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Experience:
Donald Falk has an extensive appellate practice in which he presents oral arguments, briefs, and motions in the US Supreme Court, and many other federal and state appellate and trial courts. His work involves a wide range of constitutional, statutory, patent, securities, administrative, criminal and common law issues. Don has won a unanimous judgment before the United States Supreme Court and has successfully briefed and argued cases before the highest courts of California, Delaware, Maryland and Texas. He has much experience with California's broad unfair competition law (Business & Professions Code § 17200). Don frequently briefs in the California state appellate courts (arguing 10 cases) and federal appellate courts (three Ninth Circuit cases). Many of those cases involved preemption under the Federal Arbitration Act.
Much of Don's work has involved antitrust issues for clients in the technology, pharmaceutical and other industries. He served as counsel for the Computer & Communications Industry Association and the Software and Information Industry Association in the Microsoft antitrust case. His amicus brief in that case, as Professor Calkins noted in the Antitrust Law Journal (Vol. 68, p. 625), was called "an excellent brief," by Judge Thomas Penfield Jackson, who made it a focus of an entire afternoon's questioning. "No one can say that antitrust amicus efforts are ignored," Professor Calkins stated. In the same article Calkins credited Don's brief for the NCAA as a prime influence on the pro-defendant formulation of the legal standard in California Dental Ass'n v. FTC, 526 U.S. 756 (1999).
Don's work on patent issues includes extensive work on two cases helping patentees enforce their patents against imitators who produced insubstantial variants (i.e., "equivalents") of particular elements of claimed inventions. He has further addressed claim construction, patent ownership, and divided infringement issues, along with more typical infringement briefing, predominantly involving computer technology. Don also has briefed appeals in securities fraud and derivative actions. In addition, he has prepared major motions at the trial level on antitrust, arbitration, class action, and securities issues, among others. His experience also includes matters focusing on telecommunications, health care and employment law.
Don joined the firm in 1991 following his service as Law Clerk to The Honorable Douglas H. Ginsburg, US Court of Appeals for the District of Columbia Circuit, 1990-1991.
Notable Engagements:
Jones v. United States, 529 U.S. 848 (2000). Won a 9-0 U.S. Supreme Court judgment narrowing the scope of a federal statute in light of concerns about the scope of Congress's power under the Commerce Clause.
Miga v. Jensen, 96 S.W.3d 207 (Tex. 2002). Briefed a successful Texas Supreme Court matter involving options valuation.
In re Oracle Corp. Derivative Litig., 872 A.2d 960 (Del. Supr. 2005), aff'g 861 A.2d 904 (Del. Ch. 2004). Submitted a Delaware Supreme Court brief that resulted in the affirmance, one day after oral argument, of a 43-page published opinion granting summary judgment to Oracle Corporation executives in a derivative suit accusing them of insider trading.
NAACP v. Golding, 679 A.2d 554 (Md. 1996). Successful Maryland Supreme Court matter.
Kingston Constructors, Inc. v. Washington Metropolitan Area Transit Authority, 14 Cal. 4th 939 (1997). Briefed a successful California Supreme Court matter.
Kraus v. Trinity Management Services, 23 Cal.4th 116 (2000). Presented an amicus brief that the California Supreme Court explicitly followed in narrowing the remedial scope of the state's unfair competition law.
LePage's Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003) (en banc). Prepared the winning brief.
Festo Corp. v. Shoketsu Kinozoku Kogyo Kabushiki Co., 535 U.S. 722 (2002). Was deeply involved in the merits briefing for the prevailing petitioner.
Caterpillar Inc. v. Deere Co., 224 F.3d 1374 (Fed. Cir. 2000). Helped Caterpillar overturn a summary judgment of non-infringement of a tractor patent drafted in means-plus-function form.
California Dental Ass'n v. FTC, 526 U.S. 756 (1999). Prepared an amicus brief for the NCAA that was a prime influence on the pro-defendant formulation of the legal standard in this case.
Further information on and examples of Don's work appear at www.appellate.net/falk.
Education:
Boalt Hall School of Law, University of California, Berkeley, JD, 1990; Order of the Coif; Articles Editor, Ecology Law Quarterly, University of Chicago, MA, 1977, University of California, Berkeley, BA, with highest departmental honors, 1976; Doctoral Study, English, 1977-1978. |
