In naming the California Lawyer Attorneys of the Year, we recognize lawyers throughout the state whose outstanding work had a significant impact in 2010. They include state and federal government attorneys, law professors, public-interest lawyers, and attorneys from large international law firms. Their practice areas range from antitrust law and civil rights to intellectual property and transactional law. Their victories include: winning an appellate court ruling to zone land for affordable housing, achieving the first successful court challenge to the military's "don't ask, don't tell" policy, and obtaining a $1.3 billion jury award in a copyright infringement case. The awards identify 27 achievements in 23 areas of legal practice, reflecting the breadth and depth of the work performed by California lawyers. Congratulations to all the winners.
Joseph M. Alioto Jr.
Alioto Law Firm, San Francisco
Last July, Alioto won a unanimous decision by the state Supreme Court reversing the lower courts and narrowing the availability of the pass-on defense under California's antitrust law, the Cartwright Act. In Clayworth v. Pfizer Inc.,
the court held that, with two notable exceptions, this defense is not available to pharmaceutical price-fixers regardless of whether the purchaser-plaintiffs passed on any of the overcharge to customers.
In addition, the court held that the pass-on defense did not defeat a claim under the Unfair Competition Law (UCL), which requires that plaintiffs must have lost money or property to have standing. Pfizer contended that the plaintiff pharmacies suffered no harm because they recovered any overcharges when they resold drugs to their customers. But Alioto argued successfully that whether the plaintiffs eventually recouped some or all of the money only reflected the scope of available remedies. Finally, the decision clarified that plaintiffs can seek an injunction under the UCL even if they aren't entitled to restitution, which had been an open question since voters amended the law in 2004. Consumer groups anticipate that the ruling will encourage more retailers in California to file price-fixing suits against manufacturers.
Jonathan M. Eisenberg
Office of the Attorney General, Los Angeles
Barbara M. Motz
Office of the Attorney General, Los Angeles
Kathleen E. Foote
Office of the Attorney General, San Francisco
In August, Eisenberg and Motz won an important ruling by the Ninth Circuit that a profit-pooling scheme between three Southern California supermarket chains violated section 1 of the Sherman Act, and is not immunized by the nonstatutory labor exemption (California v. Safeway, Inc.
). The case began several years earlier when Foote issued a civil investigative demand for a mutual strike assistance agreement (MSAA) among Albertson's, Ralphs, and Vons initiated just before a bitter United Food & Commercial Workers strike in 2003 and 2004. The MSAA provided for the sharing of profits during the strike: Any firm earning more than its historical share of the combined revenues of the grocery chains would redistribute 15 percent of the surplus among the others. The supermarkets sought to justify their agreement as "precompetitive" and noted that it was made in the course of a labor dispute. Eisenberg and Motz successfully argued that the pact was not exempt from antitrust analysis by virtue of the labor context, and further that it either constituted a per se violation of section 1 or was unlawful under an abbreviated rule-of-reason, "quick look" analysis. (Last month the Ninth Circuit granted en banc review of the decision.)
In a second case, initiated in 2009 by Foote and handled by Eisenberg, California alleged that a cosmetics company violated the state's antitrust law, the Cartwright Act, by forbidding resellers to sell its products below prices set by the manufacturer (People v. DermaQuest, Inc.
). In February 2010 DermaQuest agreed to end the practice. According to Foote, the case was brought in response to the U.S. Supreme Court's 5 – 4 opinion in 2007 reversing 96 years of precedent that such arrangements are per se violations of the Sherman Act (Leegin Creative Leather Products, Inc. v. PSKS, Inc.
). The DermaQuest
settlement sends a message to businesses that regardless of federal law, vertical price-fixing at the retail level remains illegal per se under California's Cartwright Act.
Jerome B. Falk, Jr.
Howard Rice Nemerovski Canady Falk & Rabkin, San Francisco
Even with 44 years in practice under his belt, 2010 stands out as a good year for Falk at the Ninth Circuit. In September on behalf of Autodesk, he won a major victory for copyright owners when the court held in Vernor v. Autodesk, Inc.
that consumers "license" only the use of software they purchase and do not "buy" it outright with resale rights. As a result, copyright owners are likely to change key language on future products. Also last year, the Ninth Circuit ruled that Falk's client, the producer of rapper Eminem, was entitled to higher royalty fees for cell phone ringtones than a jury had awarded (F.B.T. Productions LLC v. Aftermath Records
). And in a third IP case, the circuit turned aside a challenge to another Falk client, Advertise .com, by reinforcing the notion that AOL Advertising could not trademark a generic word (Advertise.com, Inc. v. AOL Advertising, Inc.
). Howard Rice attorneys who assisted Falk in these victories include partners Daniel B. Asimow, Steven L. Mayer,
and Clara J. Shin
; and associate Sara J. Eisenberg
Kaye McLane & Bednarski, Pasadena
Kaye McLane & Bednarski, Pasadena
Barrett S. Litt
Litt, Estuar & Kitson, Los Angeles
Thomas Goldstein spent 24 years in prison for a murder he did not commit, a victim of Los Angeles County's infamous jailhouse informant scandal of the 1980s. A grand jury report in 1990 found that law enforcement throughout the county had provided incriminating information to numerous informants who used it to create stories of jailhouse confessions. But Goldstein's 2004 release from prison only began a new legal battle. Kaye and McLane brought a civil rights action on his behalf against Los Angeles County and the city of Long Beach. Litt signed on in 2008, lending his considerable civil rights experience to help craft a legal strategy for the postexoneration civil suit that succeeded where so many others fail: In June the city agreed to pay Goldstein $7.95 million, the largest pretrial settlement for wrongful imprisonment in state history. Along the way, the team persuaded a federal judge to give it unprecedented access to secret grand jury testimony to bolster Goldstein's case. The materials showed that the lone witness identifying Goldstein not only had recanted but also said that police pointed out Goldstein to him as the alleged murderer in a photo lineup. The attorneys are appealing Los Angeles County's dismissal from the matter.
Jon B. Eisenberg
Eisenberg and Hancock, Oakland
In July 2008 Eisenberg won the first ruling in the nation against the federal government's secret domestic surveillance program, when District Judge Vaughn Walker decided that the state secrets privilege is preempted by the Foreign Intelligence Surveillance Act
(FISA), which permits judges to review classified materials to decide whether a case may proceed (Al-Haramain Islamic Foundation Inc. v. Obama
The case began in 2006 when Eisenberg agreed to represent two Oregon attorneys for the foundation who claimed that the government had illegally wiretapped them in 2003 and 2004 under the National Security Agency's then-secret Terrorist Surveillance Program. When Eisenberg filed the complaint, he included a copy of a top-secret document inadvertently turned over by the government; the plaintiffs argued that it proved the surveillance had been warrantless. But the document was sealed after the government asserted the state secrets privilege.
In March 2010 Walker ruled that the plaintiffs, using public information, had established standing on their FISA claim and a prima facie case of electronic surveillance. He granted their motion for summary judgment on the issue of liability, and nine months later awarded $40,800 in damages and $2.5 million in fees to their attorneys. Eisenberg, who worked more than 2,000 hours on the case, was awarded $1.24 million of that amount.
Richard M. Heimann
Lieff Cabraser Heimann & Bernstein, San Francisco
An eye-catching $203 million class action restitution award against Wells Fargo Bank capped two and a half years of litigation over manipulation of overdraft processing and fees. The bank created a bookkeeping practice that had what District Judge William Alsup called a "draconian impact" to "turn what would ordinarily be one
overdraft into as many as ten
overdrafts, thereby dramatically multiplying the number of fees the bank can extract from a single mistake." The restitution order, coming at the end of a two-week trial, represents the state's largest consumer class award in 2010. In addition, the case brought about important changes: The 90-page decision came with an injunction blocking Wells Fargo from engaging in similar conduct in the future. And the public attention it drew to the practice of stacking overdraft fees prompted a change in Federal Reserve rules last July; now banks must let customers choose whether to authorize overdraft protection for debit-card purchases. Heimann led the trial team for Lieff Cabraser Heimann & Bernstein, with help from Mikaela H. Bernstein, Roger N. Heller, Barry R. Himmelstein
and Michael W. Sobol
. The consumer suit was the brainchild of Richard D. McCune,
of McCuneWright in Redlands, who dogged the case through depositions and assisted during the trial.
Peter A. Hernandez
U.S. Attorney's Office, Central District of California, Los Angeles
Kevin S. Rosenberg
U.S. Attorney's Office, Central District of California, Los Angeles
Prosecuting what was, at the time, the largest single gang indictment in U.S. history took coordination, tenacity, and lots of oversight. Hernandez led a team that took on 102 defendants from the Florencia 13 gang over three years. Florencia allegedly controlled drug trafficking in areas south of Los Angeles, but gang members also were charged with making unprovoked attacks on African Americans seen in their neighborhoods. The case was later broken up into a series of six indictments and multiple trials, and two of those culminated in 2010 with the sentencing of more than a dozen defendants. Hernandez and Rosenberg led the prosecution of eleven defendants, joined by Assistant U.S. Attorney Jeffrey Backhus,
securing life sentences and other terms ranging from 10 to 60 years. Four additional prison sentences ranging from 10 to 20 years came out of another case prosecuted by Assistant U.S. Attorneys Martin Estrada
and Xochitl Arteaga
Innocence Project, Santa Clara University School of Law
Although hundreds of state and federal prosecutors were found by judges to have committed misconduct over a twelve-year period, only six were ever disciplined by the State Bar of California. Such findings in a landmark report produced last fall by the Northern California Innocence Project at Santa Clara University School of Law and the Veritas Initiative prompted the bar to undertake a thorough reexamination of the issue of prosecutorial misconduct. Ridolfi and Pulitzer Prizewinning reporter Maurice Possley
examined 707 cases dating back to 1997 in the first comprehensive look at how the bar holds prosecutors to account if they abuse the public trust.
Press accounts of prosecutorial misconduct in Santa Clara County preceded the report, but Ridolfi looked beyond the local issue. The report's power was its broad look at how misconduct allegations against prosecutors slip through the cracks statewide. The State Bar is currently reviewing allegations of misconduct against 130 prosecutors--both county and federal--identified in the report, according to Cydney Batchelor, deputy trial counsel for the bar. The bar plans to step up efforts to educate prosecutors about its discipline process, she says, and may change practices in the future.
Laurence W. Paradis
Disability Rights Advocates, Berkeley
Mary-Lee Kimber Smith
Disability Rights Advocates, Berkeley
Jose R. Allen
Skadden, Arps, Slate, Meagher & Flom, San Francisco
Allen, Paradis, and Smith secured a $1.1 billion settlement--the largest of its kind in the nation--from the California Department of Transportation, pledged for upgrading access for people with disabilities. The settlement resolves two class actions against Caltrans alleging it denied effective access to 2,500 miles of sidewalk, overpasses and underpasses, and commuter parking facilities. Caltrans agreed to improve its sidewalks and facilities over the next 30 years by removing barriers, resurfacing uneven and broken pavement, and upgrading and installing curb ramps. Caltrans must also follow federal and state accessibility guidelines when undertaking new construction. The work on improvements began in July, with an initial funding of $25 million that will be stepped up over time. The trio of attorneys partnered on the settlement with the AARP Foundation, based in Washington, D.C.
Lizabeth A. Rhodes, Shana T. Mintz
U.S. Attorney's Office, Central District of California, Los Angeles
Rhodes and Mintz brokered a record-breaking deal to resolve claims that CVS Pharmacy Inc. turned a blind eye to illegal repeat sales of a key ingredient used in methamphetamine production. Last year, the retail chain agreed to pay a $75 million penalty and forfeit $2.6 million in profits--the largest civil penalty ever obtained under the federal Controlled Substances Act. Mintz started an investigation of CVS based on arrests of "smurfers" (people who repeatedly bought small amounts of cold medicine containing pseudoephedrine, sometimes wiping the shelves clean) made by the Drug Enforcement Administration, the California Bureau of Narcotics Enforcement, and the Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force. Mintz burrowed into the civil arm of the case, and Rhodes joined to handle the criminal investigation. They proved that smurfers specifically targeted CVS because of its lax selling practices. Under a nonprosecution agreement, CVS acknowledged criminal liability and agreed to change its tracking practices for drug sales nationwide.
Michael J. Crowley
Janssen, Malloy, Needham, Morrison, Reinholtsen, Crowley & Griego, Eureka
W. Timothy Needham
Janssen, Malloy, Needham, Morrison, Reinholtsen, Crowley & Griego, Eureka
Christopher J. Healey
Luce, Forward, Hamilton & Scripps, San Diego
Michael D. Thamer
Law Offices of Michael D. Thamer, Callhan
In July Crowley, Needham, Healey, and Thamer won a $676.8 million jury award against a nursing home chain by arguing that residents there simply didn't get what they paid for: quality care (Lavender v. Skilled Healthcare Group, Inc.
). The plaintiff class, consisting of 42,000 individuals, accused Orange Countybased Skilled Healthcare of failing to provide at least 3.2 nursing hours per resident per day at its 22 nursing homes in California. According to numerous studies, understaffing is the primary cause of falls, pressure sores, weight loss, incontinence, and even death at skilled nursing facilities.
The complicated six and a half month trial included 129 motions, twelve writs, and two appeals. It highlighted evidence that state inspectors had found Skilled Healthcare deficient in 84 surveys, below the minimum staffing level on more than 500 days, and responsible for at least 1.2 million violations--at a potential cost of $500 each in statutory fines. Two months after the verdict, Skilled Healthcare agreed to pay $50 million in cash settlements, along with the $12.8 million cost of complying with an earlier injunction. The agreement helps the company avoid bankruptcy and continue to provide housing for its residents. A third-party monitor will ensure that the facilities' staffing levels meet the mandated minimum, as ordered by the court at the urging of Humboldt County District Attorney Paul Gallegos,
who intervened in the case.
Kent L. Richland
Greines, Martin, Stein & Richland, Los Angeles
In his second big win before the U.S. Supreme Court, Richland defended a city's right to monitor racy text messages sent by its police officers over city-issued pagers--even though the police department had, on an informal basis, allowed officers to send personal messages (City of Ontario v. Quon
). The case was the Court's first foray into employee privacy rights in the digital age, and while the Court did not decide every question, it provided helpful guidelines for employers across the nation. The justices were noticeably cautious in dealing with text messaging. Both sides had fully briefed the issue of an employee's expectation of privacy when using employer equipment, but the Court did not address the wider question. The case has nevertheless alerted employers to the need for tightly worded policies about the use of electronic devices. GMSR associate Kent J. Bullard
helped to develop the strategy and write briefs for the case.
Robins, Kaplan, Miller & Ciresi, Los Angeles
Roman M. Silberfeld
Robins, Kaplan, Miller & Ciresi, Los Angeles
Last fall, in what the Hollywood Reporter described as the largest judgment ever obtained in a "Hollywood accounting" lawsuit, Conn and Silberfeld won a $269.4 million jury verdict--plus $50 million in prejudgment interest--against Walt Disney Co. on behalf of a British production company. In March 1999 Celador International agreed to share with Disney and its subsidiaries--ABC Television, Buena Vista Television, and Valleycrest Productions--half of whatever U.S. profits were made from the hit TV game show Who Wants to Be a Millionaire,
which Celador had created. Millionaire
became ABC's biggest hit in more than a decade. But after three seasons, Disney's accounting indicated the show was still losing money. Celador subsequently sued, accusing the studio of breaching the covenant of good faith and fair dealing implied in their signed contract. At the trial, Conn and Silberfeld argued that Disney had breached the parties' contract when it distributed millions of dollars it owed to Celador to Disney affiliates instead. One critical turning point: the introduction of email messages from Michael Eisner, Disney's former CEO, in which he estimated that the rights to the show were worth $1 billion. "This verdict creates a strong industry precedent that will make studios more careful about how they treat income generated by their subsidiaries," says entertainment lawyer Ricardo P. Cestero. Especially, he adds, when they're claiming zero profits.
Richard T. Drury
Lozeau Drury, Oakland
Richard M. Frank
UC Davis School of Law
In one of the year's most closely watched environmental decisions, the California Supreme Court struck down an air district's 2004 approval of a plan to retool an oil refinery in Wilmington, a small town in Los Angeles County. The decision is likely to have ramifications reaching far beyond Southern California, since Communities for a Better Environment v. South Coast Air Quality Management District
sets new guidelines for how businesses throughout the state can proceed when proposing equipment modifications to their aging industrial facilities. The case--brought by the Oakland nonprofit Communities for a Better Environment, represented by Drury and Frank--hinged on whether the air district should have required an environmental impact report (EIR) for changes to a 56-year-old ConocoPhillips refinery. The plaintiffs contended that the baseline the district should have used for California Environmental Quality Act (CEQA) review was the actual environmental conditions at the time the modifications were proposed--not hypothetical maximum emissions that were authorized (but never fully utilized) under previously issued permits. Using the permitted levels, they argued, understates the impact of additional nitrogen oxide releases created by a new process the plant uses to refine ultralow-sulfur diesel fuel. Because those emissions would significantly worsen the region's smog, they added, CEQA calls for new EIRs. Environmentalists hailed the decision, saying that it would thwart industry efforts to win "grandfather" exemptions from CEQA regulations for any changes to their plants.
David M. Axelrad
Horvitz & Levy, Encino
Horvitz & Levy, Encino
It's a rare case that attracts amicus briefs on behalf of nearly 50 law firms, but that's what happened in Kirk v. First American Title Insurance Company,
a case that set standards detailing what triggers the need for ethics walls within law firms. The defendant's appeal was briefed by Axelrad and Perrochet and argued by Perrochet. The underlying case involved a consumer class action against First American for allegedly unlawful title insurance procedures. When a large firm took over First American's defense, the plaintiffs won a disqualification motion against it because one of the firm's attorneys in a different office had participated in a confidential communication about the case with plaintiffs counsel while he was previously employed at another insurance company. Axelrad and Perrochet persuaded the Second Appellate District Court of Appeal to reverse the disqualification order and, in the process, elicited a groundbreaking opinion that outlines when and how an "ethical wall" must be maintained within a law firm.
Although the State Bar had proposed changes in the Rules of Professional Conduct to deal with discipline in this area, after this ruling last April it backed off--effectively leaving it to the courts to refine the standards for ethical screens. Given the frequent movement of lawyers between law firms and from government to private practice, the Kirk
decision is sure to echo in California courtrooms and the corridors of its law offices for years to come.
Drew Liebert, Leora Gershenzon
Assembly Judiciary Committee, Sacramento
Liebert, chief counsel of The Assembly Judiciary Committee , and Gershenzon, staff counsel for the group, accomplished a rare feat last year when, in just a few months, they turned a set of task force recommendations into meaningful legislation. Their marching orders came from the Elkins Family Law Task Force, 38 legal experts from the bench and bar who were charged with proposing ways to make family court proceedings more efficient, fair, and accessible to litigants as directed by an earlier California Supreme Court decision (Elkins v. Superior Court
). After two years of study and debate, the task force issued its recommendations for change last spring.
Liebert and Gershenzon then worked quickly with legislators and staff as well as representatives of various affected groups to develop and pass a key bill to codify revolutionary changes for family law practice in the state. AB 939, enacted in September, for the first time provides family law litigants with a meaningful right to present live testimony; establishes procedures allowing judges to control the manner and pace of family law cases; and makes critical changes in the award of attorneys fees. Liebert and Gershenzon also helped formulate AB 1050, passed in August, which allows children age 14 and older to testify in custody and visitation proceedings.
Owen J. Clements
San Francisco City Attorney's Office
Clements won a unanimous ruling from the California Supreme Court that allows local governments to hire private counsel on a contingency basis to pursue complex litigation (County of Santa Clara v. Superior Court
). He represented a group of cities and counties--including San Francisco--that had sued the lead paint industry in a nuisance proceeding with the help of private contingent-fee attorneys. The practice has become an increasingly popular solution for cash-strapped local governments, particularly in complex cases that involve sophisticated defendants. Yet it raises a profound constitutional issue: Is it proper for private attorneys to be paid contingent fees to enforce policies promulgated under the government's police power? A variety of business groups, acting as amici, argued that it isn't. But Clements, who serves as chief of special litigation for the City Attorney's office, won the day by demonstrating that the outside attorneys were not replacing government counsel but rather working alongside, with public counsel maintaining control of the litigation.
Ethan P. Schulman
Crowell & Moring, San Francisco
Julie Yu-Ping Weng-Gutierrez
Office of the Attorney General, Sacramento
In November, Schulman and Weng-Gutierrez won a unanimous ruling at the state Supreme Court for their successful defense of a law that allows undocumented immigrant students to pay lower, in-state tuition fees at public colleges and universities if they have attended a California high school for three years. The plaintiffs--42 out-of-state students who are U.S. citizens--argued that the three-year attendance rule in the California Immigrant Higher Education Act (Cal. Gov. Code § 68130.5) is really just a substitute residency requirement that favors undocumented students. Furthermore, they said, it violates a federal prohibition on postsecondary educational benefits for undocumented immigrants in some cases. But Schulman and Weng-Gutierrez maintained that California's education law did not violate the rights of nonresidential students under the privileges or immunities clause of the 14th Amendment, nor was the statute preempted by federal law (Martinez v. Regents of the University of California
). The landmark decision could affect several other states with similar laws, including Illinois, Kansas, New Mexico, New York, Oklahoma, and Texas. Writing for the court, Associate Justice Ming W. Chin noted that if Congress had meant to ban undocumented aliens' access to in-state tuition, "it could have easily done so" by explicitly stating a prohibition, but it did not do so. The closely watched case garnered national attention, with amicus briefs filed by scores of immigrant rights, civil liberties, and conservative political organizations, as well as two members of Congress.
Henry C. Bunsow
Howrey, San Francisco
After an epic struggle as dramatic as the final day of golf's Ryder Cup, Bunsow and his team from Howrey ended a lengthy patent fight on behalf of client Acushnet Co. over its Titleist ProV1 ball, used by golfers around the world. Brought into the case in 2009 after a jury verdict in favor of rival firm Callaway Golf Co., Bunsow first persuaded the U.S. Court of Appeals for the Federal Circuit to send the case back for a retrial in Delaware. There he prevailed after a five-day district court trial in March that could have cost Acushnet $250 million in damages. The jury found for Acushnet, concluding that the patents owned by Callaway were invalid. The victory was a welcome relief to Joseph J. Nauman, Acushnet's general counsel. "It wasn't an easy case to present to the jury," he says. Bunsow also notched a second win of note in 2010 when he successfully defended DuPont Air Products NanoMaterials in a patent dispute with Cabot Microelectronics Corp. over materials used in making semiconductors. Bunsow shared lead trial counsel duties in that case with Alan M. Grimaldi
of Howrey's Washington, D.C., office. In January, Bunsow joined Dewey & LeBoeuf.
Geoffrey M. Howard
Bingham McCutchen, San Francisco
Howard and New York – based David Boies
of Boies, Schiller & Flexner won the biggest software piracy verdict ever, securing $1.3 billion in damages for Oracle. Howard was on the case from day one, as the first person the software giant contacted when it found out in late 2006 that the German firm SAP AG was illegally downloading Oracle software and reselling it. He assembled a team to investigate and spent nearly four years compiling the evidence necessary to prove copyright infringement. Before the three-week jury trial began in Oakland, Oracle brought legal star Boies on board. He and Howard shared lead trial counsel duties, with Howard presenting the opening and Boies the closing arguments. Among those who testified at the high-profile trial was Oracle's colorful CEO Larry Ellison, making it a must-see event for Silicon Valley insiders. Other members of the Bingham McCutchen team included partners Donn P. Pickett, Holly House, Zachary Alinder,
and Bree Hann.
Laura L. Faer
Public Counsel, Los Angeles
Shawna L. Parks
Disability Rights Legal Center, Los Angeles
Mark D. Rosenbaum
ACLU of Southern California, Los Angeles
Last November, Faer, Parks, and Rosenbaum secured a landmark settlement in a class action alleging that youths detained at a complex of six Los Angeles County probation camps were denied a constitutionally adequate education. The suit alleged that teachers at Camp Challenger were unqualified and frequently missing in action; that many teens who graduated were still unable to read or write; and that some detainees were confined to solitary cells with no meaningful instruction, not even textbooks. According to the complaint, the teens were punished when they asked for educational help or textbooks.
With assistance from David Sapp
of the ACLU of Southern California, the three attorneys held complex negotiations with a diverse group of county officials, educators, and civil rights advocates. The settlement with the county's Office of Education and its Probation Department calls for systemic reforms at Camp Challenger, which is legally required to provide schooling to some 650 students held there for juvenile offenses. The county must hire reading specialists, create vocational and literacy programs, improve access to books and work spaces, designate a classroom for residents in solitary confinement, and monitor teacher absences. The agreement also provides for intensive tutoring to help 2,000 former detainees regain the educational ground they lost while living there. Progress on all fronts will be monitored by a panel of education experts.
Richard A. Marcantonio
Public Advocates, San Francisco
Last spring Marcantonio won a major victory for affordable housing advocates when an Alameda County Superior Court judge struck down the city of Pleasanton's voter-approved housing cap. The win puts local governments on notice that their development strategies must comply with the state's affordable housing law. Marcantonio argued that the East Bay community's flat cap of 29,000 housing units violated California's requirement that the city build its "fair share" of affordable housing. The severe imbalance between commercial development and affordable housing forces tens of thousands of Pleasanton workers to commute by car from outlying areas, exacerbating the city's greenhouse gas emissions.
Marcantonio filed suit in 2006 on behalf of the environmental advocacy group Urban Habitat and a local schoolteacher, after the city reneged on its promise to zone land for new low-income units. In 2009 Attorney General Jerry Brown intervened, citing concerns over the strict nature of the ban and its environmental implications, in what appears to be the first time the AG's office has stepped in to enforce the state's affordable housing statute. In July, Pleasanton agreed to revoke the cap, implement a plan to reduce greenhouse gas emissions, and zone land near the city's BART station for new affordable housing units. The case was proved with the help of new research on the need for conveniently located low- and middle-income housing, conducted by Marcantonio and his colleague Elisabeth Voigt,
who has since left Public Advocates; San Francisco pro bono counsel Carolyn Hoecker Luedtke
of Munger Tolles & Olson and Peter C. Meier
and Christopher M. Mooney
of Paul, Hastings, Janofsky & Walker; and Michael F. Rawson
of the Public Interest Law Project in Oakland.
Brian C. Leighton
Law Office of Brian C. Leighton, Clovis
After 15 years on the case, Leighton won what is believed to be the first settlement ever in a lawsuit challenging the state secrets privilege. In 1994 Leighton filed suit on behalf of a former agent of the Drug Enforcement Administration, alleging violation of his Fourth Amendment rights against unreasonable search and seizure (Horn v. Huddle
). Richard A. Horn suspected that his home in Myanmar (Burma) had been illegally wiretapped in 1992 when, after a bureaucratic dispute with superiors, he was suddenly reassigned to New Orleans. With his career sidetracked, Horn sought help from Leighton, an old friend and a former assistant U.S. Attorney in Fresno. The Department of Justice (DOJ) promptly had the proceedings sealed, alleging that Horn had improperly disclosed classified information in his complaint. Eight years later, the DOJ asserted the state secrets privilege over two classified reports created by the inspectors general of the CIA and the State Department in response to Horn's allegations.
A federal court dismissed the case in 2004; but after three years the Court of Appeals reinstated claims against one defendant, ruling that Horn had alleged sufficient facts to survive a motion to dismiss even without the classified documents. Although the DOJ reasserted the state secrets privilege, in March 2010 it finalized an agreement to settle the case for $3 million.
Sean P. Gates
Morrison & Foerster, Los Angeles
Working with Public Counsel's Catherine E. Lhamon
and Mark D. Rosenbaum
of the ACLU of Southern California, Gates and his team of MoFo attorneys won a groundbreaking class action settlement on behalf of students at three underperforming middle schools (Reed v. State of California
). As a result of the innovative agreement with the Los Angeles Unified School District (LAUSD), the nation's second-largest school district must consider equal protection implications as well as teacher seniority when it makes layoff decisions. California law basically mandates a last-hired, first-fired policy, but Gates, Lhamon, and Rosenbaum argued that the students at the three schools in question were denied their state constitutional right to a basic education when layoffs based on strict adherence to seniority rules devastated their teaching staffs in 2009 and 2010. The schools had had a high concentration of young teachers who were then replaced by rotating substitutes, many of whom lacked credentials to teach in their assigned subject areas. "This is the first case that looks beyond seniority and considers equal protection of the law when it comes to the area of reduction in force," says David Holmquist, LAUSD general counsel.
Last October, LAUSD broadened the settlement class to protect students at up to 45 schools that the district determines would be disproportionately harmed by teacher layoffs. The superior court finalized the landmark agreement in January; United Teachers Los Angeles filed a notice of appeal in February. Members of the MoFo team include associates Dale K. Larson
and Hailly T. N. Korman.
Daniel J. Woods
White & Case, Los Angeles
Six years of pro bono work paid off for Woods and the team of attorneys he led to win the first case facially challenging the constitutionality of the "don't ask, don't tell" act banning gays and lesbians from serving openly in the military (Log Cabin Republicans v. United States
). The government argued that the law (10 U.S.C. § 654), implemented in 1993, should be preserved to promote military readiness and unit cohesion. At the federal trial last summer in Riverside, Woods introduced testimony that the military loses--or fails to enlist--5,000 men and women annually due to the policy. Witnesses included several decorated former members of the military who described the shame and discordance of forced secrecy about their homosexuality. U.S. District Judge Virginia Phillips ruled that the law violated service members' Fifth Amendment rights to freedom of thought, belief, expression, and certain intimate conduct--and their First Amendment freedoms to join certain organizations and speak about loved ones while serving their country. In October, Phillips issued a worldwide injunction ordering the U.S. military to stop enforcing don't ask, don't tell. The next day, Defense Secretary Robert Gates complained that Congress, rather than the courts, should set military policy. The House and Senate promptly passed a bill to repeal the policy, which President Obama signed into law December 22. (It provides a transition period for the defense department to implement the changes.) The Ninth Circuit will hear an appeal of Phillips's judgment and injunction later this year. In the meantime, civil rights experts say, the holding serves as an incentive to ensure that the military will act quickly to lift the ban.
Stacey M. Leyton
Altshuler Berzon, San Francisco
Arguing before the Ninth U.S. Circuit Court of Appeals, Leyton successfully defended a critical district court ruling that halted state plans to cut the wages of Medicaid caregivers providing in-home services for elderly and disabled Californians (Dominguez v. Schwarzenegger
). Representing a class of approximately 100,000 caregivers and their clients, Leyton argued that the state had failed to correctly evaluate the effects of a statute that would have reduced the providers' wages. Specific provisions in the federal Medicaid Act preempted the state law, Leyton told the court. In March, the appeals court upheld a preliminary injunction preventing the cuts. The Legislature has since voted to suspend them until mid-2012. Meanwhile, the legal fight continues: The U.S. Supreme Court announced in January that it will review California's challenge to the ruling, along with several related petitions about Medicaid spending reductions.
Robert S. Townsend
Morrison & Foerster, San Francisco
In one fell swoop last summer, Intel Corp. filled two gaping holes in its business model by acquiring Infineon Technologies' wireless chip unit and McAfee Inc., one of the world's leading Internet security companies. Morrison & Foerster's Townsend was at the helm as chief negotiator for Intel on these deals, which gave the Santa Clarabased company mobile connectivity tools and the software to make them safe. Some observers believed Intel, despite its status as the world's largest chip manufacturer, had fallen behind in these key technology areas as its core semiconductor business slowed.
Structuring those acquisitions--which were among the year's biggest at about $1.4 billion (for Infineon's Wireless Solutions Business Unit) and $7.68 billion (for McAfee)--required Townsend to coordinate dozens of Morrison & Foerster attorneys over just a few weeks in a variety of practices, including corporate and securities, employee benefits and competition, real estate, tax, intellectual property, and antitrust law. Larry Sonsini
and Jeffrey Saper
were among the Wilson Sonsini Goodrich & Rosati attorneys who represented McAfee; Paul, Weiss, Rifkind, Wharton & Garrison partner David K. Lakhdhir
in London and Ralf Morshäuser
of Gleiss Lutz Rechtsanwälte in Munich were the key outside counsel for Germany's Infineon, which provides the chips used in Apple Inc.'s popular iPhone.