Koh Profile

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FRIDAY MONDAY TUESDAY WEDNESDAY TODAY
Lucy H. Koh
U. S. District Judge
Northern District of California (San Jose)
Career highlights: Appointed by President
Barack Obama to U.S. District Court, 2010;
appointed by Gov. Arnold Schwarzenegger
to Santa Clara County Superior Court,
2008; partner, McDermott Will & Emery
LLP, 200208; associate, Wilson Sonsini
Goodrich & Rosati PC, 200002; assistant
U.S. attorney, Central District of
California, 19972000; special counsel,
U.S. Department of Justice, 199497;
fellow, U.S. Senate Judiciary Committee,
199394
Law school: Harvard Law School, 1993
Age: 46
NEWS RULINGS VERDICTS
Questions and Comments
Thursday, December 4, 2014
California Supreme Court
State high court justices say Jessica's Law
has backfired
In two cases this week, the state Supreme Court
left no doubt that the 2006 ballot measure Jessica's
Law, forbidding registered sex offenders from
living within 2,000 feet of schools and parks, was a
wellintended but bad law.
Entertainment & Sports
MGA tussles with financial advisors over
toy sale
The Van Nuys company is trying to recover
hundreds of millions of dollars from the botched
acquisition of a French toy manufacturer.
U.S. Supreme Court
Narrowing precedent at the US high court
Precedent is the U.S. Supreme Court's business, yet
there is little consensus about how the court should
treat its own past decisions. By Richard Re
Mergers & Acquisitions
Skadden, Latham handle $3.54B pharma
deal
Aliso Viejobased Avanir Pharmaceuticals was
counseled by Latham & Watkins LLP in its sale to
Otsuka Pharmaceutical, a Japansese competitor
represented by Skadden, Arps, Slate, Meagher &
Flom LLP & Affliliates.
California Courts of Appeal
State law requiring DNA sample collection
unconstitutional, appeals court rules
A state court of appeal here ruled on Wednesday
that a California law requiring police to collect a
DNA sample from anyone arrested of a felony is
unconstitutional.
Mergers & Acquisitions
Dealmakers
A roundup of recent transactions across the state
and the lawyers involved.
Litigation
Agency accused of unlawfully issuing
permits for oil and gas drilling techniques
The Environmental Defense Center claims a
federal agency failed to perform environmental
reviews and notify the public of the use of fracking
and acidizing before signing off on the extraction
techniques.
Criminal
Los Angeles city attorney receives funds for
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Lucy H. Koh
From activist to prosecutor, corporate lawyer to the bench, Judge
Lucy Koh is making a big impact.
By Hadley Robinson
SAN JOSE Lucy H. Koh used to
stare out the window during the
hourandahalf bus ride to her
public school in Port Gibson, Miss.
every day. She and her siblings were
the only AsianAmericans at a
predominantly black elementary
school.
Winding through the wooded
streets, she noticed the parochial
schools with white children in
uniform marching around the school
yards and thought of the difference
to her own classroom, in a trailer.
The teacher sometimes abandoned
the class to do her own grocery
shopping.
The imbalance of opportunity for
her classmates, who often did not
have money to afford backpacks and
brought their books to school in
cereal boxes, was one experience that
ignited her interest in the law, Koh
wrote in an article while in law
school.
She continued to see racial and
gender discrimination in her young
life, and as an undergraduate and
law student at Harvard University,
she organized rallies and campaigns advocating for retention of more minorities and
female tenured professors. In a job search guide published by Harvard Law School,
Koh wrote her career goals were to work at the Department of Justice Civil Division and
for the NAACP Legal Defense and Educational Fund, where she had interned.
Two decades later, Koh has found herself in a different place than she anticipated.
As a federal judge in Silicon Valley, she is making crucial decisions about the wealthiest
companies in the world.
Koh referees billiondollar battles between smartphone behemoths, tackles emerging
privacy concerns, and recently shocked the legal world when she rejected as too low
a $324 million settlement between a group of engineers and their employers.
She has been unafraid to upset the powerful companies and their lawyers when they
venture inside her San Jose courtroom, sometimes ruling for the underdogs, and
keeping a close eye out for unfair treatment and uninhibited power.
As an undergraduate at Harvard, a dean admitted to Koh and other diversity
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Prop. 47 cases
The office will get over $400,000 to fill 15 positions
to handle newly classified misdemeanor cases
under the new law.
Intellectual Property
Patent case filings on pace to reach three
year nadir
Plaintiffs are currently on pace to file the fewest
patent lawsuits in three years, following a
sustained period of lackluster litigation activity
over the second half of 2014, according to a new
round of data.
Criminal
Irony abounds in the case of the 'accidental
witness'
How do you question a gang witness when
"snitches get stitches?" By Richard La Fianza
and Frank Loo
Labor/Employment
To WARN or not to WARN, that is the issue
the court faced
Must a financially troubled employer, anticipating
that a sale of its business will solve its financial
problems, give federally mandated layoff notices to
its employees? By Ivan L. Kallick
Civil Rights
Wise up, and make websites accessible
The Internet has brought a wealth of new
experiences within reach of nearly everyone in our
country. Yet it has also created a new breed of
segregation. By Caroline E. Jackson, Kathryn
A. Robertson and Adina S. Katz
Corporate Counsel
Amanda T. Harrell
Senior vice president of business and legal affairs
at United Artists Media Group Santa Monica
Judicial Profile
Lucy H. Koh
U. S. District Judge Northern District of California
(San Jose)
Government
Some voice doubt over new state equal
protection law
U.S. Supreme Court decisions have eroded a key
precedent and hurt minority advocates' confidence
in challenging allegedly discriminatory laws in
federal court. In response, this October they passed
California's AB 2646.
advocates that one chemistry professor forbade women from being in his lab group.
The dean suggested they "raise hell" but didn't guarantee that would get results.
"I raised hell, but they did nothing because that professor won a Nobel Prize," Koh
wrote in the law school publication. "Nobel laureates can discriminate with impunity."
Koh may no longer be the activist of her younger days. But she is just as outspoken,
and as a judge, she has tried to ensure companies, executives, or criminals no matter
their size or influence can't act with impunity either.
Treading New Ground
Koh's profile has risen tremendously in the four years since President Barack Obama
appointed her, the first KoreanAmerican district judge, to the Northern District bench.
She is humble about the attention, and has a strict policy against talking on the record
to the press. She declined comment for this article.
She has become wellknown because her highprofile cases often involve leading
technology companies and emerging areas of the law. But her decisions have attracted
publicity because her analysis often treads new ground.
In September, Koh allowed consumers who had personal information stolen in a
data breach of Adobe Systems Inc. to proceed with a lawsuit. Since litigation involving
hacking attacks has surged in the last two years, most federal judges have sided with
companies claiming that unless consumers are harmed by a breach, they cannot sue.
Not Koh. She wrote, "the threatened injury here could be more imminent only if
Plaintiffs could allege that their stolen personal information had already been
misused." Adobe Systems Inc. Privacy Litigation CV135226 (N.D. Cal., filed Nov. 11,
2013).
Defense attorneys have said Koh's decision, and a similar one from a San Diego
federal judge, make it tougher for companies to get a data breach case dismissed early
in California.
Last year, in a class action alleging Google scanned emails to collect personal data for
marketing purposes, Koh rejected the company's argument that its practices were part
of the "ordinary course of business," which exempts actions from violations of federal
wiretap laws. Google Inc. Gmail Litigation, MD132430 (N.D. Cal., filed April 1, 2013).
The decision differed from other judges' read on the exception, including her
colleague U.S. Magistrate Judge Paul S. Grewal, who interpreted it more broadly.
Though she later ruled for Google in a class certification motion, ending the case, her
early decision had ramifications. Internet users have filed followon complaints
accusing companies of scanning messages in violation of federal law, citing Koh's
opinion.
Daniel J. Solove, a law professor at George Washington University, authored a
leading privacy textbook, "Information Privacy Law." The new edition includes some of
Koh's decisions. He said her cases are the ones "that everyone in the field is talking
about."
Experts at the American Law Institute say though there is no official tally, Koh is
likely handling more privacy cases than any other federal judge in the country.
"They present complex issues about how to understand privacy harm and novel
issues about how to apply various laws to very new situations and technologies," Solove
said. "Far too often, judges just seem in a hurry to get rid of the cases they seem too
difficult and different and so many judges dispatch the cases too quickly, without
adequately analyzing them. What impresses me about Judge Koh is that she doesn't do
that. She engages with the issues and isn't dismissive."
Battle Tested
In the courtroom, Koh has a reputation of frankness and candor, letting lawyers
know exactly how she feels, sometimes to the point of discomfort. She isn't afraid to put
lawyers on the spot.
In a famous case involving Apple Inc.'s accusations that Samsung Electronics Co.
Ltd. infringed its phone and tablet design patents, Koh once held both companies'

tablets next to each other, and asked Samsung's lawyer Kathleen M. Sullivan a former
Stanford Law School dean if she could tell which was which.
After several uncomfortable seconds, the Quinn Emanuel Urquhart & Sullivan LLP
partner replied "not at this distance you're honor," before turning to her legal team for
help.
Koh was handling a mountain of motions, evidence and objections between the two
companies, represented by lawyers with decades of experience on her.
She frequently admonished the attorneys for their incessant motions for
reconsideration, calling them "out of control." She famously asked one of Apple's
lawyers if he was "smoking crack" when he presented a lengthy witness list midtrial.
Apple Inc. v. Samsung Electronics CV111846 (N.D. Cal., filed April 15, 2011).
Mark Lemley, a Stanford Law School professor, followed the AppleSamsung case.
"Particularly for a young judge," he said, "the ability to control some extremely assertive
lawyers in a really important case and to take command of a courtroom was really
impressive."
While the AppleSamsung motions and trial proceeded in 2012, Koh was having a
tough year in her personal life. Her father had stomach cancer, and had moved in with
her family in April after two months in the hospital.
During the trial, he went into the hospital for the last time, and Koh was dealing with
his surgeons, a palliative care team and nurses, said Koh's husband Mariano
Florentino Cuellar, another Stanford Law School professor who was recently appointed
to the California Supreme Court.
Koh slept in her dad's hospital room many nights during trial, Cuellar said.
"In the time Lucy was presiding over AppleSamsung having all the energy and
hard work one needs to get it right, to make sure everyone understands the facts, to
make sure the jury had all the instructions they need she was dealing with watching
her father get sicker and weaker," he said.
Koh's father died soon after the first AppleSamsung trial ended.
An unexpected career path
Koh's evolution from civil rights and immigration advocate to a judge handling
important technological and legal conundrums came from Koh seizing immediate
opportunities.
She studied anthropology and sociology in college at Harvard University, and
pursued her law degree there fervent about becoming a public interest attorney.
Her concerns about poverty and her quest to pursue justice for minorities spawned
from her childhood growing up in Mississippi and Oklahoma. Her mother, an
immigrant from Korea, taught at Alcorn State University, the nation's first historically
AfricanAmerican land grant college.
"Lucy is interesting because she has had a chance to see a lot of different parts of the
country," Cuellar said. "I think it makes her feel like everybody has a role to play in
making sure our government institutions live up to their promise. It sensitized her to
the diversity of our country and how all our institutions need to respond to the needs of
everybody."
Koh became the Women's Law and Public Policy Fellow after leaving law school, and
she could pick her placement. She chose to spend her time as a fellow in the U.S.
Senate Judiciary Committee in Washington, D.C.
From there, she moved to President Bill Clinton's Justice Department, working on
civil rights, immigration and other legislative affairs.
Despite having little interest initially in criminal law, after hearing her colleagues rave
about their experiences as assistant U.S. attorneys, Koh decided she would like to try it.
She got a job in Los Angeles, working on general crimes and major frauds, and was
later exposed to intellectual property law through cases involving identity theft, hacking
and counterfeiting.
As the late '90s Web boom grew, Koh took the opportunity to get nearer to the

technology hotspot, and her grandparents and family, in San Jose. She was hired to do
intellectual property work at Wilson Sonsini Goodrich & Rosati PC and later
McDermott Will & Emery LLP, both in Palo Alto.
Koh and Cuellar met over breakfast with a mutual friend soon after Koh moved to
Wilson Sonsini and Cuellar began teaching at Stanford. Cuellar was impressed.
"She is very passionate and energetic about life and about the law," he said. "She is
lively in conversation. She is very engaging with people. She likes people, she likes to
connect with people, she likes to know their stories."
The couple has two children.
Gov. Arnold Schwarzenegger appointed her to a judgeship in Santa Clara County in
2008, but an opening on the federal bench soon came up when U.S. District Judge
Ronald M. Whyte took senior status. It was the first vacancy in San Jose in 11 years.
Koh jumped on it.
Though the senators in the Judiciary Committee questioned Koh about her early
political activism, her varied experiences as a criminal prosecutor, corporate lawyer and
Schwarzenegger appointee helped her get bipartisan support, passing unanimously
through committee and off the floor.
Koh took Whyte's seat, and the two judges have become close. Whyte said Koh is a
wonderful colleague who never lets a birthday, marriage or retirement pass without a
celebration or recognition.
"I think she's incredibly hard working," Whyte said. "She's demanding in getting
people to do things in a timely fashion. She's very smart, and can handle the tough
cases with real expertise."
Manuel Araujo was a public defender in San Jose when Koh took the bench. The
judge held meetings with the defenders and prosecutors to get feedback, he said.
Araujo had several hearings and a trial in front of Koh.
"She's very demanding in the sense that she wants thing to be wellorganized, she
doesn't like surprises at the last minute," he said. "You could see it in her eyes if you
displease her because you haven't done the homework. She won't yell at you but you
can tell by her expression, her frustration, that you messed up with her."
Scott D. Baker, partner at Reed Smith LLP, tried a patent case before Koh.
"Her trial rules are very particular," Baker said. "She doesn't want anything to stop
the actual flow of testimony. She doesn't want to have the jury sitting around idly, while
lawyers deal with legal issues with her."
But even if Koh is not willing to waste jurors' time, she dedicates huge amounts of her
own to resolving cases. Baker had another patent case with Koh in which she
volunteered to be the settlement judge.
"It was the right move and it worked out," Baker said. "She got the case settled and
the parties were impressed with how diligent she was, and also everybody was
comfortable having her be the trial judge even if we didn't settle."
Strong on Appeal
Koh's record has thus far held up in the 9th U.S. Circuit Court of Appeals, with no
significant reversals. But one of her boldest decisions, rejecting a $324 million antitrust
settlement between Silicon Valley technology companies and their employees, now faces
a stiff test.
Attorneys for the companies Apple, Google, Intel Corp., and Adobe Systems called
her decision a "clear legal error" in their appeal.
The plaintiffs, current and former employees at the tech companies, had originally
asked for $3 billion in damages.
"I wish you had told me how weak your case was for class certification and all of
these Daubert motions," Koh told the plaintiffs. "I mean, that would have been helpful
information."
She had written a detailed 86page order granting the plaintiffs' motion for class

certification, taking into account expert reports. Koh's frustration at the hearing was
palpable.
Lemley said the case is an example of Koh not only handling highprofile cases, but
writing opinions that make news.
"Rejecting the settlement in the nopoach case and saying you have to go to trial is
more newsworthy than letting the case go away," Lemley said. "It's not that she's
outside the norm of the law, but she has not shied away from taking on the tough
cases."
In their appeal, the defendants blasted the judge's decision, and asked the 9th
Circuit to intervene and approve the settlement. In re HighTech Employment
Litigation, CV112509 (N.D. Cal., May 23, 2011).
"It was clearly erroneous for the district court to substitute its own judgment for the
parties' agreement based on an unprecedented 'benchmark' analysis," wrote Robert A.
Van Nest, of Keker & Van Nest LLP.
The 9th Circuit has agreed to take the case but has not yet set a date for oral
argument.
Koh's decisions have survived scrutiny from the U.S. Court of Appeals for the Federal
Circuit, which handles patent challenges, as well.
The first AppleSamsung trial resulted in a $1 billion jury verdict that has since been
trimmed and retried. Koh has made important posttrial decisions, including denying
Apple's request to ban the sale of some of Samsung's older devices by granting a
permanent injunction.
On appeal, the Federal Circuit found flaws in Koh's original analysis and remanded
part of the motion back to her, with a loosened standard for granting an injunction.
But in a 42page order, Koh rejected Apple's request for a sales ban again, finding
the company has failed to prove that the three minor infringed software patents were
driving consumer demand for Samsung's products. The Federal Circuit upheld her
decision.
Cuellar said although some of his wife's decisions are closely followed by the public or
legal community, her dedication to the law comes from within.
"Sometimes you're under a lot of scrutiny and people are analyzing every move and
sometimes they're not, but the motivation to get it right has to come from inside," he
said. "She has that in spades."
Here are some recent cases in front of Judge Koh and the attorneys involved:
Columbia Casualty Insurance Co. v. Gordon Trucking, American Int'l Specialty
Lines Insurance Co., CV0905441 insurance
For the plaintiff: Patrick A. Cathcart, Los Angeles County Superior Court, Los
Angeles; Joseph P. Collins, Pacific Palisades
For the defendant: Frank Kaplan, Bingham McCutchen LLP, Santa Monica
LiftU v. Ricon Corp., CV101850 patent
For the plaintiff: Scott J. Allen, Pacific Grove
For the defendant: Barry Coyne, Reed Smith LLP, Pittsburgh, Penn.; Scott D. Baker,
Reed Smith LLP, San Francisco
U.S. v. Orellana, CR0996 narcotics
For the prosecution: Grant P. Fondo, Goodwin Procter LLP , Menlo Park; Jeffrey D.
Nedrow, U.S. attorney's office, San Jose
For the defense: James P. Vaughns, Oakland
Los Padres Forestwatch v. U.S. Forest Service et al., CV103653 environmental
dispute

Lucy H. Koh
United States District
Court of California
San Jose
James E. Herman
Superior Court of
California Santa
Barbara County
Anacapa Building
(South County)
Harry Mark
Dorfman
Superior Court of
California County of
San Francisco Civic
Center Courthouse
James K. Voysey
Superior Court of
California Santa
Barbara County
Lompoc Division
(North County)
Donald S.
Kennedy
Superior Court of
California County of
Los Angeles Central
Arraignment Court
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For the plaintiff: Michael Graf, El Cerrito
For the defendant: Peter C. Whitfield, Baker & Hostetler LLP, Washington, D.C.
In re Google Inc. Gmail Litigation, CV132430 privacy
For the plaintiff: Sean Rommel, Wyly~Rommel PLLC, Texarkana, Texas; Jerome
Tapley, Cory Watson Crowder & DeGaris, P.C., Birmingham, Ala.
For the defendant: Michael G. Rhodes, Whitty Somvichian, Cooley LLP, San
Francisco
hadley_robinson@dailyjournal.com
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Editorial Id: 938687
Publication Date: 12/04/2014
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