Rodger R. Cole
650-335-7603
rcole@fenwick.com
Partner
Litigation
Rodger R.
Cole
Rodger R.
Cole
Partner
Litigation
Rodger Cole is widely hailed as a top litigator for prominent Silicon Valley companies. For more than 30 years, he has helped technology and consumer product companies achieve their business goals in complex commercial and intellectual property disputes, including mass arbitrations. He has defended technology companies in more than 100 class actions, including many published decisions from district courts and courts of appeal.
Clients turn to Rodger for his ability to quickly understand their key business drivers and work with them to develop an early strategy to win or resolve a dispute. Most recently, he successfully defended a long-time client, a global technology firm, in a Ninth Circuit appeal related to a class action suit involving one of the company’s financial software products.
Rodger previously served as Fenwick’s firmwide managing partner for nearly a decade, overseeing strategic growth, talent development, and client service initiatives. During his tenure, the firm expanded into Santa Monica and Washington D.C., and grew its New York presence, reinforcing its reputation as a go-to law firm for technology and life sciences companies. He also championed innovative benefits, including expanded parental leave, and supported diversity, equity, and inclusion initiatives that helped Fenwick earn numerous industry accolades.
Being able to help guide clients through new issues about how old laws would apply to new technologies is super interesting. Lawyers are often all about precedents and what has happened before. And there are no cases or precedents when you're talking about digital health, autonomous vehicles, blockchain, AI or AR/VR.”
Rodger Cole
Law360, 2019
- Dohrmann et al v. Intuit et al: Rodger defended Intuit in a Ninth Circuit appeal, profiled by Law360, related to a putative class action alleging false advertising claims associated with Intuit’s TurboTax free filing option for tax preparation services. The Ninth Circuit reversed the district court’s decision, noting TurboTax's terms of service were clearly visible when users signed in on its website, and that the terms included a clause requiring disputes to be resolved through arbitration. The panel instructed the district court to compel arbitration, rejecting its alternative rationale that the users could bring a class action under a provision in the agreement that allows a court to award certain forms of equitable relief.
- In re Intuit Data Litigation: Rodger defended Intuit in a series of consumer class actions consolidated in the Northern District of California before Judge Davila. Plaintiffs alleged that Intuit failed to implement adequate security measures to prevent fraudsters from filing fraudulent tax returns and asserted legal claims for negligence and unfair competition. After winning a motion to dismiss and motion to compel arbitration, the case settled.
- In re Lenovo Adware Litigation: Rodger defended Superfish in a series of 27 federal lawsuits consolidated in the Northern District of California before Judge Whyte. Plaintiffs alleged that Superfish’s visual search technology violated their privacy rights and asserted legal claims for violation of the Wiretap Act, California Penal Code and unfair competition. The case settled.
- In re Carrier IQ Consumer Privacy Litigation: Rodger was appointed by Northern District Court of California Judge Chen as lead liaison defense counsel in a multidistrict privacy class action that coordinated more than 70 lawsuits filed around the country in the Northern District of California. He represented lead defendant Carrier IQ. Other defendants included HTC, Huawei, LG Electronics, Pantech Wireless, Samsung and Motorola Mobility. Plaintiffs claimed that Carrier IQ’s diagnostic software, which is embedded on a wide range of smartphones manufactured by Carrier IQ’s co-defendants, allowed the tracking and interception of consumers’ data and communications. The main legal claims asserted were violations of the Wiretap Act, Stored Communications Act and Computer Fraud and Abuse Act. The case settled. The closely watched litigation was covered by the Daily Journal, The Recorder and Law360.
- Boorstein v. CBS Interactive: Rodger secured a victory for client CBS Interactive in a widely watched privacy class action that ultimately led to the first court of appeal decision interpreting California’s Shine the Light Act. A fantasy football player sued CBS alleging the company violated a state law requiring it to disclose information about third-party vendors. The complaint alleged that CBS failed to comply with the Shine the Light statute by not including those disclosures in a privacy rights page on their websites. Rodger’s team convinced the trial court to grant its demurrer without leave to amend, arguing that the plaintiff did not have standing to bring a claim against CBS and the suit should be dismissed. The California Court of Appeal agreed and affirmed our trial court victory. The Ninth Circuit subsequently affirmed the dismissal of four similar suits based on the California Court of Appeal’s decision in Boorstein.
- Inter-Mark v. Intuit: Rodger defended Intuit in the consumer class action styled Inter-Mark v. Intuit and made new law governing online contracts. Inter-Mark alleged that Intuit’s enterprise software had bugs that breached implied warranties covering the product. Rodger filed a successful Rule 12(b)(6) motion to dismiss, arguing that Intuit’s click-wrap end-user license agreement expressly disclaimed such warranties, was enforceable and barred Inter-Mark’s claims. The court granted Intuit’s motion to dismiss with prejudice, and dismissed Inter-mark’s breach of implied warranty claims. This order is the first reported decision enforcing a disclaimer of warranties in a click-wrap EULA on a motion to dismiss.
- Dohrmann et al v. Intuit et al: Rodger defended Intuit in a Ninth Circuit appeal, profiled by Law360, related to a putative class action alleging false advertising claims associated with Intuit’s TurboTax free filing option for tax preparation services. The Ninth Circuit reversed the district court’s decision, noting TurboTax's terms of service were clearly visible when users signed in on its website, and that the terms included a clause requiring disputes to be resolved through arbitration. The panel instructed the district court to compel arbitration, rejecting its alternative rationale that the users could bring a class action under a provision in the agreement that allows a court to award certain forms of equitable relief.
- In re Intuit Data Litigation: Rodger defended Intuit in a series of consumer class actions consolidated in the Northern District of California before Judge Davila. Plaintiffs alleged that Intuit failed to implement adequate security measures to prevent fraudsters from filing fraudulent tax returns and asserted legal claims for negligence and unfair competition. After winning a motion to dismiss and motion to compel arbitration, the case settled.
- In re Lenovo Adware Litigation: Rodger defended Superfish in a series of 27 federal lawsuits consolidated in the Northern District of California before Judge Whyte. Plaintiffs alleged that Superfish’s visual search technology violated their privacy rights and asserted legal claims for violation of the Wiretap Act, California Penal Code and unfair competition. The case settled.
- In re Carrier IQ Consumer Privacy Litigation: Rodger was appointed by Northern District Court of California Judge Chen as lead liaison defense counsel in a multidistrict privacy class action that coordinated more than 70 lawsuits filed around the country in the Northern District of California. He represented lead defendant Carrier IQ. Other defendants included HTC, Huawei, LG Electronics, Pantech Wireless, Samsung and Motorola Mobility. Plaintiffs claimed that Carrier IQ’s diagnostic software, which is embedded on a wide range of smartphones manufactured by Carrier IQ’s co-defendants, allowed the tracking and interception of consumers’ data and communications. The main legal claims asserted were violations of the Wiretap Act, Stored Communications Act and Computer Fraud and Abuse Act. The case settled. The closely watched litigation was covered by the Daily Journal, The Recorder and Law360.
- Boorstein v. CBS Interactive: Rodger secured a victory for client CBS Interactive in a widely watched privacy class action that ultimately led to the first court of appeal decision interpreting California’s Shine the Light Act. A fantasy football player sued CBS alleging the company violated a state law requiring it to disclose information about third-party vendors. The complaint alleged that CBS failed to comply with the Shine the Light statute by not including those disclosures in a privacy rights page on their websites. Rodger’s team convinced the trial court to grant its demurrer without leave to amend, arguing that the plaintiff did not have standing to bring a claim against CBS and the suit should be dismissed. The California Court of Appeal agreed and affirmed our trial court victory. The Ninth Circuit subsequently affirmed the dismissal of four similar suits based on the California Court of Appeal’s decision in Boorstein.
- Inter-Mark v. Intuit: Rodger defended Intuit in the consumer class action styled Inter-Mark v. Intuit and made new law governing online contracts. Inter-Mark alleged that Intuit’s enterprise software had bugs that breached implied warranties covering the product. Rodger filed a successful Rule 12(b)(6) motion to dismiss, arguing that Intuit’s click-wrap end-user license agreement expressly disclaimed such warranties, was enforceable and barred Inter-Mark’s claims. The court granted Intuit’s motion to dismiss with prejudice, and dismissed Inter-mark’s breach of implied warranty claims. This order is the first reported decision enforcing a disclaimer of warranties in a click-wrap EULA on a motion to dismiss.
- Member, Board of Directors, Law Foundation of Silicon Valley, the largest provider of pro bono legal services in the Silicon Valley
- Member, Board of Directors, Law Foundation of Silicon Valley, the largest provider of pro bono legal services in the Silicon Valley
- CBS Interactive
- Hewlett Packard Enterprise
- Intuit
- SEGA of America
- CBS Interactive
- Hewlett Packard Enterprise
- Intuit
- SEGA of America
- Recognized by Lawdragon for Commercial and IP Litigation in its 500 Leading Litigators in America guide (2024)
- Best Lawyers, Appellate (2022)
- Super Lawyers, Intellectual Property Litigation and Business Litigation (2005 - 2023)
- Recognized by Lawdragon for Commercial and IP Litigation in its 500 Leading Litigators in America guide (2024)
- Best Lawyers, Appellate (2022)
- Super Lawyers, Intellectual Property Litigation and Business Litigation (2005 - 2023)
