Judge ‘extremely offended’ by antisemitism allegations in Texas patent case
By Meghann Cuniff November 8, 2021
An Israeli company’s attempt to secure a new trial in a patent case against Amazon by leveling charges of antisemitism at Amazon’s attorneys appears to have backfired, with one of the accused attorneys offering a deeply personal rebuttal and the trial judge severely admonishing the company’s lawyer.
Saina Shamilov Courtesy of Twitter.com
“The allegations that were made hit right in my heart,” said Saina Shamilov, a Jewish lawyer defending Amazon.
“At no point during trial did anyone on our team raise any Jewish stereotypes,” Shamilov told U.S. District Judge Alan Albright in a recent phone hearing. She ended her comments by apologizing “for the emotional response.”
“It just became very personal,” said Shamilov, who moved to the United States to escape religious persecution in the Soviet Union and is a partner with the law firm Fenwick & West in San Francisco.
But Albright didn’t find that Shamilov was the one who should be apologizing. The judge said he was “extremely offended” by the “incredibly harsh accusations,” of antisemitism, calling them a baseless personal attack on Shamilov and her colleagues.
“It intimates that I would have, as a trial judge, allowed that kind of evidence to come in and not done anything about it, which means you’re alleging that I’m complicit in it,” Albright said, according to a transcript of the hearing obtained by the Forward.
The controversy stems from a jury trial last June in Albright’s Waco, Texas, courtroom in Freshub’s lawsuit against Amazon, which accuses the online retail giant of infringing three Freshub patents in the grocery-ordering feature of the Alexa voice assistant.
Shamilov and other lawyers from Fenwick West defended Amazon during the six-day trial, and the jury delivered a split verdict that was an overall loss for Freshub. Requests for new trials are common, but Freshub’s lawyers at Kramer Levin Naftalis & Frankel included in theirs unusual allegations of antisemitism that accused Fenwick West lawyers of unfairly focusing on Freshub’s Israeli background and the Jewish heritage of its chief executive, Meir Zohar.
Albright has not yet issued his final order on the new trial request, but he made clear during the Oct. 19 hearing that he sees no reason to grant a new trial for Freshub, and he indicated he was considering possibly punishing Freshub’s lawyers for the antisemitism allegations against Shamilov and her colleagues.
Meir (Iri) Zohar, Freshub founder and CEO. Image by PR
“I’m not certain that I don’t have to take some action with respect to you making these kind of allegations against them if they’re unfounded,” Albright told Paul Andre, a lawyer with Kramer Levin in Silicon Valley.
Kramer Levin’s filing said Amazon’s lawyers pushed an us-versus-them narrative that cast Freshub as an Israeli outsider trying to hone in on American technology, and they “blew this Jewish stereotype ‘dog whistle’ at every opportunity to unfairly bias the jury.”
The filing said the attorneys emphasized Freshub’s lack of profitability even though it was irrelevant, and they did so “in terms of Israeli shekels.”
Shamilov referenced that allegation and the subsequent news coverage in her comments to the judge last month. The “incredibly serious” allegations “were actually picked up by the press, including a very reputable Jewish publication,” she said, referring to an article in the Forward.
“It’s titled with antisemitism in it,” she said, according to transcripts, “mentioning me personally as someone involved who was cross-examining a witness and was talking about financial statements, making sure that the jury understood that the figures were not in dollars but in shekels, right? The consequence of this brief is not just asking for a new trial. The consequence of this brief is affecting the reputation personally of the lawyers of our team.”
She and the judge discussed the reason for mentioning shekels: A witness referenced financial statements that were in shekels, which was translated to U.S. dollars.
“It could have been pesos or yen, but it happened to be shekels because that’s the form that that money was in,” Albright said.
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