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Law Firms, Ethics and Cybersecurity


Speaker(s): Frederick B. Warder III, Michelle W. Cohen, Thomas G.A. Brown
Recorded on: Jul. 20, 2016
PLI Program #: 188857

Michelle Cohen is a partner in the firm's litigation department, where she represents clients in all aspects of litigation in federal and state courts. Her primary area of practice involves the defense of consumer class actions, including false advertising claims. She also advises clients in privacy and data security matters, internal investigations and in responding to inquiries and subpoenas from government agencies. Ms. Cohen is experienced in leveraging technology to reduce discovery costs, through managing the preservation, collection, processing, and review of large volumes of electronic data. She is also a Certified Information Privacy Professional (CIPP/US) through the International Association of Privacy Professionals.

Ms. Cohen has been named a Rising Star by the New York Law Journal. Rising Star recognition is awarded to attorneys who have “an established a record of accomplishments and demonstrated that they are top contributors to the practice of law and their communities.”

Ms. Cohen graduated from the University of Wisconsin-Madison and received her JD from the Benjamin N. Cardozo School of Law, where she was elected to the Order of the Coif. Before joining the firm, Ms. Cohen served as Law Clerk to the Hon. Louis L. Stanton, U.S. District Court for the Southern District of New York.

Representative Matters

Technology and Media
Represented leading financial and business information provider in connection with allegations of corporate espionage, theft of trade secrets, false advertising and alleged violations of the federal antitrust laws as well as other state and federal laws.

Represented international electronics and wireless company defending against allegations of trade secret theft.

Advised leading financial and business information provider on privacy and data protection issues in connection with a third-party services agreement.

Represented a technology-focused non-profit organization in connection with the FTC’s suit against a major software company, successfully negotiating with the government not to include our client as a witness in the matter.

Represented leading financial and business information provider in connection with insider trading and Martin Act investigation by the U.S. Department of Justice and the N.Y. Attorney General’s Office.

Consumer Products
Representing a bottled organic tea company in a putative consumer class action filed on behalf of nationwide purchasers alleging the company’s best-selling product contains fewer antioxidants than declared on their labels.

Representing the world’s leading beverage company in a multidistrict litigation consisting of eight putative consumer class actions. In each action, the plaintiffs allege that our client’s product is misbranded in violation of FDA regulations and state law.

Representing a leading vitamin and nutritional supplement manufacturer in a putative consumer class action in which plaintiffs dispute the labeling on one of our client’s vitamin supplements.

Represented a leading chocolate and confections company in a putative consumer class action challenging various statements on labels for gum, mints, and chocolate products.

Represented a leading chocolate and confections company in a trademark and trade dress dispute with a competitor.

Represented a skincare company in threatened consumer class action challenging various advertising claims.

Represented a leading chocolate and confections company in a putative consumer class action alleging product packaging violations under various states’ slack-fill statutes.

Financial Services
Representing European bank in connection with an industry-wide investigation into alleged manipulation of the precious metals market.

Advised private investment firm on privacy and data protection issues in connection with a third-party services agreement.

Advised global investment firm on its internal cybersecurity policy and incident response plan.

Life Sciences
Represented major pharmaceutical company in responding to FTC inquiry into potential false and deceptive advertising.

Represented major pharmaceutical company defending against allegations of false patent marking.

Represented major pharmaceutical company in products liability actions involving specific drug.

Admissions

  • U.S. Courts of Appeals, Second Circuit; Ninth Circuit
  • U.S. District Court, Southern and Eastern Districts of New York
  • New York

Professional Activities

MEMBERSHIPS: New York State Bar Association; The Association of the Bar of the City of New York

HONORS: Named as a "2016 Rising Star” by the New York Law Journal

Practices & Industries

Education

  • Benjamin N. Cardozo School of Law (J.D., magna cum laude, 2004)
    • Symposia Editor, Cardozo Law Review
    • Order of the Coif
  • University of Wisconsin (B.A., 1999)


Fred Warder is a general litigator and Chair of the firm's Law Firm Defense Group. Fred’s practice covers the broad spectrum of general commercial litigation, and has focused on defending law firms and lawyers against malpractice and related claims and on prosecuting and defending intellectual property and consumer fraud disputes. In the law firm defense arena, he has represented clients ranging from international firms to solo practitioners accused of malpractice, breach of fiduciary duty, fraud, disciplinary violations and related claims. In the intellectual property arena, Fred has prosecuted and defended false advertising, trademark and consumer fraud claims between competitors and in class actions for a wide variety of products and services. He appears frequently in federal and state courts on behalf of clients, has served as a mediator in partnership disputes, and speaks frequently at bar association, CLE and industry events. Fred serves as the firm’s co-General Counsel.

Representative Matters

Law Firm Defense

  • Defended a global firm in a fraud action by investors in a client’s failed hedge fund.
  • Defended a large Southeastern firm against malpractice claims in connection with cable television carriage license agreements.
  • Defended an AmLaw 100 firm sued by shareholders of a former corporate client in connection with the sale of the corporation.
  • Defended a prominent mid-Atlantic firm sued by a former client after a large commercial real estate project foundered.
  • Defended an AmLaw 100 firm in a malpractice suit involving issues of patents, cell phone technology and attorney disclosure obligations.
  • Defended a prominent mid-Atlantic firm charged by a former client with trial errors after an adverse patent infringement judgment.
  • Defended an AmLaw 100 firm against claims by a bankruptcy trustee alleging malpractice.
  • Defended a prominent international firm against claims arising from its representation of a high-profile hospital system in Chapter 11 proceedings.
  • Defended a regional firm against fraud and malpractice claims in bankruptcy proceedings.
  • Defended an international firm against fraud and malpractice claims by a Texas energy company.
  • Defended a Southeastern firm in connection with fraud claims by a non-client arising out of a failed real estate transaction.
  • Defended a prominent international firm against claims of conflict of interest and malpractice stemming from its representation of a closely-held financial advisory business.
  • Defended an AmLaw 100 firm against claims of mis-administration of a $90 million estate.
  • Defended a mid-sized firm against claims that it failed to protect a group of family trusts against Madoff-related losses.
  • Defended in-house counsel of a large public company against malpractice and related claims brought by a former officer of the company.
  • Defended individual attorneys in disciplinary proceedings and sanctions appeals.

False Advertising & Consumer Fraud

  • Defense of class actions claims against manufacturer of cosmetic products.
  • Defense and prosecution of false advertising, trademark infringement and consumer fraud claims on behalf of manufacturers of skin care products.
  • Defense of class action claims against manufacturers of hair care products.
  • Prosecution and defense of false advertising claims on behalf of veterinary products company.
  • Defense of prescription drug manufacturer accused of misleading marketing claims and practices.
  • Prosecution of copyright license and related contractual claims on behalf of worldwide media company.
  • Prosecution of license payment claims on behalf of music distribution company.
  • Prosecution of false advertising and copyright infringement claims on behalf of reference book publisher.
  • Defense of false advertising claims against manufacturer of household products.
  • Defense of false advertising claims against manufacturer of pet care products.
  • Prosecution of trademark and trade dress claims on behalf of art supply manufacturer.

Admissions

  • U.S. Supreme Court
  • U.S. Court of Appeals, Second Circuit
  • U.S. District Court, Southern and Eastern Districts of New York; District of Columbia
  • New York
  • District of Columbia

Professional Activities

HONORS: Thurgood Marshall Award (2008); Recognized in The Best Lawyers in America® for Commercial Litigation and Super Lawyers for Professional Liability Defense; Listed in Managing Intellectual Propertymagazine’s “IP Stars” for New York

RECENT SPEAKING ENGAGEMENTS: Speaker, “Effective Impeachment and Rehabilitation in the High-Stakes Legal Malpractice Case,” American Bar Association National Legal Malpractice Conference (April 28, 2016); “Client Files: The Rules of Professional Conduct and Beyond,” New York City Bar Association (February 2, 2016)

Practices & Industries

Education

  • New York University School of Law (J.D., cum laude, 1990)
    • Myron J. Greene Advocacy Award
    • Order of the Coif
    • Articles Editor, New York University Law Review
  • Georgetown University (B.A., cum laude, 1986)


Thomas Brown is a Managing Director and Global Leader of Berkeley Research Group’s Cyber Security and Investigations practice. Mr. Brown specializes in helping clients manage cyber risk, respond to cyber incidents, remediate vulnerabilities, and address post-incident regulatory inquiries and litigation.

From 2002 to 2014, Mr. Brown served as an Assistant United States Attorney in the U.S. Attorney’s Office for the Southern District of New York, where he supervised the Complex Frauds and Cyber Crime Unit. 

As a federal prosecutor, Mr. Brown led a broad range of complex, cross-border cyber investigations and prosecutions, among them a number of landmark cases. They include Silk Road, a $1.2 billion underground drug website; the prolific “hacktivist” groups Anonymous and LulzSec; the hack of NASDAQ; Liberty Reserve, an online digital currency used to launder more than $6 billion in criminal proceeds; the hack of Citibank; Rove Digital, a massive botnet that infected more than 4 million computers; and Samarth Agrawal, who was convicted after trial of stealing high-frequency trading code from Société Générale. Mr. Brown has particular experience with virtual currencies, such as WebMoney and Bitcoin, and cyber national security matters. 

Mr. Brown also led significant investigations and prosecutions of a wide variety of white collar offenses, including economic espionage and theft of trade secrets, money laundering, FCPA violations, securities fraud, bankruptcy fraud, identity theft, criminal copyright theft, and tax fraud, among other violations. In 2010, Mr. Brown developed an innovative strategy to combat online copyright piracy, pioneering an international intellectual property rights enforcement program by the U.S. Department of Homeland Security that continues to this day.
 
In addition to conducting 10 jury trials and arguing a number of appeals before the U.S. Court of Appeals for the Second Circuit, Mr. Brown also won favorable judicial opinions with national impact on cyber-related issues, including an electronic surveillance matter and a case of first impression concerning the compelled production of data stored overseas by Internet service providers.

Mr. Brown is a recipient of the FBI Director’s Award for Outstanding Cyber Investigation and was named “Prosecutor of the Year” by the Federal Law Enforcement Foundation in 2011.
Mr. Brown frequently lectures on cyber security issues to legal, business and law enforcement groups. 

Mr. Brown is a graduate of Carleton College and received his J.D. from the University of Minnesota Law School. He is a member of the New York Bar.