Areas of Practice

Fred Burnside’s practice focuses on class action defense and other complex commercial litigation. He is Co-Chair of Davis Wright Tremaine’s Class Action Defense Group and Deputy Chair of Davis Wright Tremaine’s Litigation Department.

Memberships, Activities and Awards

American Law Institute, Principles of the Law of Aggregate (Class Action) Litigation, Members Consultative Group

Co-Chair ABA’s Class Action and Derivative Suits Consumer Law Subcommittee

Washington State Liaison, ABA Class Action and Derivative Suits Committee

Selected to “Washington Rising Stars,” Washington Law & Politics, 2006-2008

William L. Dwyer Inn of Court, Member

Washington State Bar; Wisconsin State Bar; California State Bar

Class Action Defense Experience

Lead counsel representing Verizon Wireless in putative class action alleging the failure to disclose surcharges in consumer contracts and billing statements. Obtained dismissal on the pleadings. See Smale et al. v. Cellco Partnership d/b/a Verizon Wireless, __ F. Supp. 2d __, 2008 WL 1735863 (W.D. Wash. April 4, 2008).

Lead counsel representing Shell Oil in putative Washington class action alleging failure to disclose bank holds placed on consumer accounts where consumers use a debit card to complete their transactions. Case settled on an individual basis.

Lead counsel for Scholastic, Inc. in putative nationwide class action alleging violations of the Washington Consumer Protection Act and the Washington Unsolicited Goods Act for demanding payment for goods that were purportedly free. After filing motion for judgment on the pleadings, Plaintiffs voluntarily dismissed all claims.

Lead counsel representing loan-document software provider in putative class action alleging that sale of the forms constituted the unauthorized practice of law. After filing the opposition to class certification, Plaintiffs settled for less than $2500.

Currently representing T-Mobile in putative nationwide class action alleging improper charging of Universal Service Fund fees.

Co-counsel currently representing AOL.com in putative Washington class action alleging improper charges for AOL internet accounts.

Co-counsel currently representing Washington Mutual in a putative class action alleging ERISA violations resulting from the implementation of a cash-balance plan.

Co-counsel currently representing Microsoft in putative nationwide class action alleging that the Xbox 360 console scratches game discs.

Represented hospital system in putative class action alleging various claims in connection with theft of backup tapes containing patient data. Obtained dismissal and striking of class allegations.

Represented Washington Mutual in putative nationwide class action alleging that loan servicing errors demonstrated violations of the Washington Consumer Protection Act, breach of contract, and breach of the duty of good faith and fair dealing. Obtained denial of class certification.

Represented internet domain name registrar in putative nationwide class action litigation challenging reseller’s failure to transfer names. Obtained dismissal on the pleadings.

Co-counsel representing Random House in putative nationwide class action relating to James Frey novel “A Million Little Pieces.”

Represented Starbucks in putative consumer fraud class action alleging retraction of electronic coupon.

Represented herbal supplement manufacturer in putative nationwide class action in federal court. Plaintiff alleged violations of RICO and state consumer fraud statutes. Matter was resolved with minimal expense and no admission of liability.

Drafted successful petition for writ of mandamus to the Ninth Circuit Court of Appeals, addressing selection of lead counsel in securities class actions. In re Cavanaugh, 306 F.3d 726 (9th Cir. 2002),

Other Commercial Litigation

Represented lender in consumer fraud action where Plaintiff alleged violations of the Washington Consumer Protection Act, the Real Estate Settlement Procedures Act, and the Truth in Lending Act. Obtained summary judgment dismissing all claims, and the Court of Appeals affirmed that judgment. Shields v. Morgan Financial et al., 125 P.3d 164 (2005).

Represented Plaintiff landowner in quiet title action where defendants claimed adverse possession of Plaintiff’s only means of property access. Obtained summary judgment dismissing adverse possession claim and quieting title. The Court of Appeals affirmed the judgment. Johnson v. Asfaw, 2005 WL 2065267, 129 Wn. App. 1013 (2005) (unpublished).

Environmental Litigation

Co-lead counsel for hydroelectric licensee in Avista v. U.S. Bureau of Indian Affairs (trial before a Department of the Interior Administrative Law Judge under Section 241 of the Energy Policy Act of 2005, holding that many factual assertions by BIA in hydroelectric relicensing proceeding were unfounded) (2007)

Represented Public Utility District in an administrative appeal of a hydroelectric relicensing certification pursuant to the Clean Water Act. Acted as co-lead trial counsel and obtained a published decision upholding the Clean Water Act certification. Confederated Tribes Of The Umatilla Indian Reservation et al. v. Department of Ecology, et al., 2004 WL 891949 (Wash. Pol. Control. Bd., 2004).

Prior Experience

Milberg, Weiss, Bershad, Hynes & Lerach, San Diego, California (2000-2002)

Judicial Intern, The Honorable Barbara B. Crabb, United States District Court for the Western District of Wisconsin

Publications and Presentations

Moderator: “Are You Talking to Me? Communicating with Class Members Before, During, and After Class Certification.” ABA Litigation Teleconference CLE (May, 20, 2008)

Coordinating Editor — ABA State Survey of Class Action Law (2008) (republished in Newberg on Class Actions).

ABA Annual Survey of State Class Action Law — Oregon Chapter, 2007-2008 (republished in Newberg on Class Actions).

ABA Annual Survey of State Class Action Law — Washington Chapter, 2002-2008 (contributing author) (republished in Newberg on Class Actions).

Certification and Management of Nationwide And Multiple State Class Actions Under State Law, Law Seminars International, Comprehensive Advanced Conference on Innovative Strategies for Litigating Class Action Suits (2005) (secondary author)

“Go Pick a Client–And Other Tales of Woe Resulting from the Selection of Class Counsel by Court-Ordered Competitive Bidding,” 8 Fordham J. Corp. & Fin. Law 101 (2003)

“Fee-Fi-Fo-Fum—Why the Rejection of FIFO is…Not Smart,” 2 Class Action Litig. Rep. 21 (BNA) (2001)

“The Race to the Bottom: Bidding for Lead Counsel and Its Impact on Securities Class Actions,” 1261 Practising Law Institute: Advanced Securities Law Workshop 311 (2001)

“Dying to Get Elected: A Challenge to the Jury Override,” 1999 Wis. L. Rev. 1017 ABA Annual Survey of State Class Action Law — Oregon Chapter, 2007-2008 (republished in Newberg on Class Actions).

ABA Annual Survey of State Class Action Law — Washington Chapter, 2002-2008 (contributing author) (republished in Newberg on Class Actions).

Certification and Management of Nationwide And Multiple State Class Actions Under State Law, Law Seminars International, Comprehensive Advanced Conference on Innovative Strategies for Litigating Class Action Suits (2005) (secondary author)

“Go Pick a Client–And Other Tales of Woe Resulting from the Selection of Class Counsel by Court-Ordered Competitive Bidding,” 8 Fordham J. Corp. & Fin. Law 101 (2003)

“Fee-Fi-Fo-Fum—Why the Rejection of FIFO is…Not Smart,” 2 Class Action Litig. Rep. 21 (BNA) (2001)

“The Race to the Bottom: Bidding for Lead Counsel and Its Impact on Securities Class Actions,” 1261 Practising Law Institute: Advanced Securities Law Workshop 311 (2001)

“Dying to Get Elected: A Challenge to the Jury Override,” 1999 Wis. L. Rev. 1017

Education

J.D., cum laude, The University of Wisconsin Law School, Madison, Wisconsin

• Note & Comment Editor, Wisconsin Law Review
  
• Malt & Barley Editor, Wisconsin Law Review
• Member of the University of Wisconsin Moot Court Board
  
• First Place, ABA National Appellate Advocacy Competition Regional Championship
  
• Recipient of the Wisconsin State Bar Award for Highest Academic Achievement
  
• Elected as Student Graduation Speaker

B.A. in Philosophy, with Distinction, The Colorado College

• Phi Beta Kappa
  
• Philosophy Department nominee for the Rhodes Scholarship
  
• Recipient of the Robert Lewis and J. Glenn Gray Awards for Scholarship in Philosophy