David Whittlesey is a partner in the Litigation practice.
He focuses on complex commercial, business and intellectual property litigation. He has litigated numerous cases involving shareholder disputes, mergers and acquisitions, securities fraud claims, deceptive trade practices claims, patent infringement claims, and trademark disputes. In addition, he has significant experience with disputes relating to consumer products, license agreements, software, telecommunications, professional malpractice, trade secrets, real estate, insurance, banking, construction, and oil & gas matters. He has represented clients in litigation and arbitration matters and in trial and appellate proceedings in several states and the District of Columbia. He also regularly counsels clients on compliance issues.
Securities and Shareholder Litigation
- Represented an insurance industry client in a multi-billion dollar securities class action arising from the Stanford alleged Ponzi scheme, a separate multi-billion dollar receivership claim, numerous related lawsuits filed in both state and federal court, a federal multi-district litigation (MDL) proceeding, and appellate proceedings in the Fifth Circuit Court of Appeals and the United States Supreme Court
- Represented a publicly-traded technology company and its board of directors in a Delaware class action arising from a $560 million merger transaction. In re Mavenir Systems, Inc. Stockholders Lit. (Del. 2015)
- Lead defense counsel for multiple former National Football League players (including two Heisman trophy winning quarterbacks) in connection with securities fraud litigation in state and federal court arising from the alleged Triton Financial Ponzi scheme. Secured dismissal of all claims with no money changing hands
- Texas counsel for private equity firm sued in connection with the $24 billion going private transaction of a publicly traded Austin based computer manufacturer. Successfully obtained stay of all proceedings in Texas courts in favor of related proceedings in Delaware
- Lead counsel for major international commodities firm in connection with an onslaught of shareholder litigation in state and federal court arising from the acquisition of a publicly traded Texas company. Secured dismissal of all of the plaintiffs' claims in all cases with no money changing hands and no additional disclosures required.
- Lead counsel for Atlanta-based Fortune 500 company in “entire fairness” merger litigation arising from the $134 million completed acquisition of an Austin-based Internet banking company
- Lead trial counsel for major Texas School District in a bond validation lawsuit seeking to validate $490 million in bonds challenged by a taxpayer group. Prevailed in all respects at trial, secured validation of the bonds, and obtained a $15 million bond requirement for any appeal of the judgment
- Trial counsel for major Texas city in successful public securities authorization validation lawsuit involving more than $600 million in projected future bond issuances
- Lead counsel for Austin-based software company in merger litigation involving claims of securities fraud, as well as claims concerning ownership rights to certain software following the completed merger
- Counsel for major Texas law firm in an $80 million lawsuit involving claims of alleged securities fraud
- Lead counsel for Chicago-based Fortune 500 company in arbitration proceeding involving claims of fraud, breach of contract and securities law violations in connection with the acquisition of a Texas-based company
Intellectual Property Litigation
- Lead trial counsel for defendant in trade secret case involving alleged theft of diamond technology for the manufacture of PDC inserts. The plaintiff sought more than $13 million in actual damages, punitive damages and attorneys’ fees. After a three week jury trial, the jury found that no actual damages had been suffered. The Court entered a take nothing judgment in our client’s favor.
- Lead counsel for multi-national telecommunications company in patent litigation in the United States District Court for the Western District of Texas, Austin Division. Case dismissed against AT&T after summary judgment motion filed. Click-to-Call Technologies LP v. AT&T Inc., et al.
- Lead counsel for wholly owned subsidiary of a multi-national telecommunications company in patent litigation in the United States District Court for the Northern District of Georgia, Atlanta Division. Case dismissed with no money changing hands. Visual Interactive Phone Concepts, Inc. v. AT&T Mobility.
- Lead counsel for YETI Coolers in multiple consumer product trademark and trade dress disputes, including YETI Coolers, LLC v. Ontel Products Corporation et al.
- Counsel for industry data and analysis company in patent litigation in the United States District Court for the Western District of Texas, Austin Division. Dynamic 3D Geosolutions LLC v. IHS Inc. and IHS Global Inc.
- Counsel for multi-national computer and electronics manufacturer defendants in patent litigation in the United States District Court for the Western District of Texas, Austin Division. Bandspeed, Inc. v. Sony, et al.
- Counsel for defendant in trade dress infringement action brought by Shell Oil Company alleging violations of the Lanham Act and Texas law in the United States District Court for the Southern District of Texas, Houston Division.
- Lead counsel for leading health insurer in $100 million antitrust lawsuit brought by a failed hospital alleging a "hub and spoke" conspiracy
- Texas counsel for major international book publisher in connection with multi-state antitrust investigation and subsequent lawsuit arising from alleged antitrust conspiracy relating to e-books
- Counsel for major satellite broadcaster in “baseball style” arbitration against Big 4 network owned and operated television stations
Other Commercial Litigation
- Lead counsel for YETI Coolers in state and federal court consumer class action litigation; obtained summary judgment in favor of client and dismissal of all claims with prejudice. Moore et al. v. Mack's Sport Shop, LLLP D/B/A Mack's Prairie Wings, LLLP and YETI Coolers, LLC.; in the U.S. District Court for the Eastern District of Arkansas.
- Lead counsel for defendant marketing firm in Telephone Consumer Protection Act class action; secured summary judgment completely dismissing the litigation against our client. Smith v. Premier Dermatology, No. 17 C 3712, 2019 WL 4261245 (N.D. Ill. Sept. 9, 2019).
- Texas counsel for national jewelry retailer “The Jewelry Channel” in class action alleging false advertising and other claims arising from television marketing practices; successfully defeated plaintiffs’ motion for class certification.
- Lead counsel for major private equity firm in fraudulent transfer lawsuit arising from $94 million debt to equity restructuring transaction
- Lead counsel for mortgage company in defense of lawsuit involving alleged fraud and fraudulent inducement in an alleged “bait & switch” scheme relating to commercial mortgages
- Lead counsel for one of the defendants in a class action filed by 2,000 former Verizon retirees seeking statutory penalties of more than $70 million, claiming they had been improperly transferred from a fully funded and highly solvent Verizon retirement plan into the retirement plan of a publicly-traded spin-off entity. Obtained dismissal of all claims in the trial court, and an award of costs in favor of our client. Dismissal affirmed on appeal to the 5th Circuit. Philip A. Murphy v. Verizon, et al., in the United States District Court for the Northern District of Texas, Dallas Division.
- Trial counsel in In re Schugg, a dispute over access to, and zoning of, a landlocked parcel of fee-simple property located entirely within the outer boundaries of the Gila River Indian Reservation near Phoenix
- Trial counsel in a two-week trial involving $4 million breach of contract, fraud and negligent misrepresentation claims against the client, a major national telephone company, resulting in a take nothing judgment in favor of the client and a recovery on $1 million counterclaim for attorneys' fees
- Member of litigation team representing major semiconductor manufacturer in $500 million breach of contract case in the United States District Court for the Western District of Texas
- Member of litigation team handling multibillion-dollar lawsuit relating to divesture of multiple oil and gas properties owned by major international exploration and production company
- Member of litigation team handling $60 million lawsuit relating to the alleged breach of a petrochemical storage and transfer agreement involving a refinery in Puerto Rico
- Lead counsel in more than 20 systems integration and software lawsuits and arbitrations for a major national telephone services provider
- Lead counsel for alleged control person of defunct HMO in a $180 million lawsuit brought by special deputy receiver. Claims included breach of fiduciary duty and related insurance code violations
- Counsel for Big 4 accounting firm in an arbitration proceeding relating to a business valuation prepared by the firm.
- Lead counsel for directional drilling company in multi-jurisdictional lawsuits involving alleged failure to drill according to contractual requirements
Selected Published Opinions
- Smith v. Premier Dermatology, No. 17 C 3712, 2019 WL 4261245 (N.D. Ill. Sept. 9, 2019)
- Ontel Products Corp. v. YETI Coolers, LLC, 2017 WL 3033436 (D. N.J. 2017)
- Moore v. Mack’s Sport Shop, LLLP, 2017 WL 4350980 (E.D. Ark. 2017)
- Kabbash v. Jewelry Channel, Inc. USA, 2017 WL 2473262 (W.D. Tex. 2017)
- Falk v. Austin Independent School Dist., 2014 WL 259652 (Tex. App.—Austin 2014)
- Murphy v. Verizon Communications, Inc., 2014 WL 5139239 (5th Cir. 2014)
- Haubold v. Medical Carbon Research Institute, LLC, 2014 WL 1018008 (Tex. App.—Austin 2014, no pet.)
- Murphy v. Verizon Communications, Inc., 2013 WL 5206451 (N.D. Tex. 2013)
- In re Archer Directional Drilling Services LLC, 2013 WL 6730095 (Tex. App.—San Antonio 2013)
- Phytel v. Smiley, 2013 WL 1397085 (Tex. App—Dallas 2013)
- Roland v. Green, 675 F.3d 503 (5th Cir. 2012)
- Reliant Hospital Partners, LLC v. Cornerstone Healthcare Group Holdings, Inc. (Tex.App.—Dallas 2012)
- Reliant Hosp. Partners, LLC v. Cornerstone Healthcare Group Holdings, Inc., 374 SW 3d 488 (Tex. App—Dallas 2012)
- Shell Trademark Management B.V. v. Warren Unilube, Inc., 765 F. Supp.2d 884 (S.D. Tex. 2011)
- In re Cornerstone Healthcare Holding Group, Inc., 348 SW 3d 538 (Tex. App.—Dallas 2011)
- Hotze v. City of Houston, 339 S.W.3d 809 (Tex. App.— Austin 2011, no pet.)
- CMH Homes, Inc. v. Perry, 328 S.W. 3d 592 (Tex. App.— San Antonio 2010)
- West v. Texas Com’n on Environmental Quality, 260 S.W.3d 256 (Tex. App.—Austin 2008, pet. denied)
- In re Schugg, 384 B.R. 263 (D. Ariz. 2008)
- Baxter v. Gardere Wynne Sewell LLP, 182 S.W.3d 460 (Tex. App.—Dallas 2006, pet. denied)
- In re Nitla S.A. de C.V., 92 S.W.3d 419 (Tex. 2002)
- District of Columbia v. Greene, 806 A.2nd 216 (D.C. 2002)
University of Houston Law Center
JD, magna cum laude
- Houston Journal of International Law
- Order of the Coif
- Order of the Barons
The University of Texas
- United States District Court for the Northern District of Texas
- United States District Court for the Southern District of Texas
- United States District Court for the Eastern District of Texas
- United States District Court for the Western District of Texas
- United States Court of Appeals for the Fifth Circuit
- United States Supreme Court
- The General Counsel Forum, Board Member (2015-2018)
- State Bar of Texas, Board Member, District 9 (2011-2014)
- State Bar of Texas, Professionalism Committee (2015-Current)
- Austin Bar Association
- President (2010-2011); Secretary (2008-2009); Treasurer (2007-2008)
- Austin Bar Foundation, Chair (2011-2012)
- Austin Bar Foundation, Founding Life Fellow
- Austin Young Lawyers Association, Former President
- Texas Bar Foundation, Fellow
- Admissions and Disciplinary Committee, Western District of Texas
- Leadership Austin "Essential Class" Member 2010
- Lloyd Lochridge American Inn of Court, Treasurer (2009-Current)
Awards & Accolades
- Profiled as one of the leading Securities Shareholder Litigation (2015) and Securities Litigation – Defense (2016-2017) lawyers in the United States, The US Legal 500
- Frequent speaker and presenter, most recently:
- Case in Point Webinar Series: Class Actions: Fundamentals & Trends (May 9, 2017)
- Drafting Contracts and Related Legal Issues, presented at the Belgian Economic Mission to the United States of America - Texas (December 5, 2016)
- Trade Secret Claims Under the Texas Uniform Trade Secrets Act (September 17, 2015)
- TexasBarCLE Essentials in Business Law Course (March 13, 2015)
- Employment Law 101 (September 29, 2014)
- What Every In-House Lawyer Needs To Know About Trade Secrets (September 22, 2014)
- TexasBarCLE Advanced In-House Counsel Course (August 15, 2014)