In the News The National Law Journal

The Defense Hot List

21 August 2006

Maybe it wasn't the beginning of the end, or even the end of the beginning, but at the very least U.S. District Judge Lewis Kaplan's point was clear when he rejected on Fifth Amendment grounds statements made to prosecutors by various former KPMG executives accused of promoting legally dodgy tax shelters. It was one ruling in one case, but Kaplan managed to fire up a corporate defense bar that to that point had done little more than fulminate about a growing "culture of waiver" in white-collar crime investigations.

It was the sort of standout defense work we wanted to call attention to when we launched our Defense Hot List last year. Now as then, we looked for firms with an overall impressive track record that scored at least one significant defense win within the past 12 months. We're most interested here in firms that prevailed in a bench or jury trial, especially when the financial stakes were high, or where a win might set the tone for litigation strategy or determine the outcome of similar cases nationally. We expected nominees to devote at least half of their litigation resources to defense work.

We asked our readers to nominate defense firms that managed exemplary, cutting-edge work on the defense side. We supplemented the scores of submissions with our own research.

Vinson & Elkins' result in the KPMG case may have inspired more circumspection among prosecutors in white-collar criminal cases, as staff reporter Pamela A. MacLean reports. It also points to the essentially conservative nature of the enterprise-for financial and institutional reasons it is individual defendants, more than corporations, who are contesting the government's tactics.

In a separate case, highlighted by contributor Emily Heller, members of the defense team resisted an aggressive approach to silica mass tort litigation as being perhaps overly hasty. Here, however, the less cautious posture succeeded so well that it has become a winning template for all manner of mass tort defense.

Another factor that stands out is the capacity of a major defense firm, backed by a wealthy corporation, to marshal the teams of researchers, experts and litigators capable of sustaining the hard slog of protracted litigation. Arnold & Porter, for example, was put in charge of Wyeth's diet drug mass tort defense nearly a decade ago. In that time, the firm fashioned an innovative global settlement agreement creating a trust to benefit fen-phen users, orchestrated removal to federal court and directed mopping-up actions this year against opt-out plaintiffs in New Jersey and Pennsylvania.

A little tact apparently comes in handy, too. In the Hanford Nuclear Reservation litigation (in court since the early 1990s, both at the trial and the appellate levels), the plaintiff confronting Kirkland & Ellis was dying from radioactive milk fed to her as a babe in arms on her family's farm. The only recognized cause for her form of thyroid cancer was the iodine-131 traceable to the nuclear site. It takes a deft touch to prevail upon a litigation landscape like that. Kirkland had it.

Once again, our admittedly idiosyncratic list tilts toward the big firms, but that doesn't mean there's not room for litigation boutiques like Keker & Van Nest, which scored for intellectual property litigation and for helping Google China hire away a key executive over Microsoft Corp.'s ardent objections. We also found room for Beck, Redden & Secrest, a 31-attorney Houston boutique that ventured into hostile territory in Beaumont, Texas, to keep Wyeth from getting stuck with another $1 billion diet-drug verdict.

Finally, we found that even firms that didn't quite make the list had lessons to teach-like when Proskauer Rose's Bert Deixler discovered that sometimes a lawyer just has to relax and let his client's freak flag fly.

Kirkland & Ellis

The Chicago-based firm likes to throw fresh associates into depositions and motions arguments right away, the better to build a strong litigation bench. Founded in 1909, the firm also maintains offices in New York; Los Angeles; San Francisco; Washington; London; and Munich, Germany.

Noteworthy cases:

In re Hanford Nuclear Reservation Litigation, No. CV-91-3015-WFN (E.D. Wash. 2005). Lead counsel Kevin T. Van Wart and Michelle H. Browdy. In this first of the "bellwether" cases advancing $2 billion in claims by thousands of thyroid cancer patients living near the Hanford Nuclear Reservation, the jury deliberated for a single day before concluding that the facility was not to blame for Shannon Rhodes' illness. By casting doubt on the credibility of the plaintiff's experts, whom they accused of shoddy and result-driven epidemiological work, defense counsel managed to get jurors to set aside their sympathy for the plaintiff.

Breed Technologies v. AlliedSignal Inc., No. CA-002478 (Polk Co., Fla., Cir. Ct. 2006). Lead counsel Steven D. McCormick with Eugene F. Assaf and Craig S. Primis. Breed claimed that, in unloading its seat belt unit, AlliedSignal covered up how sick the division actually was. In March, a Florida jury rejected a $375 million demand against Allied, now Honeywell International Inc. Kirkland had presented a letter from Breed's chief operating executive to the head of Allied declaring, "There are problems . . . but I am the greater optimist and believe they can be fixed."

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