David Ball splits his practice primarily between bankruptcy/restructuring and intellectual property. David’s understanding of complex products, varied industries, and financial analysis lends itself to both practice areas.
David’s intellectual property litigation practice (patent, trademark, trade secret, copyright and IP theft), involves trials, appeals, and International Trade Commission cases, as well as license drafting, IP royalty audits and related disputes. He has experience litigating both offensive and defensive patent infringement matters across a wide range of technologies in federal district courts and before the International Trade Commission, in addition to assisting clients with contentious, out-of-court licensing disputes. David utilizes his litigation background to draft IP agreements, patent licenses and joint collaboration arrangements involving the transfer and development of intellectual property rights. He also assists clients in conducting and complying with royalty audits.
His bankruptcy/restructuring practice involves representing debtors and creditors in bankruptcy litigation, both as it relates to intellectual property assets (as in the Foxwoods and Caesar’s Entertainment bankruptcies) and beyond. He is routinely called upon to quickly understand different industries and the economics of client’s businesses to work with financial advisors and expert witnesses. David has experience in Chapter 11, Chapter 15 and Chapter 9 bankruptcy matters, and has litigated numerous Chapter 11 matters – most recently in MTE Holdings and Alta Mesa – before the bankruptcy courts and federal appeals courts.
David is also a member of the firm’s COVID-19 Crisis and Recovery Task Force, advising clients on various issues related to the impacts of the coronavirus pandemic, including matters related to the government’s stimulus loan programs.
Prior to joining Bracewell, David served as a clerk in the Southern District of New York for the Honorable William C. Conner and on the Tenth Circuit Court of Appeals for the Honorable Monroe G. McKay.
Recent Notable Matters
Toshiba America Electronic Components, Inc. — secured voluntary dismissal with prejudice and without any payment after four-year litigation over patents related to self-encrypting solid state and hard disc drives
Toshiba America Business Solutions, Inc. — successfully invalidated five US patents which had been asserted by Monument Peak Ventures, LLC (“MPV”) against firm clients Toshiba Corp., Toshiba America Electronic Components, Inc., and Toshiba America Business Solutions, Inc. The technologies at issue related to facial recognition algorithms, digital marketing, and the capture and manipulation of digital images.
Natixis — as administrative agent for the first lien lender group in the MDC Energy LLC (d/b/a MDC Texas Energy) Chapter 11 bankruptcy case
Biotechnology arbitration — first chaired 8-day ICC arbitration defending biotechnology company accused of breach of contract and resulting in award of no damages.
CARES Act Loan Programs — advising lenders and borrowers on documenting and other aspects of the loan programs offered under the US Coronavirus Aid, Relief, and Economic Security Act (CARES Act)
HTC Corporation — Obtained a complete victory for consumer electronics company HTC in a trademark infringement case in the Eastern District of Virginia. Recently won a ruling entitling HTC to recover $1.5 million in fees based on the exceptional nature of the case.
Big Fish Games, Inc. — defense in multiple patent infringement actions resulting in outright dismissal based on invalidation of numerous patents, upheld on appeal before the Federal Circuit
Toshiba Tec Corporation — asserting nine patents in infringement action against competitor related to toner cartridges
Toshiba Corp. and its subsidiaries — defense in an International Trade Commission patent infringement investigation concerning digital signal processing
Ahern Rentals, Inc. — Noteholder group in Chapter 11 proceedings of Ahern Rentals, Inc. that resulted in a full recovery for the noteholders after the court agreed to terminate Ahern’s exclusive right to file a plan of reorganization. The M&A Advisor recognized this transaction in two categories in the 2014 Turnaround Awards, including as the Restructuring Deal of the Year (over $500 million to $1 billion).
Energy & Exploration Partners, LLC — Debtors in Chapter 11 proceedings resulting in the restructuring of more than $1 billion of funded debt enabling the company to emerge from Chapter 11 with a deleveraged balance sheet and new financing to support future operations. The transaction was named by Global M&A Network as the 2017 Turnaround Atlas Awards Turnaround of the Year ($1 billion‐$2 billion) Network.
Optim Energy, LLC — debtor in Chapter 11 proceedings, including the successful 363 sale of the Twin Oaks Plant to a unit of Blackstone Group and the confirmation of a plan of reorganization for the debtors’ other remaining power generation business
Major European electronics manufacturer — disputes and audits arising out of its licensing of various technologies
B.E. Meyers & Co., Inc. — sued licensee of in breach of license agreement action to obtain right to perform audit and conducted the audit
International Trademark Association — authored Fourth Circuit amicus brief in Shammas v. Focarino concerning fees charged to trademark applicants
International Trademark Association — authored Supreme Court amicus brief in Hana Financial, Inc. v. Hana Bank on behalf of successful respondent
JPMorgan Chase — obtained dismissal and affirmance on appeal before Eighth Circuit of class actions concerning mortgage practices
JLB Capital — successfully represented hedge fund in bankruptcy litigation and appeals before 11th Circuit and Nevada Supreme Court arising out of collapse of billion-dollar casino construction project
Overstock.com — internet taxation appeal before the New York Court of Appeals
Publications and Speeches
“Valuing a Business,” Commercial Litigation in New York State Courts, 2020 edition.
“Business Valuation (Chapter 156),” Commercial Litigation in New York State Courts (5th ed.) (forthcoming).
“Best Practices to Establish and Maintain a Proactive Royalty Compliance Program,” Association of University Technology Managers (AUTM), September 30, 2016.
“Patent Damage Pitfalls Await the Unprepared,” IP Magazine, September 2016.
“Trademark Tacking And What It Means For Your Brands,” World Trademark Review, August/September 2015.
“Brand Owners Can Make Trademark Tacking Stick,” Law 360, January 26, 2015.
“Reading the Tea Leaves on Cybersecurity Regulation," American Banker, November 26, 2014.
“IP Owners Beware: The Third Industrial Revolution is Upon Us” LawyerMade, September 2014.
“Expedited Procedures in New York Courts Guarantee Trial in Just Nine Months” Transaction Advisors, August 2014.
“Software patents survive Supreme Court's Alice decision, but questions linger” Westlaw Journal Computer and Internet, Vol. 32, Issue 3, July 2014.
“Delaware Court Clarifies Director and Officer Liability in M&A Transactions,” Transaction Advisors, July 2014.