Thomas E. Gorman

OpenAI tapped Keker as lead trial counsel in a series of copyright lawsuits that will establish the boundaries of copyright fair use as applied to generative AI. The cases include claims brought by newspapers, authors, and other media outlets alleging that the training of Open AI's large language models infringe their works.

We defended Netflix against a 12-patent case Broadcom filed in the Central District of California. After transferring the case to the Northern District of California, we successfully invalidated 9 patents in the district court or through inter partes review. Broadcom agreed to dismiss the remaining three patents, and the Court entered judgment in favor of Netflix.

We successfully represented Google in an arbitration against former employees Anthony Levandowski and Lior Ron, obtaining a ruling that they breached their duties and employment agreements in connection with their founding of a competing self-driving car business while working at Google. Their competing business, Otto, was sold to Uber for a reported price of $680 million. Following a two-week arbitration hearing, a three-judge panel awarded Google a $179 million judgment that was later confirmed by the San Francisco Superior Court.

We successfully defended a putative class action brought by minor league players to challenge Major League Baseball’s long-standing exemption from antitrust laws. We won a motion to dismiss the case, an alleged wage-fixing antitrust action, which was upheld by the First U.S. Circuit Court of Appeals. The U.S. Supreme Court declined review.

We represented the PGA TOUR in an antitrust lawsuit filed by 11 professional golfers who left the PGA TOUR and joined LIV Golf. We defeated plaintiffs’ motion for a temporary restraining order seeking to force the PGA TOUR to allow them to play in the FedExCup Playoffs. We also won a motion to compel subpoena compliance from Saudi Arabia’s Public Investment Fund, overcoming their assertion of sovereign immunity—a groundbreaking victory with far-reaching implications for the Kingdom of Saudi Arabia. In response, LIV dismissed the case to pursue a merger.

We defended Google against a nationwide privacy class action in which plaintiffs alleged that Google shared their location information with Facebook through the Android operating system without their consent and contrary to their Android settings. The plaintiffs voluntarily dismissed their complaint against Google and Alphabet shortly after we filed our motion to dismiss.

We are defending Google in consolidated cases on behalf of a worldwide putative class of mobile device users that are challenging Google’s location-data practices. We obtained a dismissal at the pleading stage of all of plaintiffs’ claims, including a dismissal with prejudice of plaintiffs’ claims for violation of the California Invasion of Privacy Act. Following dismissal with prejudice of what plaintiffs viewed as their most valuable claim, the case subsequently reached a settlement, which we are currently defending on appeal at the Ninth Circuit against objectors’ counsel.

We negotiated a settlement for Sutter Health with the California Attorney General’s Office, in a suit that alleged Sutter exploited its size and reach to extract “illegally inflated prices” from insurers, employers, and patients.

At the pleading stage, we successfully defeated a putative class action filed against Major League Baseball, its current and former Commissioners, and all 30 Baseball Clubs. The plaintiffs, two former baseball scouts, claimed that defendants had violated federal and state antitrust law by allegedly conspiring to decrease competition in the labor market for scouts. By convincing the court that the employment of baseball scouts falls within the scope of Baseball’s antitrust exemption, we successfully obtained a complete dismissal.

We won summary judgment of non-infringement for Taiwan Semiconductor Manufacturing Company, Ltd. and its subsidiary TSMC, North America in a long-running patent lawsuit brought by North Carolina semiconductor company, Ziptronix, Inc. Ziptronix had asserted nine patents and more than 500 patent claims directed to TSMC’s manufacturing of semiconductors for use in backside-illumination image sensors used predominantly in smartphone cameras. On behalf of TSMC, we defeated Ziptronix’s claims by arguing that the territorial limits of U.S. patent law prohibited reaching TSMC’s business transactions and manufacturing operations in Taiwan.

We successfully defended Major League Baseball, its Commissioner and 30 Baseball Clubs from a putative class action. The plaintiffs, former minor league players, alleged that minor league baseball’s labor system violates federal antitrust law. We convinced the court to dismiss the complaint because Baseball’s antitrust exemption bars plaintiffs’ claims.

We won a complete defense judgment in favor of McKesson after a month-long trial of a qui tam action alleging violations of the False Claims Act and Anti-Kickback Statute. The trial victory allowed McKesson to avoid paying nearly $1 billion in fines, and to avoid the collateral penalties that government agencies can impose on companies found to have paid illegal kickbacks. The Justice Department’s complaint charged McKesson with paying kickbacks to a nursing home operator in the form of underpriced services, and with submitting “legally false claims” to the government. After we had the whistleblower dismissed, a key victory, we then won dismissal of related claims that the nursing home’s supplier subsidiary failed to comply with Medicare supplier standards. With the case’s scope significantly narrowed, we led our client through a bench trial which featured 24 witnesses, hundreds of exhibits and post-trial briefing. The judge ruled in our client’s favor, vindicating McKesson and its employees. This victory was listed by the National Law Journal as one of the year's five most significant trial wins.

The city of San Jose sued our client, Major League Baseball, alleging antitrust violations and various state law claims related to the Oakland Athletics possible relocation to San Jose. The lawsuit claimed that Major League Baseball and its commissioner violated state and federal laws regarding unfair business practices and anticompetitive conduct. It also challenged MLB’s century-old exemption from antitrust regulation as guaranteed by the U.S. Supreme Court in Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs. We successfully moved to dismiss plaintiffs’ antitrust claims, the Ninth Circuit Court of Appeals affirmed that ruling, and we convinced the Supreme Court of the United States to decline a petition for certiorari.

When a group of technology companies refused to settle a patent infringement suit on the terms plaintiff demanded, the plaintiff filed a second suit—this time against the defendants and their defensive patent aggregator—for violation of US antitrust laws. The plaintiff’s novel theory—that defensive patent-aggregation represents a monopsony “buyer’s cartel”—would have threatened the concept of patent aggregators as a whole. Along with our co-defendants, we filed a motion to dismiss attacking plaintiff’s theory and were able to secure an early and very favorable settlement for our client. The court later granted the motion to dismiss as to the remaining defendants.

Plaintiffs filed a putative class action against Major League Baseball, the Commissioner, and the 30 Clubs demanding that our clients install protective netting from foul pole to foul pole at every Major League and Minor League ballpark. We moved to dismiss the case for lack of standing, lack of personal jurisdiction, improper venue, and failure to state a single claim for relief. The court granted our motion to dismiss.