David W. Marston Jr. advises companies on intellectual property (IP) litigation, class actions, and complex commercial matters. He counsels a diverse group of clients, including those in manufacturing, computer software and hardware, media, and information technology, with their patent, trademark, copyright, and complex commercial litigation. Dave represents plaintiffs and defendants in US federal and state courts, handling all aspects of litigation from inception through trial and post-trial appeals. Clients have also turned to him for international arbitration counsel. He is managing partner of Morgan Lewis’s Miami office.
Dave has experience litigating copyright, trademark, and patent matters. Dave has represented an international publishing company against numerous copyright infringement suits in federal courts across the country. He obtained summary judgment in three cases on the grounds that the plaintiffs lacked statutory standing to assert claims under the Copyright Act. Dave litigated a trademark infringement case for a manufacturer of high-end, collectible watches in the Middle District of Pennsylvania. In that matter, the manufacturer’s U.S. distributor tried to assume the manufacturer’s trademarks by registering the marks in the United States. Dave also represented a condom manufacturer in a trademark infringement case in the District of New Jersey. Dave defeated the plaintiff’s motion for preliminary injunction which resulted in the plaintiff dismissing all claims against his client with prejudice. In 2012, Dave was second chair at a patent infringement trial in the Western District of Pennsylvania in a case filed by a university against a medical manufacturing company. A Pennsylvania federal jury awarded nearly $37 million to his client after finding that the defendant willfully infringed a patent for a device used in radiation cancer treatments. The jury verdict represented one of the Top 100 Verdicts of 2012.
A member of Morgan Lewis’s Class Action Working Group, Dave has also achieved multiple successes for his clients in complex commercial matters. He successfully defended a hospital company against qui tam and whistleblower claims under the federal False Claims Act, when the court dismissed all of the allegations the whistleblower asserted against Dave’s client. He defeated certification in a class action filed in the US District Court for the Southern District of New York claiming copyright infringement against an international publishing company. Dave also successfully defeated certification and obtained summary judgment in a class action filed in the U.S. District Court for the District of New Jersey for breach of express and implied warranties, breach of contract, unjust enrichment, and violations of the New Jersey Consumer Fraud Act.
Dave served on active duty with the US Coast Guard in Miami from 1993 to 1996. After graduating from law school, Dave served as a law clerk to Judge Roderick R. McKelvie, US District Judge for the District of Delaware.
Defended a large multinational corporation before the American Arbitration Association against breach-of-contract claims over the exclusivity provision in a license agreement. The client recovered its full legal costs.
Obtained summary judgment on behalf of a large multinational corporation in a case before a Kentucky state court alleging wrongful discharge, abuse of process, intentional infliction of emotional distress, and defamation.
Successfully defended a technical computing company against claims of inequitable conduct in a patent infringement case in the U.S. District Court for the Western District of Wisconsin.
Prevailed in a multimillion-dollar arbitration before the Netherlands Arbitration Institute arising from the failure of U.S. private equity funds to consummate the purchase of manufacturing subsidiaries of a Swedish multinational corporation that were located in Italy, Japan, and the United States.
Prevailed in a panel of the American Arbitration Association on behalf of a healthcare information provider claiming breach of a "most favored nations" provision in a license agreement.
Cornell University, 1992, B.S.
Villanova University School of Law, 1999, J.D.
U.S. Courts of Appeals for the Second, Third, and Ninth Circuits
U.S. Court of Appeals for the Federal Circuit
U.S. District Courts for the Northern, Middle, and Southern Districts of Florida
U.S. District Courts for the Eastern, Middle, and Western Districts of Pennsylvania
U.S. District Court for the District of Delaware
U.S. District Court for the District of Colorado
U.S. District Court for the Eastern District of Wisconsin
U.S. District Court for the Northern District of Illinois
Clerkship to Judge Roderick McKelvie of the US District Court for the District of Delaware (1999 - 2000)
Awards and Affiliations
Member, Litigation Department of the Year–Intellectual Property, The American Lawyer (2019)