Justin Lichterman, a senior associate in the San Francisco office, focuses his practice on complex commercial and intellectual property litigation for technology and other public and private companies. He has extensive experience in high stakes litigation at both the trial and appellate court levels, representing clients in both jury and bench trials in Federal and state courts across the country.
Mr. Lichterman has represented numerous technology clients in all forms of civil litigation, including private party disputes, class actions, and governmental agency enforcement actions, as well as in prelitigation guidance. He has defended clients in patent and trade secret lawsuits, cases involving the intersection of patent and antitrust law, and disputes concerning complex technology products or transactions. In addition, Mr. Lichterman has appeared in diverse cases in numerous jurisdictions, including complex bankruptcy-related adversary proceedings, international arbitrations and other matters in Federal and State courts. Mr. Lichterman also spent time as a prosecutor in a Trial Unit of the San Francisco District Attorneys' Office, where he first chaired several criminal jury trials.
In addition to complex commercial and technology cases, Mr. Lichterman has defended many companies and their directors and senior officers against allegations of securities fraud brought by private investors and the Securities and Exchange Commission. His experience in corporate governance litigation includes defending claims of breach of fiduciary duty under Delaware, California and other state laws, merger cases and shareholder disputes in both private and publicly-traded companies. Mr. Lichterman understands the business and regulatory concerns of his clients, and how to accommodate them in the litigation environment.
Mr. Lichterman's clients include leading technology and Fortune 500 companies, and he has represented, among others, NVIDIA Corporation, Oracle Corporation, Facebook, Levi Strauss & Co., Logitech, and PricewaterhouseCoopers.
Prior to joining Orrick in 2004, Mr. Lichterman was an associate with the San Francisco office of Clifford Chance US LLP. Before joining Clifford Chance, Mr. Lichterman was a judicial clerk for the Honorable Arthur P. Roy on the Colorado Court of Appeals.
Representative cases include:
- Rambus v. NVIDIA Corp., et al. - represented NVIDIA Corporation, one of the world's largest semiconductor companies, in multiple large-scale patent and antitrust actions against Rambus in Federal District Court and the International Trade Commission, as well as on appeal to the Court of Appeals for the Federal Circuit.
- Fraser v. ASUSTeK Computer, Inc. - represent Taiwanese computer designer and manufacturer, ASUSTeK, and its U.S. subsidiary, in class action litigation in Federal District Court, relating to its acclaimed Transformer Prime tablet computer.
- Cornucopia Products LLC v. Dyson Inc. - represent Dyson, one of the world's most inventive companies, in patent and antitrust litigation in Arizona federal court concerning bladeless fans.
- GlobalMedia Group LLC v. Logitech, Inc. - defense counsel for Logitech Inc. in dispute in Federal District Court involving patent license agreement.
- Facebook, Inc. v. Saverin - Defended Facebook, Inc. and its founder, Mark Zuckerberg, in litigation brought by co-founder Eduardo Saverin relating to the creation and ownership of the company.
- StarClipz v. StarGreetz - represent private company and its founders against trade secret misappropriation and fiduciary duty claims.
- Brandt v. NVIDIA Corp. - successfully defended NVIDIA in bench trial in Federal Bankruptcy Court, concerning NVIDIA's multimillion dollar purchase of assets of 3dfx Interactive. Obtained a favorable affirmance of the bankruptcy court decision on appeal to the District Court, and continue to represent NVIDIA in ongoing appeals in the Ninth Circuit Court of Appeals. Also represented NVIDIA in the underlying Bankruptcy case, In re 3dfx Interactive, Inc.
- Carlyle Fortran Trust v. NVIDIA, CarrAmerica Realty Co. v. NVIDIA and Equity Security Holders Committee v. NVIDIA - defended NVIDIA Corporation in multiparty adversary proceedings brought by creditors and shareholders of 3dfx Interactive in Federal Bankruptcy and District Courts, winning dismissal of the claims at the pleading stage or on summary judgment. Also successfully represented NVIDIA on appeals to the Ninth Circuit and in opposing a petition for a writ of certiorari to the United States Supreme Court.
- The NVIDIA GPU Litigation - represented NVIDIA Corporation in a large-scale consolidated consumer class action alleging defective graphics chips, which was resolved via settlement. Continue to represent NVIDIA in connection with appeals of objectors to the Ninth Circuit Court of Appeals.
- Sunnyside Development Co. v. Opsys Ltd. - Co-lead trial counsel in jury trial of breach of lease trial on behalf of Opsys Limited, a United Kingdom Company focused on development of light emitting diode technology, in Federal District Court in San Francisco. Represented Opsys Limited on appeal to the Ninth Circuit Court of Appeals.
- Securities and Exchange Commission v. Microtune, et al. - successfully represented former senior officer of semiconductor company in Texas Federal Court in case brought by the U.S. government alleging securities fraud. Won summary judgment, and continue to represent the client in the Fifth Circuit Court of Appeals.
- In re NVIDIA Corp. Securities Litigation (2008) - obtained a dismissal with prejudice of federal securities fraud class action against NVIDIA Corporation, alleging violations of U.S. securities laws and accounting rules arising out of alleged defects with NVIDIA's complex semiconductor products. Continue to represent NVIDIA on appeal in the Ninth Circuit Court of Appeals.
- In re NVIDIA Corp. Securities Litigation (2002) - successfully defended NVIDIA Corporation in a shareholder securities class action and related derivative action, Guttman v. Huang.
- Metropolitan Creditors' Trust, et al. v. PricewaterhouseCoopers LLC - represented Big Four accounting firm in Federal Court in Washington state in defense of claims of audit malpractice.
- In re WatchGuard Technologies Securities Litigation - obtained dismissals with prejudice on behalf of WatchGuard Technologies, Inc., an internet security company, and several of its former officers and directors in securities fraud claim in the Western District of Washington, and in two related derivative lawsuits, Luke v. Moore and Cervantes v. Borey.
- Examen, Inc. v. VantagePoint Venture Partners 1996 - represented shareholders in the Delaware Court of Chancery and Delaware Supreme Court in landmark case involving choice of law in shareholder voting rights dispute. Also represented shareholders in related litigation in California state court.
- Jabbour v. Nexant, Inc. - successfully represented Nexant, Inc., a provider of electricity grid operation software, in complex commercial dispute involving contract, fraud and tort claims relating to Nexant's acquisition of a software company.
- Toigo v. Garlick - obtained voluntary dismissal with prejudice of claims against former directors and officers of Remedy Corporation, a software company, arising out of the sale of Remedyto Peregrine Systems, Inc.
- Nazomi Comm'n, Inc. v. NVIDIA Corp. - successfully resolved arbitration on behalf of NVIDIA, arising out of its purchase of Media Q, a mobile graphics and wireless company.
Today, the Solicitor General filed a motion asking the Supreme Court to dismiss the Securities and Exchange Commission’s petition for a writ of certiorari in SEC v. Bartek. As noted in a previous blog post, the Bartek petition focused on when the limitations period under 28 U.S.C. § 2462 begins to accrues, a question that was answered in Gabelli.
However, the petition also presented a second question: whether director and officer bars and injunctive relief constituted penalties. Although the Supreme Court was unlikely to take up that question at this juncture, the government’s decision to dismiss the petition perhaps signals a view that Gabelli will not have a significant adverse impact on the SEC’s civil enforcement activities. Certainly, Gabelli’s impact can be minimized if, as expected, Mary Jo White is confirmed as the next SEC Chair and follows through on her commitment to the Senate Banking Committee to “aggressive” pursuit of wrongdoers.
In Gabelli v. SEC, a unanimous Supreme Court held that the statute of limitations for “penalty” claims in governmental enforcement actions begins to run from the date of the underlying violation of the law, not when the government discovers or reasonably should have discovered the misconduct. Gabelli has important implications for the Securities and Exchange Commission (“SEC”) and all governmental agencies because it limits the sanctions available to the agency for conduct that occurred more than five years before it commences a civil enforcement action. Opinion.
Gabelli involved the application of 28 U.S.C. § 2462, which provides that “an action, suit or proceeding for the enforcement of any civil fine, penalty or forfeiture … shall not be entertained unless commenced within five years from the date when the claim first accrued[.]” In 2008, the SEC sought civil penalties from Mark Gabelli, a mutual fund portfolio manager, for alleged violations of the Investment Advisers Act in connection with alleged market timing issues. Gabelli successfully moved to dismiss the penalty claims as time-barred under Section 2462 because the complaint was filed almost six years after the alleged misconduct. On appeal, the Second Circuit reversed, reasoning that in cases of fraud the statute of limitations does not begin to run until the SEC discovered (or reasonably could have discovered) the wrongful acts. The Supreme Court disagreed, holding that “a claim based on fraud accrues—and the five-year clock begins to tick—when a defendant’s allegedly fraudulent conduct occurs.” Read More
Today, the Supreme Court granted a petition for certiorari in Gabelli v. Securities and Exchange Commission (11-1274). In the appeal from a Second Circuit opinion, the Court will decide whether a governmental claim for penalties accrues on the date that the underlying violation occurs, or when the SEC discovers (or reasonably could have discovered) the violation, for purposes of the 5-year statute of limitations for governmental penalty actions embodied in 28 U.S.C. s. 2462. The precise question presented is:
“When Congress has not enacted a separate controlling provision, does the government’s claim first accrue for purposes of applying the five-year limitations period under 28 U.S.C. s. 2462 when the government can first bring the action for a penalty?”
The Second Circuit, in an opinion adopting the SEC’s position, held that the discovery rule applies to SEC enforcement actions rooted in fraud. Under that rubric, the SEC could bring an enforcement action within five years of learning about a fraud, which, in many cases, can be far more than five years after the underlying violation occurred. The Supreme Court’s decision to take the case follows closely on the heels of the Fifth Circuit’s August 7, 2012 decision in SEC v. Bartek, previously discussed here. In Bartek, the Fifth Circuit held that the statute of limitations for penalties in SEC enforcement actions began to run on the date of the underlying in violation, and that the discovery rule does not apply to 28 U.S.C. s. 2462. The Bartek decision therefore created a clear Circuit split that the Supreme Court is poised to resolve next term.
In SEC v. Bartek, filed August 7, 2012, the Fifth Circuit held that the discovery rule does not apply to 28 U.S.C. § 2462, the statute of limitations governing penalties in SEC civil enforcement actions, thus affirming a district court’s grant of summary judgment in favor of the defendants. Under the Fifth Circuit’s ruling, the SEC’s claims for penalties accrue on the date of the violation, not on the date that the SEC discovers the violation. This opinion creates a circuit split after the Second Circuit’s decision in SEC v. Gabelli, 653 F.3d 49 (2d Cir. 2011), which held that the discovery rule applied to Section 2462, and increases the likelihood that the Supreme Court will weigh in on the issue. Read More