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Wes Earnhardt

Partner, Litigation

J. Wesley Earnhardt is a partner in Cravath’s Litigation Department. He has a broad practice with significant experience in the areas of securities; antitrust; intellectual property; contracts; business torts; and media law. Mr. Earnhardt’s clients have included Atlas Air, Boulder Brands, Dooney & Bourke, ESPN, JPMorgan Chase, Qualcomm, Spirit AeroSystems, Time Warner, The Walt Disney Company and Xerox. Mr. Earnhardt also serves as the Firm’s partner in charge of data analytics, e‑discovery and litigation support.

Mr. Earnhardt has been repeatedly recognized for his litigation work by numerous professional publications, including The American Lawyer, Benchmark Litigation, Law360, The Legal 500 United States, New York Law Journal and Super Lawyers.

Mr. Earnhardt’s current and recent matters include:

Antitrust

  • 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 that alleged (i) breach of contract; (ii) violations of Section 2 of the Sherman Act and the California Unfair Competition Law; and (iii) various forms of declaratory relief, including declarations that certain Qualcomm patents are not infringed by Apple’s products. Qualcomm’s counterclaims against Apple included (i) breach of contract; (ii) tortious interference with contract; and (iii) a declaration that Qualcomm has satisfied and discharged its FRAND commitments to ETSI with respect to Apple. Mr. Earnhardt also represented Qualcomm in a breach of contract suit filed by Qualcomm in California federal court (Qualcomm Incorporated v. Compal Electronics Inc. et al. (S.D.Cal.)) against four iPhone manufacturers alleging that the defendants have failed to pay Qualcomm royalties on their licensing agreements. The cases were resolved in April 2019 as part of a global settlement reached by the parties.
    • FTC v. Qualcomm Incorporated (N.D. Cal): a suit filed by the U.S. Federal Trade Commission (“FTC”) in California federal court alleging violations of Section 5 of the FTC Act and seeking a permanent injunction against Qualcomm.
  • 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

  • The Boeing Company v. Spirit AeroSystems, Inc. (Del. Super.): 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

  • 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.
  • Mr. Earnhardt has handled a variety of other commercial matters, ranging from breach of contract claims to complex intellectual property disputes, for Atlas Airlines, Esaote, Hologic, Ineos, Qualcomm, Temasek and Time Warner, among others.

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.

  • U.S.A. 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

  • Benchmark Litigation: Mr. Earnhardt was recognized for his litigation work in the 2016 through 2019 editions of Benchmark Litigation and was named to the publication’s “40 & Under Hot List” from 2016 through 2018.
  • The Legal 500 United States: Mr. Earnhardt was recognized by Legal 500 for his work in securities litigation in 2015 and 2016 and in media and entertainment in 2019.  He has also been recommended for his work in general commercial disputes since 2016 and was named a “Next Generation Lawyer” from 2016 through 2018.
  • Law360 “Rising Star”: Mr. Earnhardt was recognized by Law360 as one of 10 outstanding securities litigators under 40 in the nation in 2014 and as one of five outstanding class action litigators under 40 in the nation in 2016.
  • Super Lawyers “Rising Star”: Mr. Earnhardt was named a Rising Star in General Litigation in 2014 and in Antitrust Litigation in 2015 by Super Lawyers.
  • New York Law Journal “Rising Star”: Mr. Earnhardt was recognized by New York Law Journal as one of 42 Rising Stars in 2016.
  • NYCLA President’s Medal Recipient: In 2013, 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). He is also co‑author of a chapter in the book’s fourth edition.
  • The American Lawyer “Litigator of the Week”: In 2013, Mr. Earnhardt was featured as the “Litigator of the Week” by The Am Law Litigation Daily in connection with his work on Dexia SA/NV, et al. v. Bear, Stearns & Co., et al. (S.D.N.Y.).

In 2018, Mr. Earnhardt was selected to serve as a member of Law360’s Media & Entertainment Editorial Advisory Board. He also is 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. He joined Cravath in 2004 and was elected partner in 2011.

Mr. Earnhardt may be reached by phone at +1‑212‑474‑1138 or by email at wearnhardt@cravath.com.

Mr. Earnhardt is admitted only in New York.

    Contact
    +1 (212) 474-1138
    +1 (212) 474-3700