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Brian Esler

When I take on a case, I resolve to seek the best outcome available for each client—whether that means a negotiated solution or pursuing their rights all the way to a final court judgment. Quotation mark
Brian Esler
Brian Esler
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About Brian

Brian Esler helps lead Miller Nash’s commercial litigation team in Washington. He has been recognized by Super Lawyers as one of the “Top 100 Attorneys” in Washington numerous times, and Benchmark Litigation regularly lists him as a “Washington Litigation Star.” His practice emphasizes complex business litigation, intellectual property advice and litigation, construction litigation, defense of financial institutions, and appellate advocacy. He has broad courtroom experience in a variety of venues, having argued or tried cases in state, federal, and tribal courts, and before federal and state agencies. 

Brian’s practice bridges the fields of technology and construction. Few construction lawyers know the difference between a trademark and a copyright; even fewer intellectual property attorneys keep a hard hat at the office. Brian has handled numerous intellectual property and technology disputes, especially in the area of trade secrets, with one judge commenting on his “demonstrated expertise in trade secrets litigation” when awarding his client fees for dissolving an injunction. Brian also represents a variety of construction industry clients involved in projects throughout the Pacific Northwest, including with regard to major public works projects. Brian is also a top-notch appellate advocate and recently convinced the United States Supreme Court to grant his client’s petition for a writ of certiorari in an ongoing dispute involving novel issues at the intersection of trademark law, arbitration law, and international law.

Brian is a member of the Business Torts and Unfair Competition subcommittee of the ABA Section of Litigation and serves on the Washington State Bar Association’s Court Rules and Procedures committee, chairing its appellate rules subcommittee. He is an active member of the Attorneys Council of the American Subcontractors Association and of the Litigation Counsel of America, an invitation-only network of top litigators from around the country. Brian is also an accomplished arbitrator, serving as an appointed arbitrator for the King County Superior Court, as a panelist for the American Arbitration Association, and as an advisory board member of the Seattle chapter of the Chartered Institute of Arbitrators.

Representative Experience

  • IP Litigation—Patent and Trade Secret Plus
    • Represent a client in the fishing industry in pursuing trade secret, Computer Fraud and Abuse Act (CFAA), and other claims against former employees.

    • Represent chemical process industry client in pursuing trade secret and related claims against a rival manufacturer.

    • Represented publicly traded French company in defending against patent and trade secret claims arising out of its development of novel ultrasound technology. Case settled on a confidential basis near the close of discovery.

    • Represented executive in a high-profile lawsuit brought by former employer, asserting claims that our client misappropriated trade secrets, violated fiduciary duties, and breached contractual obligations. The case included a six-day evidentiary hearing of the former employer's motion for terminating sanctions based on allegations that our client had knowingly destroyed relevant evidence. The court rejected the allegations, finding that our client was a credible witness who did not violate a duty to preserve evidence, did not act in bad faith, and did not engage in conduct that prejudiced the former employer. As trial approached, the court granted a number of summary judgment and evidentiary motions that significantly limited the scope and value of plaintiffs’ claims. On what would have been the first day of trial, the parties were able to reach an amicable resolution that terminated the case.

    • Represented Eastern Washington apple wax producer against claims of trade secret misappropriation and breach of previous injunction brought by Indian conglomerate arising out of client’s new wax formulation. After a bench trial in Yakima County Superior Court, court agreed with client that there were no trade secrets to protect, dissolved previous injunction and awarded client its attorneys fees. As stated in the trial court’s decision awarding fees, “Mr. Esler has demonstrated expertise in trade secret litigation . . .”

    • Represented local manufacturer in pursuing claims of patent infringement and trade secret theft against large multi-national corporation involving chemical process technology. Case resolved with confidential settlement after we defeated numerous motions for summary judgment.

    • Represented departed executive accused of breaching non-compete and misappropriating trade secrets. Case settled on a confidential basis.

    • Represented building materials manufacturer in pursuing claims of breach of non-compete and trade secret misappropriation against departing employees. After obtaining injunctive relief, case settled.

    • Represented local manufacturer in pursuing patent infringement claims regarding light-emitting diode technology against the federal government in the United States Court of Federal Claims pursuant to 28 U.S.C. § 1498.

    • Represented fishing equipment manufacturer in defending against claims of design patent infringement.

    • Represented and advised numerous government contractors and bidders on how to best position themselves to protect their confidential information from disclosure by the government.

    • Represented and advised numerous private companies on how to preserve and protect their trade secrets.

    • Represented large national merchandising company against false advertising claims arising from a dispute involving rights to Jimi Hendrix merchandise and artwork. Obtained summary judgment dismissal of all claims, and an award of fees, both of which were upheld by the Ninth Circuit on appeal.

    • Represented local author in Trademark Trial and Appeal Board proceedings, case settled favorably after mediation.

    • Represented regional health services provider in pursuing trademark infringement claims, case settled confidentially.

    • Advised local sports gear manufacturer regarding potential trademark infringement claims.

    • Represented local sporting goods manufacturer in pursuing false advertising claims against much larger competitor. After defeating defendant’s motion for summary judgment, case settled confidentially.

    • Represented large national manufacturer in pursuing false advertising claims against online competitor. Obtained summary judgment and a permanent injunction barring the false claims.

    • Represented local transportation company in defending against claims of trademark infringement, including obtaining insurance coverage for defense of claims.

    • Have represented numerous clients in Trademark Trial and Appeal Board opposition and cancellation proceedings.

    • Regularly counsel clients on how to best protect and preserve their brands.

    • Represent one of the largest systems integration and low volt subcontractors in the world in pursuing multimillion-dollar delay and other claims arising out of work performed on the Highway 99 single bore tunnel project.

    • Represent large telecommunications system provider in public contracts bidding dispute with Washington agency.

    • Represented large telecommunications systems provider in bid protest litigation with Oregon agency.

    • Represented large telecommunications system provider in bid protest litigation with a county. Case settled shortly after we obtained a temporary restraining order preventing county from entering into contract with alleged lowest responsible bidder.

    • Represented and advised a Washington public entity with regard to contractual and other issues arising from the bidding process on proposed improvements to its facility.

    • Represented materials supplier on a public works project in defending against claims regarding allegedly defective high-density polyethylene piping.

    • Represented materials supplier on a public works project in pursuing payment claims while defending against claims arising from allegedly defective concrete structures.

    • Represented bridge designer in litigation brought by general contractor arising out of the designer’s work on the I-405/I-5 to SR 169 Stage 1 Widening Design-Build Project. After multiple motions and mediations, and a one-day “mini-trial” before the mediators, case was successfully resolved.

    • Represented public university in pursuing claims arising out of construction project in Boise, Idaho.

    • Represented tribe in pursuing claims arising from installation of defective water treatment system.

    • Represent materials supplier in filing and foreclosing numerous mechanic's liens on projects throughout the Northwest.

    • Represent and advise commercial general contractor specializing in data centers and high-tech headquarters on projects throughout the Northwest.

    • Represented commercial tenant in pursuing indemnity claims against owner and others arising out of crane collapse at project.

    • Represented materials supplier on a hospital construction project in defending against defect claims while pursuing payment claims.

    • Represented general contractor in defending against and pursuing various claims arising out of a condominium project, including claims against the concrete and paving subcontractor for faulty installation.

    • Represented property owner and contractor accused of puncturing sewer pipe running under the Duwamish River near the West Seattle Bridge.

    • Represented owner in pursuing claims arising from improperly installed concrete flooring at its Federal Way headquarters.

    • Represented general contractor in defending claims arising from construction of condominium complex, including negotiating issues arising from CCIP wrap coverage.

    • Represented owner in easement dispute arising from the expansion of its Everett headquarters, culminating in a one-week bench trial.

    • Represent custom car manufacturer in defending against breach of contract and related claims.

    • Represent blockchain cooperative in dispute with members.

    • Represent lender and shareholders in seeking to recover investments in and loans to a failed cannabis company.

    • Represent veterinary clinic in dispute with former employees.

    • Represented the FDIC in various actions arising from the 2008 financial collapse.

    • Represented City of Seattle in defending against breach of settlement and related claims. Dunn v. City of Seattle, 420 F.Supp.3d 1148 (W.D. Wash. 2019).

    • Represented Chinese company in defending against breach of contract, fraud and related claims arising out of log export business. After a week-long evidentiary hearing in Astoria, Oregon, court largely sided with our client and case settled shortly thereafter.

    • Represented large national bank in defending against fraud and related claims; all claims dismissed on summary judgment.

    • Represented regional bank in defending against various claims by borrowers.

    • Represented agricultural cooperative in dispute with members.

    • Represented automotive warranty company in dispute with ex-employee.

    • Represented property owner in easement dispute; case settled after court granted our client summary judgment on its easement right claims.

    • Represented homeowner in dispute with neighbors over rights arising from Covenants, Conditions & Restrictions (CC&Rs).

    • Represented restaurant lessee in defending against landlord’s claims and pursuing fraud and misrepresentation claims.

    • Represented health savings account administration solutions provider in breach of software development contract dispute, including obtaining preliminary injunction to prevent defendant from switching to another provider. Case settled on confidential terms soon thereafter.

    • Represented municipality in high-profile case involving novel First Amendment issues arising out of criminal investigations.

    • Hester v. State of Washington, Case No. 98495-6 (S.Ct. 2020). Represent petitioners in pursuing constitutional claims (impairment of contract) against the State of Washington.

    • Roupp v. RChain Cooperative, Case No. 81915-1 (2021). Represent appellant blockchain provider in appeal involving arbitration rights.

    • Feick v. Brutsche, Case No. 54963-8-II (2021). Represent respondents in appeal involving cannabis company in receivership.

    • Dempcy v. Avenius, Case No. 79697-6-I (2020). Represented appellant in dispute among neighbors as to rights and responsibilities with respect to common property.

    • Washington State Department of Revenue v. F.D.I.C., Case No. 71524-1-I (2015). Represented respondent F.D.I.C. (on the briefs, but did not argue the case).

    • Alexander v. Sanford, 181 Wn. App. 135, 325 P.3d 341 (2014), petition for review granted, but dismissed by stipulation. Represented respondents Sanford, et al. This case involved a variety of issues arising out of claims against the board members of a condominium association.

    • Patterson v. Northland Investment, Inc., Case No. 27696-1-III (2010). Represented appellant Pattersons in a case involving a real property dispute.

    • Gourley v. 180Solutions, Case No. 59654-3-I (2008). Represented appellant Gourley (on the briefs).

    • Munro v. Swanson, Case Nos. 55811-1-I, 56082-4-1 (2007). Represented Respondent/Cross-Appellant Munro in a lease dispute.

    • Gildon v. Simon Property Group, Inc., Case No. 53151-4-I, aff’d in part, reversed in part by 158 Wn.2d 483, 145 P.3d 1196 (2006). Represented petitioner Simon Property Group in case involving unsettled issues under Revised Uniform Partnership Act.

    • Washington State Grange v. Brandt, 136 Wn. App. 138, 148 P.3d 1069 (2006). Represented respondent Washington State Grange in a case involving the application of the rule against perpetuities.

    • State v. Heckel, 143 Wn.2d 824, 24 P.3d 404 (2001). Represented amicus curaie Washington Association of Internet Providers.

    • Washington State Bank v. Medalia, 96 Wn. App. 547, 984 P.2d 1041 (1999). Represented appellant Medalia Healthcare, LLC. Involved the question of whether a purchaser of secured assets had committed conversion by allegedly interfering with security interest.

    • G.W. Equipment Leasing, Inc. v. Mt. McKinley Fence Co., Inc., 97 Wn. App. 191, 982 P.2d 114 (1999). Represented appellant G.W. Equipment. Involved a question of whether Arizona or Washington community property law should control the interpretation of a contract.

    • Setty v. Shrinivas Sugandhalaya, LLP, Supreme Court Case No. 19-623; Ninth Circuit Case No. 18-35573. Represent appellants and petitioners in pursuing appeal involving issues arising under the Lanham Act and the New York Convention. After the Ninth Circuit affirmed a trial court decision finding our client had no rights to compel arbitration because it was a non-signatory to the underlying arbitration agreement, successfully petitioned the United States Supreme Court to grant our client’s petition for a writ of certiorari; Supreme Court vacated decision and remanded to Ninth Circuit, where it is currently pending.

    • Rockin Artwork, LLC v. Bravado Int. Group Merch. Svs., Inc., Case Nos. 17-35151, 17-35263 (9th Cir. 2018).

    • Western Mortgage & Realty Co. v. KeyBank National Association, Case No. 15-35821 (9th Cir. 2017). Represented defendants-appellees in appeal involving borrowers claims of breach of contract, fraud and misrepresentation. Ninth Circuit affirmed dismissal of claims and awarded fees.

    • In re MILA, Inc., 423 B.R. 537 (9th Cir. BAP 2010). Represented appellant bankruptcy trustee in seeking to recover proceeds of directors and officers insurance policy.

    • Davel Communications, Inc. v. Qwest Corp., 451 F.3d 1037 (9th Cir. 2006). Represented appellants in pursuing claims under the Federal Telecommunications Act of 1996.

Industries Served

Practice Areas

Education

  • J.D., Georgetown University, cum laude, 1992
  • LL.M., London School of Economics and Political Science, with merit, intellectual property law, 2006
  • B.A., University of Pennsylvania, 1987

Bar Admissions

  • Washington, 1992
  • Idaho, 2006

Court Admissions

  • U.S. Supreme Court
          

      Activities

      Professional Plus
      • King County Bar Association, member
        • Intellectual Property Law Section
        • Judiciary and the Courts Committee, past chair
        • Local Rules Committee of the King County Superior Court, past representative
      • American Bar Association, member
        • Intellectual Property Law Section
        • Construction Law Forum
      • Washington Journal of Law, Technology and Arts, external editorial board member
      • American Subcontractors Association, Attorneys’ Council, member
      Civic Plus
      • British-American Business Council of the Pacific Northwest, member and past board member
      • Leadership Tomorrow Program, graduate
      • Woodland Soccer Club, coach

      Recognition

      • Selected for inclusion in The Best Lawyers in America© in Litigation–Intellectual Property, 2021
      • Named a “Washington Litigation Star” by Benchmark Litigation, 2018-present
      • Selected for inclusion as a Washington Super Lawyer, 2014-present
        • Top 100 Washington Super Lawyers, 2017-2020
      • Rated AV® Preeminent™ by Martindale-Hubbell®

      Insights from Brian

      • “Effectively Using Experts Early in Business Litigation,” American Bar Association, Litigation Section Roundtable (May 2021)
      • “‘Schein’-ing a Light on Circuit Splits—Non-Signatories, Delegation, and the Coming Battle Over Arbitration Discovery,” CIArb, webinar (Sept. 2020)
      • “Payment Clauses: What to Watch For and How to Negotiate Them,” American Subcontractors Association (Jan. 2020)
      • “Prompt Payment Clauses: What to Watch For and How to Negotiate,” American Subcontractors Association (Oct. 2019)
      • “Using Drones: What Subcontractors Need to Know,” American Subcontractors Association (Oct. 2017)
      • “The Seven Habits of Highly Effective Clients,” American Subcontractors Association, 2017 SUBExcel Conference (Mar. 2017)
      • “The Seven Habits of Highly Effective Clients,” American Subcontractors Association, 2016 SUBExcel Conference (Mar. 2016)
      • “London Calling,” British American Business Council, moderator (Feb. 2012)
      • “Fundamentals of Construction Contracts,” American Bar Association, Forum Committee on the Construction Industry (Nov. 2012)
      • “Copying the Hard Drive on the Way Out: The Employer Strikes Back Against Employee Disloyalty,” Miller Nash Graham & Dunn, Employment Law Seminar (Oct. 2015)
      • “Emerging Legal Issues in Mobile Communications,” MobileNorthwest 2011 Conference (May 2011)
      • “How to Make Friends and Infringe Works: Copyright and Social Media,” Third Annual Inland Empire Intellectual Property Institute (Oct. 2012)
      • “The Legal Landscape: Key Issues in the Mobile Marketplace,” MobileNorthwest 2009 Conference (Nov. 2009)
      • “Intellectual Property, Copyright and Trademark Protection,” The Seminar Group, Doing Business in China Conference (Jan. 2009)
      • Pacific Northwest Wireless Summit (Jan. 2009)
      • “Mobile Industry Legal Issues,” MobileNorthwest 2008 Conference (Oct. 2008)
      • “Emerging Legal and Regulatory Issues in Mobile Commerce,” Wireless Northwest Conference (Sept. 2007)
      • “Dare to Discover,” Washington State Bar Association (2007)

      Collaborations