Our Litigators of the Week are Boies Schiller Flexner's Karen Dunn, Stacey Grigsby and Meredith Dearborn for their win on behalf of Uber Technologies in Massachusetts federal court.

It was the largest case Uber has ever tried to judgment, and the stakes were high. Boston's largest taxi conglomerate demanded more than $750 million in damages, alleging that Uber had competed unfairly in the Boston market when it operated without licenses, violating long-standing taxi rules.

Following a seven-day bench trial, U.S. District Judge Nathaniel Gorton sided squarely with Uber, rejecting plaintiffs' claims that Uber competed unfairly.

Dunn, Grigsby and Dearborn discussed the case with Lit Daily.

Lit Daily: What was at stake for Uber?

Karen Dunn: This was the first major case Uber tried to judgment, the plaintiffs were demanding more than $750 million, and challenging Uber's approach to entering markets with ridesharing as unfair competition. Not a small deal.  

Stacey Grigsby: I agree.  And in the end, the truth won out—Uber wasn't just allowed to operate in Boston, Uber was welcomed by government officials and the consumers who wanted a more diverse transportation marketplace than had ever existed before.

At what point did Boies Schiller Flexner become trial counsel? Given the compressed timeline, tell us how you prepared for trial.

Karen Dunn: We were asked to join the case a month before the original trial date. Fortunately, Judge Gorton moved the trial date back by a month, so we got some more time. But on that time frame, we needed a team of very experienced trial lawyers.  

I immediately reached out to Stacey, a DOJ trial veteran—we work together for Uber frequently—and Meredith, because she and I had tried Waymo v Uber together. Then we worked around the clock as a trial machine, together with our other BSF and Cooley colleagues, and some truly excellent in-house lawyers at Uber.

Meredith Dearborn: From the time we received the call, we dove in and approached this like we would approach any trial, just much faster. We quickly mastered all of the facts, documents, issues and key trial themes, and flew to Boston to meet with co-counsel and witnesses.  Soon, we were thinking about the case so much day in and day out that we didn't feel new anymore.  

Who was opposing counsel? What were their main themes?

Stacey Grigsby: Michelle Blauner and Ed Haber from Shapiro Haber & Urmy very ably represented Boston's largest taxi conglomerate, run by the locally infamous Tutunjian family. Prior to trial, Judge Gorton had already agreed with plaintiffs that ridesharing was against the plain text of the Boston taxi rules, so we faced an uphill climb from the very start—and they never let the pressure off.

How did you and your team work together and with co-counsel from Cooley in litigating the case?

Karen Dunn: As Cooley's Mike Sheetz would say, the synergy between the firms was wicked. Mike was a great partner to me and I truly enjoyed his crosses—so did he, I think!  

He, and his partners Adam Gershenson and Beatriz Mejia, had led the case from the beginning. They and their partner Luke Cadigan, who joined shortly before we did, couldn't have been more welcoming.  We worked as one team, not two firms.   

Meredith Dearborn: We did work together on every aspect of the case. The Cooley associates—Liz Wright, Tim Cook, Bryan Koch, Julie Landsvik, Matt Brown, Lauren Pomeroy, Cody Marden, Jenny Elkin, Max Alderman and Mike Welsh worked hand in hand with our team seamlessly.  

The firms worked very well together to draft the findings of fact and conclusions of law, an effort led by BSF partners David Barrett, Melissa Zappala and associate Erica Spevack,  Mike, Karen, and the in-house lawyers from Uber—Randy Haimovici, Kate Wolf and Nicole Bartow—were very focused on making this one team. 

What did you see as the primary issues at trial, and what was your strategy?

Stacey Grigsby: An important part of our strategy was recognizing that the liability case and the damages case could be won in the same way, by emphasizing the role played by government officials and regulatory events during the time period. We even displayed an enormous timeline poster in the courtroom so no one could forget what the case was about.  For Karen's closing, she filled it in with evidence that had come out during the trial.    

Meredith Dearborn:  I had lots of favorite parts of Karen's closing, but one was her emphasis that the standard for fair competition in Massachusetts is the standard of the "commercial marketplace"—and that in a regulated market, the views of the regulators define that marketplace.  Where city officials, including mayors and regulators, were welcoming Uber, it can't possibly be unfair to compete.

Karen Dunn: We made a strategic judgment to include our full critique of the plaintiffs' damages case in the opening. This gave plaintiffs a roadmap but it also told the judge from the beginning what the problems were, which we all felt was important.  

By the time plaintiffs' expert took the stand, he had cut the damages number in half and then Luke's cross resulted in numerous other, devastating concessions.

Who were your key witnesses and what was your approach in presenting them?

Meredith Dearborn:  Uber executives Meghan Joyce and Cathy Zhou were two of the most important witnesses from the Uber side of the ledger; they were both general managers of Boston during the key events at trial. Both of them are such impressive and responsible professionals that our approach allowed the judge to get to know them and understand why they made the decisions they did.  

Stacey Grigsby: Dr. Williams, the plaintiffs' damages expert, and Laura Stamm, Uber's damages expert were two others. We all noticed how interested the judge seemed in Ms. Stamm's testimony, so that was one good sign. 

Tell us about a high (or low) point at trial.

Stacey Grigsby:  Working with Karen and Meredith for the first time at trial, it was incredible to see how they partnered seamlessly in preparing and putting on the two primary Uber fact witnesses, Meghan Joyce and Cathy Zhou.  As their first witness, plaintiffs called Ms. Joyce adversely, a risky move that was designed to color the court's view of one of our most important witnesses.  But Karen's cross/direct was masterful in allowing Ms. Joyce to tell Uber's side of the story and helping the court understand why the plaintiffs' theory of what happened was wrong.   

Perhaps the hardest part of the trial was the week-long break during which the court could not sit. During a trial, you have so much adrenaline when you walk into court each day so we had to shift gears after the third day of trial. The upside was that the week gave us more time to prepare for the final witnesses because, of course, you can never prepare too much!

Karen Dunn: I agree with Stacey. While we work together often, I had never seen Stacey in trial and she was excellent; she has an extremely compelling courtroom presence. Meredith's work preparing the Uber executives was flawless; she earned their trust and poured her heart and substantial intellect into those exams. Also, our colleague Meryl Governski was a true thought partner to me in putting together the opening and closing.  

Meredith Dearborn: One potential low point that turned into a high point was when the judge told Karen she had half the time for opening than she thought she might have. She adjusted on the fly and for the rest of us, it was high drama. 

Were there indications during the trial of how the judge would rule?

Meredith Dearborn:  Not that I saw! 

Stacey Girgsby: The judge was extremely hard to read but listened intently the entire trial.  So it was hard to predict the result here.

Karen Dunn: The judge asked one question and while we spent a lot of time parsing its meaning, we really had no idea.  

What is the key takeaway from the decision?

Karen Dunn: Telling a story and developing a compelling narrative is essential—and most successful when actual events fit so nicely with the legal standard, as they did here.  

More personally, a key takeaway was the importance of charging ahead with optimism, creativity and a belief in your case. The entire BSF/Cooley team came to work every day to win, no matter what the challenges were.

Women trial lawyers are still the exception. Is there something significant in the fact that the Boies Schiller trial team was made up entirely of women?

Meredith Dearborn:  Even as the legal profession's diversity numbers improve, women are still underrepresented in the ranks of trial leads. It was so empowering to be part of a team that showcased not just one woman trial lawyer but a whole team of them!  This was true for both the BSF team and Uber's in-house team.

Stacey Grigsby: We all realized that a team with so many women was an unusual thing in such a high-stakes trial. Our team demonstrates that our firm, our client, and the legal industry are committed to changing the perception that there are only a handful of female litigators.  

The BSF team was a testament to the fact that so many women are smart, tenacious, and skilled trial attorneys. The women litigators on the team not only included Karen, Meredith, and me, as well as our partner Melissa Felder Zappala, but three amazing associates who are lead trial attorneys in the pipeline—Meryl Governski, Kristin Bender, and Erica Spevack, as well as Uber's in-house counsel Kate Wolf and Nicole Bartow. 

Karen Dunn: I hope that one day, this kind of trial team makeup will be so standard, that it will be talked about as a trial team, not an all-woman trial team. But this was just a very special experience—even if we had not won, I would have felt proud that we left it all on the field but winning is nice too.