February 16, 2017
Latham & Watkins litigation teams have been recognized for victories representing clients in two California federal court cases — a high-profile jury trial centered on allegations of trade secret misappropriation and fraud with more than US$1.6 billion at stake, and a putative antitrust class action related to employment practices in the technology sector — both named as 2016 “Top Verdicts in California” by the Daily Journal.
In the first case, a Latham team successfully defended Dubai-based Emirates NBD Bank in a widely followed federal jury trial in Santa Ana, California, in which the plaintiff, technology company InfoSpan, Inc., sought significant compensatory and punitive damages. The dispute arose from an agreement between an InfoSpan affiliate and Emirates Bank to provide a stored value card service called SpanCash to low-income migrant workers in the United Arab Emirates. The Latham trial team “crafted a defense that poked holes in InfoSpan’s story that Emirates stole from InfoSpan a financial technology product developed to allow migrant workers without banks to be paid electronically,” the Daily Journal reported in a published case profile. During the two-week trial in the summer of 2016, the Latham defense team established that InfoSpan had grossly misrepresented the origins, development and capabilities of SpanCash, that the uncorroborated testimony of InfoSpan’s witnesses was contradicted by the documentary evidence, and that one of InfoSpan’s executives had forged an Emirates Bank executive’s signature on a document, among other key points. The case strategy, the Daily Journal noted, counteracted the plaintiff’s “overt appeals to nationalism” and “established that the basic story at the heart of their claimed trade secrets theft was simply not true.” The jury unanimously found in Emirates Bank's favor on all claims on August 11, 2016.
The team representing Emirates Bank was led by partners Kathy Ruemmler, Daniel Schecter, and Dean G. Dunlavey of the firm’s Litigation & Trial Practice. Earlier, The American Lawyer profiled the case strategy and Ruemmler’s closing in an article entitled, “A Master at Work: the Closing Argument in Latham’s Huge Win for Middle Eastern Bank.”
In the second case, Latham represented Oracle Corp. in the wake of In re High-Tech Employee Antitrust Litigation, a prior case in which a certified class of employees reached a US$415 million settlement in early 2015 with several leading technology companies stemming from “non-solicitation” and “no poaching” agreements. Subsequently, a group of former Oracle employees filed a putative class action in the Northern District of California alleging that Oracle too had participated in the High-Tech conspiracy. Oracle and the Latham case team successfully moved to dismiss plaintiffs’ initial complaint and amended pleading, which were filed after broad discovery from Oracle and several third parties. As explained in the published case profile, the Court agreed that plaintiffs’ claims were time-barred and the federal and state law claims were dismissed with prejudice.
“It was a challenge to make sure that Oracle’s business practices were evaluated on their own terms and not lumped together with those of the High-Tech defendants,” said partner Sarah Ray, who led the case team with partner Daniel Wall, both of whom are members of the firm’s Antitrust & Competition Practice.
The Oracle case involved a legal issue of first impression regarding when, in the context of alleged no-hire and non-solicitation agreements, a plaintiff’s Sherman Act claims accrue. The court’s dismissal of the plaintiffs’ claims as time-barred meant a ruling was not reached on the legality of the agreements at issue, however, such conduct will remain at the forefront — because the US Department of Justice and the Federal Trade Commission announced in October 2016 that they will treat agreements between companies not to hire each other’s employees as hardcore cartel conduct that may be criminally investigated and prosecuted. Previously, the government has treated such agreements as only civil violations of the antitrust laws. With the US government’s new focus on companies’ recruiting and hiring practices, contractual non-solicitation and no-hire clauses that are broader than reasonably necessary will remain under attack and could subject a company to criminal liability and penalties.