Definitely Not Attorney Barbie

Annette Hurst wasn’t toying around when she took on Mattel, but she still finds law a lot of fun

Published in 2005 Northern California Super Lawyers — August 2005

Annette Hurst only vaguely recalls playing with a Barbie doll when she was growing up — “I think maybe I played with one one summer,” she says — but she very clearly recalls her encounter with the ubiquitous wasp-waist blonde as an adult.

Hurst was the lead attorney in artist Thomas Forsythe’s successful defense against a suit concerning his use of the company’s topselling dolls in a controversial series of photographs titled Food Chain Barbie. Mattel Inc. charged him with copyright and trademark infringement for photos showing the plastic figure plopped in a milkshake mixer, lying with an egg beater between her legs and placed in numerous other poses the toy maker found objectionable.

Hurst, director and co-chair of the intellectual properties practice group at Howard Rice Nemerovski Canady Falk & Rabkin in San Francisco, put in close to 800 hours on the case in 2001, which she took pro bono. The amount of work, she notes, reflects Mattel’s well-documented penchant for trying to bury its opponents in paperwork. The company was so notorious that Forsythe could not find a lawyer in Southern California, where the suit was filed, willing to represent him.

Hurst, on the other hand, welcomed the opportunity to represent the artist, both to support the notion of artistic expression and to strike a blow against the restrictive image of women she believes Barbie perpetuates.

“I felt that what the artist’s work reflected is a critique of Barbie and its vision of the role of women,” she explains. “I didn’t mind putting in so much work because I felt I was devoting my time to focusing on gender issues, which are very important to me.”

Certainly Hurst’s own life contradicts the negative stereotype of woman as air-headed bimbo whose primary goals are to look attractive and land a husband. If the Ohio native had a doll collection growing up, it would more likely have consisted of replicas of celebrated female lawyers, for Hurst says she has known she wanted to practice law since she was 6 years old.

“I’m sure I didn’t know exactly what a lawyer did, but I knew that’s what I wanted to be,” she says, with a slight sense of comic bafflement. Coming from a lower-middle-class family in Hamilton, a town of about 60,000 between Cincinnati and Dayton, she is not sure how she got the idea in her head at such a young age. But however it got there, once lodged it stayed put.

Hurst never wavered in her determination to fulfill her dream. Paying her own way through college, she earned both a B.S. in business and a B.A. in philosophy from Miami University in Oxford, Ohio, before advancing to law school at New York University, where she was the Arthur Garfield Hays Civil Liberties Fellow and associate editor of The Review of Law and Social Change.

From there it was immediately on to Howard Rice, where she has remained for 15 years.

“It’s a rarity these days to stay with one firm,” she acknowledges, “but being here has given me the chance to work on a lot of different cases and different kinds of cases. Plus I really like my colleagues. I’m very happy here.”

Hurst cites the firm’s dedication to high-quality, cutting-edge work as its biggest attraction to a novice attorney. But she also mentions its relatively low partner-to-associate ratio as a major factor in her decision to cross the continent to accept a position there. She realized the low ratio would give her more opportunity to work closely with experienced lawyers on a wide variety of cases. In addition, Hurst appreciated the fact the practice was small enough to know all the members but large enough to get cases dealing with significant legal issues.

On the other hand, she adds, the decision to join the firm ultimately had less to do with consciously rational decision making than with an intuitive recognition that Howard Rice was the right place for her. As she puts it, “In the end, it’s all about the gut.”

It’s perhaps appropriate that Hurst’s most highly publicized case involved a toy, for contrary to the standard image of the highpowered attorney as tense and driven, the NYU graduate calls her job a lot of fun.

“I’m one of those lawyers who really love being a lawyer,” she declares without equivocation. “I love learning about my clients’ businesses, especially all the new technology. I have a very low boredom threshold, and every new client gives me an opportunity to learn something new.”

The fact that she rose to partner at 31 attests to both her dedication and her talent. Her defining role in several high-profile cases and a client list that includes such prominent companies as MGA Entertainment, PalmSource, Yahoo, NextCard, Electronics for Imaging, Hewlett-Packard, Wham-O, the Saul Zaentz Co., Vivendi Universal Games and the Oakland Raiders further demonstrate the respect she enjoys in her career.

Hurst has been responsible for a number of precedent-setting cases. In a ruling that she says validates the legal sanctity of the corporate form, the 39-year-old attorney represented Napster founder Shawn Fanning in a suit brought by music producer Matthew Katz, the self-described founder of ’60s rock groups Jefferson Airplane, Moby Grape and It’s a Beautiful Day, over the use of Napster to download songs Katz held under copyright. Arguing that under copyright law the litigant had no right to sue the individual, only the company, her team got the claim thrown out.

According to Hurst, an adverse ruling would have had significant repercussions throughout the high-tech industry, slowing creation of new software by saddling developers with responsibility for uses others might make of their products.

In another case of which she is particularly proud, Hurst led a team that convinced a panel of three judges to reverse a lower court’s ruling against a young woman who had sued a local Burger King for allowing a climate of sexual intimidation. During the lower court proceedings, the judge in the case likened the plaintiff to “a young Hester Prynne,” in reference to the adulterous heroine of The Scarlet Letter.

“We felt the reference was inflammatory and revealed gender bias on the part of the court. We got a 3-0 opinion, including getting a very conservative judge to support us. We felt this was very important in terms of setting a standard of judicial behavior in gender discrimination cases,” Hurst explains. In regard to her own career, Hurst says she has not experienced a significant level of discrimination.

“I don’t see a lot of bias,” she affirms. “But there are structural issues that fall disproportionately on the shoulders of women, about how to balance being a good member of your family and being a good member of the firm. It’s why you see a lot of women choosing not to become partners. I don’t see any easy answers to this.”

The problem is not exclusive to women, she points out, noting, “I think there are a lot of younger men struggling with this, men who want to be equal caretakers of their children but finding the demands of work make it difficult.”

Hurst and her husband were expecting twins as of this writing. Just don’t expect those twins to be playing with Barbie dolls.

 

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