David J. Burman

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.

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.

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.

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.

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)

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)

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.

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)

Advice to Clients

Advised clients on marketing, advertising and consumer protection issues.

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.

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.