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Litigators of the Week: Robert Van Nest and Christa Anderson

The AmLaw Litigation Daily

With $9 billion on the line, Google Inc. never lost faith in its lawyers at Keker & Van Nest. Even as plaintiff Oracle Corp. dumped its original trial team in the high profile copyright infringement suit, Google stayed the course. That decision paid off late last week after a second trial in the case, when a jury sided with the online search giant.

Following two weeks of argument and witness testimony, and another three days of deliberation, a San Francisco federal jury handed down a verdict on May 26 in Google’s favor. The jury held that when the online search giant relied on elements of the Java programming language—which was developed by Oracle predecessor Sun Microsystems—to build Google’s Android operating system, that counted as fair use under federal copyright law.

“We were grateful for the jury’s verdict,” Keker & Van Nest name partner Robert Van Nest, Google’s lead trial lawyer in the case, told us on Thursday. Oracle, meanwhile, has already said it plans to appeal.

For Van Nest and Christa Anderson—who served as Van Nest’s second chair during the trial—the May 26 verdict might have prompted a sense of déjà vu, as it came in the second trial pitting Google against Oracle in the heated intellectual property dispute.

“Although we did try a fair use case in the first trial … there were a lot of other issues that took the jury’s attention,” said Van Nest. “The second trial was more focused, and that allowed both sides to present more evidence.”

In 2012, Oracle, represented at the time by Morrison & Foerster, convinced the first jury that Google infringed copyrights on Java application programming interfaces (APIs), when it used them to build the popular Android operating system for smartphones and tablets. But while the jury sided with Oracle on infringement, it also deadlocked on Google’s fair use defense—a doctrine in copyright law that can allow for copying if the material is used for “transformative” purpose that adds something new.

The presiding U.S. District Judge William Alsup delivered another twist after the first trial, ruling that the Java APIs at the heart of the case didn’t qualify for copyright protection. Alsup’s ruling, a win for Google and its lawyers, set up a challenge to the U.S. Court of Appeals for the Federal Circuit. Van Nest argued the appeal for Google, while Oracle brought in Orrick, Herrington & Sutcliffe to argue its case at the Federal Circuit.

The appeals court in May 2014 delivered a victory to Oracle and its new lawyers at Orrick, throwing out Alsup’s post-trial decision, affirming the jury’s copyright infringement finding and ordering more litigation on the issue of fair use. The case then went back down for a second trial in front of Alsup, which started on May 9.

An Orrick team led by Peter Bicks and Annette Hurst remained on as Oracle’s trial counsel, pitted against Van Nest, who delivered opening statements and closing arguments for Google, and Anderson. (In addition, Van Nest said five others at his firm—Daniel Purcell, Eugene Paige, Matthias Kamber, Steven Ragland and Michael Kwun—examined or cross-examined multiple witnesses during trial. King & Spalding’s Bruce Baber also played a role, handling Google’s argument on jury instructions before the second trial began.)

Oracle carried momentum from the appeal into the second trial, and the Orrick team presented a lively case, complete with Bicks coining the phrase “fair use excuse,” to describe Google’s defense.

Google’s team, meanwhile, focused much of their attention on familiar themes from earlier in the case. Led by Van Nest and Anderson, they argued that Google’s use of the Java APIs was transformative and exactly the type of development that fair use was supposed to protect. Google’s team also pointed to evidence that, they said, showed that there was a long history in the technology sector of re-purposing Java programming language.

“One of the witnesses in the case was the CEO of Sun during the relevant time period,” Anderson told us on Thursday. “He testified about his views that the APIs were free to be used.”

Ultimately, the case that Anderson, Van Nest and others on their team presented swayed the jury into favoring Google’s fair use arguments. And, by taking the May 26 verdict, the Keker & Van Nest lawyers cut off Oracle’s chance at seeking some $9 billion in damages in a second phase of trial.