Thank you for sharing!

Your article was successfully shared with the contacts you provided.

This story originally appeared on The BLog of Legal Times, an American Lawyer affiliate.

A District of Columbia Superior Court judge dismissed malpractice claims against McDermott, Will & Emery on Friday, finding the plaintiffs were trying to re-litigate issues already decided in a related case in California.

A former McDermott client, Theranos Inc., accused the firm of failing to take steps to prevent a former firm partner, John Fuisz, from accessing confidential information. Theranos claimed Fuisz, who didn't represent the company, provided confidential intellectual property information from Theranos' files to family members pursuing competing patents. The firm said it wasn't aware of any misconduct by its attorneys.

Theranos sued Fuisz and his family members in U.S. District Court for the Northern District of California, but a judge dismissed claims against Fuisz in June 2012, finding California's one-year statute of limitations had expired. The lawsuit filed in Washington was against McDermott, and not Fuisz, but Superior Court Judge Craig Iscoe found the two cases were based on the same "nucleus of facts." As a result, Iscoe wrote, the California decision represented a final judgment on issues raised in the D.C. litigation.

"Without John Fuisz being guilty of some sort of misconduct, it is inconceivable that McDermott could be liable," Iscoe wrote, adding later that, "It would be a waste of judicial resources and unfair to the Defendant if Plaintiffs were entitled to get a second chance based on their strategic decision to not include McDermott in the California litigation."

Steptoe & Johnson represented McDermott. Partner Roger Warin, chair of the firm's executive committee, said in an email that McDermott "is delighted with the decision, and believes that the Superior Court judge fully understood and correctly dealt with the issues raised by the motion." Litigation partner Steven Davidson handled oral arguments.

Fuisz, in an email, said he was pleased with the ruling. "Theranos could not cite to any facts to support their preposterous claim," he said. "The allegations were pure fantasy." Fuisz left McDermott in 2009 and formed the Fuisz-Kundu Group, a two-person firm focusing on intellectual property law.

Theranos and its chief executive officer, Elizabeth Holmes, were represented by Boies, Schiller & Flexner. A Theranos spokesperson and Boies Schiller attorneys, including partners Tanya Chutkan and William Marsillo, couldn't be reached for comment.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.