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.
Matthew Douglas Powers is a big name in IP circles. And he’s the co-chair of Weil’s litigation department. But he’s not going to comment on Judge Davis’s $40 million critique of his trial performance.
What were the judge’s reasons for admonishing Powers? Check after the jump.
According to the judge, Powers misrepresented the law to the jury:
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. 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 non-practicing 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.’”
Does that sound like improper conduct, or creative lawyering?
Of course, the news is not all bad for Weil Gotshal. Harvey Miller — Weil’s bankruptcy guru — continues to restructure companies and rake in fees. Today, the Wall Street Journal Law Blog reported on another multimillion dollar fee request the firm is putting in for its work on Lehman Brothers:
Just last week, James Peck, the judge in the Lehman Brothers bankruptcy gave his stamp of approval to Weil’s request for $55 million in fees for work performed in the case from September of last year through January.
Now, Miller and his merry gang are at it again. On Monday, Weil requested an additional $45.2 million in legal fees for work performed in Lehman. The work is for four months, from February through May.
Bailouts and analogies to bailouts are going to be with us for a long time.
Microsoft Judge Chastises Weil Lawyer for ‘Bailout’ Dig [ABA Journal]
Weil Gotshal’s Next Fee Request in Lehman: $45.2 Million [WSJ Law Blog]