March 14, 2012
Lawyers at Lieff Cabraser Heimann & Bernstein LLP have noticed the challenges facing consumer class actions, their bread and butter. But that doesn't mean they're sitting idly by in the wake of pro-arbitration Supreme Court decisions and tort reform. Instead they're pushing into new areas where experience representing plaintiffs is key. The firm is handling its first patent lawsuit and has taken on some direct commercial litigation on behalf of large companies such as Charles Schwab & Co.
Meanwhile, its False Claims Act practice, which it launched a few years ago to represent whistleblowers in cases of fraud against the government, is picking up steam. Altogether, the suits have given the firm a reason to modify its typical contingency-fee billing arrangements to include some hourly billing and blended fee structures.
"It's fair to say that we've always looked at potential new areas of practice that are consistent with what we already do," Managing Partner Steven E. Fineman said. "It's been a natural evolution as much as a calculated one."
So far, Lieff Cabraser doesn't have any dedicated IP litigators. Existing lawyers such as Eric B. Fastiff, a partner in the antitrust group, are working on the firm's first patent case on behalf of Deep9 Corp. against Barnes & Noble Inc. over a software patent related to the book retailer's Nook reader. Deep9 Corp. v. Barnes & Noble Inc., 11-CV-35 (W.D. Wash., Filed Jan. 7, 2011).
Asked whether the firm would be hiring patent specialists, Fineman said: "We're looking at using both our existing, experienced lawyers along with specific expertise in patent litigation."
Outside of IP, Lieff Cabraser lawyers such as Fastiff are tackling a greater number of complex commercial suits on behalf of companies. The firm recently took on its first three cases for Schwab: a set of suits filed in San Francisco County Superior Court against several financial institutions over their handling of residential mortgage-backed securities; a case in the Northern District against Bank of America Corp. over its acquisition of Merrill Lynch, which has been transferred to New York; and a suit against several major banks for allegedly manipulating the London Interbank Offered Rate (LIBOR), which is used as a reference rate by financial institutions around the world, also filed in the Northern District and consolidated in New York.
"We're one of the only firms that can represent plaintiffs across the spectrum of types of suits they have," Fastiff said.
Meanwhile, Lieff Cabraser partner Robert J. Nelson has spearheaded a growing False Claims Act practice that capitalizes on the relationships the firm built with federal and state government lawyers during the massive tobacco industry litigation of the late 1990s. Six lawyers at the firm spend a significant amount of their time on the work, Nelson said.
Recently, the firm represented whistleblowers in a suit against University of Phoenix parent company Apollo Group Inc. for recruiting violations under the Higher Education Act. The case, which Nelson described as the largest one involving the Department of Education, settled for $78.5 million. Hendow et al. v. University of Phoenix, 03-CV-457 (E.D. Ca., Filed March 7, 2003).
The firm also is working on a suit in Sacramento County Superior Court alleging billing fraud by Sutter hospitals related to anesthesia services in operating rooms. "The stakes in that case are huge for Sutter in terms of their liability," Nelson said, noting the hospitals could have to pay between $5,000 and $11,000 per false claim for multiple years of conduct.