"Donald Falk is becoming California's class action killer."
The American Lawyer

Overview

Donald Falk has an extensive appellate practice in which he presents oral arguments, briefs, and motions in the US Supreme Court, and many other federal and state appellate and trial courts. His work involves a wide range of constitutional, statutory, patent, securities, administrative, criminal and common law issues. Don has successfully argued before the United States Supreme Court and the highest courts of California, New York, Maryland and Texas, and has briefed winning appeals in the Delaware and Nevada Supreme Courts. Don frequently briefs and argues cases in the federal and California state appellate courts. He has substantial experience with California’s broad unfair competition law (Business & Professions Code § 17200), and many of his recent matters have involved class certification issues and preemption under the Federal Arbitration Act.

Don has been certified as a specialist in appellate law by the California Bar. In 2013, he was listed in Chambers for California Appellate. The American Lawyer also recently observed that "Donald Falk is becoming California's class action killer." In addition to his work at all levels of the federal and state courts in enforcing arbitration clauses with class waivers, he has persuaded federal and state appellate courts to vacate certification of consumer classes. 

Much of Don’s work has involved antitrust issues for clients in the technology, pharmaceutical and other industries. He served as counsel for the Computer & Communications Industry Association and the Software and Information Industry Association in the Microsoft antitrust case. His amicus brief in that case, as Professor Calkins noted in the Antitrust Law Journal (Vol. 68, p. 625), was called “an excellent brief,” by Judge Thomas Penfield Jackson, who made it a focus of an entire afternoon’s questioning. “No one can say that antitrust amicus efforts are ignored,” Professor Calkins stated. In the same article Calkins credited Don’s brief for the NCAA as a prime influence on the pro-defendant formulation of the legal standard in California Dental Ass’n v. FTC, 526 US 756 (1999). 

Don’s work on patent issues includes extensive work on two cases helping patentees enforce their patents against imitators who produced insubstantial variants (i.e., “equivalents”) of particular elements of claimed inventions. He has further addressed claim construction, patent ownership, and divided infringement issues, along with more typical infringement briefing, predominantly involving technology in the electronics and health care industries, along with business method patents. Don also has briefed appeals in securities fraud and derivative actions. In addition, he has prepared major motions at the trial level on antitrust, arbitration, class action, and securities issues, among others. His experience also includes matters focusing on telecommunications, health care and employment law.

Don is a contributor to Class Defense, the firm’s blog on key issues affecting class action law and policy. He joined the firm in 1991 following his service as Law Clerk to The Honorable Douglas H. Ginsburg, US Court of Appeals for the District of Columbia Circuit, 1990-1991.

Spoken Languages

  • English

Experience

  • Centro Empresarial Cempresa S.A. v. América Movíl, S.A.B. de C.V., 17 N.Y. 3d 269 (2011). Represented telecommunication companies and executives; briefing and argument persuaded a unanimous New York Court of Appeals to enforce a release and require dismissal of a complaint seeking more than $900 million in damages.
  • Las Vegas Sands, Inc. v. Suen, 2010 WL 4673567 (Nev. Nov. 17, 2010). Represented gaming company and executives; briefing persuaded the Nevada Supreme Court to reverse a $40 million jury verdict.
  • Mazza v. American Honda Motor Co., 666 F.3d 581 (2012). Represented automobile manufacturer, persuading the Ninth Circuit to vacate certification of a nationwide consumer class under California law while limiting the scope of any potential single-state class.
  • American Honda Motor Co. v. Superior Court, 199 Cal.App.4th 1367 (2011). Represented automobile manufacturer, obtaining writ of mandate reversing class certification of consumer lawsuit.
  • AT&T Mobility LLC. v. Concepcion, 131 S. Ct. 1740 (2011). Represented AT&T Mobility LLC at all levels in briefing and strategy for case in which Supreme Court ultimately held that the Federal Arbitration Act preempted state-law doctrines that had denied enforcement to agreements to arbitrate individually rather than in a class proceeding.
  • Jones v. United States, 529 U.S. 848 (2000). Won a 9-0 U.S. Supreme Court judgment narrowing the scope of a federal statute in light of concerns about the scope of Congress’s power under the Commerce Clause.
  • Miga v. Jensen, 96 S.W.3d 207 (Tex. 2002). Represented executive, and successfully briefed and argued Texas Supreme Court matter involving options valuation.
  • In re Oracle Corp. Derivative Litig., 872 A.2d 960 (Del. Supr. 2005), aff’g 861 A.2d 904 (Del. Ch. 2004). Represented executives and prepared a Delaware Supreme Court brief that resulted in the affirmance, one day after oral argument, of a published opinion granting summary judgment in a derivative suit alleging insider trading.
  • NAACP v. Golding, 679 A.2d 554 (Md. 1996). Represented non-profit organization in successfully overturning injunction intruding upon organization’s choice of leadership.
  • Kingston Constructors, Inc. v. Washington Metropolitan Area Transit Authority, 14 Cal. 4th 939 (1997). Represented regional transportation provider in successful briefing that enforced jurisdictional limits in interstate compact.
  • Kraus v. Trinity Management Services, 23 Cal.4th 116 (2000). Prepared amicus brief that the California Supreme Court explicitly followed in narrowing the remedial scope of the state’s unfair competition law.
  • LePage’s Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003) (en banc). Prepared the winning brief.
  • Festo Corp. v. Shoketsu Kinozoku Kogyo Kabushiki Co., 535 U.S. 722 (2002). Was deeply involved in the merits briefing for the prevailing petitioner.
  • Caterpillar Inc. v. Deere Co., 224 F.3d 1374 (Fed. Cir. 2000). Represented manufacturer in briefing that overturned a summary judgment of non-infringement of a tractor patent drafted in means-plus-function form.
  • California Dental Ass’n v. FTC, 526 U.S. 756 (1999). Prepared amicus brief that was a prime influence on the pro-defendant formulation of the legal standard in this case.
  • Further information on and examples of Don’s work appear at www.appellate.net/falk.

Education

University of California, Berkeley School of Law, JD, Order of the Coif, Articles Editor, Ecology Law Quarterly

The University of Chicago, MA

University of California, Berkeley, BA, with highest departmental honors, Doctoral Study, English, 1977-1978

Admissions

  • District of Columbia
  • California

Court

  • US District Court for the Northern District of California
  • US District Court for the Eastern District of California
  • US District Court for the Central District of California
  • US Court of Appeals for the Third Circuit
  • US Court of Appeals for the Fourth Circuit
  • US Court of Appeals for the Fifth Circuit
  • US Court of Appeals for the Sixth Circuit
  • US Court of Appeals for the Seventh Circuit
  • US Court of Appeals for the Eighth Circuit
  • US Court of Appeals for the Ninth Circuit
  • US Court of Appeals for the Tenth Circuit
  • US Court of Appeals for the District of Columbia Circuit
  • US Court of Appeals for the Federal Circuit
  • US Supreme Court
  • US District Court for the District of Columbia
  • US Tax Court

Memberships

  • National Association of Criminal Defense Lawyers, Amicus Curiae Committee, Vice Chair for the 9th Circuit
  • Family Violence Appellate Project Advisory Board
  • American Bar Association, Litigation, Antitrust, and Intellectual Property Sections
  • State Bar of California, Litigation, Antitrust, and Intellectual Property Sections