US in-house counsel avoids serious reprimand following UK judgment embargo breach

Court of Appeal judges show leniency to in-house counsel after he breaches the embargo of a judgment relating to a patent case
The High Court in London

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A senior US counsel at tech firm InterDigital has escaped serious rebuke after improperly informing US colleagues of the outcome of an embargoed judgment at the Court of Appeal for England and Wales in December.

Steve Akerley, who is deputy general counsel and head of intellectual property and litigation at InterDigital, breached the embargo of a draft judgment concerning a patent validity case between InterDigital and Lenovo heard in December.

He received the draft judgment on 13 January from one of InterDigital’s advisers, Gowlings' Matt Hervey. Akerley then forwarded the outcome of the case to colleagues at InterDigital’s US external counsel, Wilson Sonsini Goodrich & Rosati.

The breach eventually came to the attention of another member of InterDigital’s Gowlings team, Alexandra Brodie, when she was congratulated on the outcome of the case on 15 January, before the judgment was formerly handed down on 19 January.

The court was then altered to the breach and Lord Justice Warby, along with Lord Justice Birss and Lady Justice Falk handed down their judgment on 30 January. 

Warby noted that Akerley had some experience of previous proceedings before Engalnd and Wales courts and knew that the judgment was embargoed. But, as Akerley explained it, ‘In my haste to see the outcome of the judgment, I did not review the substance of Mr Hervey’s emails’. He therefore did not see the detail of what Hervey had said. 

Warby made it clear that when a draft judgment is circulated, the breach of the embargo has serious consequences. That was done at the end of the hearing in this case on 15 December. Akerley conceded that what he did was indeed breach of the embargo. In a witness statement Akerley confirms his role. It ends with an admission that he improperly informed US counsel of the outcome of the embargoed judgment, an unreserved acceptance of responsibility, and an apology. 

Warby added that Akerley says he did not realise what he was doing, “and there is no reason to doubt what he says”. There is, however, an argument that liability for contempt of this kind is strict, regardless of whether there is an intention to breach the court’s rules or orders.

However, Warby continued that the disclosures which Akerley made and authorised or caused were relatively limited in content  and number of recipients. They did not include the draft judgment itself and there was no disclosure to the public. The disclosures were also made to people with a close professional interest in the case, 

The facts of the disclosure were investigated and disclosed to the court by the wrongdoer itself without prompting. 

Warby noted: “No criticism can be levelled at Gowlings, who were scrupulous in controlling the distribution of the draft judgment, and in drawing attention to the existence and terms of the embargo, and its practical effects.”

He concluded: “For my part I would accept the evidence that has been filed, including Mr Akerley’s explanation and his apology. I am confident that he has now understood the position. Further proceedings would be disproportionate to any need to uphold the court’s authority.”

Lady Justice Falk and Lord Justice Birss agreed.

In February last year, the master of the rolls, Sir Geoffrey Vos, expressed concern over the frequency of embargo breaches after leading human rights set Matrix Chambers apologised for accidentally issuing a press release based on a draft embargoed judgment the day before it was handed down.

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