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Law Firms, Ethics and Cybersecurity


Speaker(s): Craig A. Newman, 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)


Craig A. Newman is a recognized leader in both complex financial litigation and global cybersecurity. As a seasoned litigation partner and former General Counsel at both a multi-billion dollar international private equity firm and a Fortune 500-owned media consortium, Craig is steeped in key issues currently facing global organizations and often fills the role of senior outside advisor to his clients. He also chairs Patterson Belknap’s Privacy and Data Security Practice, is a founding contributor to the firm’s blog, www.DataSecurityLaw.com, and was recognized by The National Law Journal as one of 2015’s "Cybersecurity & Data Privacy Trailblazers."

Craig’s practice focuses on litigation involving sophisticated financial products, including swaps and derivatives, special litigation committee and board investigations, advising boards and organizations on cybersecurity, including data breach preparedness and cyber insurance assessment, and representing public, private, and non-profit institutions victimized by data breaches. He also handles litigation in a range of venues involving high-stakes claims of securities and accounting fraud, shareholder derivative litigation, M&A litigation, commercial disputes, and SEC, HUD and FTC investigations and enforcement matters. His clients include Fortune 500 companies and their boards and leadership teams, financial institutions, hedge and private equity funds, international investment firms, media and technology companies, manufacturers, healthcare providers, non-profit institutions, insurance companies, and private investors.

Maintaining his roots in journalism, where he began his career at age sixteen as a stringer for the Associated Press and later earned a Pulitzer Prize nomination, Craig appears regularly on national television including CNBC, CNN, and Bloomberg TV, discussing issues that range from litigation and corporate governance to the latest developments in cybersecurity. He has also written for The New York Times, The Washington Post, The Wall Street Journal, and Financial Times. Craig’s deep media background is another asset in his representation of major companies as he is always sensitive to the “headline risk” in high profile matters.

Craig is a sought-after speaker for industry and professional conferences, including the Tulane Corporate Law Institute M&A Conference and those sponsored by the U.S. Department of Homeland Security.

His recent work includes:

Litigation

  • An international investment conglomerate and holding company in a $10 billion complex financial fraud action relating to a secured lending facility;
  • A multinational manufacturing technology company in breach of fiduciary duty litigation arising out of the sale of two U.S. affiliates;
  • A U.S.-based hedge fund in litigation against a British financial institution relating to the termination under ISDA documentation of a $1.5 billion total return swap portfolio of corporate loans and bonds; and
  • Majority lenders and financial institutions in litigation with minority lenders related to covenant defaults and the foreclosure of a major international resort property that served as collateral for both term and revolving loan facilities.

Cybersecurity

  • Corporate boards and leadership teams concerning data security assessments, breach preparedness, breach response, oversight responsibilities, and internal investigations;
  • A Fortune 100 company and its senior management in an internal investigation and litigation related to a data breach and the public disclosure of confidential and proprietary corporate information;
  • Fortune 1000 multi-state healthcare company in internal investigation related to data security;
  • A prominent investment management organization in a data breach response and subsequent investigation relating to "Business Email Compromise," fraudulent Automated Clearing House wire transfers and violations of the Computer Fraud and Abuse Act;
  • Investment advisers and investment funds in preparing and implementing comprehensive data security plans including incident response protocols to comply with SEC requirements; and
  • A university in connection with a cyber-attack relating to highly confidential student records.

Board Representation and Investigations

  • The Special Board Committee of an NYSE-listed financial institution in an internal investigation into compliance and regulatory matters arising out of participation in HUD programs and subsequent shareholder derivative litigation in both state and federal court;
  • A federally appointed Receiver in a securities fraud civil enforcement action instituted by the U.S. Securities and Exchange Commission, and related U.S. Department of Justice investigation, arising out of a multi-million dollar Ponzi scheme;
  • A non-profit enterprise in an investigation into a DDos attack of its content management system, illegal content transfers and violations of the Computer Fraud and Abuse Act;
  • An NYSE-listed company in an investigation into the hacking of non-public information by a business competitor; and
  • A faculty member of a major educational institution in an investigation related to allegations of plagiarism and copyright infringement.

Admissions

  • New York
  • District of Columbia
  • Michigan

Honors

Named among The National Law Journal's 2015 “Cybersecurity & Data Privacy Trailblazers;" Burton Award winner for Distinguished Legal Writing; Member, Cronkite School of Journalism and Mass Communication Hall of Fame; Bernard Kilgore Fellowship awarded by The Society of Professional Journalists/Sigma Delta Chi and The George Washington University; Nathan Burkham Copyright Award, the American Society of Composers, Authors and Publishers Intellectual Property Award

Professional Activities

  • Trustee, Arizona State University;
  • Chairman of the National Board of Advisors at the Cronkite School of Journalism at Arizona State University;
  • Member, Bloomberg Law Innovation Advisory Board;
  • Member, Lexis/Nexis Privacy & Cybersecurity Law Report’s Editorial Board;
  • William Randolph Hearst Visiting Professional (Law and Regulation), Cronkite School of Journalism & Mass Communication, Arizona State University;
  • Member, Media Council, The Paley Center for Media;
  • Faculty, Practising Law Institute;
  • Member, National Association of Corporate Directors;
  • Chief Executive Officer of the Freedom2Connect Foundation, a Washington, D.C.-based non-profit organization focused on global Internet censorship issues (2012-2016); and
  • Advisory Board Member of Newsy, the news and information service for mobile devices, which is owned by the E.W. Scripps Company (2011-2015).

Practices & Industries

Education

  • University of Detroit School of Law (J.D., with honors, 1984)
    • Editor-in-Chief, Law Review
    • Burton Academic Scholar
    • Bernard Kilgore Fellowship
  • University of Missouri - Columbia School of Journalism (M.A., 1981)
  • Arizona State University (B.S., 1979)


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.