Technology & Telecommunications Litigation - Experience

• Served as lead counsel for wireless handset manufacturer Nokia Corporation in four separate ITC investigations between Nokia and Apple Inc., as well as three litigations in the U.S. District Court for the District of Delaware, as part of the world’s largest patent war. Dubbed the “smartphone smack down” by the media, the war involved more than 48 patents-at-issue. In June of 2011, Apple called a truce following the reversal of an administrative law judge’s decision by the ITC. Apple agreed to make a payment to Nokia, and will pay future royalties for the use of Nokia smartphone technology. A Thomson Reuters reporter commented that “Alston has matched Apple’s firepower at each stage of the fight, which entailed claims and counterclaims on more than three dozen Apple and Nokia patents.”
• Defended computer manufacturer Dell Inc. against claims for misappropriation of trade secrets, unfair and deceptive trade practices, breach of contract, detrimental reliance and unjust enrichment arising out of Dell’s sale of a citywide wireless video surveillance systems deployed for the detection of crime in New Orleans. Dell hired Alston & Bird on the eve of trial to take over as lead trial counsel. Due to pretrial publicity, voir dire took more than seven days and the trial lasted eight weeks. The plaintiffs sought more than $5 billion at trial. The jury awarded the plaintiffs less than 0.2 percent of their requested damages.
• Successfully represented a leading wireless service provider in an Eleventh Circuit appeal of order granting class certification to a class consisting of all sales representatives in Florida on a claim that their sales commissions were wrongfully “charged back.” Obtained reversal of class certification and order that no class could be certified. Vega v. T-Mobile, 564 F.3d 1256 (11th Cir. 2009)
• Successfully represented Dell Inc. in a Third Circuit appeal of an order holding Dell’s arbitration clause unenforceable because the clauses references arbitration before the National Arbitration Forum, which no longer is available to administer consumer disputes. Obtained a reversal in a decision that is on the forefront of one of the post-Concepcion battlefields for arbitration clause enforcement. Khan v. Dell, --- F.3d ---, 2012 WL 163899 (3d Cir. Jan. 20, 2012)
• Defended a leading wireless service provider in litigation in the U.S. Bankruptcy Court for the Southern District of New York against claims brought by a CLEC for recovery of disputed termination compensation. Obtained dismissal of all claims on a motion to dismiss.

Class Action Litigation

• Obtained dismissals of Nokia from putative class actions in New York, Minnesota, Colorado and California involving claims of unfair competition and deceptive trade practices in connection with the marketing of wireless devices. One of the cases has been appealed to the California Court of Appeal, which should hear the appeal in 2012.
• Defeated class certification in a case brought against a leading wireless service provider in the Northern District of Alabama asserting tort-based claims based on the carrier’s alleged failure to “blacklist” phones reported lost or stolen by its customers.
• Defended AT&T in a California class action alleging false advertising and a failure to comply with rebate program terms. Obtained the voluntary dismissal of all claims after presenting evidence to the plaintiff’s counsel demonstrating that the plaintiff was not an appropriate class representative.
• Secured approval of the favorable settlement of a nationwide class action against a leading Internet service provider and Checkfree Corporation in Oakland, California, in connection with the Internet service provider’s online bill payment service (which was powered by Checkfree). The Internet service provider gave notice primarily by email and the plaintiffs’ attorneys’ were awarded less than $100,000 in fees and expenses.

Complex Civil Litigation and Arbitration

• Represented Dell in Dallas County, Texas, where the plaintiff sought to enjoin Dell’s tender offer and proposed acquisition of Perot Systems. Defeated a motion for preliminary injunction, which enabled the acquisition to proceed.
• Currently pursuing Nokia’s antitrust claims in the U.S. District Court for the Northern District of California against multiple manufacturers of liquid crystal displays that have been implicated in cartel activities. After securing an $80 million settlement with Epson, we are moving forward against the remaining defendants. We are also coordinating Nokia’s parallel competition law actions in the United Kingdom against multiple suppliers of liquid crystal displays and cathode ray tubes.
• Currently pursuing Dell’s price-fixing antitrust claims in the U.S. District for the Northern District of California against six liquid crystal display (LCD) suppliers who are alleged to have price-fixed LCD panels sold to Dell for notebook computers and monitors over at least a six-year period. The case involves important issues related to foreign defendants and recovery in the United States for price-fixing.
• Obtained a defense verdict and an award of costs for AT&T after a four- week jury trial of claims for breach of contract, fraud and unfair competition brought by a site acquisition consultant that supported T-Mobile’s network build out. The plaintiff had demanded $9.2 million before trial.
• Secured summary judgment of an agent’s claim in arbitration against AT&T for unlawful encroachment after agent’s antitrust action challenging a wireless carrier merger was dismissed. Obtained a favorable settlement of the agent’s remaining claims and dismissals of the agent’s other pending arbitrations in California and Washington.
• Defended Nokia in more than 20 putative consumer class actions filed in California, Florida, Louisiana, Texas, Alabama, Illinois, Massachusetts, New York, Michigan, Colorado, Ohio and Kentucky. The plaintiff in each case alleged that his or her wireless device had a defect that caused personal injury or property loss, and that Nokia failed to adequately warn the consumer about the dangerous characteristic. We have obtained favorable results in every case resolved to date.
• Obtained a dismissal of action against T-Mobile in a Michigan state court case alleging that T-Mobile negligently submitted negative information to a consumer reporting agency and negligently failed to investigate its submission of the information when requested to do so by the plaintiff.

Intellectual Property Disputes

• Defended Nokia against Qualcomm's complaint before the International Trade Commission that its patents were infringed by Nokia's products practicing the GSM standard (the most common wireless telephony standard worldwide). In December of 2007, following a trial of several weeks, the administrative law judge ruled that Nokia did not infringe upon the patents in question. A final ruling affirming the decision was released by the ITC on February 28, 2008.
• Represented a client in a patent and trade secret case regarding optical fibers and related cable in the Northern District of Georgia, securing a multimillion dollar settlement, plus ongoing royalty payments.

Administrative, Governmental and Real Estate Litigation

• Defeated the city of Carlsbad’s summary judgment motion, and obtained a full dismissal with a waiver of fees and costs, in an action against AT&T alleging that its cellular tower did not comply with its conditional use permit or municipal code requirements. If successful, the city’s action would have eliminated a cell site impacting 54 square miles of AT&T’s network in San Diego.
• Persuaded a federal court to order the city council of Los Angeles to make further findings regarding the conditions at one of AT&T’s proposed wireless locations, which resulted in the council’s approval of a conditional use permit for AT&T’s operation of a wireless transmission facility.
• Obtained dismissals of applications for state temporary restraining orders (TROs) seeking to enjoin AT&T from activating a cellular site in Los Angeles. The California state court adopted our federal preemption analysis, concluding that the plaintiff was unlikely to succeed on the merits.
• Secured an injunction allowing AT&T’s personnel unimpeded access to a leased cellular site after AT&T lost access to the cellular site as a result of a dispute between the landlord and two neighboring property owners.
• Substantial expertise handling disputes between wireless service providers and tower companies regarding license fee payments.

Government and Internal Investigations

• Currently defending a client in an ongoing investigation conducted by the FCC’s Enforcement Bureau against allegations that it imported RF devices that do not meet the FCC’s testing criteria.