Scott Cole is a principal in the Austin office of McKool Smith and his practice centers on commercial and intellectual property litigation. In his 25-year career, he has tried over 25 cases to verdict and has won three verdicts that have been recognized as "Top 100 Verdicts" by The National Law Journal. Scott has experience in a wide-range of industries, including enterprise software, computer hardware, mortgage-backed securities, consumer products, and oil and gas.
- WiLAN v. Apple. Trial counsel for WilLAN, Inc. in obtaining an $85 million patent-infringement verdict against Apple. The verdict represented 100% of the requested damages.
- Apex Parks Group v. Protective Life. Lead trial counsel in a case for recovery under a key-man life insurance policy covering Apex’s CEO. After a two-week trial, Apex overcame several defenses asserted by Protective Life and obtained a $10 million verdict. Post-trial motions are currently pending. (Alabama State Court – Birmingham).
- Quincy Jones v. MJJ Productions. Trial counsel for legendary music producer Quincy Jones in winning a $9.4 million jury verdict against the Michael Jackson estate in a breach of contract and royalty dispute. The case is currently on appeal. (California State Court – Los Angeles).
- Versata Software v. SAP. Lead counsel in representing an enterprise software company in a patent-infringement action against the dominant industry player, SAP. Initially won the fifth largest verdict (of any kind) in the state of Texas following a two-week trial in August 2009. Based on post-verdict case-law developments, a new trial was ordered. In May 2011, the case was retried, and the result was a much larger verdict as well as a permanent injunction against SAP (stayed pending appeal). The verdict was the fifth largest patent infringement verdict of 2011 in the United States and the eighth largest verdict nationwide of any kind during that year. In September 2011, the District Court denied SAP’s post-trial motions and entered final judgment (including interest). The entire damages judgment was then affirmed on appeal by the Federal Circuit in what is believed to be the largest monetary judgment ever affirmed by the Federal Circuit at the time. The case was also the subject of a complex procedural battle after SAP challenged Versata's patent in a separately-filed challenge at the USPTO and attempted to use the PTO proceeding to nullify the judgment. After successfully navigating the “race to finality,” the case settled. (EDTX; Fed. Cir.; USPTO).
- Capital Royalty and Children’s Medical Center of Boston v. Celgene. Represented Capital Royalty as joint plaintiffs with Children’s Medical Center of Boston in a breach of license suit against Celgene. Won a key summary judgment ruling, which led to a $198.5 million settlement for client and co-plaintiff. (D.Mass.).
- Rambus v. Hynix et. al. Represented Rambus in a two-month patent and antitrust jury trial pitting Rambus against several DRAM manufacturers, who accused Rambus of manipulating the standards-setting process. Rambus prevailed on all issues. (NDCA).
- Ericsson, Inc. v. Samsung. Represented Ericsson in a series of patent infringement suits and ITC actions against Samsung following the expiration of a worldwide patent cross-license between the parties. Following the first ITC hearing (but prior to the ALJ’s ruling), the parties settled by signing a new, multi-year worldwide license. (EDTX and ITC).
- Ericsson Inc. et al v. Apple Inc. Represented Ericsson in patent infringement and breach of contract litigation with Apple in the ITC and district court relating to LTE, WCDMA, and GSM/GPRS/EDGE technologies. The litigation settled favorably prior to an initial determination by the ITC or district court trial. (EDTX and ITC).
- i2 Technologies, Inc. et al v. Oracle Corporation et al. Represented i2 in a patent infringement action against Oracle involving enterprise software patents, including factory planning, demand planning, and supply chain management software. The parties reached a $37.5 million publicly-disclosed settlement following the pretrial conference. (EDTX).
- David’s Supermarkets v. Fleming Companies. After a four-week trial, won a landmark jury verdict for breach-of-contract and fraud in a case involving overcharges under a supply contract, which was profiled in a front page article in The Wall Street Journal. This litigation was also noted in the industry publication Supermarket News as one of the most significant industry events (and the only lawsuit mentioned) in the past 50 years. The case ultimately settled for a confidential sum. (Texas State Court – Johnson County).
- City of Austin v. Convergent Group. Represented a software developer in a lawsuit brought against it by the city of Austin. Following a counter-offensive, the case was settled with no cash payment to the city and with the city purchasing $36 million in additional equipment from the company. In a front-page article on the settlement, the Austin American-Statesman reported: “The city-owned electric utility has come up with a unique way to settle a lawsuit over an $8.3 million software contract gone awry: Buy $36 million worth of wireless meter-reading equipment from the company's new owner” (WDTX).
- Wyble v. Gulf South Pipeline. Represented major pipeline company in citizen-suit seeking to force the company to spend billions for alleged violations of federal regulations. Won summary judgment. (EDTX).
- ORIX Capital Markets v. Wachovia Bank. Won liability issues in a breach of contract suit on behalf of a commercial mortgage-backed securities trust. Despite the liability victory, no damages were awarded by the court after the two-week bench trial. (NDTX).
- Randall’s Food Markets v. Fleming. Represented a Texas-based grocery chain in arbitration against supplier. Following two-week arbitration, obtained termination of a $400 million per year contract, clearing the way for the client to be acquired by a major national supermarket chain. (Arbitration).
- Furr’s Supermarkets v. Fleming. Represented the plaintiff, a major grocery chain, against its supplier. The case settled favorably, allowing the orderly termination of a $500 million per-year supply contract along with a substantial payment to the plaintiff. (D.NM).
- Concorde Financial Corp. v. Forrester. Represented an employer and obtained a jury verdict for fraud and breach of the employment relationship in suit against a former employee. (Texas State Court - Dallas).
- Individual. Represented a high-profile couple in a series of related lawsuits in California, Texas, and Delaware, arising from the sale of an air cargo company. After a TRO and temporary injunction hearing, the opposition was forced into bankruptcy. Settled underlying suit and then negotiated a substantial payment from Directors’ and Officers’ insurance carrier to the client. (Texas State Court - Dallas).
- Individual. Retained following an adverse jury verdict to coordinate appellate, indemnity, and insurance strategy for an individual defendant in a $25 million trade secret lawsuit. The litigation was settled in less than six months, with more than 80 percent of the cost borne by other parties. The key issue was the enforceability of an indemnity agreement. (California State Court – Los Angeles).
Rankings & Honors
- Recognized among Lawdragon's 500 Leading Plaintiff Financial Lawyers (2019)
- Recognized in "Best Lawyers in America" for Commercial Litigation (2015-2020)
- Ranked as a leading patent litigator in Texas by IAM Patent 1000: The World's Leading Patent Practitioners, 2014-2019
Media & Events
- Media Coverage: McKool Smith Secures $85 Million Verdict for WiLAN Against Apple In Patent Damages Retrial01.27.2020
- 20 McKool Smith Principals Recognized in Lawdragon's 2019 guide to the 500 Leading Plaintiff Financial Lawyers09.19.2019
- Scott Cole Named Texas Lawyer's "Litigator of the Week" for Lead Role in Securing Verdict for Versata05.23.2011
- McKool Smith Secures One of the Largest Verdicts Against Protective Life Insurance Policy in Alabama09.25.2018
J.D., with Honors, University of Texas, 1994
- Order of the Coif
- Townes-Rice Scholar
- Texas Law Review
- Board of Advocates
- Champion: Thad T. Hutcheson Moot Court
- Champion: Carl Wilson Mock Trial
- Champion: Vial, Hamilton, Koch & Knox Senior Mock Trial
- Champion: Strasburger & Price Senior Honors Mock Trial
B.A., with High Honors, 1990, University of Texas
- State of Texas
- The U.S. Courts of Appeals for the Fifth and Federal Circuits
- The U. S. District Courts for the Northern, Eastern and Western Districts of Texas
- American Bar Association
- State Bar of Texas