Microsoft Judge Chastises Weil Lawyer for ‘Bailout’ Dig

Posted Aug 18, 2009 10:30 AM CST
By Debra Cassens Weiss

The Texas judge who ordered Microsoft to pay $290 million for infringing a patent included a $40 million enhancement that he said was partly justified because of alleged trial misconduct by a lawyer from Weil, Gotshal & Manges.

U.S. District Judge Leonard Davis tacked on the $40 million penalty because of evidence of willful infringement. But also “favoring enhancement,” he said in an opinion, was trial conduct by lawyer Matthew Douglas Powers, a Weil Gotshal partner.

Davis chastised Powers, saying he misrepresented the law, according to Information Week and the Seattle Post Intelligencer’s Microsoft Blog. Davis ruled last week in the infringement suit by i4i Limited Partnership.

The problem began when Powers asked jurors during voir dire about their reaction to a scenario in which a company sues, not to protect a patented product, but just to get money, according to Davis’ opinion (PDF). The judge warned Powers outside the presence of the jurors that “I think you're sort of misstating the law, and I don't want to embarrass you in front of the jury. But I would appreciate it if you would clean that up.”

But the warning was not heeded, the opinion says. “Throughout the course of trial Microsoft’s trial counsel persisted in arguing that it was somehow improper for a nonpracticing patent owner to sue for money damages. He further persisted in improperly trying to equate i4i’s infringement case with the current national banking crisis implying that i4i was a banker seeking a ‘bailout.’ ”

Powers refused to comment, saying in an e-mail to the ABA Journal that the law firm’s response will be in its appellate brief and any statements should come from Microsoft. Microsoft issued a statement by spokesman Kevin Kutz that did not address the allegations against Powers.

“We are disappointed by the court’s ruling," the statement said. "We believe the evidence clearly demonstrated that we do not infringe and that the i4i patent is invalid. We will appeal the verdict.”

Comments

Once bitten twice shy Yankee
Aug 18, 2009 1:30 PM CST

The questionable judgment on the part of Microsoft was to allow a partner with its NYC powerhouse counsel, Weil, Gotshal & Manges, who was twice cursed by virtue of his San Francisco Bay Area bar membership and office base, to try the case.

It matters not that Weil Gotshal maintains two offices in the state of Texas.

The San Francisco Bay Area—Redwood Shores to be exact—(where the trial partner is based) is a universe away from the South—where anti-Semitism runs rampant, all outsiders are suspect, the bench and jury venire are still VERY pissed off about losing the civil war, and Yankee’s (let alone Yankee lawyers from the SF Bay Area or NYC, let alone Yankee lawyers with Jewish or Italian surnames)—stand a snowball’s chance in hell when litigating in one of the 11 former states of the confederacy.

Any “Northern” trial lawyer venturing into the confederacy to try a case—particularly with a firm with a Jewish, Italian, or other ethnic surname associated with the firm and without lead counsel indigenously from that state and “local counsel” indigenously from that county of federal court district to front the case in court —is on a fool’s errand.

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Microsoft Judge Chastises Weil Lawyer for ‘Bailout’ Dig

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