David H. Herrington is counsel based in the New York office.
His practice and experience span a wide range of litigation, advisory and regulatory matters, with a focus on intellectual property disputes. He has handled suits involving claims of patent infringement, trade secret misappropriation, trademark infringement and breach of patent and know-how licenses, and he has advised on IP matters such as the sale of a multibillion dollar patent portfolio, purchase of a domain name, response to "patent troll" claims and due diligence assessments of IP litigation exposure and assets. His experience in other areas includes SEC and FINRA enforcement actions, internal investigations and commercial litigation involving derivatives, debt instruments and many other subjects.
Mr. Herrington has conducted a number of patent infringement suits through trial and appeal, including Honeywell International v. Hamilton Sundstrand Corporation, 370 F.3d 1131 (Fed. Cir. 2004) (en banc), in which the firm won a victory for Hamilton Sundstrand Corporation in an important Federal Circuit en banc decision. He also has successfully represented clients in jury trials, international arbitrations, evidentiary hearings and appeals. He recently has argued the following appeals and other matters:
- Tessera, Inc. v. UTAC (Taiwan) Corporation, 2014 WL 1339693 (N.D. Cal. March 2014) (successful motion for summary judgment for UTAC (Taiwan) Corporation in dispute concerning patent license)
- Marguerite Hoffman v. L&M Arts, et al., 2014 WL 4375667 (N.D. Tex. September 2014) (successful motion for judgment as a matter of law in favor of clients in case involving purchase and sale of Mark Rothko painting)
- Peoples Federal Savings Bank v. People’s United Bank, 672 F.3d 1 (1st Cir. 2012) (ruling in favor of client People’s United Bank, affirming denial of motion for preliminary injunction in trademark infringement suit)
- Tessera, Inc. v. UTAC (Taiwan) Corporation, (N.D. Cal. March 2012) (successful motion to dismiss complaint)
- Nortel Networks, Inc. v. Communications Test Design, Inc., 2011 WL 1102829 (Bankr. D. Del. March 22, 2011) (denial of motion to dismiss claims brought by client Nortel Networks, Inc. for trade secret misappropriation, fraud and breach of contract)
- In re Nortel Networks Corp., 445 B.R. 370 (Bankr. D. Del. 2011) (ruling in favor of client Nortel Networks Inc., denying motion to compel arbitration of dispute concerning calculation of purchase price for sale of voice over IP business)
- People’s United Bank v. PeoplesBank, 401 F. App’x 607 (2d Cir. 2010) (affirming denial of preliminary injunction against client People’s United Bank in trademark infringement suit)
- Peoples Federal Savings Bank v. People’s United Bank, 750 F. Supp. 2d 217 (D. Mass. 2010) (ruling in favor of client People’s United Bank, denying motion for preliminary injunction in trademark infringement suit)
- People’s United Bank v. PeoplesBank, 2010 WL 2521069 (D. Conn. June 17, 2010) (denying motion for preliminary injunction against client People’s United Bank based on claim of trademark infringement following a six day evidentiary hearing)
- Johnson v. State, 2011 WL 6157492 (Tenn. Crim. App. Dec. 9, 2011) (overturning conviction of first degree murder of pro bono client Erskine Johnson, resulting in release of Mr. Johnson from prison)
Mr. Herrington’s recent publications include Congress Makes Substantial Changes To Patent Law With The America Invents Act, Intellectual Property and Technology Law Journal (December 2011); Supreme Court Finds "First Sale" Copyright Doctrine Applies to Copies Lawfully Made and First Sold Abroad, (with Daniel Ilan, Megan Prunella, and Sarah Koper) Intellectual Property and Technology Law Journal (June 1, 2013); Preliminary Injunctions: After ‘eBay’ and ‘Salinger,’ Tougher Standard Applies in the Second Circuit, (with Lawrence Friedman) New York Law Journal (August 16, 2010); Trademark Battles in the Banking Field: When a Bank Acquisition Gives Rise to a Trademark Dispute, The Banking Law Journal (May 2009); Name Calling: Why Do Banks Get into So Many Trademark Disputes? IP Review (Issue 26 Summer 2009); Assessing Damages When an Injunction Is Denied, IP Law360 (March 28, 2008); Purchase Price Accounting Arbitration: Why Courts Sometimes Find That Disputes About Purchase Price Are Not Subject To Purchase Price Arbitration, Mealey’s International Arbitration Report (October 2011); Whether ‘Foreign Cubed’ Securities Class Actions Fit in U.S. Courts, (with Lewis Liman) New York Law Journal (February 17, 2009); The Developing Privilege for Regulatory Communications with the SEC, The Banking Law Journal (September 2007).
Mr. Herrington was part of the Cleary Gottlieb team that, in its pro bono representation of former Tennessee death row inmate Erskine Johnson, succeeded in overturning Mr. Johnson’s death sentence and conviction. The team’s work has been profiled in AmLaw Daily and the New York Law Journal, and for his work on the matter Mr. Herrington received the New York City Bar Association’s first annual Norman Redlich Capital Defense Pro Bono Award.
Mr. Herrington joined the firm in 1991. He received a J.D. degree, with honors, from the University of Texas School of Law in 1990, and an undergraduate degree, magna cum laude, from Harvard College in 1987. From 1990 to 1991, he served as law clerk to the Honorable William Wayne Justice of the U.S. District Court for the Eastern District of Texas.
Mr. Herrington is a member of the Bar in New York.