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August 23, 2008 11:30 AM

Game Boy: Sheppard Mullin First Year Associate Launches Firm's Video Game Practice

Posted by Rachel Breitman

At just 26 years old, Sheppard Mullin associate Shawn Foust is in a rare position for a first-year attorney: he's already the leader in a practice group he helped his firm create. 

After a summer associateship at Sheppard in 2006 and five months in the firm’s entertainment practice, Foust brought his idea for a video game industry group to partner Robert Beall, head of the firm's business litigation group.

"I always wanted to do this type of law, and I knew that  we needed a group to match the innovation in the video game industry," says Foust. "The firm needed someone who loved the industry to lead it, and my generation is the one that grew up with the games."

The new group officially launched August 19 with 20 attorneys--five associates and fifteen partners--consulting on the patent, entertainment, labor, and tax issues associated with video games.

A fan of computer games for 20 years, Foust has restricted his passion for Microsoft Corporation's Xbox 360, Nintendo Co. Ltd's Wii, and Sony Corporation's PlayStation 2 to afterwork hours, until now. (His alltime favorite video game: Ogre Battle produced by Square Enix.)

Foust will continue his work with the entertainment and media industry team, but handling the growing video game practice already is taking most of his time.

A portion of the new group's work had previously been managed by the patent and employment litigation groups. "We were working with video game companies before, but we did it ineffectively through the various groups, not working together," says Beall. "But because of Shawn’s idea we were able to change the way we handle this growth industry."

The firm’s clients include game makers, licensors, distributors, publishers, and advertisers. The firm recently represented Activision Inc against allegations that its "Stealth Assassins" game violated patents held by Central Manufacturing. Co.. It helped IntelliVision trademark several games, and advised Sony Online Entertainment LLC in an arbitration with players upset by changes in the game.

Sheppard's new group faces its share of legal conundrums. The software user license agreements it drafts allow customers to modify the virtual worlds of the games and interact with other players, unlike more standard software user licenses that are more restrictive. Lawyers also deal with the legal rights of owners who acquire "property" in the games--from virtual gold coins to weapons--and their ability to sell these virtual products  online for real, taxable currency.

"For most areas of entertainment, users don’t have a long-term interaction with the product," says Foust. "[With video games], it's a much deeper connection, with people playing for hours and users considering their real lives to be in the games."

The firm's labor and employment lawyers also are helping to craft contracts with specific "crunch time" provisions for programmers working round the clock to fix game glitches; lawyers from the government contracts division handle the licensing of games used for military training.

As the group’s leader, Foust’s daily work involves pitching work to new clients, directing legal inquiries to the appropriate attorneys, and consulting with the firm’s senior partners on new video deals.

"They rely on some of my judgment in this industry," says Foust, "while I rely on their judgment on handling the legal issues."

Foust says he's enjoying the perks of the niche he's carved out, including a Nintendo Wii that now sits in the Century City office conference room.

"I am trying to convince them it's a required part of my work regimen," says Foust.

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