A Litigation Practice With Noteworthy Strength In Technology And Telecommunications

Tuesday, November 1, 2005 - 01:00

Editor: Mr. Manishin, please tell our readers something about your professional experience.

Manishin: I have been practicing in the areas of antitrust and telecommunications, with an emphasis on litigation, for more than 20 years. I began my career at the Department of Justice Antitrust Division, following a clerkship with the Ninth Circuit Court of Appeals. From the Justice Department I went into private practice, and for nearly six years I represented MCI in all of their antitrust and FCC matters. A stint with a boutique firm in Washington - complex commercial litigation with an emphasis on technology - followed, and that has served to draw me toward clients which are Internet-centric, which is the focus of my practice today. Many of the cases that I handle raise public policy as well as legal questions, and I find myself in forums that include regulatory agencies and legislatures, federal and state, in addition to courts.

Editor: How did you come to Kelley Drye? What were the things that attracted you to the firm?

Manishin: Kelley Drye is one of the oldest New York-based firms, and it has always had a stellar reputation as a litigation firm. That reputation is well-earned and provides an advantage to me and my clients on litigation matters. In particular, the combination of broad-based litigation experience and depth of domain expertise in telecommunications regulation at Kelley Drye was a natural complement to my own practice, where I represent a considerable number of companies involved in telecommunications and technology but rarely handle their regulatory proceedings. So for me, Kelley Drye represented a wonderful opportunity for synergies, and that is precisely the way it is working out.

Editor: Please describe your practice. How has it evolved over the course of your career?

Manishin: I think my career reflects the nature of law and regulation in the high-tech sector. That is, in technology law many of the same issues reoccur over time and just the acronyms change. In the forums where issues related to interoperability, market power, the influence of intellectual property, and the like are played out there is a natural cycle. In the first stage there is an attempt at legislation. The second is implementation of that legislation, i.e., regulation. And - because regulation often is too broad to be effective - the third stage sees litigation being used to try to accomplish directly what the legislators and regulators are unable to do indirectly. I call this the antitrust cycle. Since the 1930s antitrust lawsuits have been used against AT&T and the Bell System every 30 years, and I believe that same cycle continues today with respect to technology and the telecommunications industry.

For instance, in the mid-1990s I was engaged in considerable legislative activities because a number of my Silicon Valley clients were concerned that what appeared to be telecommunications legislation was really about computers and software. In the late 1990s the Federal Communications Commission was engaged in some very far-reaching rulemaking initiatives, which lead to several important appellate cases in which I was involved. Finally, when the regulatory litigation came to an end, antitrust and IP litigation took its place. Many disputes among software, IT enterprises and telecom companies that were once resolved by the regulators at an earlier point are now being addressed in court. My own practice has followed this same cycle between legislation, regulation and litigation.

Editor: You have just been named chair of the firm's litigation practice in the Washington, DC and Virginia offices. What is this going to mean for you? More supervisory and less courtroom time?

Manishin: I am hoping it means less courtroom time. Not because I am anxious for a greater supervisory or management role, but because our practice has grown so quickly right now there are simply too few lawyers to handle it without someone marshalling the firm's resources in its support. When I joined the firm in Tysons Corner there were one or two lawyers in these two offices with sufficient experience to try complex commercial cases. Even though we have ten at present, I still wind up handling most or all of the important court appearances myself. The workload is growing dramatically, and my challenge is to bring in the right group of lawyers to handle it. Which, of course, I intend to do.

Editor: You were recently involved in the dispute between Final Analysis and General Dynamics. Can you give us some background on this matter?

Manishin: This was a fascinating case. It involved Final Anaysis, a developmental-stage telecommunications company that held an FCC license for a series of satellites to provide mobile data communications services. These services were similar to what today is provided, at much lower speed, on terrestrial cellular and wireless networks. In the mid 1990s this type of service was all the rage, and a number of data carriers used these licenses to construct satellite networks, such as Iridium and Teledesic. These carriers failed when the market crashed. Final Analysis fared somewhat better, but it had a very serious problem when its strategic equity partner, General Dynamics, breached contracts requiring the investment of approximately $30 million of equity, which was supposed to have been used to leverage into greater financing for the entire system. After two years of intense discovery, the case went to trial. The damages claims ranged from $200 million to $537 million, and the jury ultimately awarded about $130 million to Final Analysis.

Editor: To what extent did the telecommunications bust of 2000-2001 play a role in this matter?

Manishin: It really was central to the case. The defense argued causation: that the plaintiff, Final Analysis, could not connect its injury to General Dynamics on the theory that the market collapse and the plaintiff's bankruptcy had precluded any possibility of success anyway. The response was that Final Analysis had indeed gone through bankruptcy and survived, and that other companies providing similar mobile data services with high bandwidth were alive and well at the present time. The jury obviously agreed, and I think there is little basis on which a motion to set aside the verdict would be upheld.

Editor: Please tell us what transpired during a seven-week trial in U.S. District Court. What was your strategy?

Manishin: Much of the credit for our success must go to my co-counsel from Shepherd Mullin Richter & Hampton, Jim McGuire. Without Jim's day-to-day participation at trial, Final Analysis would not have been able to sustain a trial of this magnitude and expense. As to strategy, early on we determined that the best defense is a good offense, and, as a result, our evidence came mainly from the employees of General Dynamics itself, including the CEO, who we called as an adverse witness. In the end, this approach was fully validated because the jury verdict reflects its conclusion that General Dynamics management made a strategic decision to leave Final Analysis high and dry when the stock market tanked, without caring whether they had a contractual right to terminate the deal.

Editor: What about the possibility for appeal?

Manishin: The time for appeal will not run until judgment is entered. The district court has indicated it will entertain post-trial motions by the defense, which I expect will be denied. I anticipate that General Dynamics will appeal, although I believe it is a waste of their money.

Editor: You have also been engaged in the defense of Telos Cororation against SecureInfo Corp, in the Eastern District of Virginia. What was the origin of this dispute?

Manishin: The plaintiff alleges that Telos engaged in a series of activities that resulted in a violation of its, the plaintiff's, copyright and the theft of certain trade secrets. SecureInfo also made allegations under the Computer Fraud and Abuse Act, RICO and the Virginia Trade Secrets Act. The matter came before the Eastern District of Virginia on our motion to dismiss, which the court granted as to 10 of the 13 counts of the complaint, and SecureInfo just withdrew (for the second time) its motion for a preliminary injunction. Knock on wood, we're doing rather well right now.

Editor: Would you give us an overview of Kelley Drye's litigation practice? Particular strengths?

Manishin: There are two things that distinguish Kelley Drye as a firm, in my view. In the first place, Kelley Drye has a history of having handled some very large and complex cases. In the 1980s it represented Union Carbide in the Bhopal matter, which involved hundreds of lawsuits, and the firm has handled a number of complex bankruptcy and litigation matters on behalf of JP Morgan, including the representation of the committee of unsecured creditors in the WorldCom case.

The second factor is the firm's dynamism and best-of-breed experience in Washington, DC and Virginia. What distinguishes the group is our ability to take a case with a basis in technology or telecommunications and litigate it with total confidence because of a profound knowledge of both the industry and the business objectives of the members of that industry that we represent. We have a certain competitive advantage in this particular arena, and it permits us to be tougher on the facts and tougher on the law, and hence better litigators for our clients.

Editor: How do the litigation people relate to other practice groups and disciplines within the firm?

Manishin: I think we relate very well. There is a series of ongoing relationships. One of the objectives of my being named head of the litigation practice in these two offices, however, is to make the connections stronger. We have excellent regulatory and telecommunications expertise in the firm, and as I have indicated, our litigation capabilities are quite extraordinary. I think we can improve on the integration - and consequently the cross-selling efforts - of these related practice areas. A law firm is something of an attempt to balance the creativity of individual partners - which entails a certain latitude and freedom of action - and the collective expertise of the firm as a whole. If the balance is right, everyone is going to be successful. This is clearly a situation where the sum can be greater than any of its individual parts, and I want to ensure this happens.

Editor: How do you see the practice evolving over, say, the next five years?

Manishin: I would like to see us expand more into mass media law. We tend to focus on telecommunications, software and the Internet, but I think we should have a larger presence in content: television, radio, cable TV and entertainment. These are complementary industries that are quickly converging. I would also like to see more emphasis on impact litigation. We work with clients in extremely important industries - telecommunications is one of the most significant areas in our economy today - and one case can have a great and lasting effect. One needs only to think of United States v. Microsoft, in which I was privileged to be involved. IP, corporate governance, homeland security, cybersecurity and privacy are just a few of the areas that are going to be of great significance in the next few years. I am going to work hard to see that Kelley Drye is fully engaged in these growing areas of law and litigation.

Please email the interviewee at gmanishin@kelleydrye.com with questions about this interview.