Todd practices complex commercial and IP litigation at the trial and appellate levels.
Todd has a deep background in a variety of related areas, allowing him to issue-spot creatively and develop winning arguments for clients. He has represented clients—ranging from startups to some of the largest technology companies in the world—in patent, trade secret, copyright, trademark, false advertising, antitrust and unfair competition matters. He also counsels clients on issues relating to advertising and anonymous speech on the internet.
Todd regularly represents parties and amici on appeal, and enjoys helping those clients defend favorable results and upend unfavorable ones while also staying aligned with their longer-term interests. He has argued six cases before the U.S. Court of Appeals for the Ninth Circuit, and authored briefs on behalf of the winning parties that established leading U.S. Court of Appeals for the Federal Circuit precedent on questions of patent venue, In re Cray, 871 F.3d 1355 (Fed. Cir. 2017), and Kessler preclusion, In re PersonalWeb, ___ F.3d. ___ (Fed. Cir. 2020).
Todd is passionate about pro bono work and has consistently made time through the course of his career to give back to the community. He has coordinated the firm’s relationship with the Ninth Circuit pro bono program since 2006. Since then, Fenwick has taken on nearly 30 pro bono appeals, leading to published opinions on the Fourth Amendment, due process and asylum. Todd’s other pro bono work has included securing legal immigration status for a young girl who emigrated from El Salvador to the U.S. after a gang murdered a family member, and securing a rare preliminary injunction forcing the California Department of Corrections to provide an inmate with a medically necessary diet.
Todd previously served as a law clerk to the Honorable W. James Ware of the U.S. District Court for the Northern District of California. Northern California Super Lawyers has repeatedly named him a “Rising Star” (2012 – 2018). In 2020, The Best Lawyers in America named Todd to its Ones to Watch list for Intellectual Property Litigation.
- Perfect 10 v. Giganews. Prevailed on summary judgment for Usenet service provider against copyright infringement claims based on user behavior on service and response to purported DMCA notices. Secured a fees award of more than $5.6 million with both rulings affirmed on appeal.
- Giganews v. Zada. Secured a favorable jury verdict and award of punitive damages in federal trial against Perfect 10 and its CEO for the CEO’s fraudulent transfer of money from the company.
- Openwave v. Open-Xchange. Successfully defended provider of web-based email services to telecoms from grab-bag of non-patent IP claims asserted by a competitor. Argued and secured summary judgment on all asserted trade secret claims.
- Tripwire v. UpGuard. Defended a startup client in a patent infringement and trade secret misappropriation case brought by its competitor.
- eMarker v. Caesars. Successfully defended Caesars in multiple jurisdictions against trade secret claims brought by a prospective vendor.
- TomTom v. Broadcom. Represented GPS navigation technology company TomTom in a multi-million-dollar breach of warranty case against chip maker Broadcom.
- Sugar Hill Music v. CBS Interactive. Defended CBS against indirect infringement claims from individual artists regarding reviews of P2P file-sharing software on the CNET website, ending in plaintiffs’ voluntary dismissal of claims following adverse discovery rulings.
- Groupion v. Groupon. Pursued cybersquatting counterclaims against CRM software company to successful settlement following dismissal of all trademark infringement claims against client Groupon.
- National Products v. Gamber Johnson. Key member of trial team that obtained a favorable jury verdict, affirmed on appeal to the Ninth Circuit, in a Lanham Act false advertising case in the Western District of Washington.
- Pineida v. Lee. Led team that secured a rare preliminary injunction forcing the California Department of Corrections and Rehabilitation to provide an inmate with a medically necessary diet. Todd and the team were recognized for this case with the 2015 Outstanding Volunteer award from The Justice & Diversity Center of The Bar Association of San Francisco.
- Dohrmann et al v. Intuit et al. Successfully represented Intuit in a Ninth Circuit appeal, profiled by Law360, related to a putative class action alleging false advertising claims associated with Intuit’s TurboTax free filing option for tax preparation services. The Ninth Circuit reversed the district court’s decision, noting TurboTax's terms of service were clearly visible when users signed in on its website, and that the terms included a clause requiring disputes to be resolved through arbitration. The panel instructed the district court to compel arbitration, rejecting its alternative rationale that the users could bring a class action under a provision in the agreement that allows a court to award certain forms of equitable relief.
- San Francisco Herring Association v. U.S. Department of the Interior. Successfully represented San Francisco Herring Association in a Ninth Circuit appeal related to its 2013 suit under the Administrative Procedure Act (APA), which challenged the authority of the National Park Service (NPS) to prohibit commercial herring fishing in the waters of the Golden Gate National Recreation Area. On December 31, 2019, the court affirmed that a series of warnings issued by the NPS, culminating in direct threats of enforcement, sufficed to constitute "final agency action" for purposes of the APA.
- In re Cray. Appellate counsel to Cray in its successful mandamus petition to the Federal Circuit resulting in a landmark decision on venue in patent cases. (Bloomberg reporter: “Cray threw a veritable sonic boom at Raytheon in its reply…”; IPWatchdog on the result: “Ordinarily these types of decisions do not make for successful mandamus petitions.”)
- Virginia Innovation Sciences v. Amazon.com. Secured affirmance of the district court’s invalidation of eight patents on Section 101 grounds. Law360 recognized the appellate win in its “Legal Lions and Lambs” feature.
- LendingTree v. Zillow. Defended a jury verdict of non-infringement and invalidity for improper inventorship at the Federal Circuit on behalf of client Zillow, and secured reversal of the district court’s denial of summary judgment on grounds of Section 101 invalidity.
- Affinity Labs of Texas v. Amazon.com. Secured affirmance at the Federal Circuit of the district court’s dismissal of patent infringement claims on grounds of Section 101 invalidity.
- Garcia v. Google. Filed an amicus brief on behalf of 11 major internet companies supporting reversal of an injunction that required removal of a controversial video from YouTube.
- Marilley v. Bonham. Appellate counsel in a case involving a U.S. Constitution Privileges and Immunities Clause challenge to California commercial fishing license fees, which charged out-of-state residents multiples of the amounts it charged residents.
- McGary v. Culpepper. Briefed and argued Ninth Circuit appeals that secured a reversal of the district court’s dismissal of a plaintiff’s Section 1983 action for mistreatment by the State of Washington during his civil commitment.
- Barela v. City of Woodland. Briefed and argued a Ninth Circuit appeal that secured reversal of the district court’s dismissal of a complaint for false arrest in violation of the Fourth Amendment.
Publications and Presentations
- “Top 10 Reasons Startups Get Sued,” Create33, May 2019
- “Defending Your Anonymous Users,” Amazon Legal University, October 2018
- “Developments in Patent Venue,” Amazon Legal University, October 2018
- “Avoiding and Managing M&A Disputes,” Western M&A/Private Equity Forum, Daily Journal, September 15, 2016 (panelist)
- “Whither Copyright Injunctions in the Post-Garcia World?,” Media Law Resource Center Media Law Letter, May 2015 (co-author)
- “9th Circ. Weighs in on Player Likenesses in Video Games,” Law360, August 2013 (co-author)
- “Uniloc v. Microsoft: Federal Circuit Rules on Reasonable Royalty Damages Issues,” Fenwick & West, May 2011
- “Patent Law Year in Review: A Look Back at 2010 and a Look Ahead at 2011,” Fenwick & West, January 2011 (co-author)
- “Company Directors Can Be Liable for Trade Secret Misappropriation,” Electronic Commerce & Law Report, May 2010 (co-author). Reprinted in VC Experts, July 2010
- “Data Wrangling, Lassoing, and Roping at the M&A Corral,” California Lawyers Association Business Law News, July 2008 (co-author). Reprinted in The M&A Lawyer, October 2008; VC Experts Inc.’s Encyclopedia of Private Equity and Venture Capital, May 2009
Education & Admissions
J.D., cum laude
University of Michigan Law School
Admitted to practice in California