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Keker & Van Nest Partners Named Top 100 Lawyers in California

Daily Journal

John W. Keker

In a closely watched case, Keker and his partner, Elliot Peters, are defending Standard & Poor's Rating Services against a more than $5 billion lawsuit brought by the U.S. government.

At issue are allegations that the McGraw Hill Cos Inc. unit schemed to defraud investors in mortgage related securities that collapsed in the financial crisis. United States of America v. McGraw-Hill Cos Inc. et al, CV-13-779 DOC (JCGx) (C.D. Cal).

"The complaint alleges S&P didn't rate mortgage-backed securities in good faith," Keker said. "We will prove that they did, reaching the same conclusions about fair ratings as the other rating agencies and the government agencies and banks responsible for the housing market. All were blindsided by the worst housing collapse since the Great Depression."

He added, "The challenge is to get the government to be specific - which securities does it claim weren't rated in good faith - so that we can attack on a security-by-security basis, that allegation. We have already made progress there."

Meanwhile, Keker said, "We have to figure out how to get it down to a manageable size so that a jury can collectively get its head around this, and get to the essence in a fair way."

Among his other significant matters, last year Keker successfully represented Brian Stoker, who had worked on the structuring desk at Citigroup. U.S. Securities and Exchange Commission v. Stoker, 11-CIV-7388-JSR (S.D. N.Y., filed Oct. 19, 2011).

He was charged with securities fraud in connection with the bank's 2007 marketing of a $1 billion collateralized debt obligation backed by assets to the housing market.

The SEC claimed that Stoker was negligent for failing to disclose information about the bank's actions in its marketing materials

After a two-week trial, a federal jury rejected the SEC's case and found Stoker not liable for any of its claims.


Robert A. Van Nest

Van Nest served as lead trial counsel for Google Inc. in a patent infringement dispute that had some unusual developments.

At issue, Suffolk Technologies LLC had claimed that Google's Adsense advertising placement technology - which places paid ads for a company's product or service on the Web page of another - used a similar protocol to the one under patent with Suffolk. Suffolk Technologies LLC v. AOL Inc. et al., 12-CV-625 (E.D. Va., filed June 7, 2012).

"It was exciting because it was the first assertion of that patent against anybody significant with very large revenue bases," Van Nest said.

Judge T.S. Ellis III granted Van Nest's motion for summary judgment on all but one of Suffolk's patent infringement claims, and issued a Daubert ruling, striking the plaintiff's expert damages opinion in its entirety.

Under this standard, a party may raise a motion to exclude the presentation of allegedly unqualified evidence to the jury.

"He said the methodology was so poor and flawed that he wouldn't allow the expert to testify," Van Nest said.

Given these two rulings, he added, "it's somewhat unusual for a judge to invalidate a patent on summary judgment. It's also unusual to strike expert testimony in its entirety."

Both rulings are now on appeal in the U.S. Court of Appeals for the Federal Circuit.

In another ongoing matter, Van Nest continues to serve as lead trial counsel for Google Inc. in what has been billed as an epic battle with Oracle America Inc. Oracle America Inc. v. Google Inc., 10-CV-03561 (N.D. Cal., filed Aug. 12, 2010).

Oracle is alleging that Google's Android mobile operating technology infringes Oracles's Java patents.

To date, the jury returned a partial verdict on the copyright claims, which limits the statutory damages to no more than $150,000. In May 2012, the jury returned a unanimous verdict, rejecting all claims of patent infringement.

The copyright case is on appeal.


Elliot R. Peters

­­­­­­­­Peters is continuing to represent former Tour de France champion Lance Armstrong, who had a very public fall from grace this year after he admitted using performance enhancing drugs.

Currently, Peters is the lead counsel defending Armstrong in Washington, D.C. against claims by his former sponsor the U.S. Postal Service that he defrauded the agency as a result of his conduct. U.S. v. Lance Armstrong, MC11-00565 (USDC-DC).

"The USPS got more than their money's worth from sponsoring the cycling team," Peters said. "I don't see how they can claim they've been harmed, because they got their full value. They wanted Lance in a yellow jersey with the Post Office insignia riding down the Champs-Élysées."

The U.S. Postal Service also chose to sponsor a sport that Peters said was widely known for doping.

"They got exactly what they wanted," he added. "If they had, in fact, sponsored a completely clean team, they wouldn't have gotten the publicity, because the team couldn't have competed in that sport."

Peters has filed a motion to dismiss the case based on the statute of limitations, adding, "This isn't a righteous case. We've got a lot of defenses in that lawsuit."

Last year, the U.S. Department of Justice ended its criminal investigation against Armstrong without filing charges.

In another high-profile case, Peters and partner John Keker are defending Standard & Poor's Rating Services against a $5 billion lawsuit brought by the U.S. government, which is accusing the McGraw-Hill Companies Inc. unit of a scheme to defraud investors in mortgage-related securities that collapsed in the financial crisis. U.S. v. McGraw-Hill Cos Inc. et al., CV13-779 (C.D. Cal).

"We said to the judge, 'This complaint is so broad. They need to identify specific securities that they are claiming we rated fraudulently,'" Peters said. "The judge agreed. The government now has three months to conduct a discovery and tell us what the specifics are in the case."