San Francisco, California 94105
Mr. Brown is a trial lawyer concentrating his practice on patent, trademark and trade secret trials, as well as complex commercial, class action, antitrust and legal malpractice defense litigation and arbitration, both domestic and international. He has tried dozens of civil and criminal cases, and scores of arbitrations. Mr. Brown has extensive experience in civil, multi-district litigation and often coordinates the work of counsel in multiple jurisdictions. He is frequently asked to “fix” problem cases where current counsel is being replaced or supplemented before trial. Mr. Brown has led teams in cases litigated in federal or state courts in, California, Delaware, Idaho, New York, Oregon, Georgia, Tennessee, Texas, Virginia, Utah and Washington. He also has significant experience in representing major corporations in prosecuting cases as a plaintiff. Mr. Brown worked on criminal matters as a federal criminal investigator and as a prosecutor with the San Francisco District Attorney’s Office on a public service leave of absence.
Mr. Brown is President of the California Bar Foundation—the center of philanthropy for California’s lawyers; a major force in diversity efforts for the bar; and a leader in educating Californians about their government and their responsibilities as citizens of California.
Mr. Brown was Partner-in-Charge of the San Francisco office of Gibson Dunn
He teaches trial skills for the National Institute of Trial Advocacy and for the Intensive Advocacy Program at the University of San Francisco School of Law. He has also been a guest lecturer at Boalt Hall on trial techniques and has taught advocacy skills for the Practicing Law Institute.
Representative Intellectual Property Cases
Santaris Pharma A/S Corporation. Mr. Brown leads a four office-team in this patent suit involving locked nucleic acid antisense oligonucleotide compounds used in the development of drugs. Isis Pharmaceuticals Inc. is the plaintiff in this action that is pending in the Southern District of California. The litigation involves a myriad of technical issues involved in the discovery, design and development of drugs, and IND and NDA processes before the FDA. One of many important issues in the case is the application of 35 U.S.C. § 271(e) (1), the statutory safe harbor that protects these activities. The Gibson Dunn team has secured a stay of major parts of the litigation so that the court may focus on the dispositive safe harbor issue before deciding if it is necessary to proceed to the remainder of the case.
Arysta LifeScience Corporation. Mr. Brown led a three-office team that obtained summary judgment on the grounds of non-infringement in a case involving an organic chemistry process patent on the manufacture of triones where BASF was seeking over $100 million from our client. BASF alleged that Arysta and its manufacturer, Eastman Chemical, infringed a patent covering a process for creating an organic chemical used to make an herbicide. Mr. Brown and his team also secured an early stay of all damages discovery and a bifurcation of damages and willfulness issues from the liability trial so that the client’s confidential business plans and competitively valuable financial information would be protected from disclosure. They also won a very favorable Markman decision after a full two day evidentiary hearing. The Federal Circuit affirmed the lower Court’s summary judgment favoring our client.
St. Jude Medical, Inc. Mr. Brown was lead trial lawyer in a patent case involving implantable defibrillators. The case involved novel questions on method claims, inducing infringement, extraterritoriality, and damages. St. Jude prevailed on a summary judgment. Mr. Brown was part of a multi-office, Gibson Dunn team representing St. Jude in a series of litigations in multiple jurisdictions involving billions of dollars of potential damages. Mr. Brown was to lead the teams at trial in two of the four then pending cases. St. Jude was both a plaintiff and defendant in those actions. Those cases have settled favorably for St. Jude.
Affymetrix. In Oxford Gene Technology v. Affymetrix, a case involving GeneChip® array technology, Mr. Brown led the damages team. The case was resolved after the first phase of the trial. GeneChip® arrays are manufactured using methods similar to those used in semiconductor manufacturing.
Cadence Design Systems, Inc. Just weeks before trial, Mr. Brown was asked to lead a multiple office team at trial in this patent and theft of trade secrets case. After a four week trial, Cadence prevailed on all counts by invalidating three patents at trial and defeating claims of misappropriation of trade secrets and other common law causes of action. Mentor Graphics, the plaintiff, sought close to $1 billion, the majority of which was aimed at the theft of trade secrets charge, but was awarded nothing. The jury deliberated for nine days and answered all 19 verdict form questions in favor of Cadence. The jury trial victory for Cadence is remarkable because the court, prior to trial, had found infringement of two of the three patents that remained in the case. The jury invalidated all patents presented to them, including those subject to the court’s infringement findings. While the jurors deliberated for nine days on the patent issues, they came to their verdict on the trade secret issues on the first day of their deliberations, thus quickly disposing of the largest portion of the damages claimed. The technology at issue was field programmable gate arrays used in emulation systems. Both hardware and software patents were presented to the jury. The San Francisco Daily Journal recognized the verdict as the “Defense Verdict of the Year” and the National Law Journal recognized it as one of the Top Ten Defense Verdicts of the Year.
American Airlines, Inc. Mr. Brown led a multi-office and multi-firm team in a cutting edge and hard fought trademark and identity theft dispute with Google seeking broad injunctive relief and extensive damages related to Google’s search advertising programs. The American Airlines team successfully argued to the court that Google should be required to provide direct access to its extensive electronic databases. Google’s motion to dismiss based on a non-trademark use defense was rejected by the court. The case was settled shortly before a motion was to be decided seeking to strike Google’s answer. The settlement with Google was followed by a similar litigation against Yahoo, also alleging trademark infringement and the illegitimate sale and use of American’s name. After motion by American, Yahoo was required to reform its discovery conduct. Yahoo settled on the eve of an evidentiary hearing concerning additional discovery misconduct.
Aureal Semiconductor. Following a one-month jury trial in Creative Technology Ltd. v. Aureal Semiconductor, Inc., Mr. Brown’s client, Aureal, obtained a verdict of non-infringement, thus freeing the Aureal product line from the threat of injunction and damages. The patents involved in this case related to digital sampling.
Nortel. Mr. Brown was brought into this case as lead trial attorney as the trial date drew near. The case involved a method patent involving internet technology. Nortel won the case on summary judgment shortly before trial. The Federal Circuit affirmed the trial court’s decision.
Intel Corporation. Mr. Brown represented Intel in a bankruptcy proceeding where the debtor was attempting to block Intel’s termination of a license agreement.
Major Law Firm. In an international arbitration where the identity of the parties remains confidential, Mr. Brown represented a major law firm accused of malpractice in the due diligence of a corporate acquisition and in follow-on litigation. The claims involved the development of drugs, FDA processes for review of INDs, and follow-on clinical trials. The claim was for over $600 million. After the submission of all direct evidence in written form—witness declarations, expert reports and exhibits—a two week oral evidence trial was held where selected witnesses were cross-examined. Our client prevailed on all counts, and neither negligence nor causation was found. Because the matter was subject to international rules, the opponent was required to reimburse our client for all of the legal fees and expenses that had been paid by our client to Gibson Dunn.
Merrill Lynch. In a series of trade secret actions relating to the theft of customer lists and other valuable information by departing employees, Mr. Brown and his team secured 10 TROs in several different states and secured multiple money judgments in arbitrations awarding Merrill Lynch its attorney fees and extensive damages. Mr. Brown has also represented Merrill Lynch in hard fought arbitrations before the NASD and NYSE involving highly paid employees seeking millions of dollars in damages.
Farmers Insurance Group. Mr. Brown represented Farmers Insurance Group in a class action where a class of 144,000 consumers sought $144,000,000 for violation of the Fair Credit Reporting Act (“FCRA”). After a one week trial, the jury returned a verdict in favor of Farmers on all points. Just two months before trial, Mr. Brown was brought in to guide the trial team to develop new trial themes and strategies to win before the jury and, if needed, on appeal. The Court had previously determined on summary judgment that Farmers had violated the FCRA and that Farmers’ interpretation of the FCRA was “objectively unreasonable.” The only issues left for trial were whether Farmers’ violation of the FCRA was willful and, if so, the amount of damages to award. In order to utilize a reliance on counsel defense, Farmers decided long before trial to waive the attorney client privilege and work product protection, which presented difficult trial choices for Farmers. After the trial themes were revamped and the evidence refocused, the jury found that Farmers had not acted in willful violation of the FCRA and that Farmers owed no damages to the class.
Allied Capital Corporation. Mr. Brown successfully represented an affiliate of Allied Capital in a month-long arbitration hearing in Chicago involving the consolidation of several independent businesses. The claimant demanded the right to participate in the consolidation transaction on financial terms that are materially different from the terms offered to others. Plaintiff's theories were based on fraud, intentional and negligent misrepresentation.
Flying J, Inc. Mr. Brown represented Flying J in a series of class action cases filed against Flying J and other fuel retailers in over 20 states. The cases involved over 150 defendants such as Exxon, Shell and Chevron and challenges the way gasoline and diesel fuel is sold at retail. Plaintiffs are asking for damages in excess of $10 billion. Mr. Brown was a leading member of the Defense Steering Committee and was co-chair of the Class Action Committee. Flying J exited the litigation after its bankruptcy.
Arysta LifeScience Corporation. Mr. Brown represented Arysta in a fraud, intentional and negligent misrepresentation action seeking in excess of $100 million against a multi-national drug and chemicals corporation. The case involved the purchase of assets and the duties of the seller to disclose truthful information impacting the value of the assets being sold.
Fair Isaac Corporation. Mr. Brown represented Fair Isaac in consumer class actions involving the federal Credit Repair Organization Act. The cases involved allegations of statutory violations, fraud and misrepresentation. He was national coordinating counsel for Fair Isaac on related litigation. The Gibson Dunn team defeated a request for class certification involving a potential class of seven million members. The team also received a favorable ruling on statutory liability. These cases recently settled on favorable terms after a fairness hearing.
People of the State of California ex rel. Bill Lockyer v. PG&E Corporation, et al. Mr. Brown led the litigation team representing PG&E Corporation and its directors in a section 17200 (California Business and Professions Code) action filed by the Attorney General of California (AG) seeking in excess of $5 billion. The AG alleged that PG&E Corporation engaged in unfair business practices in its relationship with its subsidiary. Those alleged unfair practices involved siphoning billions of dollars from its subsidiary in various complex financial transactions. The lawsuit followed a dismissal by the California Public Utilities Commission (CPUC) of its proceeding investigating these same issues.
Wilson v. Pacific Gas and Electric Company, et al. Mr. Brown headed a team that defended PG&E Corporation in two state court cases where the plaintiff alleged that PG&E Corporation violated its fiduciary duties and section 17200 in its financial relationship with Pacific Gas and Electric Company. Both Wilson cases, which sought billions of dollars, were dismissed.
Gillam v. PG&E Corporation, et al. Mr. Brown and others defended PG&E Corporation in a class action in the Northern District of California where the plaintiff alleged that PG&E Corporation and certain officers violated federal securities laws by issuing allegedly false and misleading financial statements in the second and third quarters of 2000. The case was dismissed and the dismissal was upheld by the Ninth Circuit.
Tate v. PG&E Corporation, et al. Mr. Brown represented PG&E Corporation in a $300 million antitrust, section 17200, and Racketeer Influenced and Corrupt Organizations Act (RICO) action. Plaintiffs alleged that the Pacific Gas and Electric Company, PG&E Corporation, and other companies monopolized the low emission fuels market. Mr. Brown and his team defeated the plaintiffs’ request for a preliminary injunction and negotiated a no-money dismissal for our client.
Smith Barney/CitiGroup. Mr. Brown was asked to be the lead trial lawyer on an investment banking case that had been pre-tried for several years by other lawyers. The case resolved favorably in mediation shortly before trial.
Merrill. In Merrill v. Navegar. Mr. Brown represented one of the plaintiffs in a public service action against a manufacturer of an illegal firearm used in the slaughter of eight people at 101 California.
Barclays Global Investors and Wells Fargo Bank. In a copyright case, Mr. Brown was the senior member of the team defending Wells Fargo and Barclays Global Investors and secured a summary judgment in favor of our clients.
Representative Commercial Cases
Mr. Brown has also represented the following companies among others: Xerox Corp., Texas Instruments, Crocker Bank, Transamerica, Knight-Ridder, Tomen Corporation, Applied Materials, Crum & Forster Insurance (and related subsidiaries), Kaiser Engineers, Zero Gravity (a Hummer-Winblad software investment), and Florida Power and Light. He has also represented the judges of the Superior Court of the City and County of San Francisco.
Mr. Brown has published numerous articles on international and domestic arbitration, and litigation management. Mr. Brown is a frequent lecturer on various litigation topics throughout the United States as well as in Germany, England, Japan, and Korea.
Mr. Brown currently is a Member of the Board of Directors and President of the California Bar Foundation and an Officer of the Edward J. McFetridge American Inn of Court. Mr. Brown has held leadership positions in the following organizations: International Law and Practice Section of the ABA (Chair of International Arbitration Committee, Member of Council), Bar Association of San Francisco (Board of Directors; Chair, Litigation Section; Chair, International Section), State Bar of California (Executive Committee, International Section; Chair, International Technology Committee), the Association of Business Trial Lawyers (Board of Directors and Program Chair); and the Federal Bar Association (Steering Committee for Northern California Chapter).
J.D., Duke University School of Law, 1975. At Duke, Mr. Brown served as the Administrative Law Editor of the Duke Law Journal.
|Areas of Practice||1) Antitrust and Competition, 2) Fashion, 3) Retail and Consumer Products, 4) Intellectual Property, 5) International Arbitration, 6) Law Firm Defense, 7) Life Sciences, 8) Product Liability and 9) Securities Litigation|
|Law School||Duke University School of Law, J.D., 1975|
|Education||Bucknell University, B.A., 1970|
|Bar Member / Association||California State Bar Association|
|Most recent firm||Gibson, Dunn & Crutcher LLP|
Legal Office Services Specialist
BAY AREA AIR QUALITY MANAGEMENT DISTRICT invites applications for the position of: Legal Office Services Specialist An Equal Opportunity ...
LOOKING FOR TOP PATENT ASSOCIATES / AGENTS - FOR IN-OFFICE OR WORK AT HOME POSITION
Vierra Magen Marcus LLP, a nationally recognized and San Francisco based IP law firm, is seeking motivated attorneys / agents to represent the firm’s Fortune 500 and other clients. Due to our geog...
IP Transaction Attorney
IP Transaction Attorney The candidate will support the company’s newly launched Global Innovation and Performance Center of Excellence (COE), which is charged with developing performance apparel in...
|+ View more jobs|
Benjamin P. Smith is a partner in Morgan Lewis's Litigation Practice. He is a trial lawyer with a particular focus on high-stakes disputes in the biotechnology, medical device, and internet industries.