Sean M. Monks (Partner-San Diego, CA), Richard Bortnick (Of Counsel-Philadelphia, PA), and Chelsea Gaudet (Associate-San Diego, CA) achieved dismissal with prejudice in the U.S. District Court, Central District of California on behalf of their client, a beauty product manufacturer, in a federal action alleging copyright infringement, unfair competition, and violations of the Lanham Act. The plaintiff, a leading manufacturer of beauty products and accessories, alleged that the client’s advertising for its solid shampoo and conditioner products was confusingly similar to the plaintiff’s advertising. Both companies market solid shampoo and conditioner products online, including through Amazon. The plaintiff’s advertisements feature the products placed on top of their packaging, with images of the products’ ingredients scattered below on the package. The plaintiff alleged that our client’s advertisements similarly depicted its products and ingredients and that the client’s packaging used wording in the same order, with the same words appearing in larger font. The plaintiff further alleged that the client’s products were not packaged as depicted in its advertisements and that the advertising was designed to confuse consumers into believing the products were offered by the plaintiff or purchasing the client’s products when they intended to purchase the plaintiff’s products.

The Wilson Elser team challenged the sufficiency of the complaint. The court agreed with its argument that the plaintiff failed to plausibly allege a “false statement of fact” concerning the client’s products or another’s products and, therefore, failed to state a false advertising claim under the Lanham Act. The court also concurred with the team’s argument that the copyright claims must be dismissed, agreeing that the similarities fell within a “thin” range of the copyright protection spectrum. In particular, the court agreed that the arrangement of the shampoo and conditioner products and their ingredients constituted an unprotectable idea or concept and that, although certain individual elements appeared similar, “none of these elements is subject to copyright protection when viewed in isolation.” Finally, because the first two claims failed, the court dismissed the unfair competition claim for lack of an underlying unlawful act. The plaintiff did not amend its complaint, resulting in dismissal with prejudice.
 

Beth Golub (Partner-San Diego, CA) and Clara Roberts (Associate-San Diego, CA) prevailed on a demurrer to an amended complaint on behalf of a global technology company. The demurrer was sustained without leave to amend based upon successful arguments that the statute of limitations barred the first amended complaint. The plaintiff timely filed the original complaint, then voluntarily dismissed claims against the client while maintaining claims against a third-party codefendant.  Plaintiff argued that because they timely filed a motion for leave to file the amended complaint, the court had “approved” the dilatory amended complaint. The court sustained the demurrer without leave to amend because there is no reasonable possibility to cure such a defect.

San Diego office partners Patrick Kearns and Sarena Kustic prevailed on their motion for summary judgment in the U.S. District Court, District of Arizona, on behalf of Wilson Elser’s client, a major global airline. The case arose from an incident in which the plaintiff caused a disruption on board the airline’s plane before takeoff. After the plaintiff repeatedly failed to comply with flight attendant instructions, the captain ordered him removed from the flight. Upon removal, the plaintiff then failed to comply with police officers’ commands and was subdued and arrested. The plaintiff sued our client, claiming that by removing him from the aircraft, the airline set in motion a series of events leading to his arrest and allegedly causing him to sustain personal injuries during that arrest, as well as a series of related physical and mental injury damages. The plaintiff’s claims included negligence, assault and battery, and false imprisonment/arrest, among others.

Patrick and Sarena moved for summary judgment, arguing that the plaintiff’s conduct warranted his removal from the aircraft and that his subsequent arrest, together with the actions of law enforcement, constituted intervening and unforeseeable events that precluded liability for his alleged injuries. They further argued that the airline was immune from liability under 49 U.S.C. §44941, which protects air carriers and their employees when reporting perceived threats to law enforcement.

The court agreed with Wilson Elser’s arguments, finding no genuine dispute of material fact that no airline employee touched or otherwise harmed the plaintiff and, therefore, that no assault or battery occurred. The court further held that the airline’s decision to contact law enforcement for assistance fell squarely within the immunity protections afforded by 49 U.S.C. § 44941. Accordingly, the court concluded that the airline was entitled to judgment as a matter of law.

Victor Campos (Of Counsel-Los Angeles, CA) prevailed on behalf of our client, a national operator of bowling centers, in a case in which we have been involved since November 2021. While Mr. Campos handled the case for the past two years, Carole Buckner (Partner-San Diego, CA) and Andrew Sewell (Of Counsel-Los Angeles, CA) previously worked up the case, enabling this huge team win for the Client. Plaintiff fell in a client-owned bowling alley, breaking her right shoulder and left leg. She underwent surgery to repair both fractures. Years of discovery ensued, including expert discovery. In 2024, the team filed an MSJ, which the Court denied. Subsequently, they continued to aggressively defend the case, pushing for essential discovery from Plaintiff. They filed and won two motions to compel and were awarded sanctions. Plaintiff did not conform to the Court's orders, so they filed a Motion for Contempt and for Terminating Sanctions. The Court granted the Motion for Terminating Sanctions and dismissed the case with prejudice.
 

Kammann S. Cole (Partner-San Diego) secured a jury defense verdict in favor of an insured dentist in the Los Angeles Superior Court following a two-week trial. The dental malpractice case proceeded to trial after a codefendant settled shortly beforehand for a significant sum. The matter came down to a quintessential battle of the experts, with the plaintiff’s counsel seeking high six-figures as compensation. Despite the challenging posture of the case, Kammann successfully persuaded the jury to return a defense verdict, delivering an excellent result for the firm’s institutional client.

Christopher Yvars (Partner, Denver, CO) Kimberly Viergever (Of Counsel-Denver, CO), and Michael McCloskey (Senior Counsel-San Diego, CA)  secured a complete defense victory for a national health care client in a commercial arbitration where the claimant sought more than $50 million in damages. The dispute centered on long-term services and nondisclosure agreements involving an alleged proprietary software platform, which claimant developed to streamline and enhance health care outcomes management for large-scale providers. The claimant alleged breach of contract and theft of trade secrets, asserting that the firm’s client had improperly used and disclosed confidential processes, data integration methods, and reporting functionalities unique to the claimant’s product. After a multi-day evidentiary hearing featuring testimony from technical experts and company executives, as well as extensive written submissions, the AAA Arbitration, Denver, Colorado, issued a final award denying all claims and dismissing the case in its entirety.

Kammann Cole (Partner-San Diego, CA) and Katharine Burlington (Associate-San Diego, CA) secured summary judgment on behalf of a commercial trucking company resulting in full dismissal. Three minor successors in interest had asserted negligence claims and issued a policy-limits settlement demand following a motor vehicle accident involving the decedent and the client’s big rig. At the time of the collision, the decedent was under the influence, unlicensed, and had a prior felony conviction for unsafe vehicle operation. Kammann and Katharine successfully negotiated voluntary dismissals from two of the plaintiffs, while the third refused. They then moved for summary judgment in Riverside County Superior Court, which was granted in full, eliminating all claims against the client.

Kammann S. Cole (Partner-San Diego, CA) secured summary judgment on behalf of a construction company in the San Diego Superior Court. The plaintiff sought damages for injuries resulting from a playground swing that was installed by the insured, alleging negligence for violating a statutory requirement forbidding the installation of the at-issue multiple occupancy swing. Kammann was able to get the case summarily dismissed by arguing the completed and accepted doctrine applied to the insured’s work on the playground.

​After securing a defense verdict in 2024 in a 16-day bench trial in San Mateo Superior Court's Complex Division, Marty Ready (Partner-San Diego, CA) and Michael McCloskey (Senior Counsel-San Diego, CA) convinced the presiding Judge to limit a statutory attorney fee award to $35,800 of the over $2 million requested by the California Attorney General (AG). The underlying case was an enforcement action by the California AG's office against our clients a nonprofit and one of its five directors alleging various breaches of fiduciary duties primarily arising from an alleged series of self-dealing transactions and diversion of charitable assets. The case was initiated as an investigative audit of the nonprofit, which ultimately led to the litigation. The case was contentious and heavily litigated by the parties for five years. At the conclusion of trial, the court only assessed $14,000 in fines and penalties against the nonprofit and two of its directors related to minor deficiencies in the its tax returns. Although this was an exceptional result, the real risk to our clients was a statutory attorney fee award that was mandatory in an enforcement action brought by the California AG's Charitable Trust Section. As expected, the California AG moved for an award of more than $2 million in attorney's fees and expert costs spanning the investigation and litigation. After extensive briefing and two days of oral arguments on the California AG's fee motion, the court awarded the AG $35,800 based on its lack of success at trial and representative of the amount of time related to obtaining a nominal amount at trial for errors on a nonprofit's tax returns. The California AG has appealed the judgment and is expected to appeal the fee award.​

​Sean Monks (Partner-San Diego, CA), Richard Bortnick (Of Counsel-Philadelphia, PA), and Natalie Lakosil (Associate-San Diego, CA) represented a corporation diluted in violation of a Stock Purchase and Subscription Agreement in Arbitration. Though not usually on the plaintiff’s side of the “v.” the team got an outstanding result. Through its former CEO, our client enjoyed a long business relationship with the company in which he was a shareholder (the Respondent). Throughout the relationship, our client contributed to the Respondent’s ongoing business in the form of various short-term loans as needed, each of which were promptly repaid. This relationship stemmed from the original share ownership of our client in the Respondent. However, when the former CEO left, the Respondent embarked on a campaign to dilute our client’s percentage of ownership, which was protected in the Stock Purchase and Subscription Agreement. Unfortunately, under the leadership of the new CEO, the stock was reduced in value to fractions of a penny. Getting the shares “trued up” was going to provide no relief for our client. Through creative argument, Sean, Rick, and Natalie persuaded the arbitrator to rescind the contract to our client, leaving the contract intact for the other signatories. Including costs of the arbitration, our client was received nearly $700,000 in the form of an award.

Sean Monks (Partner-San Diego, CA), Michael McCloskey (Senior Counsel-San Diego, CA), and Anne Potiker (Associate-San Diego, CA) prevailed in a recent Order on a Motion for Summary Judgment in a sticky and highly personal trade secret case in the 3D printing industry – a publicly traded $3 billion cap company against five individuals and their small startup. Also participating in the defense were outside co-counsel. Initially, there were seven causes of action. Four were jettisoned by virtue of 12(b)(6) litigation. What remained was a breach of contract claim and claims under DTSA and CUTSA. The plaintiff sought about $30 million in damages and attorneys’ fees. 

In discerning their remaining claims, our team focused hard on pushing for proper identification of the trade secret and pigeon-holed the plaintiff into a definition of their 12 trade secrets supposedly misappropriated, which they refused to amend. Almost three years ago we got the magistrate judge to hold them to these disclosures and ROG responses, and he indicated their refusal to provide further detail would preclude them from amending and could be used against them in summary judgment. Fast forward to the present, and we have an Order finding it was more than past time for the plaintiff to “put up or shut up” at summary judgment. Having been stuck with their meagre disclosures, the judge latched onto the deficiencies and summarily dismissed all trade secret claims. 

The breach of contract claim required a bit of creative analysis. Our clients were supposedly precluded from using their skills in future work that could overlap in the 3D printing industry. We assessed the provision at issue and determined it violated section 16600 of the CCP. In California, “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” Cal. Bus. & Prof. Code § 16600(a). In fact, we filed an amended counterclaim alleging this issue, among other violations by the plaintiff related to our clients’ trade secrets. The U.S. District Court for the Southern District of California specifically found, “The defense has the better argument.” Heading into summary judgment, the plaintiffs were expecting to recoup up to $40 million in a windfall through damages and fees, or at the very least, grind their competition into the dust. Instead, their entire case is gone and they are facing the pointy end of the spear of our own counterclaims and potential motion for fees related to bad faith. 
 

Marty Ready (Partner-San Diego | San Francisco, CA) and Sarena Kustic (Partner-San Diego, CA) secured a defense verdict in a two-week jury trial in San Diego Superior Court. The case involved a disgruntled shareholder seeking recovery of his $1 million investment lost due to a failed startup. The plaintiff alleged fraud, breach of fiduciary duty, and rescission against our clients, the former chairman of the board and the failed startup. Although the claims in this trial were based on fraud in the inducement, the plaintiff sought to insert derivative issues (currently the subject of a derivative lawsuit pending in Delaware Chancery Court) in an effort to confuse the jury in the hopes of obtaining a favorable verdict. Fortunately, Marty and Sarena and their team were able to keep the record clean, and the jury focused on only the issues in this case. The jury deliberated for less than three hours and returned a verdict in favor of our clients, never getting past the first question for each cause of action. After the verdict was rendered, the jurors advised counsel that our cross-examination of plaintiff’s witnesses was very effective in demonstrating their lack of credibility and our trial presentation was highly persuasive and professional.