In 2011, during a tense court hearing between two of the world’s biggest gadget makers—Apple had brought a suit against Samsung, alleging the South Korean company had “slavishly” copied its iPhone and iPad to produce its Samsung Galaxy line of products—Judge Lucy Koh held up both companies’ tablets above her head and asked a Samsung lawyer, Kathleen Sullivan, if she could tell which one was which.
After an uncomfortable beat, Sullivan—who also happens to be a former Stanford Law School dean—responded, “Not at this distance, your honor.” She stood at a podium about 10 feet away.
Just another day in Judge Koh’s courtroom. In Silicon Valley, new tech constantly butts up against old laws—and companies are always trying to find legal loopholes that give them an advantage. It falls to Koh, 46, with five years on the bench in US District Court in San Jose, to give the tech elite a stern talking-to. And Koh’s rulings on cases relating to patent infringement, privacy, and wage conspiracy don’t just influence the big-name firms that test the boundaries of the law. They affect every one of those firms’ users, which explains why Koh has garnered so much attention for her decisions.
In that high-profile patent infringement lawsuit between Samsung and Apple, Koh kept Samsung’s products in stores in spite of a jury verdict that the gadget manufacturer had indeed copied several Apple designs. “Samsung may have cut into Apple’s customer base somewhat, but there is no suggestion that Samsung will wipe out Apple’s customer base or force Apple out of the business,” Koh said in her ruling. “The present case involves lost sales—not a lost ability to be a viable market participant.”
A History of Diversity
Growing up in diverse communities developed Koh’s interest in civil rights issues from an early age. She spent her childhood in Maryland and rural Mississippi, where she and her siblings were the only Asian-Americans at a predominantly African-American public school. Her mother, an immigrant from Korea, took a job as a teacher at Alcorn State University, the oldest public historically black land-grant institution in the United States.
“The civil rights dramas affecting the era were just getting worked out, and that probably had some impact on her long-term interest in law and on how the law affects people’s lives,” says Koh’s husband, Mariano-Florentino Cuéllar, a former Stanford Law School professor who was recently appointed to the California Supreme Court.
Koh also has a long history of promoting inclusion. In 1986 she went to Harvard College, studying economics, anthropology, and social studies—and on the side, she could often be seen rallying others to increase diversity at the school. In 1988 she was part of the Harvard undergraduate student council that urged the school to step up its recruitment of female and minority faculty members. “Why is there always an implication that women and minorities are not qualified?” Koh once asked in The Crimson, Harvard’s student newspaper. “Why would they hire anyone who wasn’t qualified?”
She and her siblings were the only Asian-Americans at a predominantly African-American school.
At another point in her undergraduate career, Koh discovered that a chemistry professor had been barring women from joining his lab group. She and other diversity advocates held rallies protesting the professor’s policy, but the school ultimately didn’t address the issue. “I raised hell, but they did nothing because that professor won a Nobel Prize,” Koh wrote. “Nobel laureates can discriminate with impunity.”
Later, at Harvard Law School, Koh joined a student organization called the Coalition for Civil Rights, which sued the university, alleging that the hiring practices at the law school discriminated against minority groups. In 1992 she, along with eight other CCR members, staged a 25-hour sit-in outside the dean’s office. Koh faced possible dismissal from the school for the deed. The protest group—dubbed the “Griswold 9”—became legendary.
The Path to Judgeship
After graduating from law school, Koh began a fellowship in the US Senate Judiciary Committee in Washington, DC, working on civil rights, immigration, and other legislative issues. She then worked as a federal prosecutor in Los Angeles, handling criminal cases and frauds. But there was an inkling of her tech-defined future there, working on cases involving identity theft, hacking, and counterfeiting.
In 2000, Koh moved to San Jose, where she was closer to her grandparents, and took a job as a patent litigator at the law firm McDermott, Will & Emery. In 2008, Governor Arnold Schwarzenegger nominated Koh to be a judge for the Superior Court of California for Santa Clara County, where she served for three years. And in 2010, President Obama nominated her to the federal bench after US District Judge Ronald M. Whyte vacated a seat to assume senior judge status.
Since Koh took Whyte’s seat, the two jurists have built up a camaraderie. “I think she understands issues and is not afraid to say what she thinks,” Whyte says. “She works hard to get it right.”
Understanding the technology, in fact, in some of the cases that come across their dockets, is often one of the most difficult challenges the judges face, Whyte says. But Koh rises to the challenge, he says. “She seems to grasp tough technological issues as well as, if not better, than anybody. She doesn’t shy away from them and seems to be able to get her arms around difficult problems.”
According to her friends and family, Koh deals with difficulties in her personal life with equal ferocity. In 2012, her husband says, when Koh was in the middle of parsing the many complex facets of the Apple-Samsung lawsuit, she got the devastating news that her father had been diagnosed with stomach cancer.
Koh allowed plaintiffs to sue Adobe after customers had their information stolen in a data breach incident.
“Sometimes Lucy would come home after a long day presiding over the trial, spend a little time with us, then go to the hospital to spend the night with her dad,” Cuéllar says. “And she could just show up the next day at work and be engaged. She did that more times than I could count.”
Even then, Cuéllar says, Koh managed to keep the trial moving so it could reach its conclusion. On the day the verdict came out, Cuéllar remembers, Koh found out that her father had only a couple of weeks left.
Koh’s rulings have at times been quite surprising. In a suit alleging that seven illustrious tech companies—including Apple, Google, Intel, and Adobe—colluded to keep 64,000 engineers’ wages down by not hiring each other’s employees, Koh rejected an initial proposed settlement for those companies of $325 million, ruling that it was at least $55 million too low. In March, she preliminarily approved a $415 million settlement to end the class action suit.
Recent years have seen lawsuits involving hacking escalate, yet most judges have ruled that unless consumers are harmed outright, they should not sue. Not Koh. Last September, she allowed plaintiffs to sue Adobe after hundreds of millions of customers had their information stolen in a data breach incident. “The threatened injury here could be more imminent only if plaintiffs could allege that their stolen personal information had already been misused,” she wrote in her ruling. Her deviation from the norm may make it more difficult for tech companies to get suits involving stolen data thrown out in California.
When Yahoo email users alleged that the company’s email scans invaded their privacy, but Yahoo said its terms of service covered the act, Koh dismissed claims that Yahoo intercepted communications without proper consent. But she also refused to dismiss allegations that it improperly divulged data to third parties—taking a hard look at the complaint, but also giving the plaintiff the benefit of the doubt as deserved.
“Koh hasn’t been intimidated by the big players she has had as defendants,” says Tracy Beth Mitrano, director of the Institute for Internet Culture, Policy, and Law at Cornell University. “She doesn’t let very expensive lawyers hoodwink her into facile interpretations that favor her clients.”
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