Areas of Practice
Trials, appeals and alternate dispute resolution in complex commercial litigation, including antitrust, intellectual property, employment and ERISA and contract disputes

Experience and Selected Cases

Antitrust

EPIC v. Providence Health System (D. Or.). With DWT partner Doug Ross, obtained summary judgment for health-care system against charges of attempted monopolization and other antitrust violations in connection with selective contracting with providers.

Seattle Times Company (DOJ). With DWT partner Doug Ross, defended Department of Justice investigation of Seattle Times Company in connection with Seattle Joint Operating Agreement. After extensive depositions and document production, investigation was closed without institution of proceedings.

Anderson v. Clear Channel Communications, Inc. (W.D. Wash.). Defended radio system in antitrust litigation brought by disappointed promoter of hip-hop concerts. Case settled on satisfactory terms at an early stage.

Thurman Industries v. Pay ‘N Pak Stores, Inc., 875 F.2d 1369 (9th Cir. 1989). Defended chain of 100+ home centers in antitrust action brought by competitor alleging predatory pricing, pressuring suppliers not to deal, or to do so only on favorable terms, and violations of the Robinson-Patman Act. Obtained summary judgment for defendants on most causes of action and successfully defended on appeal, largely on the basis of lack of evidence to support plaintiff’s claimed “product cluster” market definition.

Northwest Communications, Inc. v. VoiceStream Communications, Inc. (D. Or.). Represented VoiceStream against claims of violations of the Robinson-Patman Act with respect to sales of telephone handsets to dealers. Case settled as a result of mediation before preliminary injunction was heard.

City of Dillingham v. Crowley Maritime Corporation (D. Ak.). Represented plaintiff class of municipalities, utilities, and other buyers in antitrust claims against transportation companies that formed a joint venture to deliver heating and fuel oil to Western Alaska, thereby eliminating previous competition between them. Case settled on satisfactory terms following discovery and motion practice, but prior to trial.

Mallory Co. v. D.B. Smith Co. (W.D. Wash.). Brought Robinson-Patman claim on behalf of distributor of back-pack fire pumps, resulting in prompt settlement by defendant.

Northwest Drugs v. Pfizer, Inc. (W.D. Wash.). Defended Pfizer in suit brought by wholesaler challenging Pfizer’s policy of refusing to sell at wholesale prices to distributors owned in part by retailers. The suit settled on satisfactory terms shortly after it was filed.

Island Marine Centers v. Sea Sport Boats, Inc. (San Juan County, WA, Superior Court). Represented manufacturer and dealer of fishing boats in dealer-termination case brought under State antitrust law. Case settled in mediation.

Intellectual Property

Timeline, Inc. v. ProClarity Corp. and Microsoft Corp. (W.D. Wash. and King County, WA, Superior Court). Represented Microsoft and one of its subsidiaries in patent-infringement and breach of contract litigation. Summary judgment obtained in favor of Microsoft; patent infringement claims against subsidiary settled on the morning of trial.

Neopost, Inc. v. Mailing Systems Express, Inc., Pitney Bowes, Inc., et al. (King County, WA, Superior Court). With DWT partner Harry Korrell, represented Pitney Bowes in trade secret and breach of contract litigation arising out of acquisition of competitor’s dealer.

Lam Research Corp. v. Applied Materials, Inc. (W.D. Wash.). Defended maker of equipment for manufacturing integrated circuits in trade-secrets litigation arising out of hiring away of competitor’s employee.

Microsoft Corp. v. Timeline, Inc. (King County, WA, Superior Court). Represented Microsoft in declaratory judgment action for construction of patent-license agreement. Obtained judgment for Microsoft following bench trial. Judgment reversed on appeal.

Wizards of the Coast, Inc. v. World Wrestling Federation Enterprises, Inc. (W.D. Wash.). Represented publisher of Pokemon®, Magic: The Gathering® and other collectible card games in prosecuting claims of theft of game idea against defense of copyright-preemption among others. Case settled on satisfactory terms following early motion practice.

Lifescan, Inc. v. Polymer Technologies, Inc. (W.D. Wash.). Represented defendant in threatened contempt proceedings for violation of injunction against further infringement of patent on medical equipment and supplies. Issue was resolved without hearing, following substantial discovery.

Chinet Co. v. UFR Urban Forest Recyclers (W.D. Wash.). Defended alleged infringer of design patent on apple trays. With co-counsel from East Coast, obtained summary judgment in favor of defendant.

Kimberly-Clark Co. v. Pope & Talbot Co. (W.D. Wash.). Following discovery, took over responsibility for trial of patent-infringement litigation involving disposable diapers. Case settled prior to trial as a result of mediation.

Savin Corp. v. Wm. Dierickx Co. (King County, WA, Superior Court). Represented new employer in suit by former employer seeking to enforce alleged covenants not to compete. Defeated motion for preliminary injunction. Case settled thereafter.

BioTechniques Laboratories, Inc. v. Ware (King County WA Superior Court). Defended former sales manager in two suits by ex-employer alleging breach of confidentiality agreement and misuse of trade secrets. First case was voluntarily dismissed, second case settled on satisfactory terms.

SonoTech Inc. v. Interspec, Inc. (W.D. Wash.). Defended manufacturer of ultrasound coupling compound against Lanham Act and unfair-competition claims. Case settled as a result of mediation, following preliminary injunction hearing.

Employment Law

Perez-Farias v. Global Horizons, Inc. (E.D. Wash.). Defended farm labor contractor in putative class action alleging discrimination and various regulatory violations.

Mendoza v. Zirkle Fruit Co. (E.D. Wash.). Defended principals of apple orchard and processing company against claims of RICO violation by knowingly hiring illegal workers. Class certification was defeated, and the representative plaintiff’s claim settled on nominal terms.

Malloch v. J.C. Penney Co. (W.D. Wash.). Defended Penney’s in class-action sex-discrimination suit alleging various forms of disparate treatment and violations of Equal Pay Act. Following bench trial substantially all claims were dismissed and defendant was awarded partial attorneys’ fees.

Britten v. The Chronicle, Inc. (King Co. WA Superior Court). Defended newspaper in age-discrimination and breach of contract suit by former editor. Bench trial resulted in dismissal of the complaint.

ERISA

Parker v. BankAmerica Corp., 50 F.3d 757 (9th Cir. 1995). Defended BankAmerica against severance-pay claims brought by putative class of employees who previously worked for acquired bank, and continued to work in essentially the same jobs post-acquisition. Obtained summary judgment for defendant and successfully defended it on appeal.

Peterson/Renton v. Kaiser Permanente (W.D. Wash.). Represented Kaiser Permanente in putative class action alleging wrongful failure to disclose provider incentives and other managed-care mechanisms. Defeated class certification, and plaintiffs dismissed their case.

Brennan v. Howard Miller Clock Co. (W.D. Wash.). Represented company in class action by sales representatives claiming to be “employees” for purposes of client’s pension plan. Case settled as a result of mediation following substantial discovery and motion practice.

Thesenvitz v. Westinghouse Hanford Co., 15 F.3d 1090 (9th Cir. 1994); Watkins v. Westinghouse Hanford Co., 12 F.3d 1517 (9th Cir. 1993); Carver v. Westinghouse Hanford Co., 951 F.2d 1083 (9th Cir. 1991). Defended federal DOE contractor in a series of cases and appeals arising out of the Eastern District of Washington involving miscommunications regarding pension benefits and/or errors in calculation of early-retirement adjustments. In Carver, summary judgment for defendant was affirmed on appeal. In Watkins and Thesenvitz, appellate court directed entry of judgment for defendants.

Contract and Other Commercial Cases

Hearst Communications, Inc. v. Seattle Times Company (Arbitration). With DWT partner Doug Ross, currently representing the Seattle Times in arbitration over allegations of breach of joint operating agreement and seeking to enforce the Times’s right to terminate the relationship based on losses.

Bluecurrent, LLC v. Washington Mutual Bank (AAA Arbitration). With DWT partner Steve Rummage, represented Washington Mutual in defense of $100 million claim for breach of contract and related claims. Arbitration award was less than 10% of what was requested.

Pacific Fish Company v. Hexagon Investments International (W.D. Wash. and King County, WA, Superior Court). Represented minority member of limited liability company alleging looting of LLC at the time of dissolution. Case involved simultaneous proceedings in state and federal court, and parallel litigation in the Russian Federation.

Hearst Communications Corp. v. Seattle Times Co. (King County, WA, Superior Court). With DWT partner Doug Ross, representing the Times in litigation over performance of joint operating agreement and rights to terminate same.

Qwest Communications Corp. v. TouchAmerica Corp. (AAA Arbitration). With DWT partner Dan Waggoner, represented TouchAmerica in three-week arbitration over claims and counterclaims resulting from inter-carrier billings.

In re SACSS Litigation (Sacramento County, CA, Superior Court). With DWT partner Ladd Leavens, was co-lead counsel for State of California in case arising out of default termination of contract for development of computer system.

Coleman v. Alcolac, 888 F. Supp. 1388 (S.D. Tex. 1995). Represented Chinese company defending against putative class of Gulf War veterans contending that the company (and numerous others) had assisted Iraqis in developing chemical and biological weapons and were therefore liable for plaintiffs’ alleged Persian Gulf syndrome. Obtained dismissal of client on jurisdictional grounds under Foreign Sovereign Immunities Act.

Skamania County v. State of Washington (Clark County, WA, Superior Court), aff’d, 102 Wn.2d 127, 685 P.2d 576 (1984). Represented county heavily dependent on revenues from state timberlands in challenging constitutionality of statute forgiving obligations of purchasers following collapse of timber prices. Following bench trial, court found the statute had been shown to be unconstitutional beyond a reasonable doubt. This determination was upheld following an appeal handled by DWT partners Dan Ritter and Jeff Van Duzer.

Transpacific Barge v. Umpqua Marine Ways (D. Or.). Represented shipyard in dispute with owner over responsibility for construction cost overruns. Following jury trial, the jury awarded the shipyard essentially all the relief requested, plus punitive damages for wrongfully causing the arrest of the vessel.

Vernell’s Fine Candies v. Camp Fire Girls (King County, WA, Superior Court). Represented Campfire Girls (as they were then known) in suit by candy supplier for portion of purchase price, which had been withheld because of poor quality of candy. Following discovery, and shortly before trial, supplier dropped the suit.

Snohomish County v. City of Everett (Skagit County, WA, Superior Court). Represented City of Everett, WA, in dispute with county over interpretation and enforceability of interlocal agreement dealing with responsibility for garbage disposal and obligation of “flow control”.

Woodley v. Shaw, 79 Wn. App. 242 (1995). Represented accountant who pleaded guilty to conspiracy to defraud Medicaid and evade taxes, and was then sued for malpractice by his co-conspirator client and the client’s wife. Obtained summary judgment for accountant, which was affirmed on appeal.

Wizards of the Coast, Inc. v. United States Playing Card Co. (arbitration in Seattle, WA). Represented publisher of collectible card games in contract dispute with printing company over quality of printed cards. Case settled as a result of mediation following substantial discovery.

Advantage Wireless, Inc. v. VoiceStream Communications, Inc. (arbitration in Denver, CO). Represented VoiceStream in dispute with dealer involving numerous issues of contract interpretation and performance. Following hearing, arbitrator gave mixed award.

Massart/Central v. Travelers Insurance Co. (King County, WA, Superior Court). Represented surety in suit by contractor over terms of assignment of claims against owner. Obtained summary judgment in favor of surety.

J.J. Welcome Co. v. Travelers Insurance Co. (King County, WA, Superior Court). Defended surety against claim that it had improperly failed to fund plaintiff’s joint-venture partner on an unrelated project, with the result that plaintiff had to take over the joint-venture project at a loss.

Wolstein v. Bernardin, 159 F.R.D. 546 (W.D. Wash. 1994). Obtained default judgment for plaintiff because of discovery abuse. Plaintiff, creditor of subsidiary, alleged that directors of parent company had caused the looting of the subsidiary to discharge debts of the parent which they had guaranteed, and as a result were personally liable to creditors of subsidiary.

Home Box Office, Inc. v. Northland Communications, Corp., 14 Media L. Rptr. 1142 (W.D. Wash. 1987). Represented HBO in claim against cable system operator for failure to use “best efforts” to carry HBO programming over after-acquired systems. Following bench trial, the court ordered the cable operator to “switch out” a competing service and replace it with HBO.

Alaska Commercial Co. v. Prudential Bache Securities (W.D. Wash.). Represented ESOP sponsor in suit against broker for selling near-worthless oil and gas partnerships. Case settled on satisfactory terms as a result of mediation.

Pro Bono

King v. King (Wash. Supreme Court). Prepared and filed amicus brief on behalf of Washington State Bar Association in support of indigent’s right to appointed counsel in child-custody case when other parent had retained counsel.

Hamdan v. Rumsfeld (U.S. Supreme Court). Prepared and filed amicus brief on behalf of the American Jewish Committee and other organizations arguing that military commissions at Guantanamo violated detainee’s right to be present and confront his accusers.

Rust v. Western State Hospital (W.D. Wash.). Represented class of residents in forensic unit of state psychiatric hospital challenging lack of treatment and conditions of confinement, largely because of over-crowding and under-staffing. Court issued a preliminary injunction, and case settled thereafter with a consent decree requiring improved treatment and funding, and establishing a monitoring committee.

Has represented numerous indigent individuals in various litigation and immigration matters, as referred by legal service providers.

Prior Experience
Law Clerk to Judge Henry J. Friendly, U.S. Court of Appeals for the Second Circuit, 1969-1970

Law Clerk to Justice John M. Harlan, United States Supreme Court, 1969-1970

Staff Attorney, Office of the General Counsel, Department of the Air Force, 1971-1972

Trial Attorney, Office for Drug Abuse Law Enforcement, U.S. Department of Justice, 1972-1973

Assistant United States Attorney, Seattle, Washington, 1973-1976, investigation and trial of white-collar crime and narcotics conspiracies

Trial Practice Instructor, University of Washington Law School, 1979-1980

Managing Partner, Davis Wright & Jones (predecessor firm to Davis Wright Tremaine), 1986-1988

Instructor, National Institute of Trial Advocacy on numerous occasions

Publications and Presentations
Have spoken on antitrust, ERISA and trial practice issues at numerous CLE seminars

Memberships and Activities
Fellow, American College of Trial Lawyers since 1992

Member of American Law Institute since 1994, currently serving as Advisor to Restatement of Employment Law, and on Members’ Consultative Committee for Restatement of Torts: Liability for Economic Loss; formerly on Members’ Consultative Committee for Restatement (Third) of Agency

Federal Bar Association for Western District of Washington, past service as Trustee

Selected to "Super Lawyers," Washington Law & Politics, 2007-2008

Washington State Bar Association (WSBA), Section on Antitrust, Consumer Protection and Unfair Business Practices and of Executive Council, past member

WSBA Pro Bono Task Force, past Chair

WSBA Domestic Relations Task Force, past Chair

WSBA Pro Bono and Legal Aid Committee, current member

Volunteer Legal Services Committee, King County Bar Association, past Chair

Judicial Information Committee, King County Bar Association, past Chair

Education
J.D., magna cum laude, Harvard Law School, 1969

• Board of Editors, Harvard Law Review, 1967-1969; Articles Editor, Volume 81

A.B. in Mathematics, Princeton University, 1966