Jeffrey L. Fillerup, Partner

During the past 30 years Jeff Fillerup’s practice has focused on litigating and trying business cases in various venues, including state and federal court, bankruptcy court, and arbitration. He has significant discovery and motion practice experience, including preliminary injunctions and other pre-judgment procedures, and he has taken and defended more than 1,000 depositions. Since 2010 he has been lead counsel in 12 cases that have gone to trial, including intellectual property, unfair competition, franchise/distribution, real estate and fiduciary duty cases. He has particular expertise in handling and trying adversary proceedings in bankruptcy court. Mr. Fillerup is a Certified Legal Specialist in Franchise and Distribution Law, and he was selected to serve as Chair of the Franchise/Distribution Law Advisory Committee of the California State Bar for 2014. He is the author of the Fiduciary Duty Litigation chapter in CEB’s new Fiduciary Duty treatise published in 2016.

Clerk Experience

  • Judicial Clerk, U.S.D.C., S.D. Cal., 1984-85 (Hon. Rudi M. Brewster)

Experience

Intellectual Property Unfair Competition Litigation

  • Defended patent case seeking damages for alleged infringement of photo-sharing patents.
  • Defended patent case seeking damages for induced and contributory infringement of erosion-control method patents.
  • Lead defense counsel in a two-month patent infringement trial regarding athletic equipment patents, resulting in a defense ruling of invalidity and non-infringement.
  • Defended breach of license agreement suit relating to the development and licensing of cellular software.
  • Defended legal malpractice suit seeking $60 million in damages for alleged malpractice in connection with the defense of a patent infringement claim relating to die casting patents.
  • Lead appellate counsel in case involving an assignee’s standing to sue for patent infringement (reported at 211 F.3d 1245 (Fed. Cir. 1999)).
  • Prosecuted copyright and unfair competition suit against an inventory software company alleging that the defendant had misappropriated the plaintiff’s code.
  • Defended copyright/trade secrets claims against former employees of investment bank who allegedly used the plaintiff’s software in defendants’ new business.

Franchise / Distribution Litigation

  • Defended class action suit by distributors against a direct-sales nutritional supplement company.
  • Defended claims by a group of franchisees alleging that they were fraudulently induced to become franchisees.
  • Prosecuted suit against a former franchisee for violation of a non-competition covenant and trademark infringement.
  • Prosecuted suit by franchisor against a former employee for misappropriation of trade secrets and obtained a preliminary injunction enjoining competition while suit was pending.
  • Prosecuted suit against a software company alleging that its distribution system was an unregistered franchise under the California Franchise Investment Law.
  • Lead plaintiffs’ counsel in breach of franchise agreement/encroachment suit against a national retail franchisor.
  • Prosecuted claims by a chemical manufacturer against a worldwide exclusive distributor for unfair competition and breach of exclusive distribution agreement.
  • Lead plaintiff’s counsel in a suit against a national retailer alleging tying violations.

Real Estate/Construction Litigation

  • Arbitrated owner v. contractor dispute regarding the construction of food processing plant.
  • Mediated construction issues involving high-rise condominium development.
  • Expunged lis pendens allowing the closing on the sale of $40m Silicon Valley property.
  • Arbitrated case involving the sale of $250m office building complex in Oakland, CA.
  • Arbitrated claims involving the ownership and development of hotel development in Napa, California.
  • Arbitrated claims involving high-rise condominium tower in San Francisco.
  • Litigated disputes among the owner, contractors, and neighboring property owners regarding the construction of high-rise office complex in San Francisco.

Bankruptcy Court Litigation

  • Lead trial counsel in bankruptcy court trial concerning the assignment of the debtor’s Internet-related patents.
  • Lead trial counsel in bankruptcy court trial involving the recovery of 13 parcels of real property transferred by the debtor pre-petition.
  • Lead trial counsel in bankruptcy court trial concerning preference payments made to overnight delivery company.
  • Prosecuted adversary proceeding against real estate agents and brokers seeking to recover a 24-unit apartment building for the debtor’s estate.
  • Prosecuted legal malpractice claims alleging that the defendant’s malpractice had caused the debtor’s bankruptcy.
  • Prosecuted breach of fiduciary duty and deepening insolvency claims against former officers and directors of the debtor.
  • Arbitrated insurance coverage claims seeking to recover $19 million in losses suffered by the debtor pre-petition because of accounting irregularities.

Insurance Coverage Litigation

  • Prosecuted and defended more than 100 major insurance coverage cases involving coverage under business liability policies.

Recognition

  • State Bar of California Certified Legal Specialist – Franchise & Distribution Law

Publications

  • CEB, Understanding Fiduciary Duties in Business Entities (author of Chapter 8, “Litigation of Breach of Fiduciary Duty Claims”), 2016
  • Co-author, “Lessons from the Theatre: Strategies in Preparing Witnesses in Franchise Cases,” ABA Forum on Franchising Annual Meeting, Seattle, WA, October, 2014.
  • Co-author: “Managing ‘Perfect Storm’ Litigation for a Franchise System,” Franchising Business & Law Alert, June, 2012.
  • Co-author, “Identifying, Managing, and Resolving Troubled Franchise Relationships,” International Franchise Association Annual Legal Symposium, May, 2008.
  • “Four California Cases Rule that Proposition 64 is Retroactive,” Franchising Business & Law Alert, April, 2005.
  • “Sometimes, Insurers Must Defend Patent Claims,” Los Angeles Daily Journal, April 12, 2004.
  • Co-author, “Litigation of Trade Secret and Espionage Claims,” ABA Forum on Franchising Annual Meeting, Hollywood, FL, October, 2003.
  • “Commercial Free Speech: California Courts Further Define How the Free Speech Guarantee Can be Used as a Defense in Commercial Litigation,” The Recorder Commercial Litigation Supplement, October 14, 2002.
  • “Likely Leak: Inevitable Disclosure Doctrine Can Aid Employers,” San Francisco Daily Journal, August 2000.
  • “What the Inevitable Disclosure Doctrine Means to Franchisors and Franchisees,” Leaders Franchising, June, 2000.
  • Co-author, “The Drafting and Enforcement of Noncompetition Covenants,” ABA Forum on Franchising Annual Meeting, Palm Springs, October, 1999.
  • Editor: Franchise Law Update – A monthly update of franchise litigation nationally – 1996-2000.
  • “More on the Millennium Bug: How Will it Impact Your System?” Franchising World, July/August, 1998.
  • Co-author, “The Duty to Defend: Post-Montrose Issues,” PLI (1995)(quoted by the New Jersey Supreme Court in General Accident Ins. Co. of America v. Dpt. of Environmental Protection, 672 A.2d 1154, 1155 (N.J. 1996)).
  • “Recent Developments in the Duty to Defend,” PLI, 1992.

Speaking Engagements

  • “Using Discovery Effectively in Bankruptcy Litigation,” BASF, Commercial Law and Bankruptcy Section, May, 2017
  • “Emerging Limits on Preparing and Defending Witnesses at Deposition and Trial,” Federal Bar Association, 2016
  • “Lessons from the Theater: Strategies in Preparing Witnesses in Franchise Cases,” ABA Forum on Franchising, Seattle, WA, October 15-17, 2014
  • “IP Assets in Bankruptcy: Litigating and Settling IP Disputes, and Buying, Selling, and Transferring IP Assets in Bankruptcy Court,” Annual Meeting, San Francisco Intellectual Property Law Association, May 2009.
  • “Recent Developments in Liability Coverage for Patent and Other Intellectual Property Claims,” ABA TIPS 17th Annual Insurance Coverage Litigation Committee Midyear Meeting, Los Angeles, CA, February, 2009.
  • “Identifying, Managing, and Resolving Troubled Franchise Relationships,” International Franchise Association Annual Legal Symposium, May, 2008.
  • “Strategies and Ethical Considerations in Pursuing Insurance Coverage for Intellectual Property Claims,” Annual Meeting, San Francisco Intellectual Property Law Association, May, 2007.
  • “Litigation of Trade Secret and Espionage Claims,” ABA Forum on Franchising Annual Meeting, Hollywood, FL, October, 2003.
  • “Enforcing Noncompetition Covenants,” CLE International, San Francisco, June, 2001.
  • “What the Inevitable Disclosure Doctrine Means to Franchisors and Franchisees,” Leaders Franchising, June, 2000.
  • “The Drafting and Enforcement of Noncompetition Covenants,” Forum on Franchising Annual Meeting, Palm Springs, 1999.
  • “Venue, Jurisdiction, and Arbitration Issues in Franchise Litigation,” State Bar of California Spring Meeting , Monterey California, 1998.
  • Chair: “Practising Law Institute’s (“PLI”) Annual Insurance Coverage Litigation” seminar, San Francisco, 1993, 1994 and 1995.
  • The Duty to Defend: Post-Montrose Issues,” PLI, 1995 (quoted by the New Jersey Supreme Court in General Accident Ins. Co. of America v. Dpt. of Environmental Protection, 672 A.2d 1154, 1155 (N.J. 1996)).
  • “Recent Developments in the Duty to Defend,” PLI, 1992.
  • “Controlling Litigation Costs,” RIMS/ABA, San Francisco, 1989.
  • “Managing the Complex Case,” Executive Enterprises, New York, 1988.
  • “Excess, Umbrella and Reinsurance Issues,” Executive Enterprises, Boston, MA, 1988.

Activities and Affiliations

  • Member of the Board of Trustees, American Indian College Fund (2013-present)

Bar Activities

  • Board Member, California Board of Legal Specialization (2014)
  • Chair, Franchise/Distribution Law Advisory Committee (2014)
  • Commissioner, Franchise/Distribution Law Advisory Committee (2010-2014)
  • Chair, Franchise/Distribution Law Advisory Committee of the California State Bar (2014)
  • ABA Forum on Franchising (1988-present)
  • Legal Specialist, California State Bar Board of Legal Specialization, Franchise and Distribution Law
  • Federal Bar
  • San Francisco Intellectual Property Law Association
  • American Intellectual Property Law Association