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Advanced Data Privacy, Cybersecurity Breach and TCPA Class Action LItigation Strategies and Defenses 2018


Speaker(s): Bryan H. Heckenlively, Christine M. Reilly, Hon. Andrew J. Guilford, Hon. James Donato, Hon. James Ware (Ret.), Hon. Laurel Beeler, Hon. Loretta A. Preska, Hon. Marilyn L. Huff, Ian C. Ballon, Jeff Kichaven, Jonathan R. Mayer, Jordan S. Elias, Robert J. Herrington, Scott A. Kamber, Timothy G. Blood
Recorded on: Jan. 26, 2018
PLI Program #: 219177

Bryan H. Heckenlively is a partner in the San Francisco office of Munger, Tolles & Olson. He focuses his practice on complex civil litigation, with a particular emphasis on privacy and data security issues and class actions. He has been recognized as a Rising Star by Northern California Super Lawyers.

In 2015, Mr. Heckenlively served as lead trial counsel for The Regents of the University of California in winning a jury verdict in favor of UCLA Health System, which had been accused of negligently releasing medical records in violation of California’s Confidentiality of Medical Information Act. After a seven-day trial, a Los Angeles jury rejected the plaintiff’s claim for more than $1.25 million in damages.

Mr. Heckenlively also played a key role in obtaining a complete defense victory against a certified class following a nearly-three month arbitration hearing. The Daily Journal recognized that result as a Top Verdict of 2015.

Other recent representations include:
• ESPN and Disney Interactive in obtaining dismissals with prejudice in two putative class actions involving the WatchESPN and Disney apps for the Roku device and alleging violations of the Video Privacy Protection Act.
• HTC in nationwide class actions alleging that the installation and use of Carrier IQ software on smartphone devices violates the federal Wiretap Act, Stored Communications Act, Computer Fraud and Abuse Act and other laws. The court dismissed key claims against HTC following a motion to dismiss.
• HTC in obtaining dismissals of putative class actions involving the Evo 4G smartphone and the Google Phone, alleging unfair competition, false advertising and warranty claims.

In addition to these trial court results, Mr. Heckenlively counsels clients on privacy and data security issues and has experience handling a variety of appellate matters in state and federal court. He has argued in the U.S. Court of Appeals for the Ninth Circuit and filed numerous briefs in that court and others. In a pro bono matter before the Eleventh Circuit, he represents public health organizations opposing a Florida law preventing physicians from discussing firearm safety with their patients.

He serves on the board of directors for the Bay Area Lawyer Chapter of the American Constitution Society, the Leadership Council for the Justice & Diversity Center of the Bar Association of San Francisco, and the Advisory Board of the East Bay Community Law Center. He also teaches a trial advocacy course and coaches mock trial teams as a Lecturer at Berkeley Law.

Before joining Munger Tolles, Mr. Heckenlively served as a law clerk to Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the D.C. Circuit and to Judge Lee H. Rosenthal of the U.S. District Court for the Southern District of Texas.


Jeff Kichaven is an independent mediator with a nationwide practice and particular expertise in intellectual property, technology, and related cases.  He is an Honors Graduate of Harvard Law School (J.D. Cum Laude, 1980) and a Phi Beta Kappa Graduate of the University of California, Berkeley (A.B. Economics, 1977).

He has been named California Lawyer of the Year in ADR and in 2015, Best Lawyers named him the Best Mediation Attorney in Los Angeles.  The Daily Journal included him in its list of California’s Top Neutrals in eight separate years.  He has been Chair of the ADR Committee of the ABA Section of Intellectual Property Law and Chair of the Entertainment Law and Intellectual Property Section of the Los Angeles County Bar Association.  He has also served as a Trustee of the Los Angeles County Bar Association and as Chair of its Audit Committee.

He practiced scorched-earth business litigation before becoming a full-time professional mediator in 1996.

He is a Member of the American Law Institute.

He has taught beginning and advanced mediation training and mediation advocacy training for law schools and bar associations across the country, including for his Alma Mater, Harvard Law.

He has been a leading voice for consumer protection and the Rule of Law in connection with the California Law Revision Commission’s current reconsideration of California’s mediation confidentiality law.

The Asian-Pacific American Dispute Resolution Center has honored him with its Special Award for Excellence in Mediation for his commitment to diversity and nationwide leadership in his profession.

His views on mediation have been cited in The New York Times and The Wall Street Journal.


Jonathan Mayer is a Ph.D. candidate in computer science and a lawyer at Stanford University, where he received his J.D. in 2013. He was named one of the Forbes 30 Under 30 in 2014, for his work on technology security and privacy. Jonathan’s research and commentary frequently appear in national publications, and he has contributed to federal and state law enforcement actions.

Jonathan is a Cybersecurity Fellow at the Center for International Security and Cooperation, a Junior Affiliate Scholar at the Center for Internet and Society, and a Stanford Interdisciplinary Graduate Fellow. He earned his A.B. at Princeton University in 2009, concentrating in the Woodrow Wilson School of Public and International Affairs.


Jordan Elias, a Girard Gibbs partner, represents consumers and investors injured by corporate violations. He has pursued civil claims against monopolists, price-fixing cartels, oil and tobacco companies, and the nation’s largest banks. In addition, over the past decade Jordan has taken on pharmaceutical companies for collusion leading to inflated prescription drug prices.

An elected member of the American Law Institute, Jordan is the author of the law review articles Course Correction—Data Breach as Invasion of Privacy, 69 Baylor L. Rev. __ (forthcoming), and The Ascertainability Landscape and the Modern Affidavit, 84 Tenn. L. Rev. 1 (2017). He serves as Coordinating Editor for the American Bar Association’s Survey of Federal Circuit Courts’ Class Action Decisions. Other authoritative treatises to which Jordan has contributed include California State Antitrust and Unfair Competition Law, The Class Action Fairness Act: Law and Strategy, and California Class Actions and Coordinated Proceedings.

Jordan received a California Lawyer Attorney of the Year (CLAY) award in 2016. He has been recognized as a Northern California Super Lawyer since 2014. A former Chief Arbitrator for the San Francisco Bar Association’s attorney-client fee disputes program, Jordan now serves on the program’s Executive Committee.

Early in his career, Jordan clerked for the late Judge Cynthia Holcomb Hall of the U.S. Court of Appeals for the Ninth Circuit. He then defended technology companies in securities and intellectual property cases at Wilson Sonsini Goodrich & Rosati, and practiced as an appellate specialist at Lieff Cabraser Heimann & Bernstein.

Jordan is a native Californian who attended Harvard-Westlake School in North Hollywood, where he was a CIF Scholar-Athlete of the Year Finalist. He now lives in San Francisco with his wife and two daughters.


Robert J. Herrington is Co-Chair of the firm's Products Liability & Mass Torts Practice. He focuses his practice on defending consumer products companies in complex, multi-party litigation, including class actions, government enforcement litigation, product defect litigation and mass torts. Rob represents companies in a variety of industries, including apparel and footwear, retail, emerging technologies, consumer electronics, video game, telecommunications, advertising and publicity, online retailing, food and beverage, nutritional supplements, personal care products, sports and fitness, outdoor equipment, home appliances, automotive, and insurance.

Rob is the author of the best-selling book, Verdict for the Defense (Sutton Hart Press 2011), and a co-author of The Class Action Fairness Act: Law and Strategy (ABA Publishing 2013). Rob was recognized as the "Class Action Litigation Lawyer of the Year" (2017) by the Century City Bar Association. In 2013, 2014 and 2015, Rob was named in Law360's list of "Top Attorneys Under 40" for Class Actions.

Concentrations

  • Consumer class actions
  • Consumer protection litigation
  • Product defect litigation
  • False advertising
  • Unfair and deceptive trade practices
  • California Business & Professions Code § 17200
  • Consumer Legal Remedies Act
  • Products liability and mass torts
  • Complex commercial litigation
  • Trials


Scott A. Kamber is the founding member of KamberLaw, the leading plaintiffs’ firm to focus on individual rights in the digital age.  Serving a global client base with lawyers across the United States, Mr. Kamber has led the successful resolution of dozens of high–impact litigations, including In re Blue BuffaloLane v. Facebook and in re Flash cookies. Currently, Mr. Kamber leads numerous litigations arising from various web technologies, wrongful use of deep packet inspection technologies, web-centric violations of Lanham Act, website accessibility and the rights of children on the internet. Mr. Kamber has extensive courtroom and trial experience.

Mr. Kamber’s efforts in Internet privacy rights began in the 1990s when he resolved what is believed to be the first Internet privacy case to recover a benefit for impacted class members. His interest in consumer rights and technology extends to new media, and he has led standard-setting litigations and resolutions involving digital rights management software for computer software, video games, and music. Mr. Kamber is a frequent speaker on these issues in the United States and abroad, of note He was a keynote speaker for the IAPP annual conference and a panelist at the International Conference of Data Protection and Privacy Commissioners where he spoke on the topic of coordinating private class actions with government enforcement. 

Mr. Kamber graduated cum laude from the University of California Hastings College of the Law in 1991 where he was Order of the Coif, Articles Editor for the Hastings Constitutional Law Quarterly and a member of the Moot Court Board. He graduated with University and Departmental Honors from The Johns Hopkins University in 1986. He is admitted to practice before the United States Supreme Court, the State of New York and the District of Columbia, as well as the United States Courts of Appeals for the Second, Eighth and Ninth Circuits, and several United States District Courts.

 


The Honorable Andrew J. Guilford was appointed to the United States District Court for the Central District of California, Southern Division, sitting in Orange County and serving since July 7, 2006. He has sat by designation with the Ninth and Federal Circuit Courts of Appeal, and is a Patent Pilot Program Judge.

Before becoming a district judge, Andrew Guilford was a business trial lawyer with Sheppard Mullin Richter & Hampton for over 30 years, handling cases involving a wide variety of issues, particularly relating to intellectual property, unfair competition, finance, and professional liability.

As a Regent Scholar at UCLA, Mr. Guilford received his AB degree in economics summa cum laude in 1972, and was elected to Phi Beta Kappa. He received his JD degree from UCLA in 1975, and was an associate editor of the UCLA Law Review.

In 1992, Guilford was elected as a Fellow in the American College of Trial Lawyers. He was recognized five times by the Daily Journal as one of California's Top 100 Attorneys; listed as one of 50 "Best Lawyers in Orange County"; listed in "Best Lawyers in America"; selected as a "Southern California Super Lawyer" three times; and honored by groups including: the OC Trial Lawyers Association; the University of California, Irvine; the Orange County Bar Association; the Judicial Council; the Anti-Defamation League; the J. Reuben Clark Society; the Orange County Asian American Bar Association; the Hispanic Bar Association; the LAIPLA; the Orange County Federal Bar Association; the Orange County Intellectual Property Law Association; and the Markey Inn of Court.

Guilford’s professional activities include serving as the President of the State Bar of California (1999-2000) and as President of the Orange County Bar Association (1991). From 2011 to 2017, at the request of the Chief Justice of the United States, he served on the Committee on Codes of Conduct of the U.S. Judicial Council. Guilford has written many articles on various topics concerning the justice system. His most recent article is  Andrew J. Guilford & Joel Mallord, A Step Aside: Time to Drop the Infield Fly Rule and End a Common Law Anomaly, 164 U. Pa. L. Rev. 281 (2015).


The Honorable James Donato is a United States District Judge for the Northern District of California, with chambers in the San Francisco courthouse.  He is a member of the Northern District’s Local Rules Committee, Patent Local Rules Committee, and Patent Pilot Program.  He is also the Liaison Judge for the district’s Standing Committee on Professional Conduct. 

Judge Donato was nominated by President Barack Obama and confirmed by the United States Senate in 2014.  He holds a B.A. in history from the University of California, Berkeley, an A.M. in history from Harvard University, and a J.D. from Stanford Law School.  He clerked for the Hon. Procter R. Hug, Jr., United States Court of Appeals for the Ninth Circuit.  Judge Donato was in private practice for over 20 years before taking the bench.  He has been admitted to practice in California and Hawaii. 


United States Magistrate Judge Laurel Beeler was appointed in 2010. She has presided as a trial and settlement judge over hundreds of civil cases, including intellectual property, employment, civil rights, and commercial disputes.

Judge Beeler was an Assistant U.S. Attorney in the Northern District, prosecuting complex white-collar cases with parallel civil components. She was the Office=s Professional Responsibility Officer and Deputy Chief of the Criminal Division. She was a law clerk to the Honorable Cecil F. Poole, United States Court of Appeals for the Ninth Circuit, and the Civil Appeals Division Chief at the Ninth Circuit’s Office of Staff Attorneys. She trained as a mediator with the Northern District’s ADR Program, the Federal Judicial Center, and Harvard Law School.

Judge Beeler is a member of the Ninth Circuit Magistrate Judge Executive Board and the Ninth Circuit Criminal Case Committee and is one of four national judicial liaisons to the U.S. Department of Justice/Office of Defender Services Joint Electronic Technology Working Group. She chairs the Northern District=s Criminal Practice Committee and implemented the court’s reentry and diversion courts.

Judge Beeler was President of the Federal Bar Association, co-chair of the Lawyer Representatives to the Ninth Circuit, a board member of the Bar Association of San Francisco (“BASF”), and a member of the Ninth Circuit=s Jury Trial Improvement Committee. She is a member of the Executive Committee of the Edward J. McFetridge American Inn of Court. In 2006, Judge Beeler received the Northern District Judicial Conference=s Public Service Award. She was named one of The Recorder=s A2012 Women Leaders in Law.@ She received BASF’s Barristers Choice Award in 2015 and the San Francisco Trial Lawyers Association’s Magistrate Judge of the Year award in 2018.

Judge Beeler taught Civil Trial Practice at U.C. Berkeley School of Law and Criminal Procedure at U.C. Hastings College of the Law. She led rule-of-law projects in Indonesia, Vietnam, Cambodia, the Philippines, Jordan, Ukraine, Turkey, and Thailand.

Judge Beeler graduated with honors from the University of Washington School of Law, where she was Order of the Coif and an Articles Editor on the Washington Law Review. She received her A.B. with honors from Bowdoin College. 


Ian C. Ballon is Co-Chair of Greenberg Traurig LLP’s Global Intellectual Property & Technology Practice Group and represents internet, mobile, entertainment and technology companies in defending data privacy, security breach and TCPA class action suits and in other intellectual property and technology litigation. A list of recent cases may be found at http://www.gtlaw.com/Ian-C-Ballon-experience.

He is also the author of the leading treatise on internet and mobile law, E-Commerce and Internet Law: Treatise with Forms 2d edition, the 5-volume set published by West (www.IanBallon.net), which includes extensive coverage of security breach and data privacy issues. In addition, he is the author of The Complete CAN-SPAM Act Handbook (West 2008) and The Complete State Security Breach Notification Compliance Handbook (West 2009). He also serves as Executive Director of Stanford University Law School’s Center for E-Commerce, which hosts the annual Best Practices Conference where lawyers, scholars and judges are regularly featured and interact.

Ian was named the Lawyer of the Year for Information Technology Law in the 2019, 2018, 2016 and 2013 editions of Best Lawyers in America and was recognized as the 2012 New Media Lawyer of the Year by the Century City Bar Association. In both 2018 and 2019 he was recognized as one of the Top 1,000 trademark attorneys in the world for his litigation practice by World Trademark Review. In addition, in 2019 he was named one of the top 20 Cybersecurity lawyers in California and in 2018 one of the Top Cybersecurity/Artificial Intelligence lawyers in California by the Los Angeles and San Francisco Daily Journal. He received the “Trailblazer” Award, Intellectual Property, 2017 from The National Law Journal and he has been recognized as a “Groundbreaker” in The Recorder’s 2017 Litigation Departments of the Year Awards. In 2010, he was the recipient of the California State Bar Intellectual Property Law section's Vanguard Award for significant contributions to the development of intellectual property law (http://ipsection.calbar.ca.gov/IntellectualPropertyLaw/IPVanguardAwards.aspx).

Mr. Ballon was listed in Variety's "Legal Impact Report: 50 Game-Changing Attorneys" and has been named by the LA Daily Journal as one of the Top 75 intellectual property litigators in California in every year that the list has been published (2009 through 2018) and as one of the top 100 lawyers in California. He is also listed in Legal 500 U.S., The Best Lawyers in America (in the areas of information technology and intellectual property) and Chambers and Partners USA Guide in the areas of privacy and data security and information technology. Mr. Ballon also holds the CIPP/US certification from the International Association of Privacy Professionals (IAPP).

Ian can be reached at: Ballon@gtlaw.com, 310-586-6575 or via leading social media platforms (IanBallon).


Judge Preska was appointed United States District Judge for the Southern District of New York on August 12, 1992 and entered duty on September 18, 1992.  She served as Chief Judge of that Court from June 1, 2009 to May 31, 2016.  Judge Preska received a B.A. from the College of St. Rose in Albany, New York in 1970, a J.D. from Fordham University School of Law in 1973, and an LL.M. in Trade Regulation from New York University Law School in 1978. 

Following graduation from Fordham, Judge Preska was an associate at Cahill Gordon & Reindel LLP and an associate and, beginning in January 1983, a partner at Hertzog, Calamari & Gleason until her induction as a United States District Judge in September 1992.  Judge Preska was nominated to the Second Circuit Court of Appeals in September 2008.  She received the Louis J. Lefkowitz Public Service Alumni Award from Fordham University School of Law in 1992 and served several terms as a Vice President on the Board of Directors of the Fordham Law Alumni Association.  The Fordham Law Alumni Association awarded her its Medal of Achievement in 1998.  She received a Doctorate of Humane Letters, honoris causa, from the College of St. Rose, Albany, New York, in 1998, the Edward J. Weinfeld Award from the New York County Lawyers Association Federal Courts Committee for Excellence in the Administration of Justice in 2001, the Charles Carroll Award from the Catholic Lawyers Guild in 2004, the Stanley H. Fuld Award for outstanding contributions to the development of commercial law and jurisprudence in New York State from the Commercial and Federal Litigation Section of the New York State Bar Association in 2009, the President’s Special Award from the New York Women’s Bar Association in 2011, the Barbara Jordan Outstanding Public Service Award from Phi Alpha Delta Law Fraternity International in 2012, the Women in Business Law Lifetime Achievement Award in 2013, the Boris Kostelanetz President’s Medal from the New York County Lawyers Association in 2014, the James Madison Award from the New York City Lawyers Chapter of the Federalist Society in 2014, and the Honorable John E. Sprizzo Award for commitment to the Rule of Law from St. John’s Law School in 2015.  She has lectured at Securities Industry Association Legal & Compliance Division, the International Bar Association, and numerous other venues, and was a contributing author to Federal Civil Practice published by the New York State Bar Association in 1989.

Judge Preska is a member of the Federal Bar Association, the Federal Bar Council, the New York County Lawyers Association, and the New York State Bar Association.  She has served as a member of the Committee on Federal-State Jurisdiction of the Judicial Conference of the United States, as chair of the Benchbook Advisory Committee, the Board of Directors of the Federal Judicial Center, and currently serves on the New York Federal-State Judicial Council.  Judge Preska has also served on the Advisory Board of the New York Chapter of the Federalist Society and, from 2001-2009, on the New York Regional Panel for the Selection of White House Fellows.  Judge Preska has also served as a Trustee of Fordham University. 


Litigator Christine Reilly defends companies in consumer class actions and other major civil litigation in various areas, including consumer protection, unfair competition, and false and deceptive advertising. She also represents clients facing investigations and proceedings initiated by the Federal Trade Commission, Federal Communications Commission, Consumer Financial Protection Bureau, and other federal and state regulatory agencies.

The chair of Manatt's Telephone Consumer Protection Act (TCPA) compliance and class action defense group, Christine regularly defends companies from claims brought under the TCPA, and she frequently writes and speaks on TCPA compliance. She has significant experience litigating under other federal statutes, including the Federal Trade Commission Act; Electronic Communications Privacy Act; Electronic Fund Transfer Act; Fair Debt Collection Practices Act; and the Magnuson-Moss Warranty Act.

Within California, Christine defends companies facing allegations brought under state laws such as the False Advertising Law, Unfair Competition Law, the Rosenthal FDCPA, Consumers Legal Remedies Act, Song-Beverly Credit Card Act, California Penal Code Section 327 (endless chain/pyramid scheme), and the Invasion of Privacy Act.

In addition to litigation, Christine regularly counsels clients on marketing and advertising practices and compliance with various consumer laws. She represents companies in myriad industries and service sectors including sales and marketing, wireless/mobile technology, the Internet, lead generation, manufacturing, electrical components, software, telecommunications, television, music and entertainment, automotive parts and services, food, health, and beauty.


Mr. Blood is the firm’s managing partner. His practice has focused on complex litigation, including class action litigation, since the early 1990’s. Mr. Blood has tried class action cases and is highly regarded in the field of consumer protection law, including California’s Unfair Competition Law and Consumers Legal Remedies Act. 

Mr. Blood has represented millions of retail consumers, holders of life, automobile and homeowner insurance policies, mortgagors, credit card customers, homeowners, and victims of race discrimination. He practices in both state and federal courts throughout the country, and has represented the interests of consumers formally or informally before the Federal Trade Commission, the California Department of Justice, the California Legislative Analyst’s Office and the California Department of Insurance. He has worked with the Federal Trade Commission to obtain record setting recoveries for consumers. In In re Skechers Toning Shoes Prods. Liab. Litig., Mr. Blood’s work with the Federal Trade Commission resulted in the largest consumer recovery in a false advertising action in FTC history.


Judge James Ware (Ret.) has joined JAMS after spending sixteen years as a civil litigator, and twenty-four years as a judge. He served as a United States District Judge on the Northern District of California, including a year and a half as the Chief Judge of the Northern District. Previously, he served as a judge on the Superior Court of California in Santa Clara County. Thanks to his extensive judicial career, he brings with him a wealth of experience derived from his management and resolution of thousands of cases across a wide variety of subjects. Most notably, Judge Ware presided over numerous cases involving patent infringement, securities fraud, antitrust, contract disputes, employment law, and various statutory actions. 

Since joining JAMS, Judge Ware draws on his vast experience as a judge on both the state and federal bench. Serving as a mediator and special master/discovery referee, he helps parties to communicate with and understand one another; offers a broad perspective on parties’ problems; assists them to evaluate the strengths and weaknesses of respective positions; assesses the overall cost of the dispute; and aides them in identifying, and overcoming, obstacles that stand in the way of effective resolution. As an arbitrator, he considers the issues and reaches a definitive, principled, and expedited resolution.


Marilyn L. Huff was appointed in 1991 as a federal district judge for the Southern District of California. She was Chief Judge of the Southern District of California from 1998 to 2005. She took senior status on October 1, 2016.

She is the president of the Federal Judges Association and a member of the United States Judicial Conference Budget Committee, the Board of the Association of Business Trial Lawyers in San Diego and the Executive Board of the Louis Welsh American Inns of Court.  

Previously, she was a member of the U.S. Judicial Conference Committee on Rules of Practice and Procedure, the Judicial Resources Committee, and liaison to the Evidence Rules Committee. She also was a member of the Ninth Circuit Education Committee, the Ninth Circuit Judicial Council, the Chairperson of the Ninth Circuit Public Information and Community Outreach Committee, and the Ninth Circuit Fairness and Gender Fairness Committees.

She received her J.D. from the University of Michigan law school in 1976 and a B.A. from Calvin College in 1972. She was a lawyer in private practice in San Diego from 1976 to 1991. She received the San Diego County Bar Association’s awards for Legal Professional of the Year and Service to the Legal Profession.