About a month before trial, Isaac Larian turned to Jennifer Keller in a high-profile copyright dispute with Mattel Inc. over his company’s main product: the Bratz doll. Larian, chief executive officer of MGA Entertainment Inc., needed an attorney with jury trial experience, and at Mattel’s request the trial judge had just disqualified his lead counsel, Patricia Glaser, for conflict of interest.

Keller immediately felt the pressure. Larian’s other lawyers at Orrick, Herrington & Sutcliffe refused to work with her because she was a criminal defense attorney, not a civil litigator; they even threatened to quit.

When the judge insisted that opening statements would begin on schedule on Jan. 18, no one had time to argue anymore. “I just figured that the best thing I could do was to immediately show my colleagues what a good trial lawyer I am,” Keller said. “I thought that once they saw that, the problems that we had had would dissipate — and that’s precisely what happened.”

On April 21, a jury awarded MGA $88.5 million. The second verdict in the case, it represented a major upset for Mattel, which had won $100 million in the first go-round three years earlier. The verdict also represented vindication for Keller, who attributed her success to her ability to connect with jurors and stick to a simple message — that Mattel, the larger corporation, was bullying MGA.

Keller, a name partner at Keller Rackauckas in Irvine, Calif., is happy to share the credit with her colleagues, including those at Orrick. “They since have been gracious and apologized, but they didn’t realize the skills I had,” she said. “The fact of the matter is that a good criminal defense lawyer with trial experience is going to be highly successful in trials most of the time against most civil litigators, who don’t have that kind of experience.”

BRATZ V. BARBIE

The litigation between began in 2004, when Mattel sued Carter Bryant, its former designer, for allegedly taking the idea for the Bratz doll to MGA in 2000. Bratz — a multiethnic alternative to Barbie — pumped $3.3 billion in sales into MGA since being launched in 2001. In court, Mattel’s attorneys said that their client lost $323 million and significant market share.

MGA joined the case. Bryant settled with Mattel for $2 million.

During the first trial, MGA retained Thomas Nolan, a partner at Skadden, Arps, Slate, Meagher & Flom. Following the loss, he was replaced by Orrick’s team, led by Annette Hurst and Thomas McConville. They helped to persuade the U.S. Circuit Court of Appeals for the 9th Circuit to vacate the verdict and order a new trial.

In the retrial before U.S. District Judge David Carter, the jury rejected Mattel’s claims of copyright infringement against MGA and that Bryant had taken the idea to MGA. Instead, the jury awarded MGA damages for trade secrets theft by Mattel. Mattel won $10,000 for interference by MGA and Larian with its contract with Bryant.

The four-month trial was brutal, Keller said. Hearings began at 8:30 a.m., sometimes earlier. After the jury left at 5 p.m., the lawyers remained, sometimes until midnight. They worked almost every weekend. Keller and her colleagues comprised a team of about a dozen lawyers. Mattel’s team at Los Angeles-based Quinn Emanuel Urquhart & Sullivan, led by partners John Quinn and Bill Price, was aggressive, filing dozens of motions each day.

Keller insisted that she never was intimidated. “John Quinn and Bill Price are fine trial lawyers,” she said. “But for all we like to think it’s about us, ultimately in most cases it’s about the facts.”

And the Santa Ana, Calif., jury heard facts never placed before the first jury in Riverside, Calif. The first judge barred MGA from arguing that Mattel brought the case as a business tactic to destroy the Bratz brand. The second time, MGA mounted trade secrets claims that supported that story. “That was really the centerpiece of our theme,” Keller said.

She reinforced that theme every chance she got. On cross-examination, she painted Mattel Chief Executive Officer Robert Eckert as a predatory businessman by getting him to admit that he didn’t know the location of a Mattel factory that he recently had closed down, leaving 850 people without jobs. “He didn’t care — it wasn’t relevant to him,” she said. “And he refused to accede to the language of layoffs or firings. He kept saying they were headcount reductions and consolidations and a lot of corporate speak. He was clearly annoyed he had to be there. He came across kind of plastic, blow-dried, bland, corporate, uncaring.”

By contrast, Larian came across as “passionate” and “uncontrollable,” whose outbursts in the courtroom often shocked the other lawyers. At one point, he shouted that Mattel had murdered his father. “That was not necessarily helpful, but the jurors could see Isaac was genuine — he was passionate about toys, about this company. He was passionate about what he did,” Keller said.

Larian hadn’t behaved that way during the first trial, said Mattel attorney Susan Estrich, a partner at Quinn Emanuel, and his antics turned jurors against her client. “The many attacks we got, and as many statements that were clearly improper and inappropriate, nonetheless took their toll.”

As for Eckert, Estrich said, “I don’t know any chief executive in America of a large corporation who could answer in detail every single question about decisions made at every level of the organization.…And Ms. Keller may well be right — that in asking questions that any CEO might have difficulty answering, she was able to portray him in a harsh light — but I don’t think that light is fair or accurate.”

Estrich expressed confidence that the trade secrets claims would not hold up on appeal. Still, she praised Keller’s skills. “She had a clear strategy, she followed it, and obviously it succeeded with the jury.”

TRIAL TIPS
• Reduce the barriers between yourself and the jury any way you can.
• Find a theme at the heart of your case and return to it over and over.
• Be conscious of jurors, especially during long trials, because they will see everything about you and your opponent.
 

Amanda Bronstad can be contacted at abronstad@alm.com.