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Rodger R. Cole

Managing Partner

Partner, Litigation  

Mountain View 650.335.7603

Overview

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As managing partner of Fenwick & West, Rodger Cole is responsible for leading the firm’s operations across its five offices with more than 350 lawyers.

Rodger is widely haile​d as a go-to litigator for prominent Silicon Valley companies. For more than 20 years, he has been helping technology and consumer product companies achieve their goals in complex commercial and intellectual property disputes. He has defended technology companies in more than 100 class actions, including many published decisions from both district courts and courts of appeal.

Rodger is widely sought for his ability to quickly understand his clients’ key business drivers and work with them to develop an early strategy to win or resolve a dispute within budget so they can get back to the important business of running their companies.

Fenwick clients also benefit from Rodger’s ability to navigate issues related to new technologies. For example, he has defended Telephone Consumer Protection Act (TCPA) class actions filed across the United States involving a wide range of text message and in-app message issues. He has both defeated and settled these cases on class and individual bases. Rodger also regularly helps companies reduce risk by providing TCPA compliance advice. He has been published on the topic and his work has been profiled in the Daily Journal.

Rodger has been consistently recognized as a Northern California "Super Lawyer" every year since 2005. In 2014, Rodger was recognized by BTI Consulting as a Client Service All-Star. He was one of only 21 IP lawyers selected by in-house corporate counsel for the award.

While in law school, Rodger was an executive editor of the Santa Clara Computer and High Technology Law Journal. Rodger has been recognized by Santa Clara Law School in its distinguished category of Lawyers Who Lead.

Rodger serves on the Board of Directors of the Law Foundation of Silicon Valley, the largest provider of pro bono legal services in the Silicon Valley.

Representative Engagements

Consumer Class Actions:

In re Intuit Data Litigation: Rodger is defending Intuit in a series of consumer class actions consolidated in the Northern District of California before Judge Davila. Plaintiffs allege that Intuit failed to implement adequate security measures to prevent fraudsters from filing fraudulent tax returns and have asserted legal claims for negligence and unfair competition.

In re Lenovo Adware Litigation: Rodger and partner Tyler Newby are currently defending Superfish in a series of 27 federal lawsuits consolidated in the Northern District of California before Judge Whyte. Plaintiffs allege that Superfish’s visual search technology violated their privacy rights and assert legal claims for violation of the Wiretap Act, California Penal Code, and unfair competition.

In re Carrier IQ Consumer Privacy Litigation: Rodger was appointed by Northern District Court of California Judge Chen as lead liaison defense counsel in a multidistrict privacy class action that coordinated more than 70 lawsuits filed around the country in the Northern District of California. Rodger and partner Tyler Newby are representing lead defendant Carrier IQ. Other defendants include HTC, Huawei, LG Electronics, Pantech Wireless, Samsung and Motorola Mobility. Plaintiffs claim that Carrier IQ’s diagnostic software, which is embedded on a wide range of smart phones manufactured by Carrier IQ’s co-defendants, allows the tracking and interception of consumers’ data and communications. The main legal claims asserted are violations of the Wiretap Act, Stored Communications Act, and Computer Fraud and Abuse Act. This litigation is one of the most important pending privacy class actions and has been covered by the Daily Journal, The Recorder and Law360.

Boorstein v. CBS Interactive: Rodger and partner Laurence Pulgram secured a victory for client CBS Interactive in a widely watched privacy class action that ultimately led to the first court of appeal decision interpreting California’s Shine the Light Act. A fantasy football player sued CBS alleging the company violated a state law requiring it to disclose information about third-party vendors. The complaint alleged that CBS failed to comply with the Shine the Light statute by not including those disclosures in a privacy rights page on their websites. Rodger’s team convinced the trial court to grant its demurrer without leave to amend, arguing that the plaintiff did not have standing to bring a claim against CBS and the suit should be dismissed. The California Court of Appeal agreed and affirmed our trial court victory. The Ninth Circuit subsequently affirmed the dismissal of four similar suits based on the California Court of Appeal’s decision in Boorstein.

Inter-Mark v. Intuit: Rodger defended Intuit in the consumer class action styled Inter-mark v. Intuit and made new law governing online contracts. Inter-mark alleged that Intuit’s enterprise software had bugs that breached implied warranties covering the product. Rodger filed a successful Rule 12(b)(6) motion to dismiss, arguing that Intuit’s click-wrap end-user license agreement expressly disclaimed such warranties, was enforceable and barred Inter-mark’s claims. The court granted Intuit’s motion to dismiss with prejudice, and dismissed Inter-mark’s breach of implied warranty claims. This order is the first reported decision enforcing a disclaimer of warranties in a click-wrap EULA on a motion to dismiss.

Trade Secret Litigation:

Brandport v. Virgin Mobile: Rodger led Virgin Mobile to a complete defense judgment in a trade secret case filed in New Jersey State Court by Brandport. Brandport unsuccessfully competed in a request-for-proposal (RFP) process to become one of Virgin Mobile’s vendors. Brandport filed suit alleging that Virgin Mobile misappropriated 55 of its trade secrets disclosed in the RFP process, and Brandport applied for a temporary restraining order to shut down the pending rollout of a Virgin Mobile service. After the judge tentatively indicated that she was inclined to grant the TRO, Rodger was able to convince her to deny the TRO application. Shortly thereafter, Rodger persuaded the judge to deny Brandport’s motion for preliminary injunction. After taking the key Brandport depositions, Rodger and his team, partners David Hayes and Bryan Kohm, filed a summary judgment motion. After a two-plus-hour hearing, the court complimented Rodger and his team’s “excellent” work and granted Virgin Mobile summary judgment dismissing all 55 of Brandport’s trade secret and related claims. Judgment was entered in favor of Virgin Mobile.

Silicon Space Technology v. eSilicon Corporation: Rodger and team represented eSilicon in fighting a two-front litigation against Silicon Space Technology. After an acquisition by eSilicon, the business relationship between eSilicon and SST soured. The parties had no written agreements governing any ownership, transfer or license provisions. SST filed a trade secret misappropriation lawsuit in Austin, Texas. eSilicon filed a copyright infringement lawsuit in the Northern District of California. The case was settled during the pre-trial proceedings of the trade secret case pending in Austin.

Copyright Litigation:

Openwave Messaging v. Open-Xchange: Rodger and his team are currently representing Open-Xchange in a 13-claim lawsuit accusing the email software company of copyright infringement, trade secret misappropriation, breach of contract, false advertisement and unfair competition among other allegations. The plaintiff, a former business partner-turned competitor, is suing Open-Xchange on the basis that the company partnered with the plaintiff with the ill-intent of stealing Openwave's platform interfaces to build their own.

Capcom v. The MKR Group: Rodger’s client Capcom filed a declaratory relief action against MKR to resolve MKR’s claim that Capcom’s video game Dead Rising infringed MKR’s copyright and trademark rights in the movie Dawn of the Dead and led Capcom to total victory. After MKR filed its counterclaims, Rodger and partner Jennifer Kelly filed a motion to dismiss the copyright, trademark and related state law counterclaims. After commending Rodger’s oral argument, Judge Seeborg of the Northern District of California granted Capcom’s motion to dismiss with prejudice, dismissed all of MKR’s claims and entered judgment in favor of Capcom. The decision was subsequently covered by the American Lawyer Daily, IP Law360 and the Daily Journal's November 21,​ 2008, Verdicts and Settlements.

Trademark Litigation:

Innospan v. Intuit: Rodger and his colleagues Joseph Belichick and Molly Melcher represented Intuit in a trademark lawsuit filed by Innospan seeking $25 million in damages and an injunction requiring Intuit to stop use of its Mint.com trademark. Discovery revealed that Innospan’s case was built on fabricated evidence, with the district court finding that Innospan had submitted false statements and engaged in witness tampering. After ordering forensic production of Innospan’s electronic documents, the court awarded Intuit more than $270K in sanctions and barred Innospan from using its tainted witnesses. At the time of Judge Alsup’s order, the sanction award was the third-largest issued in the history of California federal courts. When Innospan failed to pay the sanctions, violated the witness exclusion order and continued its discovery noncompliance and misconduct, the court dismissed the case based on egregious litigation misconduct. Innospan subsequently appealed the suit to the Ninth Circuit, which affirmed the district court’s dismissal and judgment in favor of Intuit entirely.

Altera Corporation v. Alternative Living Services: Rodger and partner Kate Fritz successfully defended an ex parte application for a temporary restraining order and motion for preliminary injunction over Altera’s claim of trademark infringement against Alterra Healthcare based on similar company names and alleged confusion in the stock markets. After Altera appealed, we then successfully defended the district court’s denial of Altera’s motion for preliminary injunction before the Ninth Circuit.

PEZ Candy v. Burlingame Museum of Pez Memorabilia: Rodger and partner Jennifer Kelly defended the Burlingame Museum of Pez Memorabilia and its co-founders in a lawsuit brought against them by PEZ Candy and its parent, Switzerland-based Patrafico AG. Filed in the Northern District of California, the suit asserted trademark infringement, trade dress infringement and unfair competition. PEZ Candy claimed that the museum’s award-winning giant Pez dispenser violated state and federal intellectual property laws, and that the museum’s use of the candy company's trademark products deceived the public into thinking that the museum operated under the authority of PEZ. Representing the museum on a pro bono basis, we settled the case on very favorable terms. The Museum continues to operate today.

Complex Commercial Disputes:

Scottie Pippen v. NBCUniversal Media et al.: Rodger defended Intuit subsidiary Mint Software in a defamation case brought by NBA champion Scottie Pippen against Mint and a number of other media defendants, including NBC and CBS. Pippen alleged defamation per se and false light invasion of privacy based on the claim that Mint Software falsely reported on the Mint blog that Pippen had filed for bankruptcy. Rodger worked with the joint defense group and successfully had the case dismissed at trial court on a motion to dismiss which was affirmed by the Seventh Circuit on appeal. In this significant decision, the Seventh Circuit held that publication on the internet is subject to the traditional single publication rule of more traditional media.

Kardashian v. Hurley: Rodger and his colleague Ciara McHale represented YouTube co-founder Chad Hurley and his new company MixBit against claims brought by Kim Kardashian and Kanye West in a Los Angeles County Superior Court case alleging that Hurley violated a non-disclosure agreement by posting to MixBit a video of the couple’s marriage proposal. The lawsuit claims that the breach of the alleged agreement substantially diminished the value of the event, which was filmed for broadcast on the E! Entertainment Television show “Keeping Up with the Kardashians.” The high-profile case has attracted significant international media attention. The case resolved short of trial.

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