There's litigating in the court of public opinion—and then wow. There's this case.

Lanny Davis represents Versata Software Inc. in a knock-down, no-holds-barred PR assault/ IP suit against Ford Motor Co.

Davis—a former special counsel and spokesman for President Bill Clinton, partner at Patton Boggs; Orrick, Herrington & Sutcliffe; and McDermott Will & Emery before co-founding Davis Goldberg & Galper and public relations shop Trident DMG—is pummeling Ford just about every way you can think of.

There's a web site: TruthAboutFord.com. Press releases (“Ford Loses Again!”). A Twitter feed—@TruthAboutFord (which has nine followers). Paid advertisements directed at Elena Ford (“Tell the Truth Elena.”) And most recently, Davis launched a podcast: To Catch a Thief: The Story of Ford Motor Company Stealing $1 Billion in Trade Secrets from Versata.

The third episode, entitled “The Corrosion of Morality at Ford Motor Company,” just came out.

I was struck by how Davis justified the podcast in a press release: “Since Versata is unable to file defamation lawsuits against Ford for the false statements made in Ford's legal papers, which have absolute immunity from defamation suits, Davis explained that the podcasts were the only remedy available to Versata to 'set the record straight … to tell the truth.'”

Hold on a sec—the podcasts are “the only remedy available”? What about the lawsuit pending in the Eastern District of Michigan, where Versata claims Ford infringed its software patents, stole its trade secrets and breached its contract? Surely that might also be a way to set the record straight, what with a judge and jury and federal rules of civil procedure?

Davis did not respond to a request for comment. Brooks Cushman partner John LeRoy, who represents Ford, also did not respond to a request for comment.

So what are these slanderous lies that demand rebutting? In the most recent podcast, Davis offered this as one example: “Ford filed multiple public claims with the U.S. Patent and Trademark Office that Versata's software was so obvious and unoriginal that it didn't deserve to be patented,” he said. “But then, the U.S. Patent Office denied every single Ford claim. Every single one. Yet Versata could not sue Ford for defamation because its lies were submitted in legal documents.”

Um. It was a PTAB challenge. Invoking a standard reason for invalidity. Not exactly grounds for meeting on the field of honor at dawn.

The case is pending before U.S. District Judge Matthew F. Leitman at the summary judgment stage.

 

Shout-Out: Sullivan & Cromwell and Norton Rose Wrap up Another Enron Suit

Just when you thought all the Enron-related cases were over—wait, here's one more!

On Monday, the U.S. Court of Appeals for the Fifth Circuit affirmed dismissal of a shareholder class action against UBS Financial Services.

It's a win for Sullivan & Cromwell's Robert J. Giuffra, Jr., Brendan P. Cullen and William H. Wagener, as well as for Norton Rose Fulbright's Rodney Acker, Ellen B. Sessions and Katherine D. Mackillo.

The plaintiffs—represented by Dawn Meade and Bonnie Spencer of the Spencer Law Firm in Houston—were PaineWebber customers who purchased Enron debt securities. They alleged UBS was complicit in structuring financial vehicles to enable Enron to mislead the public as to its fiscal performance.

The panel didn't buy it, tossing the case for failure to state a claim

Favorite quote: “UBS Plaintiffs' allegations—principally references to Defendants' vague corporate platitudes about their integration as a firm—may logically support that Defendants shared a community of interest in their business activities, but this alone is insufficient to support joint venture liability.”

Read the full decision here.

 

Lateral Watch

Latham & Watkins snagged Alston & Bird's ITC practice head Jamie Underwood—a move that underscores the benefits of being civil to opposing counsel.

“We see an awful lot of people on the other side of the table,” Bert Reiser, who leads Latham's ITC practice, told my colleague Scott Graham. “Often you think 'Is this someone I'd like to practice with?' With Jamie the answer was definitely yes.”

Read the full story here.

 

Morgan, Lewis & Bockius welcomed back Philip A. Miscimarra, who rejoins the firm's labor and employment practice from the National Labor Relations Board.

A partner at Morgan Lewis from 2005 until he was appointed to the NLRB in 2013, Miscimarra was elevated to chairman in 2017 by President Donald Trump. Fittingly, he'll lead Morgan Lewis' NLRB special appeals practice.

 

Oooh Don't Mess with the USDA

The USDA just released its first quarter enforcement report, which reveals the agency brought one criminal case, against John Lonczynski, president of Greenview Meats Inc. He pleaded guilty in U.S. District Court for the Middle District of Pennsylvania to selling about 2,500 pounds of ground beef that was adulterated and misbranded, according to Food Safety News. The meat allegedly contained beef hearts and excess fat.

He could have gotten a year in prison and a $100,000 fine.

The actual penalty? Probation and a $25 fine.

Lonczynski—who was represented by a public defender—apparently didn't have the money to pay more. But c'mon, $25? Somehow I don't think the meat industry is running scared.

 

What I'm Reading

Jeff Sessions on 2nd Circuit's LGBT Ruling: Judges Must Have 'Read the New York Times'

A less-than-respectful reaction to the court's en banc holding.

Justices' Heads Were in the Cloud at Microsoft Email Arguments

Microsoft's lawyer, E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe told Ginsburg, “This is a very new phenomenon, this whole notion of cloud storage in another country. We didn't start doing it until 2010.”

Fair Use Battle Over Fox News Segments Fails on Appeal at Second Circuit

“At bottom, TVEyes is unlawfully profiting off the work of others by commercially redistributing all of that work that a viewer wishes to use, without payment or license,” the panel said.

'With Respect,' Justice Breyer Blasts Immigration Ruling in Rare Oral Dissent

Give 'em hell Justice Breyer!

Sessions Says DOJ to Backstop States' Efforts to Hold Big Pharma Liable in Opioid Crisis

The new efforts include the creation of the Prescription Interdiction and Litigation, or PIL, task force. (How do you suppose it took to come up with that acronym?)

Ninth Circuit Sides With Nike in Spat With Photographer Over Jordan Logo

The court found Nike didn't infringe Jacobus Rentmeester's copyright to a photo of a picture he shot of Michael Jordan when he was still a student at the University of North Carolina.

What Makes Chief Justice Roberts Lose His Cool

You won't like him when he's angry.