Any discussion of Gibson, Dunn & Crutcher’s litigation victories in 2013 must begin with the Supreme Court’s historic rulings on same-sex marriage.
After enduring initial criticism from LGBT leaders for pushing the issue too soon in federal court, Gibson Dunn and cocounsel Boies, Schiller & Flexner were vindicated in June when the high court cleared the path to the altar.
For Gibson partner Theodore Boutrous the result was tangible, as he watched clients Kristin Perry and Sandra Stier say “I do” at San Francisco City Hall, then accepted hugs and thank-yous from other same-sex couples who had lined up to tie the knot.
“As lawyers, getting hugged doesn’t happen that much,” Boutrous said, “so that was a nice bonus.”
While Perry v. Hollingsworth had historic social impact, Gibson Dunn also was breaking ground at the high court for the business community. In Standard Fire Insurance Co. v. Knowles, the justices ruled that plaintiffs cannot keep class actions out of federal court by promising to seek less than $5 million in damages. The Class Action Fairness Act requires class actions worth more than $5 million to be litigated in federal court.
That decision adds to Gibson’s reputation as a class action killer. The firm also knocked out an antitrust class action at the high court this year, and put the finishing touches on its historic 2011 win in Walmart v. Dukes by shutting down a reconfigured version of the case. “So we’ve really been at the forefront of those issues, in federal court and in California,” Boutrous says.
It wasn’t all about appeals and class actions. A Gibson team led by partners Jeff Thomas and Samuel Liversidge helped Hewlett-Packard Co. win a three-week trial against Oracle Corp. in a fiercely contested contract dispute. HP accused Oracle of breaking a promise it made after hiring former HP CEO Mark Hurd to continue updating its software for HP’s high-end servers.
Oracle called HP v. Oracle a “publicity stunt” and “an abuse of the judicial process.” But after considering testimony from 30 witnesses, including Oracle copresident Safra Catz, Santa Clara County Superior Court Judge James Kleinberg ruled that Oracle’s position “does not square with the law and the facts.”
The damages phase, in which HP says it will ask for $4 billion, is on hold while Oracle appeals the denial of an anti-SLAPP motion.
“There was a lot of noise and distraction,” HP Associate General Counsel David Ant­czak said. But Thomas and Liversidge were able to block it out and “focus our resources on how do we get this case to trial and prevail.” That meant “no last-minute scrambles, no surprises” for his team, and he believes the Gibson lawyers’ “high ground professionalism” did not go unnoticed by Kleinberg, either.
It wasn’t the only $4 billion trial involving Gibson Dunn last year. In October 2012, a Los Angeles federal jury returned a defense verdict for French conglomerate Artemis, rejecting a $4.33 billion fraud claim by California’s insurance commissioner. Following a two-week trial, Gibson persuaded jurors that Artemis had not caused the commissioner to take a loss on the junk bonds of failed insurer Executive Life. (Judge Gary Klausner did, however, order Artemis to pay $241 million in restitution.)
Gibson also extracted UBS from global enforcement actions stemming from alleged manipulation of LIBOR exchange rates, and Chunghwa Picture Tubes from alleged price fixing of liquid crystal displays and cathode ray tubes. UBS and Chungwa agreed to pay substantial fines, but Gibson says they were small relative to exposure and protected the companies’ business operations around the world.
Generally speaking, Boutrous says, firm lawyers consider themselves “problem solvers in the best possible manner.”
“We’re willing to fight all the way to the Supreme Court,” he says, “but if a different path makes the most sense for the client, we’re going to look at that too.”
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