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Fashion and Retail Law 2018: Trends and Developments


Speaker(s): Brian Burgess, David Grunblatt, Howard S. Hogan, Joshua A. Sussberg, Lois F. Herzeca, Michael R. Williams, Paula Viola, Stacey M. Brandenburg, Steven M. Crosby
Recorded on: May. 1, 2018
PLI Program #: 220036

Brian Burgess is a partner in the firm’s Litigation Department and Appellate Litigation Practice. His work focuses on appellate matters and complex civil litigation in federal courts, and he has experience in a wide range of areas including antitrust law, administrative, constitutional law, intellectual property and financial services litigation. In 2017, Mr. Burgess was named to Benchmark Litigation’s “Under 40 Hotlist.”

Prior to joining Goodwin, Mr. Burgess served as a law clerk to Associate Justice Sonia Sotomayor of the Supreme Court of the United States. He previously worked in the Department of Justice as a special assistant to the Solicitor General. 

Experience

  • Co-authored brief and served as second-chair in Supreme Court litigation concerning the test for whether an artistic design feature can qualify for a copyright. Mr. Burgess represented the copyright owner, which designed original artwork appearing on clothing. The Supreme Court held by a vote of 6-2 that the designs were copyright-eligible. Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).
  • Represented a pharmaceutical company defending approval of its new drug application against a competitor’s exclusivity challenge. The D.C. Circuit upheld FDA’s approval of our client’s application in a decision that set an important precedent on the scope of 3-year exclusivities for new clinical investigations under the FDCA. Otsuka Pharm. Co. v. Price, 869 F.3d 987 (D.C. Cir. 2017).
  • Representing a leading test-preparation company against Sherman Act and RICO claims brought by a competitor. SDNY dismissed antitrust and RICO claims with prejudice.
  • Represented a major banking client in a putative class-action alleging violations of the Racketeering Influenced and Corrupt Organizations Act based on the rates charged for lender-placed insurance. Successfully obtained interlocutory review and reversal of adverse judgment resulting in an order to dismiss all claims. Rothstein v. Balboa Insurance Company, 794 F.3d 256 (2d Cir. 2015).
  • Defending a leading pharmaceutical manufacturer in putative class actions challenging patent litigation settlements on antitrust grounds, initiated after the Supreme Court’s decision in FTC v. Actavis, 133 S. Ct. 2223 (2013).

Education

  • J.D., New York University, 2009 (summa cum laude)
  • A.B., Dartmouth College, 2005 (summa cum laude)

Clerkships

  • 2012-2013 U.S. Supreme Court, Honorable Sonia M. Sotomayor
  • 2010-2011 U.S. Court of Appeals for the District of Columbia Circuit, Honorable David S. Tatel
  • 2009-2010 U.S. Court of Appeals for the Second Circuit, Honorable Guido Calabresi


Howard S. Hogan is a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher and is Co-Chair of the Fashion, Retail and Consumer Products group.  Over the course of his career, Mr. Hogan has handled numerous complex cases in a variety of federal and state courts in several different substantive areas including general commercial, securities and employment matters, and internal investigations.

Mr. Hogan’s practice focuses on intellectual property litigation and counseling, including trademark, copyright, patent, false advertising, right of publicity, licensing, and trade secret matters.  Mr. Hogan has represented various corporations and individuals in a broad range of industries, including financial services, sports, fashion, cosmetics, entertainment, transportation, pharmaceuticals, and online services.  A significant portion of Mr. Hogan’s practice involves computer, Internet, and new media-related issues.  He has represented and counseled a wide variety of companies on these issues, whether they are Internet-focused companies or traditional brick–and–mortar companies.  Many of Mr. Hogan’s matters have tested the application of traditional legal principles to the Internet and new media, such as in connection with issues of Internet jurisdiction, online contracting, and the application of trademark and copyright law to search engines, social media, and online sales.  Mr. Hogan also regularly counsels clients in connection with the application of privacy law to online commercial activities and data breaches, and has assisted clients with several substantial trade secrets and information security matters. 

Mr. Hogan is a frequent lecturer and writer on intellectual property and technology-related issues.  For example, Mr. Hogan is the co-author, with Gibson Dunn partner Lois Herzeca, of Fashion Law and Business: Brands and Retailers, a treatise published by the Practising Law Institute (2013).  Mr. Hogan is also co-author of the trademark and domain name chapters of the treatise, Intellectual Property Law in Cyberspace, published in 2011 by Bloomberg BNA in conjunction with the American Intellectual Property Law Association, and updated annually.  Mr. Hogan has also been a speaker at meetings of the International Trademark Association on "Competitors’ Use of Keyword Advertising and Search Engine Optimization"; the South by Southwest (SXSW) Interactive Conference in Austin, Texas on "Data Customization and Privacy – Can They Coexist,?"; the American Bar Association Section of Intellectual Property Law on "Recent Developments in Survey Evidence"; and Comic-Con San Diego on entertainment law issues as part of the "Comic Book Law School" program.  Mr. Hogan has also provided commentary on intellectual property issues for CBS News, Bloomberg TV, and National Public Radio, and he has been quoted in publications such as The Wall Street Journal, The Washington Post, USA Today, Law360, Electronic Commerce & Law Report, The Recorder, and Managing Intellectual Property.

Mr. Hogan devotes significant time to assisting not-for-profit organizations with different issues.  In 2008, the Meals on Wheels Association of America honored Mr. Hogan with its ‘Friend of the Year Award’ for his assistance to MOWAA’s efforts to end senior hunger, and Mr. Hogan has served on the Boards of Directors for the Meals on Wheels Association of America Foundation, the National Foundation to End Senior Hunger, and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, among others. 

From 1999-2000 Mr. Hogan was Law Clerk to the Honorable Naomi Reice Buchwald, United States District Judge for the Southern District of New York.  In 1994, Mr. Hogan helped to initiate the AmeriCorps*National Civilian Community Corps, where he served as a Team Leader until 1996 and received the organization’s Outstanding Leadership Award in 1995.  Prior to joining Gibson Dunn, Mr. Hogan was an associate with the New York office of Debevoise & Plimpton, LLP.

Mr. Hogan received his B.S.F.S., magna cum laude, from Georgetown University School of Foreign Service in 1994 in International Relations, Law, and Organization, Phi Beta Kappa with a European Studies Certificate.  In 1999 he received his J.D., cum laude, from New York University School of Law, where he was Editor-in-Chief of The Commentator and Research and Writing Editor for the Moot Court Board.  Mr. Hogan is also an alumnus of Lady Margaret Hall, Oxford University, where he spent the 1992-93 academic term as a visiting student.

Mr. Hogan is a member of the bars of New York, Connecticut, and the District of Columbia, and has been admitted to appear before the United States Supreme Court, the U.S. Courts of Appeals for the Second Circuit, the Third Circuit, the Fourth Circuit, the Fifth Circuit, the Ninth Circuit, the D.C. Circuit and the Federal Circuit and the United States District Courts for the Southern, Eastern, and Northern Districts of New York, the District of Columbia, the District of Maryland, and the Eastern District of Texas.


Josh Sussberg is a partner in the Restructuring Group of Kirkland & Ellis. Josh represents debtors, creditors, equity holders, sponsors and investors in all aspects of restructuring distressed companies. Josh has been recognized as a leading lawyer in Chambers USA, America's Leading Lawyers for Business each year since 2011. Josh was named an “Outstanding Restructuring Lawyer” by Turnarounds & Workouts in December 2018, recognizing 15 lawyers nationwide who are leaders in the bankruptcy field. Josh was also recently recognized by The Deal as the 2018 “Consumer/Retail Lawyer of the Year.” Josh has a broad range of transactional and litigation experience across a number of industries including retail, energy, manufacturing, media, and transportation. Josh has also represented clients in multi-jurisdictional and cross-border matters. Some of Josh’s recent retail matters include Toys”R”Us, Z Gallerie, Charming Charlie, BCBG Max Azria, and Barneys.


Lois F. Herzeca is an executive advisor to early stage companies in the fashion, beauty and media industries. She is a lecturer in Law on fashion and retail law at the University of Pennsylvania Law School, a member of the Advisory Board of the FAME (Fashion, Art, Media and Entertainment) Center at Cardozo School of Law, and a retired partner of the New York office of Gibson, Dunn & Crutcher, where she was Co-Chair of Gibson Dunn’s Fashion, Retail and Consumer Products Practice Group.

Ms. Herzeca advises companies on significant legal and business matters, including mergers and acquisitions, equity investments, license agreements and joint ventures, counseling companies in a wide range of industries.

Ms. Herzeca was named a "Dealmaker of the Year 2012" by The American Lawyer for her representation of Transatlantic Holdings, Inc. in its $3.4 billion business combination transaction with Alleghany Corporation.  She was named a "Dealmaker of the Week" by The American Lawyer for her representation of CommScope, Inc. in its sale to The Carlyle Group for $3.9 billion in 2011.  She was ranked as a leading lawyer by Chambers USA:  America's Leading Lawyers for Business, and as one of Avenue Magazine's "Top Women Lawyers" in New York City.

A preeminent fashion and retail lawyer, Lois Herzeca is the co-author, with Gibson Dunn partner Howard Hogan, of Fashion Law and Business:  Brands & Retailers, a comprehensive guide to fashion law, published by the Practising Law Institute (2013).

Ms. Herzeca's fashion, apparel and celebrity clients and transactions have included:  Helmut Lang, Proenza Schouler, Derek Lam, Thom Browne, David Yurman, Brian Atwood, Rachel Roy, Tabitha Simmons, Mila Kunis, Rachel Zoe, L'Wren Scott, Maria Cornejo, Loeffler Randall, Dannijo, Beth Ditto, Milk Studios, Farfetch and Zumba Fitness.  She has also represented Goldman, Sachs & Co. as financial advisor in numerous public M&A retail industry deals, including Sycamore Partners' acquisition of Belk Inc., Ascena Retail Group's acquisition of Ann Inc., and the Hudson's Bay acquisition of Saks Inc.

Ms. Herzeca has written more than 40 articles for legal and financial publications.  She has also spoken at conferences for the Practising Law Institute, Mergermarket, the Strategic Research Institute and The Conference Board.  Ms. Herzeca has been quoted extensively in such publications as The Wall Street Journal, Law 360, The AmLaw Daily, Investment Dealers Digest, New York Magazine and The New York Law Journal.

Ms. Herzeca earned her Juris Doctor cum laude from the Boston University School of Law. In 2009, Boston University honored her with an Alumni Pro Bono award recognizing her many community-based and international pro bono initiatives. Ms. Herzeca advises public and private companies, private equity firms, and investment banks, on significant legal and business matters, including mergers and acquisitions, equity investments, license agreements and joint ventures.  Although she counsels companies in a wide range of industries, she specializes in the fashion and retail industries.


Michael Williams, a partner at Frankfurt Kurnit Klein & Selz, P.C., is the head of the firm’s Fashion Group and co-head of its Entertainment and Celebrity Branding Groups. Mr. Williams’ clients include major television and motion picture actors, leading fashion designers, top models, fashion show production companies, photographers and executives in the entertainment and fashion industries.

Mr. Williams has extensive experience working with fashion brands and individuals with regards to the creation, protection and, licensing of their intellectual property and trademarks.  He also advises clients regarding corporate structuring and employment matters.

Mr. Williams represents actors in the negotiation of deals to perform in film, television, theater and other media.  He also works to assist clients in capitalizing on their name, fame, likeness, and other rights in all media. He negotiates and structures profitable merchandising, licensing, endorsement and spokesperson agreements, and counsels clients on the development of their own celebrity-branded product lines.  

Mr. Williams was included in Variety’s coveted 2010 "Dealmaker’s Impact Report" and has been recognized in Super Lawyers magazine as a New York-area "Super Lawyer" in the field of entertainment and sports.

Mr. Williams is a member of the New York State and American Bar Associations. He is admitted to practice in New York. 


Paula Viola is the Head of Legal for IMG Models and Fashion.  Based in New York, Paula oversees legal operations and is a key strategic advisor to the senior management of IMG’s fashion divisions, which include: (i) IMG Models -- the world’s premier modeling agency, with offices in New York, Paris, London, Milan, Sydney and Los Angeles; (ii) IMG Fashion -  owner and operator of New York Fashion Week and a variety of luxury fashion experiences around the world; and (iii) Art + Commerce and The Wall Group, two management companies that represent the world’s leading fashion photographers, hairstylists, makeup artists and art directors.  A former fashion model, Paula brings a unique insider perspective to her fashion law practice, and has worked throughout her career with models’ rights groups and industry partners to improve working conditions for fashion models, including the passage of legislation in New York to protect underage models. 


Prior to practicing law, Steven Crosby gained decades of experience with AT&T and Bell Laboratories as a product designer, project manager, manufacturing consultant and regulatory compliance manager. This experience prepared him to assume an industry leadership role as an effective private-sector technical advisor to, and trade negotiator for, the U.S. Government in North American Free Trade Agreement, Asia Pacific Economic Cooperation, U.S.-E.U. Mutual Recognition Agreement, Free Trade Area of the Americas and U.S. Architectural and Transportation Barriers Compliance Board. He was twice commended by the United States Trade Representative for strategy, leadership and participation in U.S. delegations worldwide.

Thereafter, Mr. Crosby began his practice of law by structuring, drafting and negotiating large-scale service contract deals for NTT America, Inc. while managing NTT’s regulatory reporting affairs. He then brought this unique array of skills and experience to the Feldman Law Group’s practice of intellectual property law, including patent, trademark, copyright, trade secret, unfair competition, false advertising, fashion, jewelry, computer and Internet law.

Since joining the firm, Mr. Crosby has obtained a wide variety of patents and registrations of trademarks and copyrights for his clients. He drafts opinions and conducts due diligence investigations for clients. He also counsels clients on intellectual property transactional matters and drafts and negotiates settlement, licensing, assignment and other agreements tailored to meet his clients’ individual needs.

On the litigation front, Mr. Crosby has represented plaintiffs and defendants in many complex patent, trademark and copyright cases and works closely with clients and their insurers to effectively resolve disputes. As lead counsel for Star Athletica, LLC, e.g., he led a large team of talented attorneys and experts in the seminal SCOTUS copyright case Star Athletica LLC v. Varsity Brands, Inc. et al, which yielded a simplified Test for Separability under the Useful Article Doctrine and a critical holding for Star Athletica that any potential scope of copyrights in Varsity’s cheerleading uniform design features could not prevent against even identical copying of the “shape, cut and dimensions” of the uniforms at issue. On remand, the United States District Court for the Western District of Tennessee issued a judgment for Star Athletica, LLC against Varsity Brands, Inc. et al.


Stacey Brandenburg advises clients on privacy, data security, and a range of emerging issues such as acquisition and use of alternative data. A veteran of the Federal Trade Commission’s Division of Privacy and Identity Protection (DPIP), Stacey regularly represents companies in FTC and State AG investigations, involving consumer protection laws such as Section 5 of the FTC Act or state UDAP laws, the FTC’s endorsement and testimonial guidelines, and the Children’s Online Privacy Protection Act (“COPPA”).

Stacey also works closely with clients prospectively to develop compliance programs that help them navigate new issues while balancing legal considerations with business needs. For example, she regularly advises on how to make appropriate consumer-facing privacy and advertising- related disclosures. Stacey also actively counsels on the acquisition and use of alternate forms of data, including webscraping, drone, and consumer data.

Stacey is an adjunct at American University’s Washington College of Law, where she teaches about privacy issues raised by new technologies, including social media, big data, wearables, and the constitutional issues relating to government access to information.

After Stacey received her law degree from the NYU School of Law, where she was a Truman Scholar, she clerked for Judge Ronald Buckwalter in the United States District Court for the Eastern District of Pennsylvania. Stacey earned her B.A. in political science at the University of North Carolina at Chapel Hill, where she was a Morehead Scholar.


David Grunblatt is a Partner at Proskauer Rose LLP, heading its Immigration Practice Group and is an authority on employer immigration compliance and employment-based immigration benefits.  He served as Chair of the New York Chapter of the American Immigration Lawyers Association and of its Vermont Service Center Liaison Committee.  He was formerly Chair of the New York State Bar Association’s Committee on Immigration and Nationality Law and was Chair of the Committee on Immigration and Nationality Law at the New York County Lawyers Association.  He lectures and writes extensively on the subject of Immigration and Nationality Law.