Today the United States Court of Appeals for the Ninth Circuit issued an order in Cochrane v. Open Text Corp., Case No. 15-16322, affirming the district court’s judgment confirming Kevin Cochrane’s arbitration victory against Open Text. Jeff Faucette represented Mr. Cochrane throughout the case, including the arbitration and hearing, the district court proceedings before the Honorable William Alsup, and in the Ninth Circuit. Open Text was represented by a team of attorneys from Cleary Gottlieb Steen & Hamilton LLP and Cooley LLP. The arbitrator ruled in Mr. Cochrane’s favor and awarded him more than $450,000 in damages, fees, and expenses. Open Text challenged this award at the district court level and lost in a sternly worded order by Judge Alsup. Open Text then appealed to the Ninth Circuit and lost again in a summary disposition by the court. Copies of the trial and appellate court orders are available here:
Today the Colorado Supreme Court issued an order in Clean Energy Collective LLC v. Borrego Solar Systems, Inc., 394 P.3d 1114 (Colo. 2017), reversing the district court’s holding that Borrego was subject to general jurisdiction in Colorado. Jeff Faucette represents Borrego and its subsidiary 1115 Solar Development LLC in this matter. Borrego and 1115 Solar were sued by Clean Energy Collective for breach of contract and other claims. Borrego and 1115 Solar filed a motion to dismiss for lack of personal jurisdiction. The trial court held that Borrego was subject to general jurisdiction in Colorado and that CEC could conduct discovery to see if Borrego’s contacts could be imputed to 1115 Solar. Jeff and local counsel Ty Gee at Haddon, Morgan and Foreman, filed an original proceeding in the Supreme Court pursuant to Colorado Appellate Rule 21 on the ground that the trial court had exceeded its jurisdiction.
A copy of the order is available here: Colorado Supreme Court Order
In 2014, client Borrego Solar Systems, Inc. entered into agreements with SolarCity Corporation to develop and build a solar power facility in West Boylston, Massachusetts. SolarCity breached these agreements and unilaterally canceled the project. On behalf of Borrego, Jeff Faucette filed an arbitration demand and represented Borrego throughout the arbitration, including a three-day hearing in February 2016. SolarCity was represented by a team of attorneys and paralegals from Morgan Lewis & Bockius. On May 19, 2016, the arbitrator found in favor of Borrego on all counts and awarded Borrego more than $1.6 million in damages plus all attorneys’ fees and costs incurred in the arbitration. This arbitration award was later confirmed in San Francisco Superior Court.
In late 2013, medical device manufacturer Zeltiq Aesthetics, Inc. filed a false advertising and unfair competition lawsuit against its competitor BTL Industries, Inc. in the Northern District of California. Shortly after that, Zeltiq filed a motion for a preliminary injunction asking the court to stop BTL from marketing and selling its Vanquish device. On behalf of our client BTL, Jeff Faucette successfully opposed the motion for preliminary injunction. Jeff has handled several false advertising and trademark infringement cases for clients in various industries, but regulated medical devices pose different issues in this context. The Court’s order denying the motion is available here.
Zeltiq continued, however, to pursue its claims against BTL, and following the close of discovery, Zeltiq filed a motion for partial summary judgment arguing that BTL’s sales of an FDA-cleared device were unlawful under certain provisions of California’s Health and Safety Code. Jeff again successfully opposed this motion, and the Court’s order denying it is available here.
The case was set for a bench trial to begin on June 15, 2015, but the parties reached a settlement to their mutual satisfaction, and Zeltiq dismissed all of its claims with prejudice on June 2. More information about BTL is available at www.btlaesthetics.us. Zeltiq is a publicly-traded company and it was represented by counsel at an Amlaw 100 firm. We were pleased to defend BTL successfully and efficiently throughout this matter so that it can continue to offer the Vanquish device to physicians.
On February 6, 2015, Jeff and Jason secured another quick and efficient victory for their clients in a case involving claimed damages of $30 million–despite facing a Fortune 100 company represented by an AmLaw 100 law firm.
In 2014, Hewlett-Packard Company sued Datel Holdings Ltd. and four of its subsidiaries for trade secret misappropriation. HP claimed that Datel acquired an ST Micro Development Kit without permission and used it to crack the security on chips used in HP 930 and 950 series ink cartridges.
On behalf of Datel, Jeff and Jason filed a motion to dismiss HP’s complaint. In the months that the motion was pending in the Northern District of California, Jeff and Jason worked with Datel to respond to information requests from HP and to pursue information from HP, ST Micro, and other parties believed to have misinformed HP about the nature of Datel’s legitimate reverse engineering work. Faced with this information and the pending motion to dismiss, HP voluntarily dismissed the lawsuit without any settlement or consideration from Datel.
Jason and Jeff were both recognized as “Super Lawyers” by Northern California Super Lawyers magazine in a list published in July 2014. Jason and Jeff have been recognized by the publication in every year since 2010.
On September 26, 2013, the TTAB issued a precedential decision sustaining opposition to the registration of the CLOROTEC mark and design due to the applicant’s admitted non-use of the mark in the United States (108 USPQ2d 1063 (TTAB 2013)). This decision came in response to a motion for summary judgment filed by Jeff on behalf of The Clorox Company. In addition to this matter, Jeff has represented both trademark applicants and opposers in several inter partes proceedings in the TTAB.
The decision is available here: Order Granting Summary Judgment on Non-Use
The decision is also the subject of a posting on the TTABlog.
On July 1,2013, Judge Richard Seeborg of the Northern District of California issued a 10-page order granting the motion to dismiss Jeff filed on behalf of our client Sotheby’s, the global art business. Steven Brooks, an art collector in San Francisco, filed the case against Sotheby’s in San Francisco Superior Court claiming that Sotheby’s had misrepresented the provenance of the painting he purchased in London in 2004. Several years after purchasing the painting, Brooks learned that it had once been owned by Hermann Goering, a fact unknown at the time the painting was sold.
In response to Brooks’ complaint, Jeff filed a notice of removal to the United States District Court for the Northern District of California. We then filed a motion to dismiss the case for improper venue based on the clear choice of forum clause in the Sotheby’s Conditions of Business. Brooks opposed the motion and claimed that enforcement of the forum clause would violate California public policy. After full briefing and a hearing, Judge Seeborg rejected Brooks’ arguments and granted the motion. The order is available below. We believe that this is the first decision in the United States enforcing the choice of forum clause in Sotheby’s Conditions of Business. Given the worldwide nature of Sotheby’s art auctions, this was an important vindication of this contractual provision. The decision received attention in both legal and art publications.
Jason and Jeff have both been recognized as 2013 “Super Lawyers” by Northern California Super Lawyers magazine: Jason for Business Litigation and Jeff for Intellectual Property Litigation. This is the fourth consecutive year that both Jason and Jeff have been recognized by the publication.
On March 14, 2013, Jason and his co-counsel, Husch Blackwell, LLP, secured an order in San Francisco Superior Court granting summary judgment in favor of their clients and disposing of all ten claims raised by the plaintiff in the case of Sanguinetti v. Forest Laboratories, Inc. (San Francisco Superior Court Case No. CGC 12-518241). The order was issued after a lengthy hearing in February wherein Jason presented Defendants’ arguments. A copy of the summary judgment order may be found here. FINAL SUMMARY JUDGMENT ORDER