Intellectual Property

3 More Questions For A Biglaw Refugee Turned Biglaw Vice-Chair

It is always a privilege to hear from those at the very top of our profession, especially when they have such interesting perspectives to share on groundbreaking cases.

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Bill Isaacson (Photo via Boies Schiller)

I usually limit my “3 Questions For…” written interviews to three questions. But when you have the opportunity to correspond with one of the country’s best lawyers in a leadership capacity at one of its most successful law firms, you gladly make exceptions. Welcome to the inaugural “3 More Questions For” column, whereby we continue our discussion with Boies Schiller’s Bill Isaacson, who generously agreed to discuss some of his headline-making past victories. You do not become famous and successful winning the easy cases, of course. The cases discussed by Bill below were anything but easy — but that is what makes them important for us to learn from. Whether it is taking the initiative to uncover a price-fixing scheme by Chinese vitamin makers to taking on the NCAA on behalf of student-athletes, Bill has consistently proven that a true trial lawyer must demonstrate diligence and curiosity in equal measure — and that winning a case is very much predicated on the preparation that took place pre-trial.

As with last week, I have added some brief commentary to the answers below, but have otherwise presented Bill’s answers as he provided them.

1) One of your notable professional successes was succeeding in the first antitrust action against Chinese companies for price fixing, based on their manufacture and sale of vitamins into the U.S. You personally investigated and uncovered the price-fixing scheme at issue. Today, Chinese-U.S. relations are at the forefront of economic news, with a key issue being alleged Chinese theft of U.S. IP. Did you learn anything in the vitamin case that can help us think about how to relate to IP issues and China?

We learned from investigations into the formation of export cartels in China that following China’s accession to the WTO, companies in China were given a free hand to engage in all sorts of new commercial practices without the oversight of the government.  Ironically for a communist regime, it became the Wild West, to some extent. When I see the air pollution in China from the lack of environmental regulation, I connect it to the same type of changes. Theft of IP fits within that same framework, to my mind. 

GK: In case any of us ever forget the power we have as lawyers to effect positive change, it behooves us to recall Bill’s work in the price-fixing case against the vitamin makers. Rightly hailed as a landmark achievement, it reminds of the power of curiosity and initiative as precursors to using the legal process in order to right a wrong. And his observation that IP theft is a symptom of the Chinese government’s inability to contain the massive economic changes they have fostered is spot on. 

2) Another notable success of yours was your work on behalf of college athletes in the O’Bannon v. NCAA case. One of the key issues in that case involved the NCAA profiting off the images and likenesses of athletes in video games. In this age of video games and social media, it seems like celebrities and athletes should be more mindful than ever over how their likenesses can be used to generate commercial value for others. What do you think are the next steps for college athletes looking to get their fair share of the enormous revenues generated by their athletic exploits?

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The possibility of state legislation, such as is being considered in California, looms large for this issue.  But there is still the prospect for more private antitrust litigation. It is worth remembering that the antitrust case against the NCAA is not that universities must pay college athletes; it is that universities may not form a cartel or agree not to pay athletes, including for their names, images, and likenesses.  Can you imagine the reaction if technology companies all agreed among themselves to accept new programmers only through unpaid internships with scholarships to cover their living expenses? By providing educational internships and important training, the companies could claim to provide as much educational benefits as many colleges, but no one would tolerate such a system.

One next step forward challenging NCAA rules may come when a top college athlete files an action to protect his rights.  Two years ago, when Trae Young played basketball for his single season at Oklahoma, or last year, when Zion Williamson played his one year at Duke, their names and images were everywhere on ESPN and regional conference networks promoting NCAA games.  It is hard for me to believe that each of those individuals did not have a strong case to challenge the exploitation of their names, images, and likenesses. I also wonder if it could all change quickly if a college football team just agreed not to play their bowl game as a protest against the restrictions imposed on them. 

GK: The exploitation of college athletes in revenue-generating sports is a continuing injustice. While an incremental step, Bill’s victory against the NCAA has helped create the conditions for a future sea change in the way those athletes are treated. Protesting exploitation is a necessary first step towards getting it to stop. Fortunately for the athletes in the NCAA case, they had a lawyer of Bill’s caliber to make their case. 

3) Large copyright infringement verdicts are pretty rare, with your 2015 verdict for Oracle a high-profile example. What was your favorite part about trying a copyright case to a jury?

The case we tried for Oracle against Rimini Street was, to my mind, about theft of IP.   Our goal at trial was to break down the walls that we contended Rimini was using to hide what it was actually doing.  Achieving that required both intense technical work and precise cross examination of witnesses, both of which were gratifying.  The Ninth Circuit in the last month affirmed an important injunction against Rimini’s continued use of Oracle’s copyrighted software that was another important step in that litigation. 

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GK: Here again, we see the value of curiosity and hard work as essential components of a trial victory. At the same time, winning at trial often involves weaving a moral narrative, particularly in IP cases, where themes such as rewarding the innovator or punishing the copycat are so often used before judges and juries. Telling that story persuasively is always easier for the trial lawyer when they share in the sense that their client’s cause is a just one. It is no surprise, therefore, that Bill was able to generate such a significant verdict for Oracle, believing as he did that Oracle’s IP was stolen.  

Thanks again to Bill for being so generous with his time and observations for this audience. It is always a privilege to hear from those at the very top of our profession, especially when they have such interesting perspectives to share on a broad range of topics. I am always open to conducting interviews of this type with other IP thought leaders, so feel free to reach out if you have a compelling perspective to offer. La Cheeserie to all!

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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