We made it. 2020 is finally in the rearview mirror. Congratulations. You made it through the year working in one of the most stressful professions in the world during possibly one of the most stressful times in your life.
I usually title this article “top litigation wins,” but the word “win” didn’t feel right this time around. In the world of litigation, “win” usually implies that the case is over. Final. Adjudicated. But all those words are the opposite of what 2020 was. As we remain in a limbo period with COVID-19, so too do many of the matters on your caseload. Some items on the below list did reflect a finished case, but others were singular occurrences worth recognizing because it took a hell of a lot for them to happen.
There is a pattern that became clear among this list. In any given year, litigators have to be brave to do their jobs well. Combine that truth with a global pandemic and you have a loop of anxiety that I can only try to imagine. This community was brave last year for so many reasons. Perhaps you fielded calls from demanding clients who became even more demanding under COVID-19 stress. Perhaps you navigated how to run a law office virtually. Perhaps you resisted the urge to be an asshole back to your asshole opposing counsel and instead opted for professionalism and empathy.
Many of the lawyers and parties involved in the matters below demonstrated an additional sense of bravery: They pioneered the uncharted territory of litigating online — even as the stakes remained high. Others played a role in shaping what a safe, socially-distanced in-person jury trial looks like — even as there were no guarantees that they would be 100% bulletproof from contracting COVID-19.
Some of these cases made the list because they made it to trial — virtual or otherwise. In a normal year, the forces that must come together for a case to go all the way to trial is often a miracle (if not hardheadedness from either or both parties). In 2020, a case going to trial is akin to Jesus walking on water.
Others made the list because they did social good for a mass population. Some of these moments reflect the times we’re in now, and what their clients’ roles in these times are. And I’d be remiss not to include a couple that stood out because of the sheer dollar amount obtained. Regardless of what kind of time we’re in, those cases always require both guts and a nauseating amount of pressure for a lawyer to shoulder.
So without further ado, in no premeditated order, here are my top 10 picks for litigation moments of 2020. Please understand that your list may look different from mine. This list includes just some of the top moments; 2020 was a chaotic year and my tunnel-vision coping mechanism probably caused me to miss some. Whether you made the list or not, please know that all of you do important work. All of you display bravery. And you were especially brave throughout last year.
Exxon Mobil Corp. and the federal government were in the final week of an in-person bench trial before U.S. District Judge Lee Rosenthal in mid-March when the coronavirus-related stay-at-home orders pumped the breaks on the trial.
The key question when the trial began was how much of the $77 million Exxon had spent to clean up World War II-era water pollution would the government be on the hook to chip in on? But when the pandemic brought the trial to a standstill, a new question emerged: Should the parties delay the in-person proceedings until further notice, or should they conclude the trial online?
The parties decided on the latter option, and the dispute became one of the earliest Zoom bench trials to occur — believed to be the first in the U.S. District Court for the Southern District of Texas — showing practitioners across Texas that a virtual bench trial can be done — and perhaps foreshadowed a shift in the practice post-pandemic. The lockdowns forced lawyers and witnesses to stay in place instead of boarding planes to collect and present evidence.
“We made the best out of an unfortunate situation, but I would have no hesitation about doing it again,” said Baker Botts partner Ty Buthod, Exxon’s lead lawyer. “Overall, if this is going to be a new norm for bench trials, I think it works just fine.”
The outcome turned out more than “just fine” for Exxon. In August, Judge Rosenthal ordered the federal government to pay more than $20 million of the cleanup costs.
It might seem strange that a would-be trial made this list, but a walkaway settlement between Cheniere Energy, founder-turned-ex-CEO Charif Souki and two other companies he was associated with was the best outcome the parties could have asked for. That was true when it happened at the end of January, days before the parties were to begin a five-week jury trial, and it’s even more true in light of the pandemic.
While the case was slated to wrap up right in time for spring break (just as local COVID-19 restrictions began kicking in), do trials really ever go as planned? In the world of hypotheticals, there are countless possibilities that could have led to the trial going behind schedule, which could have led to an even longer delay as the courtrooms across the state began shutting down in mid-March.
This outcome was the best for the parties because, depending on which party you’re looking at, there was $46 million to $400 million at stake. And given the extra havoc that the pandemic wreaked on the energy industry this year, even a multimillion-dollar jury trial would have likely been on the executives’ back burner of worries.
In a year when we were online more than ever, Dan Charest and a group of lawyers at Dallas firm Burns Charest obtained a historical $52 million settlement in a California case on behalf of 10,000 content moderators for Facebook — a significant number of which work in Texas.
These workers are responsible for viewing and removing disturbing, graphic and objectionable images and videos from Facebook’s social media platform. The plaintiffs alleged that their repeated exposure to violent and graphic content — child sexual abuse, beheadings, terrorism, animal cruelty and other disturbing images — caused post-traumatic stress disorder and other psychological issues.
The May 2020 settlement came during a year, thanks to works like the horrifyingly-revealing Netflix documentary “The Social Dilemma,” when the public became even more painfully aware of the harm that social media can play in the psychological fabric of people’s everyday lives. This case made it apparent that social media workers are not immune to that psychological harm either. Removed of its dollar signs, the plaintiffs’ lawyers said the settlement achieved groundbreaking workplace improvements at Facebook.
In 2018, Gibson Dunn’s Dallas office played a key role in successfully guarding AT&T’s $85 billion merger with Time Warner in an antitrust lawsuit brought by the federal government.
In 2020, Gibson Dunn Dallas did it again — this time on behalf of Deutsche Telekom, the German parent of T-Mobile, whose $26 billion merger with Sprint was challenged by 13 state attorneys general. In February, thanks to the work of Gibson Dunn partner Brian Robison and others, a New York federal judge cleared the way for the merger, which closed in April.
The courtroom win helped marry the third and fourth largest wireless carriers, creating a formidable competitor for the nation’s top two: AT&T and Verizon. T-Mobile viewed the merger as a boost to its development of 5G cellular technology. Whatever your views are on corporate supersizing, one could argue that we could all do more with faster-than-broadband cellular speeds as quality time with the grandparents, business meetings, therapy sessions and romantic courtships continue in the virtual world.
While not technically an outcome-related win, (the case is still ongoing), an insurance coverage dispute between State Farm and Virtuwave Holdings was a success as the first ever jury trial to occur over Zoom.
The historic virtual jury trial in May helped kick-start the conversation about how courts will resolve their increasingly overloaded case dockets, which continue building by the day as the pandemic drags out. And while this summary jury trial won’t have all the answers to that question, it provided critical data points for the legal profession to refer to as this million-dollar question continues.
The case, which involves Dallas lawyers Amy M. Stewart and John Stone and San Antonio lawyer Matthew Pearson, is ongoing in Collin County and currently slated to go to trial March 1. Summary jury trials are nonbinding proceedings that allow both sides to explore whether a trial or mediation is the best route to resolving the dispute. Only the jury selection process was available to the public.
In August, the nation saw its first patent case return to the courtroom for an in-person jury trial since the pandemic began. The case we speak of happened to be in Texas, so why not make it a Texas-sized affair?
An East Texas jury Aug. 11 awarded a $506 million verdict to PanOptis Patent Management (represented by Texas lawyers at McKool Smith) after finding that Apple willfully infringed on five of PanOptis’ patents related to 4G LTE wireless technology. Clad in face shields, the jury sat through six days of socially-distanced evidence put on by 10 plexiglass-guarded witnesses before returning its verdict.
The case provided hope to the IP law community that, under the right circumstances and with proper precautions, patent cases can continue in-person safely in East Texas, one of the hotbeds for patent infringement disputes.
It’s become somewhat of a tradition for the lawyers at Dallas firm Caldwell, Cassady & Curry to win half-billion-dollar verdicts against Apple in East Texas courtrooms. In 2020, they kept up that tradition, even in the middle of a pandemic.
In November, Caldwell Cassady’s Brad Caldwell and a team of lawyers at his firm obtained a $502.8 million verdict against Apple on behalf of their client, VirnetX. The two parties have been in a decade-long dispute over VirnetX-patented technology that it says Apple infringed upon in its iPhones, iPads and other products. The last time VirnetX prevailed over Apple for patent infringement was in 2018, when VirnetX won a $502.6 million verdict.
By the fall, Texas state courts had already seen their fair share of Zoom bench trials. But none had lasted as long as a $147 million dispute between Vitol Americas Corp. and Targa Channelview.
At the time of the Oct. 15 ruling, lawyers involved said the five-week trial was believed to be the longest bench trial conducted over Zoom in Texas state courts — and certainly the longest Zoom bench trial involving a corporate dispute.
It also marked one of Harris County District Judge Larry Weiman’s last trials before stepping down from the bench at the end of the year. The 12-year veteran of the courts was defeated last spring by Jeralynn Manor in the Democratic primary. The judge ended the trial with high praise for the lawyers on both sides who practice at two Houston litigation boutiques, Smyser Kaplan & Veselka and Ahmad, Zavitsanos, Anaikapos, Alavi & Mensing.
“I want to acknowledge, first of all, that having presided in the past 12 years over 364 jury trials and 210 bench trials … I’ve never had finer counsel on both sides of the case,” the judge said. “I’ve never had a case that’s been better tried, prepared or better advocacy for each of your clients than I’ve seen during the trial.”
This summer, an Arkansas jury awarded a group of emergency room staffers $9.4 million after finding an Arkansas affiliate of insurer Centene Corp. drastically underpaid the 150 emergency room doctors, nurses and physician assistants in violation of their contract.
Houston lawyer John Zavitsanos came on board as lead counsel only six days before the case went to trial on behalf of TeamHealth, an ER staffing company based in Tennessee. But that was just the beginning of a chaotic preparation period. The pretrial prep also featured a “U-turn on the entire” legal strategy on the eve of trial, Zavitsanos said, as well as dozens of last-minute motions by the defense, demands for more documents and requests to postpone the trial.
The verdict came at a time ER staffer compensation will be more relevant than ever, as hospitals across the nation continue to hit capacity due to the COVID-19 health crisis. TeamHealth has sued insurers across the country — including in Texas — on similar allegations.
Perhaps the most watched 2020 trial in Texas was MV3 Partners v. Roku, the first jury trial that U.S. District Judge Alan Albright presided over since taking the bench in the Western District of Texas in 2018. In the two years since Albright became a federal judge, patent filings have exploded in the Western District’s Waco division, where Judge Albright is based. With a background in patent litigation himself, Albright attracted 454 out of the 747 patent cases filed in Texas during the first half of 2020.
The trial concluded with a take-nothing verdict in favor of Roku. MV3 had sought $41 million from the jury.
Although the in-person jury trial occurred in the middle of a pandemic, the opportunity to see Albright in action was too irresistible for IP lawyers to pass up. That’s why Kathi Vidal, the managing partner of Winston & Strawn’s Silicon Valley office and founder of the firm’s WacoWatch blog, enlisted two of her fellow bloggers and out-of-state Winston colleagues to travel to Waco to report on Albright’s every move.
North Carolina-based Danielle Williams and California-based Mike Tomasulo liked what they saw, noting Judge Albright’s affinity for knowing the case inside and out, brevity by the witnesses and jury selection actually involving questioning by the lawyers themselves — a highly unusual permittance for a federal judge.
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It’s obvious that Judge Albright absolutely loves what he does. I had the pleasure of visiting with him a couple of times on the phone this past year, and I can hear it in his voice. Presiding over patent cases and jury trials is his passion. I mean, for God’s sake, at one point the man was listening to some of your briefs during his sacred time out of the courtroom as he jogged. That’s dedication.
If 2020 taught us anything, the lesson may be this: Regardless of your circumstances, find what your passion is and carve out time to focus on it. Passion is one of the only things that will keep you fueled, even in the most trying of times.
Like Judge Albright, some of you will turn passions into your day job, but you don’t have to. The most important point is discovering your passion, because in that, you add joy to your daily life. Whatever joy looks like for you, whether it’s in the courtroom or out, stay devoted to it. If you stay devoted to it, who knows. The universe may send you just as many interesting opportunities as the number of patent cases on Judge Albright’s docket. And as a result, you’ll be a better lawyer. Or maybe you’ll leave the law altogether. Either way, you’ll have more inner peace, even when the world doesn’t look so peaceful.