Litigator of the Week: Sharing the Limelight--and Reaping the Glory
Representing Canadian technology company WiLAN, McKool Smith founder Mike McKool scored a $145 million jury verdict against Apple.
August 10, 2018 at 12:22 PM
7 minute read
The original version of this story was published on Litigation Daily
We're excited to debut a new Q&A format for our Litigator of the Week feature. Our goal is to let the winning litigator tell the story of the case in his or her own voice, and to provide a more personal perspective on the win. Drop me a line and let me know what you think.
It was a tough choice to pick this week's winner. We were impressed by Jordan Goldstein of Selendy & Gay, who led a trial team to victory in Delaware Chancery Court on behalf of hedge fund Mudrick. Invoking Section 220 of Delaware's General Corporation Law, Goldstein succeeded in blocking a proposed merger between Globalstar Inc. and FiberLight, arguing it was unfair to shareholders including his client.
But the crown this week went to McKool Smith founder and chairman Mike McKool. Representing Canadian technology company WiLAN, McKool convinced a federal jury in San Diego that Apple Inc. infringed his client's patents, wrongfully using the covered technology in iPhone 6 and 7 models.
The award? Every penny that he asked for–$145.1 million.
Here's more from McKool on the win.
Jenna Greene: Tell us a little about your client and why they brought this case.
Mike McKool: The patents asserted in this case teach ground-breaking inventions applicable to cellular communications. The lead inventor is WiLAN's Chief Technology Officer, Ken Stanwood. The technology is in use throughout the world and applies particularly in LTE smartphones. My client saw these as “crown jewel” patents that Apple was using, but had refused to license.
Was there an over-arching narrative to your trial presentation?
The narrative we presented was the compelling invention story involving the brilliance of the lead inventor. In the late 1990's, he was a man whose 13 years designing military communication systems made him uniquely situated to propose cutting edge advances in cellular technology.
What were some high points during trial?
The high point for me was the testimony of the lead inventor, Ken Stanwood. Although his brilliance was on display, he also exhibited the humility of his beginnings as a small town kid raised on the Oregon coast from a family of millwrights. My client's chairman, Jim Skippen, was also an open and genuine witness who represented the company well.
What about obstacles?
It's always tough to go against Apple in California. The company has 52 percent of the U.S. smartphone market, and it is viewed positively by most Californians. Jury selection, always critical, was particularly so in this case. Judge [Dana] Sabraw submitted the most in-depth and revealing jury questionnaire I've experienced. That took much of the guesswork out of the selection process.
Any unconventional strategic choices on your part?
I've learned over the years that one of the case killers for a plaintiff is a damages ask that strikes the jurors as excessive. It can damage overall credibility and poison your whole case. While the $145.1 million we asked the jury to award WiLAN is a lot of money, one could have argued for more. I believe that keeping the damages proof extremely reasonable was a credibility boost and a major asset for WiLAN.
You had a formidable opponent in DLA Piper's John Allcock. Do you think litigation is like tennis, where you tend to perform better if you're matched against a strong player?
The kinds of cases we handle always present us with highly skilled opponents, and John was no exception. Going against the best certainly has made me a better courtroom lawyer. I generally walk away from each trial admiring my opponents and appreciating the skill and experience they bring to the courtroom.
After 45 years of doing this, I remain convinced that sincerity and humility are a trial lawyer's most important qualities. I always try to advocate those aspects of my client's case that I genuinely believe. Arrogance does not wear well in court.
You shared the closing argument with a firm associate, Warren Lipschitz. What made you decide to do that?
I made the decision to share the closing with Warren fairly late in the trial after observing him present our inventor witness and cross examine an expert. I have never felt that youth in itself is a drawback. Looking back, I appreciate that I was given trial time and responsibility when I began my career. Judges and juries like young lawyers and root for them.
Warren is smart, utterly genuine, and an advocate who exudes belief in the positions he espouses. He was an astute collaborator on the dozens of strategy calls we had to make before and during the trial. He also presented our inventor witness, who I felt made a positive impression on the jury, and so Warren's identification with the inventor I judged to be an asset. In his part of the closing, Warren was superb. He's already a pro.
The jury found infringement on all claims in about 1.5 hours of deliberation. What does that tell us?
Normally, such a quick verdict would be interpreted as a good sign for the defendant. In this case, when I heard that we had a verdict so soon, it didn't worry me. It's pretty clear from the speed of deliberations that the jurors here were of a like mind on who should prevail. When that comes out in the jury room, it usually doesn't take long. I was optimistic on this one.
How do you (and your client) feel about the award?
Obviously, we feel great having all the liability questions answered in our favor and being awarded every penny we asked for. My client of course was extremely pleased. We all believed in the importance of the inventions we asserted, and the patents were truly the stars of this show. That the jury recognized that is gratifying.
|
What I'm Reading
A top in-house lawyer claims he was pushed out after raising concerns about alleged foreign bribery and securities violations.
Plaintiffs lawyers handling more than 60 class actions over throttling iPhone batteries want to force Apple to tell customers who got a $50 credit or discounted battery replacement that they can still sue.
“The credibility of Icahn is directly relevant” to the malpractice case, the firm's lawyer said.
Despite pleading guilty in 2016 to an FBI stalking charge for posting sexually explicit photos of a flight attendant, the pilot was not fired and allowed to retain full benefits and retirement, according to the EEOC.
Would Facebook photos show the woman wasn't as badly hurt as she claimed when she fell at a casino?
In a novel ruling, the court said a whistleblower who isn't the first to make allegations under the federal False Claims Act cannot later proceed with a subsequent, amended complaint after the first case is no longer pending.
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 Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllDavis Polk Lands Spirit Chapter 11 Amid Bankruptcy Resurgence
Companies' Dirty Little Secret: Those Privacy Opt-Out Requests Usually Aren't Honored
Ballooning Workloads, Dearth of Advancement Opportunities Prime In-House Attorneys to Pull Exit Hatch
What Practices Are Driving Law Firms’ ‘Remarkable’ Performance in 2024?
4 minute readTrending Stories
- 1Judicial Ethics Opinion 24-61
- 2Decision of the Day: School District's Probe Was a 'Sham'; Title IX Administrator Showed Sex-Based Bias
- 3US Magistrate Judge Embry Kidd Confirmed to 11th Circuit
- 4Shaq Signs $11 Million Settlement to Resolve Astrals Investor Claims
- 5McCormick Consolidates Two Tesla Chancery Cases
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250