On July 5, 2011, Law360 published a Q&A with Robbins Umeda LLP* partner Felipe J. Arroyo as part of the publication’s ongoing Top Litigators Q&A series profiling litigators across the U.S. Here is the interview:
Q: What is the most challenging lawsuit you have worked on and why?
A: The shareholder derivative cases I have worked on in the last five years have generated more than $190 million in cash contributions to the corporate beneficiaries of those cases. Incenting litigants to part with that kind of cash in shareholder derivative cases is never easy, and all those cases were challenging in their own ways.
My work on a successful bet-the-company patent infringement litigation campaign for the inventor of an abdominal exercise device commonly known as the “Ab Roller” posed significant challenges. The stakeholders on my side included a military fitness buff, a former wrestling champ, and a brilliant mentor of mine from my summer days at Skadden Arps who is now an accomplished businessman, David M. Augustine. My judgment calls, results and waistline were under fairly constant scrutiny. The litigation campaign and its serial injunction hearings were real gut checks.
But the most challenging shareholder derivative lawsuit I worked on was brought on behalf of Cardinal Health Inc. The case involved a remarkable range of accounting misconduct, from complex revenue recognition issues to manipulation of reserves. We were required to master Cardinal’s operations protocols across multiple divisions, its accounting systems, the internal nicknames and code names used by Cardinal insiders, and millions of pages of documents.
The stakes were high. Estimated damages to the company were considerable, and cash payments in derivative cases had historically been fairly limited. We were challenged at every turn by a formidable Jones Day team. In the end, the company received $70 million as part of the settlement — one of the largest cash recoveries on record in a shareholder derivative case.
Q: Describe your trial preparation routine.
A: Before joining Robbins Umeda, I was privileged to direct the Trial Advocacy Prosecution Program (TAPP), an innovative pro-bono program, at O’Melveny & Myers. In prosecuting criminal jury trials for a local community, TAPP lawyers provide a valuable public service while honing a broad range of trial advocacy skills (from jury instructions and voir dire to openings, closings, directs, crosses, working with exhibits and electronic demonstratives, dealing with experts and closings, etc.).
My trial experience with TAPP and the trial preparation discipline I learned from my mentors at Weil Gotshal and O’Melveny & Myers drive how I prepare for court appearances today. Despite the inherent complexity of derivative jurisprudence and the financial subject matter underlying most of our cases, presentations must be kept simple. Designing a simple presentation requires a tremendous amount of work. Cases must be reduced to a few central themes, key legal principles and essential facts.
Whether preparing for argument on pleadings challenges, dispositive motions or for trial, I generally begin by identifying the five best and worst facts as viewed through the eyes of a judge or jury. I carefully consider how to showcase the good facts, without beating them to death, and how to dilute the impact of the bad facts, without appearing defensive or apologetic.
I try to resist the urge to use PowerPoints and elaborate demonstrative gizmos. I have found that, if not used judiciously, they tend to distract more than inform. I do use an electronic document management system to avoid lugging piles of paper, and I try to clear use of my laptop in the courtroom in advance of appearances.
On the eve of an appearance, I triple-check my outlines so I know I’m ready, remind myself that rest is important, and then stay awake all night worrying that I missed something.
Q: Name a judge who keeps you on your toes and explain how.
A: As counsel for plaintiffs in shareholder rights cases, you know your pleadings must square all the corners. In shareholder derivative litigation, the Delaware Chancery Court regularly sharpens and re-sharpens those corners. Wherever shareholder derivative litigation is brought, judges across the country will often refer to the opinions of the Delaware Chancery Court, especially on matters of corporate governance.
This means all the Delaware opinions weigh heavily in my practice. But, to me, the depth, scope and reasoning of the opinions authored by Chancellor Leo Strine make them especially weighty. Although I have not yet appeared before the chancellor, I expect any appearance before him to be a toe-testing exercise.
Q: Name a litigator you fear going up against in court and explain why.
A: I count myself as lucky that I will never brief an appeal against now-retired O’Melveny & Myers partner John Daum. I hope never to try a case against Mayer Brown LLP’s Richard Ben-Veniste, Quinn Emanuel’s Jim Asperger or Kirkland & Ellis LLP’s Mark Holscher. Professor Frank Partnoy , a Yale Law School classmate of mine, is helping to shape the future of corporate governance in America, but he tends to spend his time teaching and on television. Craig Smith, another Yale Law School classmate and fellow O’Melveny alum, scared me too, so we made him a partner at Robbins Umeda.
The only lawyer I truly fear is me, before I have fully prepared. I invest heavily in preparation to ensure that that lawyer never appears in my cases. I do not “fear” defense counsel, but the fact is that officers and directors of publicly traded corporations hire the best and brightest lawyers in the country to defend them. I have to be at my absolute best every day to try to even the playing field for our shareholder clients.
Q: Tell us about a mistake you made early in your career and what you learned from it.
A: During the early part of my first year as an associate at Weil Gotshal, I received an assignment from an understanding and gracious partner, Peter D. Isakoff. He is a former government lawyer and clerked for Supreme Court Justice John Paul Stevens. Peter was regarded then as lightning fast, a well-deserved reputation that I am certain has only grown with time. After talking in depth about a case stratagem, he asked me to write the motion to effectuate it.
And I did. I wrote the motion. It was a breeze actually. Took no time at all.
The next day, Peter stopped by my office to check on my progress. Glowing with pride, I handed him the carefully crafted, typo-free one-page motion. I don’t recall exactly what Peter said about the motion, but I do recall his vivid vernacular when he clarified that I also needed to write the memo in support of the motion.
I learned many things from this. Motions generally require supporting memoranda, for example. I learned that partners know more than first-year associates not just about the law, but about practicing law. And I learned that asking more-seasoned lawyers — and even judges — questions is critical to meeting expectations. Effectively representing clients in litigation is extremely challenging. If you think your task is going to be easy, you are probably missing something.
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* The firm name changed from Robbins Umeda LLP to Robbins Arroyo LLP on January 1, 2013.
