Partner Brian Klein will speak at the Southern California ABA’s White Collar Crime Committee Tuesday, February 21, 2023 about trends in Cyber Enforcement at a 5:30 p.m. event hosted by Holland & Knight in downtown Los Angeles.

Klein joins Kal Shobaki, the Deputy Cyber Crimes Chief of the U.S. Attorney’s Office for the Central District of California, and Jennie VonCannon of Crowell & Moring to discuss a number of topics including the DOJ’s latest guidance on the new Computer Fraud and Abuse Act and developments in the case law, the SEC’s consideration of the new cybersecurity rules, and the Biden administration’s approach through recent legislation. The CLE panel will take place from 6:30 to 7:30 p.m.

The address for Holland & Knight’s Los Angeles office is 400 South Hope Street, 8th Floor, Los Angeles 90071. Please check the Holland & Knight website for information.

Speaking to the Wall Street Journal about an alleged $110 million crypto market manipulation scheme by his client, Avraham Eisenberg, Partner Brian Klein said the defense team is trying to work out a bail package for Mr. Eisenberg, who faces U.S. criminal and civil charges.

The United States Attorney’s Office for the Southern District of New York has charged Mr. Eisenberg, arrested on December 26, 2022 in Puerto Rico, with commodities fraud, commodities market manipulation, and wire fraud in connection to what prosecutors said was manipulation of Mango Markets, a decentralized cryptocurrency exchange. The Securities and Exchange Commission and the Commodity Futures Trading Commission have filed parallel civil charges against Mr. Eisenberg, which are first of their kind.

Speaking about Eddie Antar, a notorious high-stakes gambler who was convicted of fraud in 2019, Klein said, “A party’s recent criminal conviction can,for example, often be used when cross-examining that party, and no doubt the other side will raise it at every available opportunity as the case proceeds.”

“On a practical level, it’s also just harder for his attorney to work with him when he’s behind bars,” said Klein. “It doesn’t mean he can’t overcome all the serious difficulties this can pose, but it does mean it’s going to be much more difficult for him to pursue his civil case than it was before.”

Antar, who says he wagered nearly $30 million from July 2020 to January 2021, claims BetMGM would disconnect him every 15 to 30 minutes when he had a favorable hand. He filed suit against BetMGM and Borgata and other defendants accusing them of fraud, negligence, and violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act.

LOS ANGELES – Waymaker LLP is pleased to announce that its Managing Partner Scott Malzahn has been elected to a two-year term as the 2023 President of Equality California, the nation’s largest statewide LGBTQ+ civil rights organization, beginning January 2023. Malzahn has been involved in the organization since 2017 and most recently served as Vice President.

“Equality California does a tremendous amount of legislative work to improve the lives of LGBTQ+ people in different communities where they live across the state,” says Malzahn. “Given the current composition of the Supreme Court, the work performed by Equality California becomes all the more urgent.”

Malzahn and Waymaker have supported Equality California’s mission by offering legal and financial support to the organization. And, more than a dozen years ago, Malzahn was involved in the federal trial that resulted in Proposition 8 being ruled unconstitutional, which brought marriage equality to California and eventually to the entire country.

“Scott has been an invaluable member of Equality California’s board leadership, and we’re so grateful for his and Waymaker’s generous support of our mission,” says Equality California Executive Director Tony Hoang. “We look forward to our continued partnership in the fight for full, lived equality for all LGBTQ+ people.”

Through its Leadership Program and other initiatives, Equality California plays a big role in building a pipeline for LGBTQ+ individuals and allies to run for public office at the local, state and federal levels, and brings elected leaders together.

“Equality California will continue to vigorously defend the rights of LGBTQ+ Americans at the federal level as well as work with the state’s legislature to expand protections at the state level to make California a safe place for the most marginalized – including trans kids and their families,” says Malzahn.

January 11, 2023

Partners Ryan Baker, Brian Klein, Scott Malzahn, Jaime Marquart and Donald Pepperman have been named Southern California Super Lawyers 2023.

Baker was singled out for excellence in Intellectual Property Litigation, Klein for Criminal Defense: White Collar, Malzahn for General Litigation, Marquart for Business Litigation, and Pepperman for Antitrust Litigation.

The Anti-Defamation League’s Board of Directors has approved Partner Ryan Baker’s nomination to the ADL’s National Commission allowing Baker to contribute to the fight against ignorance and hatred countrywide beginning January 1, 2023.

“I am pleased to continue working with the great and dedicated people of the ADL, and I am eager to continue the fight against hate on a national level,” said Baker. “The ADL is an organization aimed at creating better understanding among people with different backgrounds—ethnic, religious or otherwise. Although the organization is rooted in the fight against anti-Semitism, the ADL fights all manner of hate.”

Currently, Baker is a member of the Anti-Defamation League’s Regional Executive Committee. “My engagement with the ADL on a national level will help connect me with others who can ensure I am doing all I can through advocacy to not only generally promote tolerance, but to also specifically advocate for laws to increase transparency online and otherwise fight hate speech.”

Partner Ryan Baker, interviewed by Law.com on December 15, 2022, About the proliferation of anti-SLAPP suits said, “The cure has become the disease. Anti-SLAPP has become bloated … it’s become a problem for real plaintiffs …”

Anti-SLAPP, shorthand for anti-strategic lawsuits against public participation, law is intended to protect First Amendment and petitioning rights. “There’s a catch-all provision of the Anti-SLAPP statute, which essentially says, ‘Anything that’s a matter of public interest, or relates to a matter of public interest or public dialogue [is protected],’” said Baker. The law is meant to protect litigants from abusive lawsuits, but wealthy defendants frequently use anti-SLAPP motions early in the cases to essentially freeze the action and require the plaintiff to surmount what can be a formidable challenge—it is difficult if you are “a little guy filing a suit [to overcome] anything that can touch upon public interest.”

Baker overcame the public interest hurdle in 2019 in a unanimous decision, FilmOn.com Inc. v. DoubleVerify Inc., by the California Supreme Court because the case dealt with private, confidential contract. Notably, however, the trial court and court of appeal had found the conduct protected.

Venue matters said Baker. He said a key reason Depp’s attorneys took the viral defamation case of Johnny Depp v. Amber Heard to Virginia was to escape California’s much tougher anti-SLAPP statute. “In California, the case would have been dead on arrival … it just illustrates the difference between states.”

Ryan Baker speaking to CBS News Morning on December 12, 2022 about more than 1,200 families suing social media companies for allegedly impacting their children’s mental health, including cases of teen suicides, said “the algorithms are products that the companies develop themselves and those products can be the basis for liability”…

Speaking with Anchor Anne-Marie Green, Baker said, “The state of the law is in flux.” Section 230 of the Communications Decency Act provides some immunity from liability to providers of a social media site because the host is not the provider. However, Baker said, “It is exactly right” that the host companies are responsible for the algorithms. Baker said negligence law takes into account to whether a company acted in a reasonable and responsible manner.

The CBS News Morning episode featuring Baker followed a 60 Minutes report on Sunday evening that featured an interview with parents who had lost a daughter to suicide after she saw a Instagram video detailing a certain method of hanging yourself. The girl’s parents said the Instagram video was not taken down for another year and a half even though the social media company has a policy against showing content about self-harm.

Keri Curtis Axel, an experienced criminal and civil litigator and parent of a Swiftie, interviewed by BBC on December 6, 2022 about the lawsuit by angry Taylor Swift fans against Ticketmaster, and its parent company Live Nation, said the goal is “to get rid of the bots so that common customers have a chance to get tickets in the first place. The claimants have a beef and so did Taylor Swift.”

The lawsuit was the result of Swift fans not being able to get tickets to the pop stars new tour. “This is a trade practice case, not an antitrust case,” said Axel. The problem, she said, is not the resale of tickets, which is common, but “how to make the first round more fair.” Axel continued, “Congress is interested in this issue as well and a lawsuit like this is part of customer outrage to make the law fairer to individual buyers.”

Axel told BBC that her daughter did get tickets.

Daily Journal on December 7, 2022 named Partner Brian Klein as one of its top White Collar Attorneys 2022. A former federal prosecutor and accomplished and renowned trial attorney, Klein leads Waymaker’s White Collar practice.

Klein has a nationally recognized finance and technology-focused litigation practice handling high-stakes criminal and regulatory defense matters and civil litigation in federal and state courts around the country. His cases often involve the DOJ, SEC, CFTC, FTC, CFPB, and state authorities.

Chambers ranked Waymaker LLP and its partner Brian Klein has having elite litigation practices in FinTech, with Klein earning two Band 1-rankings (the highest possible). As a firm, Waymaker was ranked Band 1 for Crypto-Asset Disputes and Band 3 for FinTech Legal: Blockchain & Cryptocurrencies.

The Chambers FinTech Guide 2023 reports that the Waymaker team “is held in high esteem for FinTech and crypto-asset disputes” and that the group is “very, very active.” Waymaker is “very reputed for this work and are on the big cases.” One impressed source said of Klein: “He is one of the best crypto litigators in the country … I think the world of him; he really, really knows this space and should be ranked as highly as possible in this sector.”

The Guide went on to report that “Waymaker attorneys handle some of the most complicated crypto matters. They understand the technology completely and can help to develop incredibly sophisticated strategies that incorporate a deep knowledge of how blockchain works.”

Continuing Chambers wrote, “They are great co-counsel to work with – very responsive, cooperative, and with high-quality work product.” Speaking of Klein, one Chambers source said: “Brian is an excellent attorney with whom I enjoy working and I often recommend to my clients when crises, in the form of enforcement actions, hit.”

Representing former Dodgers star Yasil Puig in a sports betting case, former federal prosecutor Keri Curtis Axel said “significant new evidence” prompted the defense to withdrawal Puig’s agreement to plead guilty of lying to investigators, reported the Los Angeles Times on November 30, 2022.

“I want to clear my name,” Puig said, “I never should have agreed to plead guilty to a crime I did not commit.” Speaking about the new evidence, Axel said, “We are prepared to publicly share that information in the appropriate forum and at the appropriate time.”

In an earlier court hearing, Axel raised the possibility that “Puig might have been entrapped,” reported the Times.

Ryan Baker spoke to BBC World Service about the Balenciaga BDSM ad scandal, which erupted when the edgy high-end fashion house published photographs from a new “gift collection” ad campaign, which featured images of children holding stuffed teddy bears wearing bondage, discipline, sadism, masochism articles with other BDSM objects also on display. The gift collection campaign caused an immediate uproar on social media, which resulted in the discovery of the U.S. v. Williams Supreme Court opinion depicted in a separate Spring 2023 ad campaign, meant for spring 2023. In U.S. v Williams, the U.S. Supreme Court confirmed that the pandering of child pornography was not protected free speech. In the wake of significant criticism over these images, Balenciaga sued the set designer the company claims is responsible for the placement of U.S. v. Williams case. Baker characterized the suit as a strategic attempt to shift the dialogue, as no one wants to take responsibility.

In U.S. v. Williams, 553 U.S. 285 (2008), the Supreme Court found that a federal statute prohibiting the pandering of child pornography was not unconstitutional, reversing an Eleventh Circuit ruling based primarily on the premise that there is “offers to participate in illegal transactions are categorically excluded from First Amendment protection.”

In the wake of significant criticism, Balenciaga filed suit in the Supreme Court of New York against the set production company, North Six, and set designer, Nicholas Des Jardins, which Balenciaga alleges were responsible for the design of the spring 2023 ad campaign photoshoot. Although the complaint has not been filed, Balenciaga has indicated it seeks up to $25 million in damages for the resulting “false association” between Balenciaga and the “repulsive and deeply disturbing subject of the court decision.” Ryan Baker, speaking to the BBC, described the suit as an attempt to shift the blame, questioning whether Balenciaga could reasonably expect to recover damages. “Often these cases are kneejerk reactions to shift the focus to another party,” said Baker speaking to the BBC’s Davina Gupta. Many such cases, according to Baker, are “filed for strategic reasons, not really to recover damages.”

Balenciaga has also issued press releases in which it takes some responsibility for the images. Ultimately, however, Baker described responsibility as a “hot potato” passed among Balenciaga, the photographers and the set designers

In response to the lawsuit, Jardins’ agent told the Washington Post that the legal papers in the ad “were obtained from a prop house … Everyone from Balenciaga was on the shoot … and worked on the edit of every image in post-production.” The photographer said the materials in the shoot were not his responsibility.

Partner Keri Curtis Axel, a former federal prosecutor, quoted by Yahoo! Finance November 23, 2022 on Elizabeth Holmes’ 11-year prison sentence for her fraud while CEO of the blood-testing start-up Theranos, said, low-security federal prison facilities such as the one Holmes is being sent to in Texas, “they’re not great places. No one wants to be there.”

Axel said non-violent offenders, such as Holmes, are often granted the opportunity to serve their time in one of the federal government’s minimum-level security facilities such as FPC Bryan, a female-only facility about 100 miles northwest of Houston. The prison allows for frequent family visitation and requires that inmates participate in work programs.

“Sometimes they’re called ‘Camp Fed’ because they have more amenities and are a little nicer places” compared to high security prisons, said Axel. Federal prosecutors had asked the judge to sentence Holmes to 15-years in federal prison for her crimes while running the high-profile Silicon Valley company. Judge Davilia noted that FPC’s lenient visitation policy could benefit Holmes who is currently pregnant with her second child.

Former federal prosecutor Keri Curtis Axel, quoted by Yahoo! Finance November 18, 2022 on Elizabeth Holmes’ sentencing hearing for her fraud and conspiracy conviction related to the blood-testing venture Theranos, said, “the judge has pretty broad discretion to depart almost entirely from [the guidelines] if he chooses to do so.”

Government prosecutors asked Judge Edward Davila, who presided over the case, to sentence the former Theranos CEO to 15 years in federal prison, plus three years of supervised release. Holmes’ defense attorneys asked the judge not to send Holmes to prison and instead sentence her to only 18 months house arrest.

Partner Brian Klein speaks at the ABA’s Blockchain and Cryptocurrency National Virtual Institute on Thursday, October 27, 2022 on a panel discussing how law enforcement and regulatory actions play a critical role in shaping the industry. Brian has organized the National Institute since its inception almost a decade ago.

The Key Enforcement Actions panel will discuss recent law enforcement and regulatory enforcement actions, how they impact the industry, and offer thoughts and predictions on the direction of enforcement actions. Klein is joined on the panel by crypto leaders at the DOJ, SEC and OFAC.

Partner Brian Klein was quoted by the Wall Street Journal in an October 5, 2022 story about the alleged Capital One hacker receiving probation for one of the largest purported data breaches ever and not the seven-year prison sentence sought by federal prosecutors.

“Although we disagree that Paige committed any crimes, we are Pleased the judge sentenced her to no prison time, especially when the prosecutors sought years,” said Klein.

Judge Lasnik was persuaded by defense arguments, including that prison would be particularly difficult for Ms. Thompson, who is transgender, owing to her status and mental health. Klein, Melissa Meister, and Emily Stierwalt were co-counsel with the Federal Public Defender’s Office in Seattle. The firm undertook this case pro bono as part of its ongoing commitment to help those who cannot afford legal services and face pressing legal matters.

Partners Ryan Baker, Brian Klein, Jaime Marquart and Donald Pepperman have been recognized as “Benchmark Litigation Stars” and Waymaker LLP is ranked as “Recommended” in Benchmark Litigation California 2023

Baker is ranked in Intellectual Property and Commercial Litigation, Klein is ranked in Commercial Litigation as a California Litigation Star and Local Litigation Star, and Marquart and Pepperman are ranked as Local Litigation Stars.

This is the 16^th year of Benchmark Litigation, a trusted guide to the nation’s leading litigation firms and lawyers. The rankings are based on a rigorous nomination system that Includes extensive interviews with litigators and their clients as well as analysis of the region’s most important cases and firm developments.

The Daily Journal named Partner Brian Klein, one of the nation’s elite trial attorneys, to its 2022 list of the Top 100 Lawyers in California.
The list, published on September 21, 2022, recognizes lawyers who have made an impact on the legal profession by handling the most challenging and cutting-edge work.

Klein, a former federal prosecutor, was honored for his nationally recognized finance and technology-focused litigation practice. He handles high-stakes criminal and regulatory defense matters and civil litigation in federal and state courts around the country.

Representative clients this past year include Frances Haugen (the Facebook whistleblower), Kraken (a leading cryptocurrency exchange), and Paige Thompson (the alleged Capital One hacker).

The National Law Journal on September 1, 2022

profiled Partner Brian Klein as a Fintech/Blockchain/Cryptocurrency Trailblazer 2022 for his pioneering legal work.

The Trailblazer Award is given to those legal professionals “who have made significant marks on the practice, policy and technological advancements in their sector.”

Klein, a former federal prosecutor, leads Waymaker’s FinTech and Cybersecurity & Data Privacy practice groups. He has a nationally recognized finance and technology-focused litigation practice handling high-stakes criminal and regulatory defense matters and civil litigation in federal and state courts around the country. Klein has handled numerous “firsts” and been a pioneering litigator in those fields.

Ryan Baker was quoted in Rolling Stone about fans of Johnny Depp who crowdsourced thousands of dollars to obtain unsealed court documents that ultimately contained unflattering and embarrassing information about Johnny Depp.

He told Rolling Stone that the more than 6,600 pages of documents did not do any favors to Depp. But the documents also show the work Depp’s legal team did prior to trial to exclude the otherwise damaging evidence.

Discussing other strategic decisions that helped Depp’s case, Baker explained: “Amber Heard made emotional distress or post-traumatic stress an issue in the case, because she made that an issue, she had to submit to a psychiatric evaluation,” referencing a clinical psychologist testifying that she had diagnosed Heard with borderline personality disorder. “That’s pretty damning. Then you are waiting for the other person to get up and say [something] about Johnny Depp but Johnny Depp never got evaluated because he never had to submit because he didn’t make emotional distress or post-traumatic stress any kind of issue in the case.”

Baker also noted that Heard’s team had some big wins by keeping details of more damaging testimonies and declarations out of the court, including from Jennifer Howell and Heard’s sister Whitney, noting those details were “tightly and narrowly constrained.”

To read the full piece, click here: https://www.rollingstone.com/culture/culture-news/johnny-depp-amber-heard-backfire-1391807/

Partner Brian Klein, quoted by Law360 in a July 21, 2022 story on proposed cybersecurity legislation co-sponsored by Sens. Cynthia Lummis (R-Wyo.) and Kirsten Gillibrand (D-N.Y.), said, “Everyone in the industry agrees that cybersecurity is really important, but that doesn’t mean that everyone is looking to the SEC and CFTC – two agencies that don’t have any special expertise in cyber – for guidance.”

“This proposal, if enacted, is likely to sow confusion and not be helpful, at least at first,” Klein said. The Responsible Financial Innovation Act, proposed in June, would require the Securities and Exchange Commission and the Commodity Futures Trading Commission to develop “comprehensive, principle-based” cybersecurity guidance for a wide-ranging number of companies that create, store or transfer digital currencies.

Los Angeles Business Journal has named Co-Managing Partner Ryan Baker one of its 2022 Leaders of Influence: Litigators and Trial Attorneys. He is profiled in a special section appearing in today’s issue, July 18, 2022, as one of an elite group of accomplished lawyers. Those honored were selected based on legal achievements and community leadership over the past 12-18 months.

The National Law Journal on July 1, 2022 announced that Partners Keri Curtis Axel, Ryan Baker and Brian Klein have been selected as Elite Boutique Trailblazers 2022 for their pioneering legal work.

The Trailblazer Award is given to those legal professionals “who have made significant marks on the practice, policy and technological advancements in their sector.” Axel, Baker and Klein were selected for their stellar record representing industry innovators and taking on cases involving novel technology.

Baker has a record of success both at trial and on appeal, often litigating cases involving intellectual property and innovative or disruptive technology. He co-founded the firm 17 years ago and continues to lead as one of Waymaker’s managing partners. Klein, a former federal prosecutor, leads the firm’s FinTech and Cybersecurity & Data Privacy practice groups. He has a nationally recognized finance and technology-focused litigation practice handling high-stakes criminal and regulatory defense matters and civil litigation in federal and state courts around the country. Axel is a former federal prosecutor and before that an attorney in the SEC’s Enforcement Division. As the co-head of the firm’s Criminal and Regulatory practice, she is focused on cutting-edge white collar criminal defense and governmental enforcement matters, as well as financial services related complex civil litigation. All three attorneys are frequently sought out by the legal and national media for their views on high-profile legal matters.

The Los Angeles Times Business of Law: Trends. Updates. Visionaries magazine on June 26, 2022 named Partners Ryan Baker and Scott Malzahn Legal Visionaries 2022. The award is based on three criteria: noteworthy success and accomplishment over the past 24 months, strong leadership, and innovative strategies for their clients and their firm.

As Co-Managing Partners, Baker and Malzahn oversaw the firm’s 2021 rebrand from Baker Marquart to Waymaker, a move meant to reflect diversity and inclusion. Also under their leadership, the firm recently expanded into new offices at City National Plaza in Los Angeles (515 South Flower Street).

Baker often deals with cases involving intellectual property and innovative or disruptive technology. His litigation practice includes commercial and entertainment disputes, intellectual property (copyright, trademark, trade secret and patent), antitrust, securities, financial technology and white-collar crime. Malzahn has a complex commercial litigation practice that spans entertainment disputes, class actions in the securities arena, fintech, and intellectual property and has handled many high-profile disputes both in the trial court and on appeal.

Partner Brian Klein, who gave the opening statement last Wednesday in Ms. Thompson’s trial in Seattle federal court and has been cross-examining government witnesses since then, was quoted by the New York Times in a June 8, 2022 story saying, “They [prosecutors] are interpreting [the Computer Fraud and Abuse Act] so broadly that it captures conduct that is innocent and as a society we should be supporting.” The Thompson trial raises important questions about how far security researchers can go in their pursuit of cybersecurity flaws without running afoul of the law. Klein explained to the New York Times that computer fraud law “doesn’t give a lot of visibility to people on what could get you in trouble.”

Klein, Counsel Melissa Meister, and Associate Emily Stierwalt are handling the case pro bono, as part of Waymaker’s longstanding commitment to pro bono work. Ms. Thompson’s trial raises questions about the reach of the Computer Fraud and Abuse Act, an anti-hacking law. She is alleged to have been the responsible for one of the largest data breaches in history, the alleged hack of Capital One in 2019. As a result, the government has accused her of violating the Computer Fraud and Abuse Act, an anti-hacking law, when she downloaded data of more than 100 million Capital One customers, as well as other laws.

Waymaker is co-counsel with the Federal Public Defender’s Office in Seattle.

Britain’s Sky News interviewed Ryan Baker shortly after the verdict in the Johnny Depp v. Amber Heard defamation case. In the interview, Baker expressed some surprise at the magnitude of Depp’s win, crediting Depp’s legal team for doing a “tremendous job” undermining Heard’s credibility “time and again.” Baker also explained that under Virginia law, Depp’s award of punitive damages would be reduced from $5 million to $350,000, the statutory maximum.

Addressing another issue that may have affected the outcome, Baker told Sky News, “It’s hard to imagine the jury was not influenced by the massive amount of public support for Johnny Depp, which, because of the crowds at the courthouse almost universally supporting Johnny Depp, was impossible to hide from the jury.”

Baker also explained that Heard’s team must now consider post-trial motions and an appeal. Because Heard also prevailed on one of her claims, Depp could also seek to challenge that component of the jury verdict.

A California federal judge has tentatively approved a $20 million cash plus extended warranty and other valuable benefits settlement in the Prius stalling defect class action lawsuit, reported Law360 on May 19, 2022, in a case in which Partner Donald Pepperman and Associate Emily Stierwalt are among the plaintiffs’ counsel. In the 2018 lawsuit, consumers alleged that defendant Toyota hid stalling problems in its 2014-2018 Priuses that could pose safety risks at high speeds.

U.S. District Judge Josephine Staton’s Order read: “The parties have reached a settlement at a relatively late stage of the proceedings, and the court finds that this factor favors preliminary approval. Negotiations took place for 17 months before the parties reached a settlement, and ‘consequently, every material issue underwent intensive scrutiny.’”

When the settlement was first announced in December 2021, Pepperman said: “It is a $20 million cash settlement with more in warranty and other benefits.” The district court in 2019 rejected Toyota’s effort to dismiss the consolidated class action and in 2020 rebuffed the company’s attempt to send the matter to arbitration. A final settlement fairness hearing is scheduled for January 2023.

Partner Ryan Baker, quoted by BBC.com about the June 1, 2022 verdict in the Johnny Depp v. Amber Heard defamation case, said for the Virginia jury to award Depp $15 million ($10 million compensatory damages, as well as $5 million in punitive damages) it “had to discredit Heard’s testimony almost in its entirety.”

Heard spent days as a witness detailing the abuse she claimed to have suffered from Depp, but Baker said, “perhaps she went too far.” A key factor was that much of Heard’s testimony was contradicted by other witnesses, who, Baker said, “the jury may have found more credible due to their perceived neutrality … In a case of his word against hers, the testimony of corroborating witnesses(including experts) is often influential.”

Co-founding partners Ryan Baker and Jaime Marquart were interviewed by Reuters about renaming the firm Waymaker in a May 18, 2022 story headlined, “Move over Dull, Boring & Stiff. Law firm trade names are finding their place.”

In making the name change from Baker Marquart, Baker said, “We wanted to create something that would be more representative of everyone at the firm, not just two Caucasian males.” The name Waymaker encompasses the “contributions of a diverse group of talent,” said Marquart.

A recent change in state bar rules has allowed law firms to use trade names, much like other companies. The firm’s co-founders said making the change was a deliberate, careful process and that they took steps to mitigate confusion among current and potential clients. “I would not recommend just slapping a new name on the door and hoping for the best,” said Marquart.

Former federal prosecutor Keri Curtis Axel was quoted by Law360 on May 16, 2022 on the trial of a former Perkins Coie partner accused of lying to the FBI. Axel said that while the false statement statute is “pretty simple,” prosecutors “are going to have to show that the information [allegedly] omitted would have been material to the government. That seems like the biggest challenge.”

In U.S. v. Sussman, Michael Sussman is accused of allegedly hiding his affiliation with the Hillary Clinton 2016 presidential campaign when he approached investigators about a potential link between Donald Trump’s company and a Russian bank.

Alex said the battle over whether Sussman’s alleged deception was material, meaning that It actually influenced the FBI’s investigation after agents received the information, holds the key to the trial.

Partner Brian Klein was quoted by Law360 explaining how last month’s Ninth Circuit cybercrime ruling is “a natural extension” of Supreme Court precedent and supports the firm’s defense of Paige Thompson, the alleged Capital One hacker, who is being prosecuted by the U.S. Attorney’s Office in Seattle.

Klein said last month’s hiQ v. LinkedIn ruling is “a natural extension” of the Supreme Court ruling in Van Buren v. U.S., the landmark Computer Fraud and Abuse Act (CFAA) case. The Supreme Court held that an ex-Georgia police officer did not violate the CFAA, by exceeding authorized access when he looking up in a police database whether someone was an undercover officer in violation of department policy. Klein noted that the hiQ Ninth Circuit’s decision “further calls into question the DOJ’s often overly aggressive interpretation of the CFAA,” Klein said. “In Ms. Thompson’s case, we believe it helps show why the prosecutor’s CFAA theory is fatally flawed.”

Klein, Melissa Meister, and Emily Stierwalt of Waymaker represent Ms. Thompson along with attorneys in the Federal Public Defender’s Office in Seattle.

Los Angeles Business Journal has named Co-Managing Partner Ryan Baker one of the Top 100 Lawyers in Los Angeles. The honor goes to the region’s “most impactful attorneys.” Baker, identified as one of LA’s top intellectual property trial lawyers, is a litigator and trial lawyer who often deals with cases involving intellectual property and innovative or disruptive technology. Dedicated to social justice, Baker is a member of the Anti-Defamation League’s Regional Executive Committee.

Read Profile Here

In a May 9, 2022 Newsweek article about the closely watched defamation litigation between Hollywood celebrities Johnny Depp and Amber Heard, Partner Ryan Baker said Amber Heard’s “testimony was quite compelling.” He added that it’s “hard to imagine that testimony won’t be bouncing around in the heads of jurors” during the week break in the trial “at the expense of the prior evidence.”

“Even if you’re not a fan of Amber Heard and you’re biased toward Johnny Depp, she has presented some fairly detailed, emotional, strong testimony.” The trial is set to resume May 16, 2022, and is expected to continue for two more weeks.

In a Friday, May 6 segment titled “Sex, Shame and the Internet,” on NBC NOW Tonight with Joshua Johnson, Partner Ryan Baker discussed privacy issues related to social media, specifically addressing a recently released video of U.S. House Representative Madison Cawthorn. Addressing potential legal consequences, Baker stated that “[a] lot, obviously, will depend on the facts.” American Muckrakers (the political action committee responsible for the release of the video) claims it obtained the video from an individual with “a bona fide right,” someone “who owned the video or recorded the video.” Additionally, “Madison already acknowledged, seemingly pretty definitively, that it is him in the video, and it was a real video, so it’s not false.” If the video is not false, there would be no claim for defamation, but it could give rise to other claims.

The question then turns, Baker said, to whether the video is an accurate portrayal of North Carolina Congressman Cawthorn. “Is this attempt to put this video out there now, an attempt to put him in a false light. False light does not require that the information be false, but that rather the information is putting him into a light that makes him appears to be something he is not … But because he has embraced it and said we all make mistakes, I frankly don’t know if there will be any legal follow through here.” Baker then explained that technology presents constantly evolving challenges that the law struggles to address, but state and federal governments have enacted laws against certain wrongs. It is up to the courts to interpret and apply those laws to different facts. (The full segment, hyperlinked above, includes a discussion of “revenge porn.”)

In a BBC article, Co-Managing Partner Ryan Baker said Depp faces a steep challenge. “For the jury to side with Johnny Depp, they will have to completely disregard Amber Heard’s testimony, consider her a liar,” he said.

The two movie stars have given testimony deeply at odds. Depp told the jury that Heard bullied and abused him during their marriage and Heard claims Depp physically abused her during violent rages. While Depp’s fan base remains loyal, Baker said Heard’s testimony was compelling. Baker said the critical question is whether Heard can claim to be a victim of some form of domestic violence – whether it be physical, emotional, or verbal. “All the jury needs to do is believe some of what she is saying,” he said.

Partners Teresa Huggins and Brian Klein addressed TechGC’s 7^th Annual Fullstack GC Conference May 4-May 6 in San Francisco. Huggins co-led a roundtable “IP: Keeping ‘Trade Secrets’ Secret” and Klein co-led “Dispute Resolution Provisions (e.g., Arbitration and Class Action Waivers). Huggins’s co-lead was Chester Shiu, GC and Secretary of Emerald Cloud Lab and Emerald Therapeutics, and Klein’s was Chris Ramos, GC & Chief of Staff of Time by Ping, Inc. The conference is by invitation only.

BBC News
April 20, 2022

Ryan Baker, who has represented plaintiffs and defendants in defamation and other speech-related cases, commented on the ongoing legal battle between Hollywood celebrities Johnny Depp and Amber Heard. Ryan specifically addressed Depp’s testimony during the segment on BBC’s ‘Good Morning Britain’ – “Depp’s testimony was well prepared, but was a mixed bag.” He agreed that Depp’s legal strategy is risky to the extent Depp delved into his family history of abuse, but that there is a path for Depp to win, although it may come down to “his word against hers.” Ryan also identified other “free speech and privilege issues [Depp] has to surmount.” Those issues include whether or not any of the speech at issue is protected by the First Amendment and are therefore covered by Virginia’s anti-SLAPP laws.

Los Angeles Business Journal has named Partners Keri Curtis Axel and Teresa Huggins “Women of Influence: Attorneys 2022.” Axel, a former Federal prosecutor, practices white-collar criminal, government enforcement defense, and civil litigation. Huggins handles complex commercial litigation at both the trial and appellate level, with an emphasis on intellectual property, fintech and First Amendment matters. Both Axel and Huggins are graduates of Harvard Law School.

They were honored based on their professional achievements, community leadership, and notable contributions over the past 18 months.

In an April 11, 2022 BBC article, Co-Managing Partner Ryan Baker said, “It’s not uncommon for a plaintiff to choose the forum, but that doesn’t explain why they chose Virginia over California … in California, I think Heard would have just knocked this case out right away.”

The reason said Baker is because of anti-SLAPP (Strategic Lawsuits Against Public Participation) laws, which are state statutes that give provide protection to speech related to matters of public interest. “If someone, like Amber Heard, writes something about domestic violence and spousal abuse – those are clearly mattes of public interest. She has some form of immunity for saying those things.”

While both Virginia and California have anti-SLAPP laws, the California law is stronger, allowing defendants to invoke protection immediately while the Virginia law cannot be used in the early phases of the trial.

After divorcing Depp, Heard wrote a 2018 opinion article for the Washington Post in which she wrote about her experience as a “public figure representing domestic abuse.” Heard did not name Depp, but Depp filed suit arguing the article “incalculably” damaged his reputation.

Baker said, “It seems to me that his strategy may be backfiring. There are now endless opportunities for a peanut gallery to form. At the end of the day, is it better just to move on?

In an April 7, 2022 Vulture article, Co-Managing Partner Ryan Baker addressed the upcoming Depp v. Heard Virginia trial: “In my opinion, if this case were brought in California, I think it would be dead on arrival.” California’s strict anti-SLAPP (Strategic Lawsuits Against Public Participation) law allows a defendant to seek early dismissal of litigation arising from certain forms of protected speech; under California’s anti-SLAPP law, a fee award to a party prevailing on an anti-SLAPP motion is mandatory. Although Virginia has an anti-SLAPP statute that mirrors California in some ways, the impact of the Virginia statute is greatly reduced by critical differences. For instance, Virginia does not provide a defendant with a mechanism to test an anti-SLAPP defense early in the case. In addition, under Virginia law, a fee award is permissive and not mandatory. These differences significantly reduce the deterrent value of Virginia’s anti-SLAPP law.

“In California, this gets shot down right out of the gate,” Baker said. “In Virginia, you don’t have this early procedural opportunity to shut the case and freeze it.”

On March 8, 2022, Partners Brian Klein and Teresa Huggins’ client Alex Amsel, who purchased artist Kevin McCoy’s Quantum (often regarded as the first-ever NFT) for $1.5 million, was dismissed from a case in which he was a defendant along with Mr. McCoy and Sotheby’s.

Plaintiff Free Holdings Inc., a Canadian holding company, claimed in its lawsuit filed in the U.S. District Court for the Southern District of New York on February 1, 2022 that it became the rightful owner of Quantum after McCoy allegedly failed to renew his ownership of the famed NFT. Free Holdings will continue to pursue its claims against Sotheby’s and Mr. McCoy. Through Sotheby’s “Natively Digital” auction, Mr. McCoy sold Quantum to Mr. Amsel, who goes by the moniker SillyTuna, in June 2021.

Waymaker vacates judgment, wins dismissal for pro bono client in trademark infringement case. Asked by the Central District Pro Bono Panel to assist a defaulted foreign litigant, Waymaker moved for, and on February 9, 2022, obtained, vacatur of the judgment and dismissal of the entire action on jurisdictional grounds.

Waymaker attorneys Melissa Meister, Brian Grace and Managing Partner Ryan Baker initially represented defendants EURL Eleonora De Gray (“De Gray LLC”) and Eleonora De Gray (“De Gray”) for the limited purpose of a settlement conference. At the settlement conference, Waymaker argued the court should have never exercised jurisdiction over the foreign client defendants. Following the conference, which did not result in settlement, Waymaker was invited by the pro bono panel to continue its representation for the further purpose of bringing a jurisdictional challenge to the complaint. Waymaker accepted the expanded engagement.

Waymaker prepared the motion against plaintiff Runway TV LLC (“Plaintiff”), which purported to assert trademark infringement and other claims against De Gray and De Gray LLC. Plaintiff alleged that the court had “personal jurisdiction over [defendants] which are not authorized to do business in the State of California” and repeated this argument in opposition to the jurisdictional motion. On February 9, 2022, the court granted Waymaker’s jurisdictional motion, finding no jurisdiction over De Gray or De Gray LLC. In its order, the court vacated the judgment and dismissed the action in its entirety.

A French citizen residing in Paris, France, Eleonora De Gray owns De Gray LLC, a French holding company with its sole and principal place of business Paris. From 2004 to 2014, De Gray operated a fashion magazine in France utilizing the mark “Runway Magazine,” which is owned by De Gray LLC. De Gray LLC continues to operate the website www.runwaymagazines.com, which has approximately two million readers per month. Advertisers on the site are exclusively located in France and Italy and all sales from the website are transacted in Euros.

While plaintiff, Runway TV, LLC, asserted that De Gray sought to sell magazines in the United States, plaintiff failed to set forth any facts in support of its contention that the defendants’ conduct was expressly aimed at California. The Court wrote: “Based on the record before the court, there is no basis for the court to conclude that defendants expressly aimed their conduct at the United States, much less California … In short, the court finds that plaintiff has failed to make a prima facie showing of specific jurisdiction over defendants.” De Gray and De Gray LLC are now free to continue their international operations free of the burdens imposed by U.S. litigation.

In a January 31, 2022 Business Insider article, Co-Managing Partner and Litigator Ryan Baker addressed the M&A frenzy in Hollywood observing that “traditional media companies are trying to pivot.”

The current streaming wars are periods of disruption that foster M&A activity said Baker. In order not to be left behind, it’s “quite common for entrenched incumbent players tied to existing technology to not be as nimble,” Baker said. As a result, traditional media companies pursue a strategy of acquiring rather than developing new technologies.

Baker and the firm regularly handle high-stakes litigation matters in the fields of entertainment and technology, often at the intersection of disruptive technology and complex legal issues.

White collar partner and former federal prosecutor Keri Curtis Axel, quoted by Law360 on February 1, 2022 on the Second Circuit’s reversal of a Libor case involving two former Deutsche Bank traders accused of fraud, said that she does not expect the ruling to disrupt the DOJ’s appetite for bring complex cases that have a high deterrence value.

“When you walk into the Southern District of New York, you see sketches throughout the lobby of judges officiating over various high profile white collar and national security cases. I would say that has a profound impact on creating a culture where prosecutors want to bring these kinds of cases. This ruling won’t change that.”

Partners Ryan Baker, Brian Klein, Scott Malzahn, Jaime Marquart and Donald Pepperman have been named Southern California Super Lawyers 2022 …

Baker was singled out for excellence in Intellectual Property Litigation, Klein for White Collar Crimes, Malzahn for General Litigation, Marquart for Business Litigation, and Pepperman for Antitrust Litigation.

Partner Brian Klein, who represents one of the defendants, a prominent crypto and open finance-focused investment firm, told the Wall Street Journal on January 13, 2022: “This apparently ideologically-driven lawsuit is a waste of the court’s and everyone else’s time …”

Filed in the Eastern District of New York, the lawsuit challenges a DeFi protocol’s claims that it is autonomous and self-governed. The lawsuit centers around a blockchain-based app that gamifies savings by cryptocurrency holders.

White Collar Partner Keri Curtis Axel, quoted by Law360 on January 5, 2022 on Elizabeth Holmes’ trial takeaways, said “Judge Davila played chicken with the defense, allowing [Holmes] to testify about the abuse and giving the defense a chance to see if they could connect it up to her state of mind. Ultimately, they did not, so it did not really help Holmes at trial, and she doesn’t get an appellate issue out of it either.”

Judge Davila allowed Holmes to testify about her claims that alleged co-conspirator Ramesh “Sunny” Balwani, the former Theranos’ chief operating office, abused her while she was Theranos’ CEO.

Axel, a former federal prosecutor, said Holmes’ conviction, which could result in a significant prison term, does not bode well for Balwani’s defense in his forthcoming trial. While some legal experts say the Holmes’ case gives the Balwani defense team an edge over the government in preparing for trial, Axel said, “If I were Sunny Balwani’s counsel, I would take no joy in this verdict.”

Donald Pepperman, quoted by Law360 in a January 3, 2022 story about California cases to watch In 2022, said antitrust cases “send a clear message to these tech behemoths that their market dominance and acquisitions will be challenged and not go unchecked.”

“Waymaker LLP partner Donald R. Pepperman is keeping an eye on multiple antitrust lawsuits against tech giants that are playing out in California federal courts, including Fortnite creator Epic Games Inc.’s hotly contested case challenging Apple Inc.’s App Store fees, which went to a bench trial last spring.” Both sides have appealed elements of U.S. District Judge Yvonne Gonzalez Rogers’ opinion.

Pepperman said Sherman Act antitrust cases are important because they test the boundaries and reach of the nation’s anti-monopoly laws in critical markets.

Partner Brian Klein was quoted by Law360 on cybersecurity and privacy policy to watch in 2022. “There’s been an uptick across the board in terms of the attention cybersecurity has gotten at all levels of society, from Washington, D.C., prosecutors’ offices, companies, and the courts, so its prominence in the legal field has grown basically exponentially, said Brian Klein, a partner at Waymaker LLP, who handles cybercrime matters around the country.” Klein added: “[This year] we should expect to see cybersecurity only grow in importance and to see regulators, prosecutors, and everyone else paying more attention than ever to cyberthreats.”

Partner Keri Curtis Axel was quoted by AP on January 3, 2022 just before the jury convicted Elizabeth Holmes in the Silicon Valley fraud trial. “‘For all intents and purposes, the government needs only a guilty verdict on one count,’ said Keri Curtis Axel, a former federal prosecutor now working as a trial lawyer at the Los Angeles law firm Waymaker.”

Before a federal jury found Theranos founder and CEO Holmes guilty on four counts, the jury told U.S. District Judge Edward Davila they were deadlocked on three of the 11 felony counts against Holmes. Davila told the jury to keep deliberating on the remaining eight counts. Axel told AP that the deadlock on three counts made it more likely that the jurors had reached guilty verdicts on some of the other counts.

Later Monday, the jury found the 37-year-old Holmes guilty of four counts (two counts of wire fraud and two counts of conspiracy to commit fraud), not guilty on three counts, and deadlocked on three counts on charges that she knowingly misled Theranos investors into thinking her company’s blood-testing technology worked better than it actually did. Holmes faces up to 20 years in prison for each guilty count.

“She chose fraud over business failure,” said prosecutor Jeff Schenk in his closing statement.

In an NPR broadcast December 29, 2021 about the jury deciding Elizabeth Holmes’ fate in the Theranos fraud case, Partner Brian Klein said, “The question becomes, ‘what were you thinking when you were doing these things?’ And that’s really hard to get to.”

“The difference in this case versus a case of someone dealing cocaine is if you’re caught with a suitcase of cocaine, that’s a problem,” said Klein, a former federal prosecutor. “Whereas here, running a startup, trying to develop a new technology for blood testing, that’s all very legal.”

Co-Founding Partner Jaime Marquart has been recognized as a 2021 “Leader of Influence: Thriving in Their 40s” by Los Angeles Business Journal.

Named one of LA’s top 100 professionals, Marquart was honored for his outstanding legal career and accomplishments in commercial litigation. Chosen annually, LABJ’s “Leaders of Influence” are recognized for exceptional leadership in their fields and contributions to the Los Angeles community.

Klein is among the top dozen U.S. lawyers practicing in the Fintech blockchain and cryptocurrencies space. About Klein, Chambers wrote:

Brian Klein of Waymaker LLP is one of the pre-eminent litigators in the cryptocurrency space in the USA. He is experienced in representing early adopters and innovators in the FinTech sector and has represented a number of businesses in responding to regulatory inquiries. An impressed source says: “Brian Klein is one of the best in understanding the blockchain technology given his history working with clients and on matters in this space. He has the benefit of multiple interactions with regulatory staff to know exactly how to push the limits for the client’s benefit but also how to manage the relationship to keep parties amicable rather than hostile.”

Donald Pepperman was mentioned in Law360 a December 6, 2021 story about Prius owners negotiating a $20 million plus settlement in a class-action against Toyota. In the 2018 lawsuit, consumers alleged that Toyota hid stalling problems in its 2014-2018 Priuses that took place at high speeds.

On Friday, December 3, the parties asked a California judge to greenlight their $20 million deal to resolve for all valid claims for reimbursement for the repair or replacement of defective parts. Under the agreement, the total amount of the settlement is uncapped meaning that if claims exceed $20 million, Toyota would have to pay. After the settlement, Pepperman said, “It is a $20 million cash settlement with more in warranty and other benefits.”

Pepperman, Associate Emily Stierwalt, and other plaintiff counsel representing Prius owners, withstood two motions to dismiss and sparked two safety recalls by the automotive giant.

Former Federal Prosecutor Keri Curtis Axel was quoted on November 23, 2021 by Yahoo! Finance Live about Elizabeth Holmes taking the stand in the Theranos criminal fraud trial. Axel said, “It is very rare for a defendant to take the stand and speak in her own defense.”

Speaking about what motivated the defense team to take the risk of putting the ex-Theranos CEO on the stand, Axel said, “The defense made the determination that it’s best for the jury to hear in her own words what she told investors.”

Co-Managing Partners Ryan Baker and Scott Malzahn and Associate Emily Stierwalt have been recognized as 2021 Leaders in Law by Los Angeles Business Journal.

Baker was honored for his prowess in Intellectual Property Litigation, Malzahn was honored for his success in Commercial Litigation, and Stierwalt was selected as an Associate Rising Star. Chosen annually, LABJ’s “Leaders in Law” are recognized for their exceptional legal skill, leadership, and contributions to the Los Angeles community.

White Collar Partner Keri Curtis Axel was quoted by Law360 about Theranos investor due diligence, or lack thereof. A former federal prosecutor, Axel said, “Due diligence may not be sufficient to ferret out claims of intentional misrepresentation, but it is important to try.”

Axel said it is critical that investors adopt a ‘trust but verify’ approach to representations by company management. Testimony in the criminal fraud trial of ex-Theranos CEO Elizabeth Holmes reveals that many investors suffered from FOMO (fear of missing out) and rushed to put their money into the defunct blood-testing company, once valued at $10 billion.

Many wealthy individuals invested in the company based on trust and friendships only to discover that their faith was mistaken. Axel said, “Investors can be too comfortable in accepting the word of other investors, advisers or celebrity endorsers, but one doesn’t really know how much due diligence the endorser did, or what qualifications they have, so the investors should not bypass their own due diligence just because someone else claims to have done it already.”

In a San Jose Mercury News article on November 1, 2021, Brian Klein, a former federal prosecutor, said “Juries will surprise you. The story is only partially written. A lot could ride on what witnesses are called in the defense.”

Two months into Theranos founder and former CEO Elizabeth Holmes’ federal criminal trial the prosecution is still making its case that she intentionally defrauded investors with Holmes’ lawyers defending her via cross-examination.

Thus far, the government has called a number of former Theranos employees to testify. “That’s always going to be very compelling evidence because you’re hearing from people on the inside,” said Klein. “The prosecution will argue that you can sort of peel back the curtain and see what really happened.”

In a Business Insider article on October 26, 2021, Co-Managing Partner Ryan Baker said, “We have Netflix admitting that this content can be harmful. The CEO has said so in three different ways … he says quite clearly it can be very positive or very negative.”

After comedian Dave Chappelle’s Netflix special The Closer was criticized as transphobic, Netflix co-CEO Ted Sarandos told Deadline, “There are some things on Netflix that may be harmful to you, your colleagues, and your friends, but we are trying to entertain the world and make business decisions that are protective of creative freedom.”

Baker said Sarandos’ comments could lead to him being deposed in the 13 Reasons Why class action lawsuit filed this year that alleges Netflix failed to warn viewers the show’s storyline is about teen suicide and that the Netflix algorithm recommended the series to “vulnerable” audiences. The lead plaintiff alleges the streaming giant contributed to a teenager’s tragic suicide.

“With regard to this algorithm claim that the plaintiffs have here, what Ted is saying (about The Closer) is a nice piece of their argument,” Baker said. “It is often hard to get the CEO to sit for a deposition. If you’re a plaintiff, you’ve now got Sarandos saying all this stuff, making a record of grappling with these issues. You just got a whole bunch more reasons why he should have to sit for a deposition and answer these questions.”

Partners Ryan Baker, Brian Klein, and Jaime Marquart are recognized as Local Litigation Stars and Waymaker LLP is ranked in the top tier as “Recommended” in Benchmark Litigation California 2022.

Baker is ranked in Intellectual Property and Commercial Litigation, while Klein is ranked in Commercial Litigation as a California Litigation Star and Local Litigation Star, and Marquart is ranked as a Local Litigation Star. The firm is also ranked Tier 2 in Entertainment Litigation.

Government prosecutors won the first trial in the college admission scandal, but in a Law360 story Keri Axel said defense attorneys will have solid arguments on appeal, including a request by the defense to play a video of William “Rick” Singer, the admitted mastermind of the scheme, speaking to Starbucks employees, which the judge denied.

“You’re trying to get in the minds of both people,” Axel said, “The defense had a good argument that the Starbucks lecture was relevant to Singer’s state of mind.”

Prosecutors are reluctant to call Singer, the ringleader of the plot, as a witness in these cases because defense counsel will accuse Singer of being a proven liar whose credibility is in question.

In the Starbucks video, Singer is speaking to a group of employees about his “side door” plan for getting students accepted into highly competitive colleges via athletic programs. In the video, Singer discusses his method and discloses he wants to write a book about it. Defense counsel say this shows Singer was presenting his scheme as a legal way for wealthy people to donate to colleges while giving their children an extra boost in the admissions process.

Brian Klein has been profiled as a Law360 2021 Fintech MVP, one of only four lawyers so honored nationally. His victory in the nation’s first cryptocurrency antitrust case helped earn him a spot on the elite list. He represented Payward Ventures Inc. and its founder CEO, which does business as cryptocurrency exchange Kraken, and defeated claims that they schemed with others to hijack a cryptocurrency network.

“What made the case interesting is it was about what happens when there is a hard fork,” Klein said. “There were a lot of novel, interesting issues that came up.” Klein explained, “There is nothing more satisfying than when you feel like you’ve worked really hard for a client and the right results happened and everyone walks away feeling good about it.”

Additionally, Klein handled important cases for Block.one and the Tezos blockchain in settlements with the U.S. Securities and Exchange Commission (SEC). Currently, Klein is one of the lawyers representing Frances Haugen, a former product manager at Facebook who filed whistleblower complaints against the social media giant with the SEC and is set to testify before the Senate this week.

Klein was also honored as a Law360 MVP in Fintech in 2019. In 2021, the honor was given to 182 elite attorneys from 77 firms across 37 practice groups.

Partners Jaime Marquart and Donald Pepperman filed a civil complaint on behalf of plaintiff FlexWare International LLC against AT&T on September 8, 2021, alleging trademark infringement and unfair competition in the Central District of California.

Marquart, lead trial counsel on the case, commented: “Plaintiff FlexWare was forced to sue AT&T after AT&T shunned plaintiff’s cease and desist demand resultant from AT&T’s widespread infringement of the valuable ‘FlexWare’ registered trademark. The civil lawsuit seeks to remedy the confusion and significant damages caused by AT&T’s misappropriation and continued use of the identical FlexWare name, owned by a company AT&T consulted directly with prior to its unauthorized infringement.”

Donald Pepperman was quoted by Law360 in a September 13, 2021 story about Apple’s mixed victory over Epic Games in their antitrust battle about Apple’s 30% commission on app sales.

Epic Games will face an uphill battle in appealing the judge’s ruling. Pepperman said, “The extensive evidentiary trial record presented and Judge Gonzalez Rogers’ detailed findings” makes a successful appeal difficult.

Judge Gonzalez Rogers ruled against Epic’s allegations that Apple holds an illegal monopoly over the App store. Still, the ruling, which gave Epic Games a way to circumvent Apple’s 30% commission on app sales, may come back to bite Apple and other high-tech giants in the form of more robust antitrust law and regulations.

The judge’s ruling could add momentum to lawmakers across the nation seeking to reduce the power of the major high-tech firms because some will cite her ruling as proof that current antitrust laws do not do an adequate job of promoting competition and protecting consumers.

White Collar Partner Keri Curtis Axel was quoted by TheWrap on September 9, 2021 about Elizabeth Holmes’ possible domestic abuse defense in her Theranos fraud trial.

Axel, a former federal prosecutor, pointed out that most white-collar cases concern business, not romantic, partners, making the case and defense unusual. Holmes attorneys have presented documents that allege that Holmes’ business partner and lover, Theranos COO Ramesh “Sunny” Balwani, was verbally abusive and controlled Holmes’s diet, sleep and appearance.

Federal prosecutors apparently intend to respond by presenting text messages that reveal a loving and intimate relationship between two people, rather than a picture of abuse.

But Axel said Holmes’ defense counsel will be able to counter: “Written communications are not always a full picture of what’s in somebody’s head,” Axel said. “People are not as good in written communication as they think they are. [The] defense is likely to point out that it’s not as clear.”

Holmes was the former CEO of Theranos, a company whose blood testing technology wowed Silicon Valley investors and was once valued at $9 billion. She faces 12 criminal counts of fraud and conspiracy for lying to investors and others about her company’s supposed breakthrough technology. In offering a domestic abuse as part of her defense, Holmes’ attorneys will have to show a connection between the alleged abuse and Holmes’s intent to defraud in her conduct as CEO.

Donald Pepperman was quoted by Law360 in an August 30, 2021 story about Apple’s $100 million settlement saying the deal offers “some limited relief,” but fails provide “the structural and other relief that the class originally sought,” which could have forced Apple to reconsider the company’s exclusive App Store policies.

The settlement “is not likely to result in lower prices or subscription rates for apps on the App Store,” Pepperman said. “Unfortunately, the settlement will not serve to dissipate Apple’s monopoly power in that market and its stifling effects on price competition.”

The agreement in Donald R. Cameron et. al. v. Apple Inc. resolves monopoly claims from a proposed class of App developers led by Cameron, maker of a baby naming app. As part of the deal, Apple has agreed to pay $100 million into a “Small Developer Assistance Fund,” from which developers who submit claims will receive payments ranging from $250 to $30,000 depending on their revenue from the App Store.

This settlement resolves only one of the antitrust attacks on the high-tech giant. Other lawsuits, including one from Epic Games, also take aim at Apple’s policy that the only place to get apps for the iPhone is the App Store, which charges a 30% commission on all in-app purchases.

Partner Brian Klein has been selected as a Law360 MVP 2021 in Fintech, and was the only litigator recognized in that category. Nationally, only three to six attorneys per practice area were so honored, making this one of the most prestigious awards that a lawyer can win. Klein was also named an MVP in Fintech in 2019.

Klein was honored for his handling of groundbreaking Fintech cases for companies and entrepreneurs in courts across the nation and a string of “first-of-its-kind” successes in the space. Klein works with a team of more than a dozen attorneys at Waymaker on Fintech cases.

In 2021, Law360 gave this elite honor to 182 elite attorneys from 77 firms across 37 practice groups, recognizing lawyers who have “distinguished themselves from their peers by securing hard-earned successes in high-stakes litigation, complex global matters and record-breaking deals.” The other attorneys recognized in Fintech practice at preeminent national firms like Davis Polk and Sullivan & Cromwell.

The “challenge for the government is that Singer is the most involved in the scheme rather than a small player testifying against a ringleader,” said Keri Axel of Waymaker LLP to Law360 on August 20, 2021. “Juries distrust that, and for good reason.”

With the trial of three parents charged in the college admissions scandal that broke in 2019 about to begin in Boston, prosecutors have yet to decide whether William ‘Rick’ Singer, the mastermind who helped the children of the rich and famous obtain entry in elite colleges, will testify for the government. Axel, a former federal prosecutor and first-chair trial lawyer, said “It’s much more credible when the lowest-level person who didn’t stand to gain very much testifies.”

Axel continued, “When the key coordinator of the scheme testifies, it smacks of something that might be engineered. That’s never the scenario that the government wants.”

Singer has plead guilty to charges that he helped elite families gain admission to highly competitive colleges by bribing coaches so that the teens were admitted as athletes or helping students cheat on standardized tests.

Partner Brian Klein chairs the seventh annual ABA Blockchain & Digital Currency National Institute being held virtually on September 15 and is participating on the panel, “Key Enforcement Actions.”

The September 15 agenda begins with a Noon (12:00 EST) welcome by Klein, founder of the conference, followed by four panels:

Panel I – What the Future Holds for NFTs (12:10 EST). The panel will discuss what NFTs are, their current legal treatment and marketplace for them, and emerging trends.

Panel II – The Coming Dominance of Stablecoins (1:15 EST). Stablecoins are expected to fundamentally transform global finance and the panel will discuss the evolving legal and regulatory landscape.

Panel III – Key Enforcement Actions (2:30 EST). The panel will discuss recent law enforcement and regulatory enforcement actions and how they impact the industry.

Panel IV – The DeFi Revolution (3:40 EST). DeFi platforms have grown exponentially in popularity and usage, although they remain off the mainstream radar for now.

In a Law.com article on July 30, 2021, Co-Managing Partner Ryan Baker said, “It absolutely is the case that, especially in federal courts, civil trials are at the end of the line. I know there’s been a lot of debate among judges on how to handle the situation.”

Baker said courts are urging parties to settle because civil cases are “not going to be set for trial, not this year, not even next year, because of the backlog of criminal case that will necessarily precede all the civil trials. The backlog factor weighs heavily in favor of courts really advocating for private resolution because the reality is litigants are having to bear the cost of extended and protracted litigation.”

“Everybody is really tired of hearing, ‘well, the pandemic,’” said Baker. “Everything in life is different because of the pandemic, including the operation of the judicial system. The second part is, ‘what can we do about it?’ One of the first and most obvious answers is, ‘We can try to settle it. We can take matters into our own hands.’”

In some cases, Baker said, the parties have stipulated to arbitration hearings despite the absence of an arbitration agreement or clause because it is faster than waiting for the courts.

Partner Brian Klein was named one of the nation’s top 19 crypto and blockchain-focused attorneys by Business Insider in a July 28, 2021 article …

The fast-evolving arena of digital assets “is a very difficult space to get a good lawyer,” one chief legal officer told Business Insider. “You have to have a working knowledge of just about everything.”

“Klein, a former federal prosecutor, is ‘the guy’ in crypto enforcement, said one litigator in the space,” wrote Business Insider. “Marvin Ammori, the general counsel of Uniswap, compared him to Arya Stark, the cunning and deadly heroine of the Game of Thrones series.”

The profile noted that Klein’s clients have included Block.one (the developer of the EOS blockchain protocol) in litigation and an SEC settlement that was far more lenient than precedents; the founders of Tezos (which raised more than $220 million in a 2017 offering) in class actions; and Virgil Griffith, the Ethereum developer fighting charges that he violated sanctions on North Korea.

In a CNN article on July 9, 2021, Brian Klein, a former federal prosecutor who represents individuals accused of high-profile crimes, said, “Prosecutors have a lot of tools at their disposal to try to get someone to cooperate.”

Klein was asked about how the Manhattan DA could pressure the longtime chief financial officer of the Trump Organization charged with tax crimes to cooperate against the former president. “One tried and true method is to just charge someone and hope that will shake them up and they’ll change their mind and cooperate.”

Klein further explained that while members of Weisselberg’s family have not been charged that threat is palpable. “Usually, prosecutors don’t directly threaten to charge a family member, but it’s not uncommon that that implicit threat hangs out there, is in the air,” said Klein.

“And it can’t be lost on Allen Weisselberg or his lawyers, from reading the indictment, that family members might be witnesses or come under investigation.”

To read the full article, click here.

On June 8, 2021, Ryan Baker was elevated to the Anti-Defamation League’s (ADL) Los Angeles Regional Executive Committee. Baker, founding and co-managing partner of trial boutique Waymaker LLP, had served the previous year on the Regional Board’s Legal Advisory Committee. In these roles, Baker works to support the ADL’s mission is to fight hate and injustice through legal policy advice and other advocacy.

According to Baker, “the mission of the ADL could not be more important than it is today. In recent years, we have seen ethnic, cultural and religious tensions inflamed by political narratives. At a time when we should be standing together to fight a global crisis, we have been divided. Ignorance and intolerance are largely to blame for these divisions. Particularly at this time, I am thrilled to support the ADL in its mission to fight hate and intolerance through education and advocacy, and I am grateful for the opportunity to be a part of this historically significant organization.”

The ADL’s Los Angeles region focuses on combating anti-Semitism and bigotry of all kinds in Los Angeles, San Bernardino, Riverside and Kern counties. The organization’s work is highly relevant in Greater Los Angeles, one of the most diverse metropolitan areas in the world.

Since its founding in 1913, the ADL’s mission has been to stop the defamation of the Jewish people, and to secure justice and fair treatment to all. Minorities and those who seem different should not be targets of discrimination, threats, or violence.

Partner Donald Pepperman was quoted by Law360 in a June 1^st article about video games as an antitrust target. “I think there’s potentially going to be market power issues,” he said in respect to whether consumers are forced to use a platform.

Closed gaming “ecosystems” have generated a flurry of antitrust suits across the video game space, with the platform owner exerting near-total control over the applications and content provided and often charging a 30% commission.

Digital-only distribution is not the issue. “A monopolist is entitled to set or change its mode of distribution,” Pepperman said. Instead the questions revolve around how monopoly is defined and the intellectual property value-add of the platforms’ apps. A major case that will affect how these lawsuits are resolved is the Epic Games v. Apple Inc. bench trial.

“The challenge is, whenever a company’s trying to make a rollout on a national basis and encountering these patchwork laws and trying to create a legal system, one that’s profitable for them, the fights will continue to proceed in multiple different forums,” Scott Malzahn, co-managing partner of Waymaker LLP, told Law360 on May 7, 2021 speaking about the car-share rental company turf wars in states across the nation.

The increase in car-sharing apps that connect personal vehicle owners to prospective renters has spurred both state and local regulations and court battles over whether the apps should be subject to the same rules as car rental companies. Key issues include whether the apps should be subject to licensing and permitting rules, taxes and fees similar to those imposed on traditional rental car companies and ride-share companies.

“There are legitimate differences in these business models [so] applying a one-size-fits-all approach isn’t always equitable,” Malzahn said. “These are the challenges of any business trying to break into a new area.”

Waymaker Partner Don Pepperman was quoted about the Federal Trade Commission planning for aggressive oversight of antitrust and M&A in Compliance Week on April 13th . “Be careful about what is documented and in what way,” Pepperman said. “Be very careful about your motives for the merger and how you write it up in any prospectus or internal e-mails or other communications.”

Pepperman recommends executives develop compelling procompetitive reasons for the merger—for example, the merger will create innovative and novel products, enable expansion into new markets, or revive a distressed business. Also, Pepperman recommends a contemporaneous procompetitive analysis be done pre-signing and not in response to an antitrust investigation.

In a win for consumer-facing companies utilizing electronic signature technology, Waymaker Partners Ryan Baker and Teresa Huggins achieved a complete victory in a two-day arbitration in which the claimants sought to void a contract they had previously electronically executed.

Claimants, San Diego-area home owners, commenced arbitration, claiming they never signed a contract for the installation of solar panels on their roof. During the two-day arbitration, Waymaker demonstrated that claimants had, in fact, signed the Sunnova agreement using DocuSign. Waymaker also established that the solar panel system had resulted in energy savings for the claimants, contrary to their allegations.

The arbitrator’s interim award was issued March 29, 2021. Based on the evidence and argument presented, the arbitrator summarily denied all claimants’ claims. Sunnova Energy International achieved a complete victory.

Ryan Baker was quoted in a Legaltech News April 7th story about retailer FatFace asking affected customers in a ransomware attack earlier this year to keep the matter confidential. Baker said such a request has no legal “teeth and if anything, it attracted attention. I don’t see any upside.”

The downsides – the action is not an enforceable contract, increased attention, customers complaining to regulators – make it unlikely other companies will follow FatFace’s lead, said Baker who has considerable experience counseling companies in data breach situations.

“Under the current legal structure and the current applicable statutes and civil law, I can’t imagine other companies embracing this,” Baker said. “Practically speaking, this is not something that is working for FatFace, but if all FatFace wanted was to get in the news, it got in the news.”

FatFace, a British clothing retailer, detected the security breach in January and notified customers in March.

On April 1, 2021, Brian Klein and Don Pepperman won a motion to dismiss in the first crypto antitrust case in the United States. The two Waymaker partners represented the cryptocurrency exchange Kraken and its founder Jesse Powell in a Florida federal court where they secured the dismissal of an antitrust suit by cryptocurrency mining company United American Corp. (UAC), which alleged their clients and others schemed to hijack and manipulate the Bitcoin Cash network.

U.S. Magistrate Judge Chris McAliley of the Southern District of Florida agreed with Klein and Pepperman’s request to throw the case out in its entirety, ruling that the complaint “must state facts – not conclusions – that plausibly suggest a conspiracy.”

Klein was quoted in an April 1, 2021 Law360 article, “We appreciate that the court spent the time necessary to review carefully all the allegations and the parties’ arguments so that it could reach this just result.” Klein has been lauded by Chambers as one of the top financial technology lawyers in the United States.

The amended complaint, filed in March 2020 by UAC, alleged that bitcoin investor Roger Ver, Beijing-headquartered Bitmain Technologies, Kraken, Powell, and two Bitcoin Cash developers conspired to temporarily take over and effectively centralize the bitcoin market.

Partner Brian Klein, who represents people accused of high-profile hacking crimes, was quoted in a New York Times March 16, 2021 story about a young Florida teenage hacker, Graham Clark, 18, accused of being the mastermind behind the 2020 Twitter security breach of accounts belonging to Bill Gates, Elon Musk, former President Barack Obama, Kanye West, and other celebrities:

“We haven’t built a juvenile system for young hackers but we should be thinking about how we deal with this in a more systematic, compassionate fashion,” said Klein, a defense attorney at Waymaker who represents people accused of hacking crimes. “A lot of these young people view these things as pranks rather than appreciating the consequences of their actions”

To read the full article, click here.

Ryan Baker, Scott Malzahn and Chloe George wrote an article for the March 10, 2021 edition of the Daily Journal about the California Supreme Court considering a case that would clearly distinguish between the first and second steps of the Anti-SLAPP framework.

Two years ago, the California Supreme Court unanimously decided Film.com Inc. v Double-Verify Inc., agreeing with co-founding partner Ryan Baker, representing FilmOn, that the anti-SLAPP statute requires that courts consider the commercial context of speech in determining whether a defendant’s speech is protected. In that opinion, the court established a two-step framework to determine whether a defendant’s alleged speech or other conduct is protected under California Code of Civil Procedure Section 425.16(e) (4) (the “catch-all provision”) of California’s anti-SLAPP statute. Later this term, Geiser v. Kuhns will present the court with another opportunity to clarify what must be shown to establish anti-SLAPP protection. The court should use this opportunity to clearly distinguish between the first and second steps of the framework. The two steps are intended to consider (1) whether the defendant has identified an issue of public interest; and, if so, (2) whether the defendant’s specific speech or other expressive conduct contributes in some manner to a public debate or discussion about an issue of public interest.

In Geiser, the court granted review to consider if “deference should be granted to a defendant’s framing of the public interest” at the first step. It should answer that question in the affirmative. A court’s inquiry at the first step should be limited to assessing whether the defendant has properly identified an issue of public interest (such as a person in the public eye or general topic of widespread public interest). The second step requires the court to carefully examine the nexus between the issue of public interest and the defendant’s particular speech based on a consideration of the overall factual context. A clear roadmap … will further clarify a notoriously confusing and heavily fact-driven area of law.

To read the full article, click here.

Keri Curtis Axel commented in video with the Wall Street Journal on February 19th about market manipulation as it relates to the recent GameStop scandal.  The recent trading volatility of GameStop and other stocks has prompted scrutiny of key players in the saga. Probes into potential wrongdoing are centered on actions taken by both brokerages and users on social media forums. WSJ explains what regulators are looking into and why this situation is so unique.

“I am sure that the SEC and FINRA will be going through their rulebooks to determine if there were violations of the rules. Of course, broker dealers such as Robinhood are claiming that the very reason that they had to halt trading was to comply with the SEC rules. So, they may have a very good defense,” said Axel, who does not represent Robinhood but has experience as a former assistant U.S. attorney and former staff attorney at the SEC.

To view the full video, click here.

With the vast majority of U.S. states now permitting law firms to use trade names as their official moniker, leaders at younger and midsize boutique firms say a more aerodynamic firm letterhead—instead of a list of each equity partner’s last name—helps to distinguish firms in a crowded practice area while promoting a more egalitarian work culture.

Ryan Baker spoke to American Lawyer Media about the firm’s change from Baker Marquart to Waymaker, which he said reflects the firm’s ethos of “making novel arguments” and “representing cutting-edge clients.”

Aside from having a diverse slate of practice areas, long-standing legacy firms have names that have taken on name recognition, Baker said, despite the fact that many of the name partners are deceased. Younger, upstarting firms don’t have the same level of brand equity, especially if they share a name in common with a Big Law firm players with firms that start with
the name Baker.

Some things stayed the same, Baker said: Firm leaders said they made a point of reassuring clients that the name change would have no effect on their client relationships.

But the change also has the intended effect of fostering an egalitarian firm culture, Baker said. The 16-lawyer firm, for example, has paid closer attention to diversity and equity, promoting two female attorneys to partnership, hiring a female attorney and an attorney of color in 2020.

“Jamie and I are both white males, and the vast majority of law firms are named after white males, and it’s something that we wanted to move beyond,” Baker said.

Ryan Baker was quoted a Variety article on February 4^th about actor Armie Hammer and the potential downfall of his career. Reporter Elizabeth Wagmeister asked Baker about moral clauses in entertainment industry contracts between studios and talent. He noted most talent agreements list certain activities that are not permitted.

“A party seeking to terminate a contract could argue that the talent’s image has been unexpectedly tarnished as a result of something the talent did and, as a result, the talent is no longer able to bring the same value to the project. I would suspect that in a time like this, there would be a way for the parties to reach a resolution. However, it seems more facts will come to light in this case,” said Baker, who does not represent Armie Hammer, but has experience representing talent in legal disputes with studios.

To read the full article, click here.

The firm was featured in the Daily Journal on January 27, 2021 after it was announced that the firm changed its name to Waymaker LLP.

“The goal was essentially to create a firm name that was not reflective of one, two, or three or four people, or however many names you can put on the letterhead, but rather create a name that everyone could have an ownership of and that was reflective of a team spirit that doesn’t revolve around a couple of individuals,” says Ryan Baker, co-managing partner of the firm and one of the founding partners.

To read the full piece, click here (subscription required).

Parler says its return to the web is “inevitable” despite Amazon‘s pulling the platform’s plug for its alleged role in fomenting the U.S. Capitol riot. But the success of Parler’s retaliatory antitrust claim against Amazon? Competition professionals say it’s almost certain to fail. Parler’s suit lacks even the basic components required of an antitrust lawsuit, the experts say.

“There’s not even an allegation that a specific deal was made for an improper purpose,” said Ryan Baker, a founding partner at Waymaker.

Nor does the complaint specify a relevant market, according to fellow Waymaker attorney Donald Pepperman. “Critical elements of an antitrust claim are missing,” he said.

The fact that Amazon had previously done business with Parler belies assertions that the web giant would try to protect Twitter from competition, according to Baker. “Logically, that makes no sense,” he said.

To read the full article, click here (subscription required).

LOS ANGELES – January 25, 2021 – Since 2006, the Baker Marquart law firm has built a national reputation as a go-to trial and appellate firm, helping individual and corporate clients navigate complex and evolving legal frameworks in courtrooms around the country. Today, reflecting Baker Marquart’s unique and innovative spirit, the firm starts a new chapter as Waymaker. The firm’s ownership, management and attorneys remain unchanged. In addition to the new name, the firm is proud to introduce a new logo and website.

“Our new name reflects the growth and evolution of the firm,” says Waymaker Partner Ryan Baker, a founder of the firm. “Baker Marquart, now Waymaker, is not about one or two people; we succeed as a collective, often through innovative strategies and arguments formed through active collaboration. Waymaker exemplifies this ethos.”

“Waymaker retains the same core values that have allowed it to grow into the firm it is today, including fierce and passionate advocacy on behalf of our clients,” says Jaime Marquart, another founding partner. “We will continue to seek out opportunities to be at the legal forefront of emerging technologies on behalf of companies around the world.”

Waymaker’s team of experienced and sophisticated litigators have built an international reputation of success, winning trials and appeals throughout the United States. Its clients include start-ups, Fortune 500 companies, and high net-worth individuals. The firm’s trial and appellate practice encompasses antitrust and trade regulation, general business and technology-related litigation, class actions, and intellectual property protection. The firm also assists clients with government investigations and enforcement actions, and defends clients facing criminal prosecution.

Despite the unprecedented challenges presented during the pandemic, Waymaker has continued to grow, recently making two new partners and adding associates. The firm has 16 attorneys and a full complement of support staff.

To learn more, please visit Waymakerlaw.com.