Rodger Cole is a partner in the Litigation Group and Managing Partner of Fenwick & West LLP.
For over 20 years, Rodger has helped technology and consumer product companies achieve their goals in complex commercial and intellectual property disputes by leveraging his deep understanding of emerging technologies and his clients’ business models to reduce risk and exposure and protect competitive advantages. Litigation is rarely a desired outcome for technology companies. Rodger’s clients value his ability to quickly understand the company’s key business drivers and work with them to develop an early strategy to win or resolve a dispute within budget. His approach maintains the client’s business goals as the primary driver in decision making to get clients back to the important business of running their companies.
Rodger’s docket is increasingly focused on defending technology companies in consumer class actions. Rodger has defended technology companies in over 100 class actions, including many published decisions from both district courts and courts of appeal. As a result of his success, Rodger has become a go-to litigator for many prominent Silicon Valley companies.
Rodger’s ability to navigate issues related to new technologies is particularly beneficial to clients. For example, he has defended Telephone Consumer Protection Act (TCPA) class actions filed around the country 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 helps companies reduce risk by regularly providing TCPA compliance advice. Rodger has been published on the topic and his work has been profiled in the Daily Journal.
In 2014, Rodger was recognized by the 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. In 2008, Rodger was honored as one of the "Top 20 Under 40" lawyers in California by the Daily Journal. Rodger has also been selected as a Northern California "Super Lawyer" every year since 2005.
Rodger received his B.A. from the University of Redlands, where he was also the 1991 National Debate Tournament champion. Rodger received his law degree magna cum laude from Santa Clara University. 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.
Consumer Class Actions
In re Intuit Data Litigation: Rodger and his colleagues Songmee Connolly, Angel Chiang, Hailey Teton and Carly Bittman are currently 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, partner Tyler Newby and associate Annasara Purcell are are currently defending Superfish in a series of twenty-seven (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 seventy (70) lawsuits filed around the country in the Northern District of California. Rodger, partner Tyler Newby and associate Annasara Purcell 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, Law360.
Boorstein v. CBS Interactive, Inc.: Rodger and his colleagues Laurence Pulgram and Songmee Connolly 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. Boorstein v. CBS Interactive, Inc., 222 Cal.App.4th 456 (2013). 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 and his colleague Songmee Connolly 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. Inter-Mark USA, Inc. v. Intuit Inc., 2008 U.S. Dist. LEXIS 18834 (N.D. Cal. 2008).
Considine v. Verizon Wireless: Rodger represented SendMe Mobile in a consumer class action alleging SendMe and Verizon Wireless “crammed” charges on the telephone bills of the purported class. In one of the first district court decisions addressing the issue after the Supreme Court’s decision in Concepcion v. AT&T Mobility, Rodger and his team convinced the trial court to grant a motion to compel arbitration and stay the proceedings pending the arbitration. The case was subsequently resolved on an individual basis while the plaintiff’s appeal was pending before the Third Circuit.
Horton v. GoPro: Rodger and team resolved a warranty, false advertising and unfair trade practices class action for GoPro related to its Hero3 video camera. Filed in the Middle District of Florida, the suit alleged that the Hero3 did not reliably and continuously record video as advertised based on GoPro’s online and on-package advertisements. The case resolved on a non-class basis after extensive informal discovery.
Cramming class actions: Rodger and colleague Songmee Connolly worked with content provider SendMe Mobile when it was named in a series of class action lawsuits asserting that charges for mobile content were “crammed” on telephone bills without authorization of the mobile phone user. The content included ring tones, news alerts and other applications. Twenty-four class action lawsuits were filed around the country against the carriers, distributors and content providers. Rodger represented SendMe in the cases and, working with a large joint defense group, ultimately settled the cases on very favorable terms for SendMe.
Create-A-Card v. Intuit: Rodger and his colleague Songmee Connolly represented Intuit in a consumer class action asserting that Intuit’s QuickBooks software deleted data of its users. While our motion to dismiss was pending, Rodger’s team was able to achieve Intuit’s business goals and resolve the case on favorable terms.
Demandforce: Rodger has represented Demandforce in four putative class actions asserting that it sent unsolicited SMS text messages in violation of the Telephone Consumer Protection Act. In each case, Rodger’s team worked with the business to provide information to the plaintiffs’ counsel which resulted in each of the cases being resolved on an individual basis.
Ceija v. Shopkick: Rodger assisted partner Brian Buckley in advising Shopkick to develop best practices to avoid liability under the Telephone Consumer Protection Act (TCPA), which paid dividends when the company was faced with a TCPA action. Like many popular mobile apps, Shopkick’s app prompted users to send text messages to invite friends to download the app. Recognizing the potential risks of this marketing strategy, we worked with the company to develop text messaging practices in compliance with TCPA rules. Despite these precautions, Shopkick was sued under the TCPA in California federal court by a plaintiff claiming that she had received an unsolicited invitation text. After informing the plaintiff of our client’s policy not to send such texts and presenting evidence that the company had not sent the text in question, the plaintiff voluntarily dismissed the lawsuit without payment before any discovery was conducted or motions filed. Shopkick was sued again in the Northern District of California in Huricks v. Shopkick. Rodger’s partner Brian Buckley secured a win on a motion to dismiss, convincing Judge Chesney that plaintiff’s allegations of a use of an automated telephone dialing system were insufficient.
GES v. Intuit: Rodger and colleagues Brian Buckley and Songmee Connolly represented Intuit in a consumer class action asserting that Intuit made illegal auto-dialing calls in violation of the Telephone Consumer Protection Act and Washington state laws. A number of similar companies were sued (e.g., Sprint, Comcast and others), and Rodger and his team closely coordinated with those other defendants. The lawsuit was ultimately settled with Intuit making no net contribution as a result of indemnification obligations of Intuit’s business partners.
Physicians Healthsource v. Reliant Technologies: Rodger defended Reliant Technologies and Solta Medical in a class action suit brought under the Telephone Consumer Protection Act. After voluntarily providing significant information to the plaintiffs’ lawyers, Rodger and his team, associates Songmee Connolly and Annasara Purcell, were able to negotiate an individual settlement before the expense associated with motion practice and discovery.
Neri & Russo Plumbing v. Intuit: Rodger and his colleague Songmee Connolly secured a victory for Intuit in a consumer class action challenging Intuit’s ability to “sunset” or discontinue support for products after certain periods of time. Plaintiff dismissed its complaint with no payment or legal fees after our motion to dismiss was filed.
Pearce v. Symantec Corporation: Rodger and his colleagues, partners Jennifer Kelly and Emmett Stanton, defended Symantec in California state court in a consumer class action for statutory unfair competition (California Business & Professions Code Section 17200, et seq.) and false advertising (California Business & Professions Code Section 17500, et seq.) related to its WinFaxPRO software. After limited discovery, the matter settled on a non-class basis with no payment to the purported class. After settlement, the team defeated plaintiffs’ motion for attorneys’ fees, and plaintiffs’ counsel received no fees.
Chaney v. Stormfront Studios: Rodger and partner Kate Fritz represented Stormfront in a right of publicity action filed by retired baseball players asserting claims against Stormfront’s Old Time Baseball game. After Rodger’s successful oral argument defeating class certification, the case settled for nominal payment on a non-class basis.
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. Brandport, Inc. v. Virgin Mobile, USA, LLC, 2006 WL 1737867 (N.J. Super. Ch. Div. 2006).
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.
PeopleSoft v. Annuncio: Rodger sued two former employees and their new employer on behalf of PeopleSoft after investigation revealed that employees downloaded source code and product strategy documents before departing PeopleSoft. Rodger argued for and received an ex parte temporary restraining order and preliminary injunction against the two former employees and the new employer preventing the misappropriation of trade secrets. The case settled shortly thereafter with a stipulated permanent injunction and full payment of PeopleSoft’s legal fees by the defendants.
OptiMight v. Hsu: Rodger successfully defended an ex parte application for a temporary restraining order and motion for preliminary injunction based on OptiMight’s claim of trade secret misappropriation against its former employee Dr. Lucas Hsu. Rodger argued a successful 2019(d) motion for more specific identification of OptiMight’s alleged trade secrets that narrowed the alleged trade secrets significantly. The case was ultimately dismissed with no restraints on employee or new employer, and a complete defense judgment.
NetIQ v. Omniture: Rodger defended a claim of trade secret misappropriation against Omniture after Omniture hired a salesperson from a direct competitor. The case settled with no payment and no restrictions on Omniture during expedited discovery in preparation for the preliminary injunction hearing.
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. Capcom v. The MKR Group, 2008 U.S. Dist. LEXIS 83836 (N.D. Cal. 2008).
Kenneth Penders, II v. Sega of America, Inc.: Rodger, partner Jennifer Kelly and associate Annasara Purcell represented Sega of America and Electronic Arts in a copyright infringement case filed in the Central District of California by Kenneth Penders, an artist who contributed content to certain “Sonic the Hedgehog” comic books and claimed to own copyrights in that content. Rodger’s team convinced the district court that Penders’ case should be dismissed because of another similar case pending in the Southern District of New York. The Ninth Circuit affirmed the dismissal of Penders’ claim based on the first-to-file rule, which had the effect of wiping out Penders’ claim for damages.
Columbia Data Products v. Autonomy Corporation Limited: Rodger and partner Laurence Pulgram were retained by Hewlett-Packard Company (HP) after the close of discovery to try a copyright infringement case pending against HP subsidiary Autonomy. Plaintiff Columbia Data Products was seeking tens of millions in royalties it claimed it was owed under a license agreement with Connected Corporation, which was subsequently acquired by an Iron Mountain entity and then by Autonomy. After Rodger and Laurence’s team, including associates Liwen Mah, Ciara Mittan and Armen Nercessian, filed summary judgment motions, the case settled on the eve of the pre-trial proceedings.
Hewlett-Packard Company (HP) v. Source Direct: Rodger was retained by HP to enforce its copyrights against a third-party maintainer (TPM) providing support services to HP customers. Rodger and and Songmee Connoll discovered that the TPM had downloaded HP software updates and patches. The team was able to achieve its business goals and ensure the TPM complies with HP’s policies.
Actuate v. IBM: Rodger was hired by Actuate to pursue a large copyright infringement case against IBM. Working with partner David Hayes and associate Joe Belichick, we were able to discover unlicensed uses and distribution of Actuate software, which resulted in a favorable settlement for Actuate.
YouPlus v. Playdom: Rodger represented Playdom in one of the first copyright lawsuits involving games on social media. Rodger defended Playdom’s Mobsters and was able to resolve the case without restriction on Playdom’s freedom to operate.
Square Ring v. Ustream: Rodger and colleague Songmee Connolly defended live streaming company Ustream in a suit brought by boxing promoter Square Ring for copyright infringement after Ustream users streamed a boxing match of Roy Jones Jr. without permission. Square Ring sued Ustream on a secondary liability theory even though Ustream did not know about the streams and was not given proper notice of the streams during the event.
Industrial Evolution v. Matrikon: Rodger and partner Kate Fritz represented Industrial Evolution in an action for copyright infringement when it was discovered that a software developer had created a competing product based on code developed and paid for by Industrial Evolution. The court granted Industrial Evolution’s request for expedited discovery and set Industrial Evolution’s motion for a preliminary injunction for an evidentiary hearing. After multiple depositions, including of the parties’ CEOs, extensive written discovery, and a substantial document production on 15-day expedited basis, the case settled with a significant payment to Industrial Evolution.
Innospan v. Intuit: Rodger and his colleagues Joseph Belichick and Songmee Connolly 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 v. Intuit, 2012 U.S. Dist. LEXIS 47870 (N.D. Cal. 2012). Innospan subsequently appealed the suit to the Ninth Circuit, which affirmed the district court’s dismissal and judgment in favor of Intuit entirely. Innospan Corp. v. Shasta Ventures GP LLC, 2014 U.S. App. LEXIS 12959 (9th Cir. 2014).
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. Altera Corporation v. Alternative Living Services, Inc., 1999 U.S. App. LEXIS 27961 (9th Cir. 1999).
PEZ Candy v. Burlingame Museum of Pez Memorabilia: Rodger, along with partner Jennifer Kelly and associate Songmee Connolly, 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.
Medic Alert, Inc. v. Corel Corporation: After taking crucial 30(b)(6) deposition testimony, Rodger and partner Kate Fritz filed a winning summary judgment motion leading Corel to a complete defense judgment on Medic Alert’s claims of trademark infringement over Corel’s inclusion of the Medic Alert logo as clipart in its software products. Medic Alert, Inc. v. Corel Corporation, 43 F. Supp.2d 933 (N.D. Ill. 1999).
LaRussa v. Twitter: Rodger represented Twitter in its first significant litigation. Hall of Fame baseball manager Tony La Russa sued Twitter, asserting violations of La Russa’s right of publicity. La Russa attempted to hold Twitter responsible for an unknown user’s alleged misuse of La Russa’s name and likeness. The case was resolved without any restrictions on Twitter’s business.
Scottie Pippen v. NBCUniversal Media LLC 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. 734 F. 3d 610 (7th Cir. 2013).
Kardashian v. Hurley: Rodger and his colleagues Songmee Connolly and Ciara Mittan 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.
Bustamante v. Intuit: Rodger and his colleagues Laurence Pulgram and Bryan Kohm defended Intuit in a dispute arising out of a purported and failed joint venture in Mexico. The Fenwick team won summary judgment on all claims two weeks before trial in a case in which the plaintiff asserted over $100 million in damages. The trial court’s summary judgment order was subsequently affirmed on appeal in a widely cited California Court of Appeal decision on oral contracts. Bustamante v. Intuit, 141 Cal.App.4th 199 (6th Dist. 2006).