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David J. Burman
- Seattle
- Washington, D.C.
David applies his extensive litigation and counseling experience and judgment to antitrust, appellate, consumer protection, constitutional, media, patent and intellectual property, political law, and privacy matters.
David Burman is the former chair of the firm's Business Litigation practice, has served on its management and executive committees, and has acted as client service partner for one of the firm's largest institutional clients.
Dave has worked on many high-profile cases, including two arguments before the Supreme Court of the United States. He was part of the trial contesting the 2004 Washington state governor's election, Costco Wholesale Corporation's precedent-setting antitrust and constitutional challenges to state wine and liquor laws, and the Yellow Pages publishers' successful constitutional challenge to municipal restrictions on distribution. He served as national counsel for defendants in two of the largest multidistrict litigations in Boston and Cleveland.
Dave was selected by judges as a representative to the Ninth Circuit Judicial Conference and as a member of the national Civil Rules Advisory Committee and the Ninth Circuit Rules Advisory Committee. He was also chosen as a fellow of the American College of Trial Lawyers and as a member of the American Law Institute, where he was an advisor in drafting the Principles of Aggregate Litigation.
Areas of focus
Industries
Services
Education & Credentials
Education
- Georgetown University Law Center, J.D., Georgetown Law Journal, Editor-in-Chief, 1977
- University of Wyoming, B.A., 1974
Bar and Court Admissions
-
Washington
-
District of Columbia
Clerkships
- Justice Byron White, Supreme Court of the United States
- Hon. Spottswood Robinson, III, U.S. Court of Appeals for the District of Columbia Circuit
Professional Recognition
Recognized by Managing IP as an IP Star, 2016-2024
Named Best Lawyers’ Seattle "Litigation - First Amendment," 2016; "Antitrust Lawyer of the Year," 2015; "Technology Law Lawyer of the Year," 2014; "Antitrust & First Amendment Lawyer of the Year," 2012; "Appellate Practice Lawyer of the Year," 2011, 2019; "Bet-the-Company Litigation," 2009
Listed in Benchmark Litigation’s Guide to America’s Leading Litigation Firms and Attorneys as a Local Litigation Star in Antitrust; Appellate and Intellectual Property
Listed in Expert Guides, "World's Leading Product Liability Lawyers," 2013
Listed in Chambers USA, "America’s Leading Litigation Lawyers" (highest ranked Washington commercial litigator), 2014-2024
Listed in Best Lawyers in America: Appellate Practice; Bet-the-Company Litigation; Commercial Litigation; Litigation - Antitrust; Litigation - First Amendment; Litigation - Intellectual Property; Litigation - Patent; Technology Law, 1993-2024
Listed in Washington Law & Politics, "Top Ten Washington Super Lawyers”
Listed in Super Lawyers Magazine, "Washington’s Super Lawyers," 1999-2024
Listed in Washington CEO, "Top Attorneys"
Listed in National Law Journal, "Washington’s Top Ten Litigators”
Listed in Lawdragon, "500 Leading Lawyers in America," 2007
Recipient of awards from American, Washington, King County and Loren Miller Bar Associations; Legal Foundation of Washington (Goldmark Award); King County Bar Foundation; Leadership Tomorrow; University of Wyoming
Peer Review Rated AV in Martindale-Hubbell
(AV®, BV® and CV® are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies.)
Impact
Professional Leadership
- American College of Trial Lawyers, Fellow
- American Law Institute, Principles of Aggregate (Class Action) Litigation, Adviser
- American Law Institute, Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes, Members Consultative Group
- Dwyer Inn of Court, Founding Member
- U.S. Court of Appeals for the Ninth Circuit, Lawyer Representative to Judicial Conference; Rules Advisory Committee Member
- Equal Justice Coalition, Advisory Council Member
Insights
News
Professional Experience
Antitrust & Unfair Competition Litigation
Alakayak v. All Alaskan Seafoods Inc., et al. (Bristol Bay Salmon Antitrust Litigation)
Defended alleged price-fixing claims brought by class of Bristol Bay salmon fishermen. Client settled during trial. 48 P.3d 432 (Alaska 2002)
Albertson's Inc. v. Pepsi-Cola Bottling Company of Walla Walla
Counsel to plaintiff Albertson's in treble damages antitrust action alleging price fixing.
Anderson v. The Baseball Club of Seattle d/b/a The Seattle Mariners, et al.
Defending challenge to regulation of ticket scalping.
California, et al. v. ARC America Corporation
Counsel for amicus in Supreme Court case involving antitrust preemption and standing. 490 U.S. 93 (1989)
Costco Wholesale Corporation v. AU Optronics Corporation, et al.
Counsel for plaintiff in LCD price-fixing conspiracy case. Jury verdict for Costco after a five-week trial. Case settled following appeal.
Costco Wholesale Corporation v. Hitachi, Ltd., et al.
Counsel for plaintiff in CRT price-fixing conspiracy case.
Costco Wholesale Corporation v. Hoen, et al.
Plaintiff's counsel in antitrust and constitutional challenge to state laws governing the sale and distribution of wine and beer. Costco prevailed at trial. The Ninth Circuit affirmed the invalidity of some of the regulations but reversed as to others. In a separate appeal, Costco prevailed on its argument that an association of wine and beer distributors that had intervened in the case could be held jointly liable for Costco's attorney's fees. 407 F. Supp. 2d 1234 and 1247 (W.D. Wash. 2005); 522 F.3d 874 (9th Cir. 2008); 538 F.3d 1128 (9th Cir. 2008). In 2009, the district court awarded Costco $2 million in fees and costs.
Internet Retailing State Tax False Claims Act Cases
Defense of leading Internet retailer in state qui tam actions. Judgments for client in Nevada and Tennessee; Illinois case is pending.
McCoy, et al. v. Major League Baseball, et al.
Defense of purported nationwide class action of season ticketholders and stadium-related businesses, alleging Sherman Act violations relating to the 1994 baseball strike. Client prevailed on summary judgment, in which the court reaffirmed baseball's antitrust exemption.
911 F. Supp. 454 (W.D. Wash. 1995)
Monster v. Beats Electronics, LLC et al.
Counsel for defendant HTC America Holding, Inc. in case alleging fraud, breach of fiduciary duty and unfair competition claims relating to HTC’s 2011 investment in Beats Electronics, LLC. Summary judgment entered for HTC on all claims on the eve of trial.
Omega Environmental Inc. v. Gilbarco Inc.
Represented plaintiff in challenge to exclusive dealing arrangement. Client's $27 million judgment after one-month trial was reversed on appeal.
Pacific Plumbing Supply Company v. Crane Company
Represented plaintiff in antitrust claim alleging tying. Money judgment recovered after three-week jury trial.
Pharmaceutical Industry Average Wholesale Price Litigation
State courts in Alabama, Alaska, Arizona, Illinois, Iowa, Kansas, Kentucky, Mississippi, New Jersey, New York, Pennsylvania, and Wisconsin.
National coordinating and trial counsel in defense of nationwide consumer protection class action, parens patriae, antitrust and false claims act challenges to pharmaceutical pricing.
431 F. Supp. 2d 98 (D. Mass. 2006); 339 F. Supp. 2d 165; 321 F. Supp. 2d 187; 309 F. Supp. 2d 165; 307 F. Supp. 2d 196 (D. Mass. 2004); 230 F.R.D. 61 (D. Mass. 2005)
Seven Gables Corporation v. Sterling Recreation Organization (SRO) Company, et al.
Represented plaintiff movie exhibitor in treble damages antitrust action alleging conspiracy and monopolization of movie exhibition markets. Achieved settlements with some defendants and a jury verdict and judgment for $8.2 million against remaining defendants after six-week trial. The case was settled on appeal.
686 F. Supp. 1418 (W.D. Wash. 1988)
Strotek Corporation v. Boeing Corporation
Defense of antitrust claim alleging monopolization in market for aircraft strobe lights. Summary judgment for client was affirmed on appeal.
Antitrust Counseling & Merger Clearance
Advice to Clients
Advise clients on antitrust compliance, transactions, pricing and marketing practices, and trade organization participation.
In re Merger of The Boeing Company and McDonnell Douglas Corporation
Antitrust counsel to Boeing in proceedings before Federal Trade Commission and European Commission, leading to approval of aerospace merger.
Privacy & Security
Chance, et al. v. Avenue A Inc.
Defense of nationwide class action challenging Internet privacy practices. Settled after successful summary judgment motion.
165 F. Supp. 2d 1153 (W.D. Wash. 2001)
Crowley v. Cyberspace Corporation
Successful defense of putative class action challenging privacy practices of retailer and credit verification service. 166 F. Supp. 2d 1263 (N.D. Cal. 2001)
In re Google Buzz Privacy Litigation
Represented Google in defense of consolidated nationwide class actions challenging Google Buzz social networking application for alleged violations of Gmail user privacy. Settlement approved by the court.
Supnick v. Alexa Internet and Amazon.com Inc.
Defense of purported nationwide class action challenging privacy practices related to information collected during visits to Web sites.
Intellectual Property Litigation
Move, Inc. v. Zillow, Inc.
King County Superior Court (Washington)
Represented the defendant Zillow in an employment-related unfair competition/ trade secrets case against its largest competitor in which the plaintiffs sought approximately $2 billion in damages. After the Court dismissed more than $1 billion of plaintiffs’ claimed damages, found in favor of Zillow on allegations of spoliation, and granted several of the client’s motions for partial summary judgment including dismissal of most of plaintiffs’ tort-based claims, case settled on what was scheduled to be the first day of trial.
The Cambridge Institute Inc. v. The Oxford Group Inc.
Successful copyright trial.
Confidential Trade Secret Claim
Represented claimant in successful private resolution of claim based on unauthorized access to secure webinar.
Glacier Water Company LLC, et al. v. Aqua Holdco, LLC
Represented plaintiffs in trade secret and contract action relating to bottled water industry. Successful trial.
Itron Inc. v. Itran Inc.
Successful trademark enforcement action.
Joplin Enterprises v. Allen, et al.
Successful defense of play based on fictionalized life story of Janis Joplin.
795 F. Supp. 349 (W.D. Wash. 1992)
Kelly, et al. v. Arriba Soft Corp., et al.
Representation of defendant in litigation establishing fair use defense for thumbnails of copyrighted photographs in Internet search engine.
280 F.3d 934 (9th Cir. 2002)
Nintendo of America Inc. v. Winbond Electronics Corporation
Represented Nintendo in litigation alleging infringement of intellectual property rights in video game software and hardware.
Roberts v. Musicians Institute Inc.
Represented founder of Musician’s Institute in royalty dispute. Prevailed and recovered damages following two-week arbitration.
Political Law
Borders, et al. v. King County, et al. and Washington State Democratic Central Committee
Challenge by the Republican Party to the election of Washington State Governor Christine Gregoire, the closest gubernatorial election in United States history. After two-week trial, the court upheld the election results. No. 05-2-00027-3
Election Contest of Coday
Obtained dismissal of four individual electors' contests of election of Governor of Washington on grounds of res judicata. 156 Wn. 2d 485, 130 P.3d 809 (Wash. 2006)
Gerberding, et al. v. Munro, et al.
Successful constitutional challenge to term limits. 949 P.2d 1366 (Wash. 1998)
McDonald v. Reed
Challenge to voter signature verification procedures in election canvassing and recount.
103 P.3d 722 (Wash. 2004)
Obama for America
Washington State Counsel; voter protection counsel for Iowa, Colorado, and Washington caucuses and in national election day boiler room.
Washington State Republican Party v. King County Division of Records, Elections and Licensing Services, et al.
Obtained ruling that county vote canvassing board was entitled to recanvass ballots that determined outcome of state gubernatorial election. 103 P.3d 725 (Wash. 2004)
Appellate
Brown v. Legal Foundation of Washington, et al.
Defeated constitutional challenge to Interest on Lawyer Trust Account (IOLTA) program that provides substantial funding for legal aid programs nationwide. Supreme Court affirmed that such programs are not unconstitutional. 538 U.S. 216 (2003), aff'd 271 F.3d 835 (9th Cir. 2001) (en banc)
Dex Media West Inc. v. City of Seattle
Obtained the reversal of a district court decision and award of injunction against an ordinance requiring distributors of Yellow Pages directories to register with and obtain a permit from the city, pay a fee for each book they distribute, participate in a city-run delivery opt-out program, and advertise the opt-out program on the front cover of each directory they distribute. The Ninth Circuit concluded that Yellow Pages directories qualify for full protection under the First Amendment and that the ordinance was unconstitutional because it was not the most narrowly tailored means of achieving the city’s objectives. 696 F.3d 952 (9th Cir. 2012).
Perryman v. Democratic Nat'l Committee
Affirmance of dismissal of discrimination claims against the Democratic Party on grounds that the plaintiff lacked standing. 2006 WL 3794087 (9th Cir.)
Rinaldo v. Daily Herald Company
Established reporter's privilege in criminal cases in Washington. 689 P.2d 392 (Wash. 1984)
Sanders v. City of Seattle, LLC, et al.
Successful defense of shopping center owner on appeal of free speech dispute involving government-owned easement through a shopping center. 156 P.3d 874 (Wash. 2007)
Smith v. University of Washington Law School
Represented defendants, law school and its administrators, in a reverse discrimination class action where the use of race as a factor in law school admissions was challenged as an equal protection violation. Denial of class certification affirmed on appeal. 2 F. Supp. 2d 1324 (W.D. Wash. 1998), aff'd, 233 F.3d 1188 (9th Cir. 2000)
Tenet, et al. v. Doe, et ux.
Represented Cold War defectors on constitutional claims against CIA including separation of powers, state secrets privilege, CIA procedures and national security issues in case before the U.S. Supreme Court. 329 F.3d 1135 (9th Cir. 2003), rev'd, 544 U.S. 1 (2005)
Washington Association for Substance Abuse and Violence Prevention v. State of Washington
Successful defense of constitutionality of initiative privatizing spirits sales and reforming wine regulations. 174 Wash.2d 642 (2012)
Consumer Protection
In re National Prescription Opiate Litigation
U.S. District Court for the Northern District of Ohio
Counsel for defendant Costco Wholesale in over sixty cases by municipalities and third-party payor plaintiffs consolidated as MDL No. 2804 and in several state courts alleging various claims against manufacturers, distributers and retail sellers of prescription opioids.
Bentcover v. Safeco
Successful settlement of class action by auto insurance customers.
In re Starbucks Consumer Litigation
Defended Starbucks in consolidated nationwide consumer protection class actions challenging pricing practices for scooped whole bean coffee purchased in amounts under one pound.
Scott, et al. v. Cingular Wireless LLC
Defense of class action over “roaming” charges.
Litigation
AT&T Wireless Services Inc. v. Fluor Enterprises Inc.
Complex contract dispute resolved by mediation.
Deutscher v. Warden, Nevada State Prison
493 U.S. 1041 (1990); 506 U.S. 939 (1992); 16 F.3d 981 (9th Cir. 1994); 884 F.2d 1152 (9th Cir. 1989); 720 F.2d 1108 (9th Cir. 1983); 682 F. Supp.1098 (D. Nev. 1988); 671 F. Supp. 1264 (D. Nev. 1987); 663 F. Supp. 793 (D. Nev. 1987); 724 P.2d 213 (Nev. 1986)
Fetterly v. State of Idaho
Successful representation of death row inmate in federal habeas corpus proceedings.
Leftbank Management Inc. v. RealNetworks Inc.
Represented defendant RealNetworks Inc. in litigation involving ownership of corporation. Case settled pending defendant's summary judgment.
R.B. McComic v. Burlington Northern Inc.
Successful defense of contract and fraud claims in state and federal courts in California and Washington.
Regence Blueshield, et al. v. Bank of New York (BNY) Mellon Bank, N.A.
Defending challenge to securities investment practices.
Seattle School District v. State of Washington
Successful two-month bench trial to require the State to fully fund basic education.
United States ex rel. Wynalda v. The Boeing Company
Defended aircraft manufacturer alleged to have defrauded federal government under False Claims Act. Obtained summary judgment on fraud claim and defense verdict on retaliation claim.
Video Software Dealers Association, et al. v. Maleng, et al.
Challenge to statute restricting sale of violent video games.
325 F. Supp. 2d 1180 (W.D. Wash. 2004)
Retail & Consumer Products
Advice to Clients
Advised clients on marketing, advertising and consumer protection issues.
Patent Litigation
Saxon Innovations LLC v. Apple Inc., et al.
Represented Intel Corporation as intervenor-defendant in patent infringement action filed against Intel customers alleging infringement of patents relating to microprocessor, chipset and wireless communications/privacy technology.
Linksmart Wireless Technology LLC v. T-Mobile USA, et al.
Representing iBAHN Corporation in patent infringement action relating to wireless network data redirection.
Patent Litigation Mock Trials
Represented plaintiff in confidential mock trial and appellate oral argument in complex technology matters.
Stragent, LLC and SeeSaw Foundation v. Intel Corporation
Defended Intel in patent infringement case relating to CRC polynomial circuits. Obtained a jury verdict of noninfringement and invalidity.
Investigations & White Collar Defense
Confidential Judicial Misconduct Investigations
Assisted special committee of Ninth Circuit Judicial Council in investigating and resolving claim of judicial misconduct against district court judge. Separately, represented judge accused of judicial misconduct.
Confidential Public Company Investigation
Investigated company's potential involvement in alleged effort to mislead consumers.
Confidential Public Official Investigations
Represented public entities and officials in investigation of ethics and campaign finance issues.