Brian Esler

Representative Experience

• IP Litigation—Patent and Trade Secret Plus

  • Represent a home builder accused of infringing a number of patents.

  • Represented a client in the fishing industry in pursuing trade secret, Computer Fraud and Abuse Act (CFAA), and other claims against former employees.

  • Represented chemical process industry client in pursuing trade secret and related claims against a rival manufacturer.

  • Represented publicly traded French company in defending against patent and trade secret claims arising out of its development of novel ultrasound technology. Case settled on a confidential basis near the close of discovery.

  • Represented executive in a high-profile lawsuit brought by former employer, asserting claims that our client misappropriated trade secrets, violated fiduciary duties, and breached contractual obligations. The case included a six-day evidentiary hearing of the former employer's motion for terminating sanctions based on allegations that our client had knowingly destroyed relevant evidence. The court rejected the allegations, finding that our client was a credible witness who did not violate a duty to preserve evidence, did not act in bad faith, and did not engage in conduct that prejudiced the former employer. As trial approached, the court granted a number of summary judgment and evidentiary motions that significantly limited the scope and value of plaintiffs’ claims. On what would have been the first day of trial, the parties were able to reach an amicable resolution that terminated the case.

  • Represented Eastern Washington apple wax producer against claims of trade secret misappropriation and breach of previous injunction brought by Indian conglomerate arising out of client’s new wax formulation. After a bench trial in Yakima County Superior Court, court agreed with client that there were no trade secrets to protect, dissolved previous injunction and awarded client its attorneys fees. As stated in the trial court’s decision awarding fees, “Mr. Esler has demonstrated expertise in trade secret litigation . . .”

  • Represented local manufacturer in pursuing claims of patent infringement and trade secret theft against large multi-national corporation involving chemical process technology. Case resolved with confidential settlement after we defeated numerous motions for summary judgment.

  • Represented departed executive accused of breaching noncompete and misappropriating trade secrets. Case settled on a confidential basis.

  • Represented building materials manufacturer in pursuing claims of breach of noncompete and trade secret misappropriation against departing employees. After obtaining injunctive relief, case settled.

  • Represented local manufacturer in pursuing patent infringement claims regarding light-emitting diode technology against the federal government in the United States Court of Federal Claims pursuant to 28 U.S.C. § 1498.

  • Represented fishing equipment manufacturer in defending against claims of design patent infringement.

  • Represented and advised numerous government contractors and bidders on how to best position themselves to protect their confidential information from disclosure by the government.

  • Represented and advised numerous private companies on how to preserve and protect their trade secrets.

• IP Litigation—Trademark and False Advertising Plus

  • Represented a foreign company in case involving the intersection of the Lanham Act and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). Convinced U.S. Supreme Court to grant petition for certiorari reversing Ninth Circuit.

  • Represented large national merchandising company against false advertising claims arising from a dispute involving rights to Jimi Hendrix merchandise and artwork. Obtained summary judgment dismissal of all claims, and an award of fees, both of which were upheld by the Ninth Circuit on appeal.

  • Represented local author in Trademark Trial and Appeal Board proceedings, case settled favorably after mediation.

  • Represented regional health services provider in pursuing trademark infringement claims, case settled confidentially.

  • Advised local sports gear manufacturer regarding potential trademark infringement claims.

  • Represented local sporting goods manufacturer in pursuing false advertising claims against much larger competitor. After defeating defendant’s motion for summary judgment, case settled confidentially.

  • Represented large national manufacturer in pursuing false advertising claims against online competitor. Obtained summary judgment and a permanent injunction barring the false claims.

  • Represented local transportation company in defending against claims of trademark infringement, including obtaining insurance coverage for defense of claims.
  • Have represented numerous clients in Trademark Trial and Appeal Board opposition and cancellation proceedings.
  • Regularly counsel clients on how to best protect and preserve their brands.

  • Represented local sporting goods manufacturer in pursuing false advertising claims against much larger competitor. After defeating defendant’s motion for summary judgment, case settled confidentially.

  • Represented large national manufacturer in pursuing false advertising claims against online competitor. Obtained summary judgment and a permanent injunction barring the false claims.

  • Represented local transportation company in defending against claims of trademark infringement, including obtaining insurance coverage for defense of claims.

  • Have represented numerous clients in Trademark Trial and Appeal Board opposition and cancellation proceedings.

  • Regularly counsel clients on how to best protect and preserve their brands.

• Copyright Plus

  • Represent and advise best-selling author in creating and protecting programming, website, and other materials.

  • Represented and advised world-famous pyrotechnic artist in protecting software copyrights and trademarks.

  • Represented radio station in defending against claims of copyright infringement arising out of use of a photograph in the station’s blog.

  • Represented video game manufacturer in pursuing copyright infringement and Digital Millennium Copyright Act (DMCA) claims against emulator.

  • Represented bankruptcy trustee in seeking to preserve and enforce estate’s copyrights.

  • Represented bankruptcy trustee in investigating estate’s rights in software and other copyrightable materials.

  • Represent and advise best-selling book author in protecting copyright in book and related training and web services.

  • Represented local health plan services provider in defending against claims of copyright infringement involving software products.

• Construction Litigation—Government Projects Plus

  • Represent one of the largest systems integration and low volt subcontractors in the world in pursuing multimillion-dollar delay and other claims arising out of work performed on the Highway 99 single bore tunnel project.

  • Represent large telecommunications system provider in public contracts bidding dispute with Washington agency.

  • Represented large telecommunications systems provider in bid protest litigation with Oregon agency.

  • Represented large telecommunications system provider in bid protest litigation with a county. Case settled shortly after we obtained a temporary restraining order preventing county from entering into contract with alleged lowest responsible bidder.

  • Represented and advised a Washington public entity with regard to contractual and other issues arising from the bidding process on proposed improvements to its facility.

  • Represented materials supplier on a public works project in defending against claims regarding allegedly defective high-density polyethylene piping.

  • Represented materials supplier on a public works project in pursuing payment claims while defending against claims arising from allegedly defective concrete structures.

  • Represented bridge designer in litigation brought by general contractor arising out of the designer’s work on the I-405/I-5 to SR 169 Stage 1 Widening Design-Build Project. After multiple motions and mediations, and a one-day “mini-trial” before the mediators, case was successfully resolved.

  • Represented public university in pursuing claims arising out of construction project in Boise, Idaho.

  • Represented tribe in pursuing claims arising from installation of defective water treatment system.

• Construction Litigation—Private Projects Plus

  • Represent West Coast general contractor in defending against claims arising out of the construction of a large multi-family building.

  • Represent materials supplier in filing and foreclosing numerous mechanic's liens on projects throughout the Northwest.

  • Represent and advise commercial general contractor specializing in data centers and high-tech headquarters on projects throughout the Northwest.

  • Represented commercial tenant in pursuing indemnity claims against owner and others arising out of crane collapse at project.

  • Represented materials supplier on a hospital construction project in defending against defect claims while pursuing payment claims.

  • Represented general contractor in defending against and pursuing various claims arising out of a condominium project, including claims against the concrete and paving subcontractor for faulty installation.

  • Represented property owner and contractor accused of puncturing sewer pipe running under the Duwamish River near the West Seattle Bridge.

  • Represented owner in pursuing claims arising from improperly installed concrete flooring at its Federal Way headquarters.

  • Represented general contractor in defending claims arising from construction of condominium complex, including negotiating issues arising from CCIP wrap coverage.

  • Represented owner in easement dispute arising from the expansion of its Everett headquarters, culminating in a one-week bench trial.

• General Commercial Litigation Plus

  • Represent a veterinary hospital in defending against antitrust and related claims.

  • Represent various insured in pursuing insurance coverage claims arising from the COVID-19 pandemic.

  • Represented university in seeking dismissal of defamation claims arising out of statements about the 2020 presidential election.

  • Represented custom car manufacturer in defending against breach of contract and related claims.

  • Represented blockchain cooperative in dispute with members.

  • Represent lender and shareholders in seeking to recover investments in and loans to a failed cannabis company.

  • Represented the FDIC in various actions arising from the 2008 financial collapse.

  • Represented City of Seattle in defending against breach of settlement and related claims. Dunn v. City of Seattle, 420 F.Supp.3d 1148 (W.D. Wash. 2019).

  • Represented Chinese company in defending against breach of contract, fraud and related claims arising out of log export business. After a week-long evidentiary hearing in Astoria, Oregon, court largely sided with our client and case settled shortly thereafter.

  • Represented large national bank in defending against fraud and related claims; all claims dismissed on summary judgment.

  • Represented regional bank in defending against various claims by borrowers.

  • Represented agricultural cooperative in dispute with members.

  • Represented automotive warranty company in dispute with ex-employee.

  • Represented property owner in easement dispute; case settled after court granted our client summary judgment on its easement right claims.

  • Represented homeowner in dispute with neighbors over rights arising from Covenants, Conditions & Restrictions (CC&Rs).

  • Represented restaurant lessee in defending against landlord’s claims and pursuing fraud and misrepresentation claims.

  • Represented health savings account administration solutions provider in breach of software development contract dispute, including obtaining preliminary injunction to prevent defendant from switching to another provider. Case settled on confidential terms soon thereafter.

  • Represented municipality in high-profile case involving novel First Amendment issues arising out of criminal investigations.

• Appellate—State Court Appeals Plus

  • Nunley v. Chelan-Douglas Health Dist., Case No. 395715 (Div. III): Represent appellee Chelan-Douglas Health District in defending dismissal on the pleadings of a claim of negligence arising out of a data breach.

  • Tulalip Tribes of Washington et al v. Lexington Ins. Co., Case No. 861158 (Div. III) (argued): Represent appellant Tulalip Tribes in seeking to reverse dismissal on the pleadings of a complaint for insurance coverage.

  • Washington State University v. Factory Mutual Ins. Co., Case No. 400930 (Div. III): Represent appellant WSU in seeking to reverse dismissal on the pleadings of a complaint for insurance coverage.

  • In Re American Eagle Mortgage 100, LLC et al, Case No. 58822-6-II: Represent appellee receiver in defending challenge to bar order.

  • Global Tel*Link Corp. v. Washington State Dep’t of Corrections, et al, Case No. 56661-3-II, 521 P.3d 250 (2022): Represented appellant in seeking review of dismissal of bid protest action.

  • Hester v. State of Washington, Case No. 98495-6 (S.Ct. 2020). Represent petitioners in pursuing constitutional claims (impairment of contract) against the State of Washington.

  • Roupp v. RChain Cooperative, Case No. 81915-1 (2021). Represent appellant blockchain provider in appeal involving arbitration rights.

  • Feick v. Brutsche, Case No. 54963-8-II (2021). Represent respondents in appeal involving cannabis company in receivership.

  • Dempcy v. Avenius, Case No. 79697-6-I (2020). Represented appellant in dispute among neighbors as to rights and responsibilities with respect to common property.

  • Washington State Department of Revenue v. F.D.I.C., Case No. 71524-1-I (2015). Represented respondent F.D.I.C. (on the briefs, but did not argue the case).

  • Alexander v. Sanford, 181 Wn. App. 135, 325 P.3d 341 (2014), petition for review granted, but dismissed by stipulation. Represented respondents in a case involving a variety of issues arising out of claims against the board members of a condominium association.

  • Patterson v. Northland Investment, Inc., Case No. 27696-1-III (2010). Represented appellant Pattersons in a case involving a real property dispute.

  • Gourley v. 180Solutions, Case No. 59654-3-I (2008). Represented appellant Gourley (on the briefs).

  • Munro v. Swanson, Case Nos. 55811-1-I, 56082-4-1 (2007). Represented Respondent/Cross-Appellant Munro in a lease dispute.

  • Gildon v. Simon Property Group, Inc., Case No. 53151-4-I, aff’d in part, reversed in part by 158 Wn.2d 483, 145 P.3d 1196 (2006). Represented petitioner Simon Property Group in case involving unsettled issues under Revised Uniform Partnership Act.

  • Washington State Grange v. Brandt, 136 Wn. App. 138, 148 P.3d 1069 (2006). Represented respondent Washington State Grange in a case involving the application of the rule against perpetuities.

  • State v. Heckel, 143 Wn.2d 824, 24 P.3d 404 (2001). Represented amicus curaie Washington Association of Internet Providers.

  • Washington State Bank v. Medalia, 96 Wn. App. 547, 984 P.2d 1041 (1999). Represented appellant Medalia Healthcare, LLC. Involved the question of whether a purchaser of secured assets had committed conversion by allegedly interfering with security interest.

  • G.W. Equipment Leasing, Inc. v. Mt. McKinley Fence Co., Inc., 97 Wn. App. 191, 982 P.2d 114 (1999). Represented appellant G.W. Equipment. Involved a question of whether Arizona or Washington community property law should control the interpretation of a contract.

• Appellate—Federal Court Appeals Plus

  • Setty v. Shrinivas Sugandhalaya, LLP, Supreme Court Case No. 19-623; Ninth Circuit Case No. 18-35573. Represented appellants and petitioners in pursuing appeal involving issues arising under the Lanham Act and the New York Convention. After the Ninth Circuit affirmed a trial court decision finding our client had no rights to compel arbitration because it was a non-signatory to the underlying arbitration agreement, successfully petitioned the United States Supreme Court to grant our client’s petition for a writ of certiorari; Supreme Court vacated decision and remanded to Ninth Circuit.

  • Rockin Artwork, LLC v. Bravado Int. Group Merch. Svs., Inc., Case Nos. 17-35151, 17-35263 (9th Cir. 2018). Represented respondent in defending against appeal of summary judgment motion involving Lanham Act and state law claims.

  • Western Mortgage & Realty Co. v. KeyBank National Association, Case No. 15-35821 (9th Cir. 2017). Represented defendants-appellees in appeal involving borrowers claims of breach of contract, fraud and misrepresentation. Ninth Circuit affirmed dismissal of claims and awarded fees.

  • In re MILA, Inc., 423 B.R. 537 (9th Cir. BAP 2010). Represented appellant bankruptcy trustee in seeking to recover proceeds of directors and officers insurance policy.

  • Davel Communications, Inc. v. Qwest Corp., 451 F.3d 1037 (9th Cir. 2006). Represented appellants in pursuing claims under the Federal Telecommunications Act of 1996.