Wes
Earnhardt

Mr. Earnhardt’s current and recent matters include:

Antitrust

• Biddle et al. v. The Walt Disney Company (N.D. Cal.): Representing The Walt Disney Company in separate putative class action antitrust lawsuits brought by YouTube TV subscribers and DirectTV Stream subscribers. Plaintiffs in both actions allege that Disney’s carriage agreements with YouTube TV, DirectTV and other streaming live pay television (“SLPTV”) providers requires that the lowest‑priced bundles include ESPN.
• In the Matter of Illumina, Inc. and Grail, Inc. (F.T.C.): Representing Illumina, a leader in DNA sequencing technology, in antitrust litigation brought by the Federal Trade Commission (“FTC”) seeking to block Illumina’s $8 billion acquisition of GRAIL, a healthcare company focused on multi‑cancer early detection (“MCED”). In September 2022, the FTC’s Chief Administrative Law Judge ruled in favor of Illumina and rejected the FTC’s challenge to the merger. 
• Epic Games, Inc. v. Apple Inc. (N.D. Cal. and Ninth Circuit): Representing Epic Games in an action alleging that Apple is engaged in anticompetitive behavior in the distribution of mobile apps and the handling of in‑app payments. The case against Apple was tried in May 2021, resulting in the court issuing a nationwide permanent injunction against Apple’s anti‑steering policies.
• Epic Games, Inc. v. Google LLC, et al. (N.D. Cal.): Representing Epic Games in an action alleging that Google is engaged in anticompetitive behavior in the distribution of mobile apps and the handling of in‑app payments.  
• Representation of Qualcomm Incorporated in numerous high‑stakes disputes and investigations around the world relating to the company’s patent licensing and modem chipset businesses, including:
  • Apple Inc. v. Qualcomm Incorporated (S.D. Cal.): An action filed by Apple against Qualcomm in California federal court. Following opening statements at trial in April 2019, the parties reached a global settlement that includes a payment from Apple to Qualcomm; the companies also reached a six‑year license agreement and a multi-year chipset supply agreement.
  • FTC v. Qualcomm Incorporated (N.D. Cal. and Ninth Circuit): A suit filed by the FTC in California federal court alleging violations of Section 5 of the FTC Act and seeking a permanent injunction against Qualcomm. In August 2020, in a complete defense victory for Qualcomm, the Ninth Circuit unanimously reversed the district court’s prior judgment and vacated a permanent, worldwide injunction that had prohibited several of Qualcomm’s core business practices.   
• Marshall, et al. v. ESPN Inc., et al. (M.D. Tenn. and Sixth Circuit): Won a motion to dismiss all claims asserted against ABC and ESPN in a putative class action lawsuit brought on behalf of former student athletes alleging violations of federal and state antitrust law, rights of publicity under Tennessee statutory and common law, and the Lanham Act. The court ruled that plaintiffs had failed to state a viable claim under any of the theories set forth in the complaint, and dismissed the action with prejudice. The Sixth Circuit Court of Appeals affirmed the dismissal in its entirety.
• In re Digital Music Antitrust Litigation (S.D.N.Y. and Second Circuit): Won a motion to dismiss all claims asserted against Time Warner in a putative class action lawsuit filed in New York federal court alleging that the major music companies engaged in a price‑fixing conspiracy related to online distribution of music. The court ruled that plaintiffs had failed to state a direct claim against Time Warner and had failed to allege facts sufficient to pierce the corporate veil between Time Warner and its former subsidiaries.
• In re Air Cargo Shipping Services Antitrust Litigation (E.D.N.Y.): Represented Atlas Air and its subsidiary, Polar Air, as trial counsel in a consolidated multidistrict antitrust lawsuit pending in New York federal court since 2006 in which plaintiffs alleged that the defendants conspired to fix global air cargo fuel and security surcharges. Atlas and Polar settled in January 2016.

General Commercial and Intellectual Property

• Starz Entertainment LLC v. MGM Domestic Television Distribution LLC (C.D. Cal. and Ninth Circuit): Secured a precedential Ninth Circuit decision in favor of Starz Entertainment in a copyright infringement and breach of contract action against MGM Domestic Television. The decision affirmed a California district court's holding that the Copyright Act did not impose a time-based bar on damages for copyright infringement claims separate from the three‑year statute of limitations. Mr. Earnhardt argued the appeal on behalf of Starz and previously handled the successful argument against MGM's motion to dismiss.
• Santos Laguna v. The Walt Disney Company (Cal. Super.): Representing The Walt Disney Company and its subsidiary FSLA Holdings LLC in an action filed by Santos Laguna S.A. de C.V. in California state court, alleging breach of contract claims arising out of Disney’s agreement to divest certain broadcasting assets in Mexico. 
• Representing several leading international media and entertainment companies with respect to a variety of issues, including confidential arbitrations, contested business transactions, corporate governance and contractual disputes, and shareholder matters. 
• The Boeing Company v. Spirit AeroSystems, Inc. (Del. Super. and Del. Supreme): Won summary judgment for Spirit AeroSystems in a breach of contract lawsuit filed in Delaware Superior Court by The Boeing Company, seeking nearly $150 million in indemnification from Spirit for damages and expenses that Boeing incurred as a result of two proceedings initiated by former Boeing employees. Following oral argument by Mr. Earnhardt, the Delaware Supreme Court affirmed the decision.
• Rael v. Dooney & Bourke, Inc. et al. (S.D. Cal.): Won a motion to dismiss all claims asserted against Dooney & Bourke in a putative class action lawsuit filed in California federal court by retail customers alleging false advertising practices in violation of state consumer protection laws.
• ESPN, Inc. v. Verizon Services Corp. (N.Y. Sup.): Represented ESPN as plaintiff in a lawsuit filed in New York State Supreme Court against Verizon Services Corp. alleging that Verizon has breached its obligations to ESPN under certain license agreements, and seeking specifically to enforce Verizon’s contractual obligations to ESPN, to enjoin Verizon from unfairly depriving ESPN of the benefit of its bargain, and to require Verizon to pay damages to ESPN. In May 2016, a confidential settlement was reached between the parties.
• Geiss, et al. v. The Weinstein Company Holdings LLC, et al. (S.D.N.Y.): Won dismissal of all claims against The Walt Disney Company and related corporate and individual defendants in a lawsuit filed in New York federal court asserting claims under the RICO Act and various other federal and state laws.

Securities

• Kolominsky v. Root, Inc. (S.D. Ohio): Won a motion to dismiss all claims asserted against Root and certain of its officers and directors in a putative securities class action litigation filed in Ohio federal court. The lawsuit alleged that offering documents issued in connection with Root’s October 2020 initial public offering contained false and misleading statements. 
• In re Peabody Energy Corp. Securities Litigation (S.D.N.Y): Represented Peabody Energy, the largest coal mining company in the world, and certain Peabody officers in purported class action securities litigation filed in New York federal court which alleged Peabody and certain of its officers and executives made false and misleading statements regarding the company’s North Goonyella mine, which caught fire in September 2018. The parties reached a favorable settlement to resolve the action. 
• Plymouth County Retirement System v. GTT Communications, Inc., et al. (E.D. Va.): Represented GTT Communications and certain of its officers and directors in a securities class action concerning GTT’s $2.3 billion acquisition of Interoute Communications Holdings S.A. The parties reached a settlement in December 2020, which received final court approval in April 2021. 
• Oklahoma Firefighters Pension and Retirement System v. Xerox Corp. (S.D.N.Y.): Won a motion to dismiss all claims in a securities fraud class action brought against Xerox and certain of its current and former directors and officers. The lawsuit alleged that defendants had made false and misleading statements regarding the profitability and growth prospects of a Xerox software product.
• Sciabacucchi v. Burns (S.D.N.Y.): Won a motion to dismiss all claims in a shareholder derivative action in New York federal court on behalf of nominal defendant Xerox and certain of its current and former officers and directors. The complaint alleged that defendants breached their fiduciary duties by disseminating false and misleading information and failing to maintain internal controls with respect to Xerox’s 2010 acquisition of Affiliated Computer Services, Inc. (“ACS”) and accounting practices at ACS that were recently the subject of an SEC investigation.
• ADT Corporation Securities and Derivative Litigation (Florida state and federal court; Delaware Ch.): Won motions to dismiss all claims asserted in a putative class action securities litigation filed in Florida federal court arising from alleged misrepresentations about ADT’s financial condition, business prospects and share repurchase programs during fiscal years 2013 and 2014. Also obtained the dismissal of related derivative actions in Florida state court and the Delaware Court of Chancery.
• In re Xerox Securities Litigation (D. Conn. and Second Circuit): Won summary judgment for Xerox Corporation in a long‑running securities class action filed in Connecticut federal court. After nearly 15 years of litigation, the District Court ruled in a 98‑page opinion that plaintiffs had failed both (i) to establish an actionable misstatement or omission; and (ii) to demonstrate loss causation. All claims against Xerox and the other defendants were dismissed in their entirety. The Second Circuit Court of Appeals affirmed the grant of summary judgment.
• JPMorgan Chase RMBS Litigation: Representation of JPMorgan Chase & Co. and related entities in numerous residential mortgage‑backed securities (“RMBS”) litigations filed across the country, including:
  • In re Washington Mutual Mortgage Backed Securities Litigation (W.D. Wash.): Won a motion for judgment on the pleadings that eliminated from litigation bonds worth approximately $8 billion—one of a handful of decisions limiting RMBS class claims based on tranche‑level standing. The case settled shortly before trial for less than 1% of the originally claimed damages.
  • Dexia SA/NV, et al. v. Bear, Stearns & Co., et al. (S.D.N.Y. and N.Y. Sup.): Won summary judgment in New York federal court, eliminating from litigation certificates worth over $1.5 billion and reducing claimed damages by over 99%. 
• City of Providence v. First Citizens BancShares, Inc., et al. (Delaware Ch.): Represented First Citizens BancShares (“First Citizens North”) and its board of directors in obtaining a precedent‑setting victory in actions filed in the Delaware Court of Chancery that challenged First Citizens North’s merger with First Citizens Bancorporation and sought to invalidate First Citizens North’s forum‑selection bylaw—adopted on the same day that it entered into a merger agreement—requiring that shareholder disputes be litigated in North Carolina. The Chancery Court dismissed both actions, ruling on an issue of first impression that Delaware corporations can adopt foreign forum-selection bylaws, even in anticipation of litigation.

Financial Restructuring & Reorganization

• In re PG&E Corporation (N.D. Cal.): Representing PG&E Corporation in its chapter 11 reorganization proceedings—the largest utility bankruptcy in U.S. history—leading the company’s efforts to resolve all pending wildfire claims.
• Sears Holdings Corporation, et al. v. Edward Scott “Eddie” Lampert, et al. (S.D.N.Y.): Represented the independent directors of Sears Holdings Corp. in an adversary proceeding brought in New York bankruptcy court alleging the independent directors breached their fiduciary duties and aided and abetted breaches of fiduciary duty by Sears’s controlling shareholder, Chairman and CEO Edward Lampert, by approving certain transactions that plaintiffs claim unjustly enriched the independent directors and resulted in Sears’s bankruptcy.

Appellate

Mr. Earnhardt has extensive appellate experience across a range of practice areas, having led appeals in the U.S. Court of Appeals for the Second, Third, Sixth and Ninth Circuits, as well as the Supreme Courts of Delaware, South Carolina and Kentucky. 

Pro Bono Matters

Mr. Earnhardt also devotes substantial time to pro bono service, including by serving as Co-Chair of the Board of Directors of The Adams Street Foundation, a nonprofit organization that supports the students of The Urban Assembly School for Law and Justice.

• Guzman Orellana v. Att’y General (Third Circuit): In 2020, Mr. Earnhardt helped achieve a precedential ruling for a pro bono client who sought asylum in the United States after fleeing a violent gang in El Salvador.  The U.S. Court of Appeals for the Third Circuit granted the client’s petition for review and remanded the case to the Board of Immigration Appeals (“BIA”) for further proceedings, concluding that the BIA erred in dismissing his application for relief under the Immigration and Nationality Act (“INA”) and the Convention Against Torture.  The affirmative holding that an applicant need not testify in open court to be a protected complaining witness under the INA could greatly expand the scope of applicants entitled to relief.
• United States v. Jermel Lewis (Third Circuit): In 2015, Mr. Earnhardt helped achieve a significant ruling on an important issue of criminal procedure representing Amachi, Inc., a nonprofit organization that tutors children of prisoners, in filing an amicus brief in support of Jermel Lewis’s appeal of his criminal sentence. The U.S. Court of Appeals for the Third Circuit, sitting en banc, vacated Mr. Lewis’s sentence (reversing its own prior decision) and remanded for resentencing. The court followed the analysis set forth in Cravath’s amicus brief, agreeing that it was harmful error under the U.S. Supreme Court’s Alleyne standard to sentence Mr. Lewis for a higher offense than that for which he had been indicted and convicted.

Recognition and Awards

Mr. Earnhardt is regularly recognized by leading professional publications. In 2022, The National Law Journal named him a “Litigation Trailblazer,” and he and his colleagues earned the Firm distinction as a Law360 “Media and Entertainment Practice Group of the Year.” Benchmark Litigation has named him a “Local Litigation Star” for his work in antitrust, bankruptcy, general commercial and securities litigation, and The Legal 500 US consistently recognizes him for his work in general commercial disputes, media and entertainment and securities litigation. In addition, Mr. Earnhardt has also been commended by Law360 for his work in securities and class action litigation, and he was selected as one of Lawdragon’s “500 Leading Litigators in America.”

In 2021, Mr. Earnhardt was named by the Sports Business Journal as a “Power Player” in Sports Law. In 2018, he was selected to serve as a member of Law360’s Media & Entertainment Editorial Advisory Board. In 2013, Mr. Earnhardt was featured as “Litigator of the Week” by The Am Law Litigation Daily for his representation of JPMorgan in Dexia SA/NV, et al. v. Bear, Stearns & Co., et al., in obtaining a summary judgment victory that eliminated from litigation certificates worth over $1.5 billion.  

Mr. Earnhardt received the New York County Lawyers’ Association’s 2013 Boris Kostelanetz President’s Medal for his work co‑authoring a chapter in the book Commercial Litigation in New York State Courts (Third Edition) and is a co‑author of a chapter in the book’s fourth edition. He is also a co‑author of the chapter “Trials” in the book Business and Commercial Litigation in Federal Courts (Fourth Edition).

Mr. Earnhardt is from Denver, North Carolina. He received a B.A. in Economics with distinction from the University of North Carolina at Chapel Hill in 2000, where he was elected to Phi Beta Kappa, and a J.D. with high honors from the University of North Carolina School of Law in 2004, where he was an Articles Editor of the Law Review.

Mr. Earnhardt joined Cravath in 2004 and was elected a partner in 2011.