The 66-lawyer litigation boutique based in Birmingham, Ala., appears on about one in every 10 of Apple’s federal docket filings for 2021, making it one of the firms the tech leader turned to the most for new litigation matters last year, according to a report prepared by Bloomberg Law’s data team.
In fact, its representation of Apple was enough to land the firm on the list of Big Tech’s most used law firms in 2021, ranking seventh on the list. Using Bloomberg Law’s Litigation Analyzer application, the team examined all 2020 and 2021 federal court filings for a total of 53 S&P 500-listed technology companies. Apple had by far the most appearances, with 221 docket hits. IBM, the next most represented company on the list, had just 67.
In some instances, there were multiple docket hits for the same underlying case when it was transferred, refiled, or consolidated into multidistrict litigation. The data nevertheless provides a reliable picture of Apple’s litigation profile, including its most frequently chosen counsel.
After adjusting for those duplicate entries, Lightfoot still took on more than a dozen new, potentially high-stakes matters on behalf of Apple in 2021. About half were filed in federal court in Alabama and involve new claims, but familiar allegations, over Apple’s performance-throttling software updates for certain older iPhone models. It has already agreed to pay more than $310 million to resolve claims based on the same underlying allegations in separate multidistrict litigation.
The remaining recently filed lawsuits, which started to crop up in late 2020, are would-be class actions over allegedly unlawful Vegas-style online gaming apps supported by Apple’s mobile platform. Those cases have since been consolidated in multidistrict litigation before the U.S. District Court for the Northern District of California. Similar lawsuits against game makers have resulted in settlements as large as $155 million.
Experience, Trust
The relationship between Apple and Lightfoot dates back to at least 2008, when it first appears on behalf of Apple in a federal case involving claims over allegedly defective 3G devices. The case was handled by firm co-founder Warren Lightfoot, now-U.S. District Court for the Northern District of Alabama Magistrate Judge Gray M. Borden, and partner Sara Anne Ford.
Ford has appeared the most consistently among Lightfoot lawyers on the company’s behalf since then, with Apple-related matters comprising more than half of her appearances in federal district court over the last five years.
Ford’s firm bio boasts that she’s “handled just about every kind of lawsuit you can think of,” but what makes her unique—and likely what makes her appealing to Apple—is her extensive experience litigating and trying class and mass tort lawsuits in the Eleventh Circuit.
Class actions are procedurally peculiar and each jurisdiction has its own nuanced take on the federal rules and governing principles. That’s especially true in the Eleventh Circuit, which tends to drive or deepen circuit court splits on important class action issues like ascertainability, standing, appellate jurisdiction over remand decisions, and the permissibility of incentive awards for class action plaintiffs.
For all but the most familiar, it’s a steep learning curve. But Ford is most familiar. She has been handling class actions for more than 20 years, and though she primarily litigates in Alabama and nearby states, she’s also handled matters before the First, Third, Fifth, Sixth, Seventh, Eighth, and Ninth circuits.
Philosophy
The firm declined to speak with Bloomberg after consulting its client, and Apple didn’t respond to requests for comment. An October 2021 interview with Sam Franklin on the Benchmark Litigation podcast “Behind the Trial” provides some insight into the firm’s culture and philosophy, however.
Franklin co-founded the firm, which now has a small Houston office, in 1990 with Lightfoot and the late Jere White.
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Although the firm offers investigations and compliance counseling across a broad range of industries, its core focus is and always has been on litigation and trial advocacy.
Indeed, the firm has six of the 5,800 American College of Trial Lawyers fellows in the country, and two of those six fellows—Franklin and Lightfoot—have served as ACTL’s president.
Franklin spoke about collegiality; building credibility; distilling narratives and themes; and about showing, rather than telling, jurors why they ought to find in favor of your client.
“You gotta be sure that you’re making it clear that you’re not telling them how they’re going to decide the case, but rather you’re trying to help give them the information, so that they can decide the case ultimately,” Franklin said.
He also talked about the dwindling supply of experienced trial counsel. With fewer trials, which are often not worth the cost or are cost prohibitive, there are fewer opportunities for lawyers who aren’t actively seeking courtroom experience to get it.
But that’s perhaps what makes Lightfoot lawyers such a hot commodity. Experienced, capable representation is essential to favorable outcomes.
As Franklin said his father—not himself an attorney—used to tell him, “I think lawsuits are more about trying the lawyers than trying the cases.”
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