quattrone, the former high-flying investment banker at Credit Suisse First Boston. John Keker, the firm’s founder and marquee attraction, was hurt by his client’s testimony and by a federal trial judge who appeared to lean heavily on the prosecution’s side. But that loss didn’t cost them the prize, because their record was simply that good. In some ways, Keker & Van Nest is a throwback. The firm’s two calling cards — white-collar criminal defense and IP litigation — were traditionally dominated by boutiques. Big firms have moved in on that action, but Keker & Van Nest remains stubbornly independent. The firm is also a throwback, at least relative to Susman Godfrey and Bartlit Beck Herman Palenchar & Scott, two of our other finalists, because most of its work is billed by the hour rather than handled on contingency. Keker says that the firm’s hourly rates and profitability are comparable to the top firms in the Bay Area. In other ways, however, the firm is in the vanguard. In intellectual property, for example, Keker & Van Nest is helping to define the outer reaches of the law. Much of that work is done for Genentech Inc., a big player in the litigation free-for-all that is biotechnology. Last June, for example, the firm handled a case in which MedImmune Inc., claimed that the patent on Genentech’s basic method for producing recombinant antibodies (which are used in the production of many drugs) was invalid. Had MedImmune prevailed, it would have been devastating to Genentech’s business, but partner Daralyn Durie got the case thrown out on motion papers. The win came only a few months after another victory for Genentech, when the Federal Circuit U.S. Court of Appeals affirmed the firm’s landmark win in a case brought by Chiron Corp. concerning the patent rights to a breast cancer treatment. Keker tried the Chiron case himself. The dispute turned on obscure issues (whether the company had adequately described the technology in its patent application), but at trial Keker didn’t get bogged down in science. When Chiron’s key expert was on the stand, for instance, Keker caught him in a contradiction, then cut into him like he was cross-examining a cop who had planted a dime bag on his client. “The jury didn’t understand the science, but they understood his cross,” says opposing counsel Harold McElhinny of Morrison & Foerster. “Genentech is a very sophisticated customer. They’ve worked their way through the legal industry looking for lawyers. They’ve probably used 15 law firms over the past few years, and they use Keker for their most important cases.” The firm is also handling precedent-setting copyright cases, building on work done for Grokster Ltd. Virtually the entire entertainment industry sued Grokster in 2001, claiming that people were using its software to infringe their copyrights, and that Grokster was liable for contributory copyright infringement. Partner Michael Page got the case dismissed on summary judgment in 2003, and the Ninth Circuit affirmed. In December the U.S. Supreme Court agreed to hear the case on its March calendar. The court appears to be reconsidering its decision in Sony v. Universal City Studios , according to Mark Lemley, a leading authority on intellectual property who teaches at Stanford Law School and is of counsel at Keker & Van Nest. In that case, the court held that Sony wasn’t liable if buyers of its VCRs used those VCRs to infringe copyrights. The decision had the effect of holding that copyright owners can’t necessarily control new technologies, says Lemley. Having won that case, Keker & Van Nest is now dealing with more far-fetched claims, such as the one brought by soft-core pornographer Perfect 10, Inc., against Keker & Van Nest client First Data Corp., the nation’s largest processor of credit card charges. Perfect 10 claims that Web sites steal their images (often altering them so that the head of, say, Britney Spears is pasted to the body of a nude model), then charge visitors to their sites. Those charges are processed by First Data; Perfect 10 claims that the processing makes First Data liable for enabling the infringement. Van Nest won a dismissal just before Thanksgiving. Page is handling a similar case for venture capital firm Hummer Winblad Venture Partners, in which members of the recording industry are claiming that by funding Napster, Hummer Winblad was contributing to infringement of their copyrights. Some of Keker & Van Nest’s most important intellectual property clients were first drawn to the firm because they needed Keker’s help with a criminal matter. For example, Intel first came to the firm for advice when charges were brought against its executives in a trade secret case. Now it’s a steady IP client. The criminal-to-IP cross-selling was a concerted effort. “We’ve always wanted to be in areas where we could charge top rates and try for bonus billing,” says Keker. “That means being in whatever area is hot, and by the early ’90s, that meant Silicon Valley.” About one-quarter of the firm’s work is criminal defense, much of it confidential, some of it in very public matters that also involve regulatory proceedings and civil lawsuits. “They know how to do those cases,” says Howard Heiss of O’Melveny & Myers, one of Keker’s co-counsel in the Quattrone case. “Some would think that a firm their size couldn’t.” Keker may be the star, but he’s surrounded by a team of top-flight criminal attorneys. One is Jan Little, who last year defended a Silicon Valley software executive who was the target of a yearlong securities fraud investigation by both the U.S. Department of Justice and the Securities and Exchange Commission. She convinced those agencies not to bring any charges against her client; other company officers went to jail and paid civil fines. Another star is Ethan Balogh. He recently represented a husband and wife employed by a well-known software company that the Federal Bureau of Investigation and the SEC were investigating for insider trading. (They sold stock on the morning before a gloomy company forecast.) Balogh convinced the Justice and SEC attorneys not to prosecute, then convinced the company to give the couple their jobs back. Elliot Peters represented an Asian bank whose assets were seized by the U.S. government. Peters was able to get the assets returned to the bank, along with an apology. Nonetheless, Keker’s personality and attitudes pervade the firm. At 60, he still looks like he’s about to drop and start doing push-ups. He projects the image of a soldier, and in fact served in Vietnam as a platoon leader in the Marines. At a meeting when too many people started speaking at once, he invoked the motto of the Texas Rangers — “One riot, one ranger” — to restore order. When partner Durie had a baby, his gift to her newborn daughter was “The Oxford Book of War Poetry.” Given that background, it’s a bit incongruous to hear his anti-authority invective. Keker uses the word “corporate” as a curse and says that “resisting corporatization” is what sets Keker & Van Nest apart. He doesn’t have much use for the former prosecutors in the big firms in New York and Washington, D.C, who make up the white-collar criminal defense establishment. “When was the last time any of them stood up to the government?” he sneers. His anti-authority slant was on display last November, when the National Association of Securities Dealers barred Quattrone from the securities industry for life. Although association rules require cooperation, Keker had refused to let Quattrone testify before the NASD’s disciplinary committee out of fear that the testimony could be used in his criminal case. The NASD ruling called Quattrone’s failure to testify “egregious.” Keker’s reaction: “Sanctimonious bastards. Piling on, trying to self-aggrandize their little agency. Outrageous.” There was no love lost on NASD’s part: “Sour grapes,” says Rory Flynn, a lawyer in the enforcement department. “It was John Keker’s advice that caused the lifetime bar for Mr. Quattrone.” Keker sees no contradiction between the good soldier and the maverick. To him, being on trial is like being in the Marines. “It’s a chance to test yourself, a chance to be a hero,” he says. Keker may be a lightning rod, but he goes to great lengths to push his partners forward, and not only when the media is asking questions. Genentech, probably the firm’s most important IP client, first came to the firm in 1995, when Keker defended an executive who was accused of paying kickbacks. (Keker won a dismissal.) He’s happy to report that the company now thinks of Daralyn Durie and partner Susan Harriman as its go-to lawyers at Keker & Van Nest. (The firm religiously avoids ideas like “origination credit.”) “This isn’t the cult of John Keker,” agrees Mark Lemley. “There’s astonishing depth among the partnership.” When law firms get sued for malpractice, they also turn to Keker’s platoon. Much of that work is done for firms insured either by the Attorneys’ Liability Assurance Society Inc., or MPC Insurance Ltd., an ALAS-type carrier whose clients are mostly on the West Coast. Claims officers at both insurers readily approve the firm for their hard cases. “They’re at the top of everyone’s list,” says William Friedrich, a director of MPC and a lawyer with Farella Braun + Martel. “They have trial experience. In today’s legal world, that’s an increasingly difficult thing to find.” Of course, Keker & Van Nest isn’t right for every case. The firm isn’t cheap, and “you don’t need a Sherman tank to take on a flea,” says Paul Sugarman of MPC and Heller Ehrman White & McAuliffe. Van Nest wants the firm to be involved in cases where the exposure is high, and where the law is uncertain. A recent example was a case against Orrick, Herrington & Sutcliffe by Michael Malcolm, the wealthy head of a computer manufacturing company. Orrick represented Malcolm in a divorce and negotiated a settlement with his ex-wife in which she was to receive $500 million. Malcolm signed the agreement, but quickly had second thoughts. When Orrick told him the agreement was binding, Malcolm hired other firms to break the deal and paid them several hundred thousand dollars in fees. But when the deal proved to be unbreakable, Malcolm sued Orrick, seeking not only the $470 million he claimed he had overpaid to his ex-wife but also the fees he had paid the other firms that tried to get him out of the deal. Van Nest and partner Steven Hirsch won for Orrick on summary judgment. Like all high-powered litigators, the partners are proud of their record, but they’re just as proud of their workplace. Of 22 partners, seven are women (five have kids; two made partner while pregnant) and five men are minorities. Partners Durie and Little both have children and speak highly of the firm’s flexibility. By age 4, for example, Durie’s daughter was the veteran of two trials; she had the run of the war room in each. Little tried a case when she was seven months pregnant. To Keker, diversity is more than the right thing to d “Tactically, it’s important. White men bore the shit out of juries.” The firm is also a model when it comes to pro bono work, devoting a remarkable 8 percent of its time to public service. Many of the cases accepted by the firm involve important public issues — school desegregation in Berkeley, racial profiling by the California Highway Patrol, environmental protection in San Francisco Bay. But none were bigger wins than a case that started close to home. In 1990 John Tennison was convicted of murder and sentenced to 25 years to life in prison. His brother Bruce was convinced that he was innocent, and tried a number of methods to call attention to his brother’s plight, including putting flyers on the windshields of cars in the parking garage where he worked. One of the people who got a flyer was Dinah Roberts, the office manager of Keker & Van Nest, which is located next door. Roberts told Bruce Tennison that he should speak to Peters, who agreed to take the case. Peters then led a team of five Keker & Van Nest lawyers on a three-year effort to free John Tennison. In 2003, after John had spent 13 years in jail, a federal judge in San Francisco ruled that the prosecution had unlawfully withheld evidence that another man had confessed to the crime, and John was set free. The case became a cause celebre at Keker & Van Nest; paralegals and librarians told Peters that the case made them proud to work at the firm. Tennison is a fitting place to conclude a reprise of the firm’s outstanding work. Besides the obvious public service element, Tennison exemplifies the approach of Keker & Van Nest. The lawyers worked as a team. The odds were against them. The government’s case withered under the firm’s attack. That plus a couple of laughs and a high five: What more could the litigation boutique of the year ask for? Paul Bravermanis a reporter with The American Lawyer, aRecorder affiliate based in New York City.

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