In Silicon Valley, Lucy Koh Is The Law

By Kristen V. Brown
San Francisco Chronicle.

If there is one thing Lucy Koh will never live down, it’s that time she asked a lawyer in her court if he was smoking crack.

It was 2012 and she was presiding over the first U.S. suit in the multipart smartphone patent war between Apple and Samsung.

Apple wanted to squeeze in more than 20 new witnesses during the company’s last four hours of testimony.

Samsung filed 75 pages of objections. Koh would have to rule on each objection to a long list of witnesses who probably would not even make it to the stand.

Koh likes her cases to move along quickly. Apple’s attorney appeared to be wasting the court’s time.

“Unless you’re smoking crack, you know these witnesses aren’t going to be called when you have less than four hours,” she said.

“Your honor,” the attorney replied. “I’m not smoking crack.”

In a closely watched case that could change the global smartphone business, Koh’s comment became the trial’s most memorable moment.

In the four years since President Obama appointed her to a seat on the U.S. District Court in San Jose, Koh has presided over some of the tech industry’s highest-profile cases.

Though federal court cases are typically randomly assigned, fortuity and her spot in Silicon Valley have gained her more influence over tech than any other judge in the U.S.

In the ongoing smartphone battle, Koh has so far kept Samsung products on the shelves despite two jury verdicts finding the Korean company copied iPhone features and pressure from Apple for a wide-reaching sales ban.

In another landmark case alleging companies including Google and Apple conspired to not poach each other’s workers in order to reduce competition and hold down wages, Koh persuaded the parties to agree to settlement (although on Friday she rejected the $324.5 million deal after raising concern it was not enough for the plaintiffs).

Influential rulings

Her rulings at times have broken legal ground.

Last fall, she found that Google may have breached federal wiretapping laws by scanning e-mails to better target Gmail users with ads.

The suit claimed Google was in violation of the Electronic Communications Privacy Act of 1986 — legislation that in theory protects e-mails but was drafted before they were widely used.

By allowing the case to proceed, Koh called into question whether data mining was permissible under the original intent of the law and paved the way for additional lawsuits against Yahoo, LinkedIn and Facebook.

She has inspired Internet memes, a Wikipedia editing war and a listicle, in the publication VentureBeat, of her most quotable moments in court. Koh, 45, has become the de facto face of law in Silicon Valley.

“She has an almost peerless reputation for fairness and efficiency in judging the issues of the 21st century,” said Tracy Beth Mitrano, director of the Internet Culture, Policy and Law Program at Cornell University.

“She gets the Internet in a way that other judges just don’t,” she said. “Our laws are so out of sync with current social norms and technology. What Koh represents is the hope that somebody gets it.”

Agent for change

Koh’s interest in the law, friends and colleagues say, is rooted in an idealistic sense of justice — in the law as an agent for change.

Born in Washington D.C., she grew up in Mississippi and Oklahoma. Her parents were Korean immigrants and they were educated, though not wealthy — her father was a small-business owner, her mother, a college professor. Usually, Koh, her brother and sister were the only Asian kids at school.

By the time she entered Harvard as an undergraduate, she had developed a strong interest in activism and civil rights. She organized rallies protesting a chemistry professor who did not allow female students into his lab group.

“I raised hell, but they did nothing because that professor won a Nobel prize,” she later wrote. “Nobel laureates can discriminate with impunity.”

Later, as a law student at Harvard, she was one of 11 students who filed a high-profile lawsuit against the school in 1990, alleging that hiring practices discriminated against women and minorities.

The case was eventually dismissed on technical grounds. She was threatened with suspension in 1992 when, as part of the same coalition, she staged a sit-in outside the office of the law school dean.

Koh was sharp-tongued and did not shy from controversy. She publicly expressed ire over the school’s emphasis on corporate law practice. As a third-year student, she told the Harvard Crimson it contributed to “everyone in society looking at lawyers as parasites.”

After graduation, she took a fellowship on the Senate Judiciary Committee on civil rights issues. She went on to work as a federal prosecutor in Los Angeles.

“Her activism was structured by her legal training,” said John Trasvina, dean of University of San Francisco Law School and her former boss at the Justice Department. “A lot of people become attorneys and don’t break any new ground. Lucy was always interested in expanding and shaping policy decisions.”

Unusual reputation

What most prepared Koh for her place on the federal bench, though, was her move to Silicon Valley in 2000, where she specialized in patent and trade-secret law at two prominent firms.

Then-Gov. Arnold Schwarzenegger, a Republican, appointed her to a state judgeship in Santa Clara County in 2008; two years later, Obama, a Democrat, nominated her for federal court, and she was unanimously confirmed by the Senate.

In federal court, Koh has gained a reputation as a judge who is bold, brilliant and on occasion a little wacky.

Scholars say she is among the most well-versed judges in the country on the legal issues facing Silicon Valley.

Attorneys say she can be a micromanager and a pain. One attorney who regularly appears before Koh noted that she is notoriously tough and often expresses disdain for lawyers.

“I want papers. I don’t trust what any lawyer tells me in this courtroom,” Koh told another attorney during testimony in the Apple-Samsung case. “I want to see actual papers.”

“It’s very difficult to appear in front of her. There’s a sense of taking your medicine,” said the Koh courtroom regular, who spoke on the condition of anonymity because of a case pending before her. Koh declined to comment on the record for this article.

“At the same time, I’m grateful for her. She’s a judge that’s very engaged. You better know your case down to the last little thing.”

Judge Ronald Whyte, whom Koh succeeded, said her knowledge and curiosity about technology makes her a natural fit for his spot.
“If the technology is really complex, sometimes I worry about whether I’ll get it,” said Whyte, who now carries a reduced case load in San Jose federal court.

“I think she gets it. Maybe she is less intimidated than I was when I started.”

She lays down the law and keeps cases moving — despite having one of the busiest dockets in the state.

“When you get a lot of high-profile lawyers in the same room you get a lot of delay,” said Brian J. Love, a law professor at Santa Clara University. “She does a really good job making sure trains run on time.”

Bringing the cake

She is the person who remembers to bring cake for staffers’ birthdays (in fact, one former extern gave her a gavel inscribed with the word “cake”).

She has flown across the country to officiate weddings for several of her former law clerks. One former colleague recalled her doing late-night cartwheels down the hallway when they worked at the U.S. attorney’s office.

An extern remembers Koh donning a mullet wig to sing duet with her husband, Mariano-Florentino Cuéllar, at one of her regular karaoke parties.

“She’s a warm pragmatist,” said Cuéllar, a Stanford law professor who was recently nominated to the state Supreme Court. “That’s what makes her distinctive.”

Koh and Cuéllar, who have two children, lived in Cambridge and Washington at the same time before ultimately being introduced to each other in Silicon Valley by a mutual friend.

“I like to think there was an element of destiny there,” he said.
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“I think Lucy has her doubts about that. I have a little bit more of a romantic streak.”

The day the jury in the Apple-Samsung trial was selected in 2012, her father was diagnosed with terminal stomach cancer.

Koh slept next to his bed many nights during the trial, said Cuéllar. She did not consider postponing the trial, he said.
“My wife is profoundly committed to equal justice,” he said. “It’s hard to know where that comes from.”

Praised by experts

Legal experts have lauded both her practical approach to law and her ability to interpret how dated legal theories apply to modern problems.

At the beginning of Apple and Samsung’s multi-suit war, one of Apple’s allegations was that Samsung has “slavishly” copied Apple’s designs.

Koh quickly simplified the question. She held up an Apple iPad and Samsung Galaxy Tab 10.1 and asked a Samsung attorney whether she could distinguish between the two tablets.

“Not at this distance, your honor,” the attorney replied.

A jury found Samsung did infringe upon several Apple patents (though not regarding the appearance of its tablet).

Despite Samsung’s copycatting, Apple failed to prove the infringement substantially hurt its business, Koh said. She repeatedly blocked injunctions Apple sought to ban Samsung sales.

“Her decisions in the intellectual property cases have expertly focused potentially confusing legal questions dealing with both design and technology to a manageable set of actions,” said Mitrano. “That takes a willingness to work with both the law and technology, and needless to say, a very sharp, incisive mind.”

In the ongoing Gmail lawsuit, while she recently denied class-action status to plaintiffs, her decision to hear the claim seriously called into question Google’s practices and exposed them to the broader public.

“The statutory scheme suggests that Congress did not intend to allow electronic communication service providers unlimited leeway to engage in any interception that would benefit their business models, as Google contends,” she wrote.

Making a statement

Google argued that Gmail users imply consent to data-mining by simply signing up because e-mail providers must scan messages in order to send them.

But Koh said the company’s terms of service were not explicit enough to constitute consent. Privacy activists were thrilled.

Koh’s ruling nudged the company to update its terms of service to more specifically outline its practices.

“She is a judge that is not afraid to make a statement on the law,” Love said.

She’s also a judge who’s not afraid to, at times, hit below the belt.

During the Gmail trial, she congratulated an attorney whose daughter was getting married.

“Well, it remains to be seen, your honor,” he said.

“I hope that didn’t go into the public record,” she said. “For your future in-law’s sake.”

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