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Defending Privacy and Behavioral Advertising Class Action Suits 2013: What Every Litigator and In-House Lawyer Needs to Know


Speaker(s): Chandler Givens, Christopher J. Hoofnagle, Eulonda G. Skyles, Hon. James Ware (Ret.), Ian C. Ballon, Jay Edelson, Jennifer Valentino-Devries, Jim Brock, Michelle Finneran Dennedy, Robert J. Herrington, Tricia Cross
Recorded on: Jan. 22, 2013
PLI Program #: 42153

Jennifer Valentino-DeVries is an investigative reporter and editor at The Wall Street Journal, working in print and online. Since 2010, she has been a key member of the team producing the What They Know series on digital privacy. Her current work focuses on technological tracking and surveillance and the impact this has on business, society and the law.


Michelle Finneran Dennedy

Industry: Information Services

Experience

Founder
The iDennedy Project
2011 - Present (1 year)

Vice President & Chief Privacy Officer
McAfee

August 2011 - Present (1 year 4 months) San Francisco Bay Area

Vice President, Security & Privacy Solutions
Oracle
2010 - 2011 (1 year)

Chief Privacy Officer
Sun Microsystems, Inc.

April 2000 - January 2010 (9 years 10 months)

Chief Governance Officer
Sun Microsystems, Inc.

April 2000 - January 2010 (9 years 10 months)

Patent Litigator
Fish & Neave

June 1995 - 2000 (5 years)

Associate
Fish & Neave (now part of Ropes & Gray)
1995 - 2000 (5 years)


Tricia Cross

Work Experience

Senior Counsel - Privacy
Fox Entertainment Group
March 2012 - Present (9 months) Greater Los Angeles Area


Skills & Expertise
Privacy Law


Education

Columbia University School of Law, 1997 - 2000
University of Nebraska-Lincoln, 1993 - 1997


CHANDLER GIVENS is an Associate at Edelson PC, where his practice focuses on technology and privacy class actions. His lawsuits have centered on fraudulent software development, unlawful tracking of consumers through mobile devices and computers, illegal data retention, and data breach litigation.

Practice

Chandler leads a team of engineers in investigating complex technological fraud and privacy related violations. His group’s research has lead to cases that have prompted significant reforms to the utility software industry and resulted in tens of millions of dollars to U.S. consumers.

On the privacy litigation front, Chandler plays an instrumental role in applying new technologies to federal and state statutes. His briefing on these issues has helped produce seminal rulings under statutes like the Stored Communications Act and establish data breach jurisprudence favorable to consumers.

Representative Experience

Software Litigation
[Lawsuits’ allegations center on the deceptive programmatic design of software]:

Gross v. Symantec Corp. // Rottner v. AVG Technologies USA, Inc. // Worley v. Avanquest N. Am., Inc. // LaGarde v. Support.com, Inc. // Kulesa v. PC Cleaner, Inc. // Robichaud v. Speedy PC Software // Burchfield v. Corel Corp. // Hall v. Tune Up Corp. // Ledet v. Ascentive, LLC // Drymon v. CyberDefender Corp. // Webb v. Uniblue

Privacy Litigation

Harris v. comScore, Inc. (largest privacy class action every certified on an adversarial basis :: Stored Communications Act / Electronic Communications Privacy Act) // In re Netflix Privacy Litigation (Video Privacy Protection Act) // Cousineau v. Microsoft Corp. (Stored Communications Act) // Resnick v. AvMed, Inc. (precedent-setting data breach litigation).
Other Cases

Nordman v. Airpush (lawsuit alleged that mobile ad network exploited users by leveraging its technology to engineer deceptive advertisements) // Burton v. iYogi (lawsuit alleges that defendant’s computer support services trick consumers into purchasing subscriptions)

Education

Chandler graduated from the University of Pittsburgh School of Law where he was a research assistant for Cyberlaw Professor Dr. Kevin Ashley, and a judicial extern for the Honorable David S. Cercone of the United States District Court for the Western District of Pennsylvania. He received CALI awards for the highest course grades in Negotiations as well as Telecommunications Law. He graduated cum laude from Virginia Tech, with a B.S. in business information technology, and a focus on computer-based decision support systems.

Before joining the legal profession, Chandler worked as a systems analyst. He has also interned at the Virginia Attorney General’s Office as well as the U.S. Department of Justice in Washington D.C.

Public Speaking

A frequent speaker on emerging law and technology issues, Chandler has presented to legal panels and state bar associations on topics ranging from data privacy and security to complex litigation and social media. He has been featured on syndicated radio, quoted in major publications such as Reuters and PCWorld, and been an invited Cyberlaw guest lecturer at his alma mater.

[Selected Speaking Engagements]:

Global Law Forum :: Cybersecurity Law & Policy In-House Summit :: Anticipating and Preparing for Protracted Litigation in the Aftermath of a Data Breach // Washington, DC // Jan. 14, 2014

LSI Technology Law :: Plaintiff's Perspective on the Use of Big Data Class Actions as a Privacy and Security Enforcement Tool, Harris v. Comscore, Inc. and other recent cases // Seattle, WA // Dec. 12, 2013

LSI Litigating Class Actions :: Evolving Issues in Privacy Class Actions // Chicago, IL // Dec. 10, 2013

NetDiligence Cyber Risk & Privacy Liability Forum: State of Litigation: Data Breach Litigation Update // Los Angeles, CA // Oct. 10, 2013

University of Pittsburgh School of Law :: Cyberspace and the Law :: Introduction to the Electronic Communications Privacy Act and the Stored Communications Act // Pittsburgh, PA // Fall 2013

NetDiligence Cyber Risk & Privacy Liability Forum: State of Litigation: Data Breach & Coverage Litigation Update // Philadelphia, PA // June 6, 2013

University of Pittsburgh School of Law :: Cyberspace and the Law :: Introduction to the Electronic Communications Privacy Act and the Stored Communications Act // Pittsburgh, PA // Spring 2013

Defending Privacy and Behavioral Advertising Class Action Suits 2013: What Every Litigator and In-House Lawyer Needs to Know // San Francisco, CA // Jan. 22, 2013

Privacy Class Actions: Is Your Personal Information Ever Safe? // Chicago, IL // Oct. 4, 2012

The Milt Rosenberg Show :: WGN Radio 720 :: Social Networking and Privacy // Chicago, IL // Feb. 6, 2012

Hot Topics in Privacy Law :: Developments in Civil Litigation of Privacy Law // Chicago, IL // Nov. 16, 2011

Publications

"Pardon the Disruption," Thomson Reuters Legal Blog, Nov. 7, 2013 through present.

ALM's Internet Law & Strategy, “Key Privacy Law Developments in 2013” (forthcoming


Chris Jay Hoofnagle is director of the Berkeley Center for Law & Technology's information privacy programs and senior fellow to the Samuelson Law, Technology & Public Policy Clinic. He is an expert in information privacy law. He teaches computer crime law and a seminar on the Federal Trade Commission and online advertising. Hoofnagle's research focuses on the challenges in aligning consumer privacy preferences with commercial and government uses of personal information.


Jay Edelson is the Founder and CEO of Edelson PC, which has been recognized by Law360 as an “Illinois Powerhouse” and named a "Consumer Protection Group" of the year (2017). He is considered one of the nation’s leading class and mass action lawyers, having secured over $1 billion in settlements and verdicts for his clients. Law360 has described Jay as a “Titan of the Plaintiff’s Bar.”

Jay has been recognized by the American Bar Association for being one of the “most creative minds in the legal industry” and has “taken on some of the biggest companies and law firms in the world, and has had success where others have not.” He has also been called of the most “feared” litigators in Silicon Valley and, according to a New York Times profile, his success in the privacy space has made him Tech’s “least friended” man. Put plainly, according to Chicago Lawyer Magazine, “when it comes to legal strategy and execution, Edelson is simply one of the best in the country.”

Commentators have singled out Jay’s willingness to tackle problems other lawyers shy away from and his creativity in finding winning strategies.  He has successfully litigated cases of first impression against the national banks in the wake of the housing collapse, leading to the reinstatement of over $3 billion in home credit lines. Through his privacy cases, he has “fostered a reputation for his uncanny ability to come up with creative standing and damages arguments” leading to “momentum-shifting rulings in challenges to the data security and information-gathering practices of companies.”

Jay has been chosen by courts and other institutions to handle some of the most complex and significant issues facing the nation today. He is leading the student-athlete concussion multi-district litigation against the NCAA, considered to be “one of the largest actions pending in the country.” His victory in the United States Supreme Court in Robins v. Spokeo has been called the most significant consumer privacy case in recent times.

Jay is representing dozens of governmental entities in lawsuits against the drug manufacturers and distributors responsible for the opioid epidemic in primarily state-based actions.


Jim Brock

EXPERIENCE

Founder and Leader
PrivacyChoice

Online Media industry
February 2009 - Present (3 years 10 months) Santa Cruz, CA
PrivacyChoice uses technology and data to make privacy easier.

For mobile app and site developers, Policymaker delivers an easy, complete and up-to-date privacy experience optimized for devices. Hosted policies include automatic third-party disclosure, implementation guides and best-practice updates. The policy terms API keeps your privacy disclosure in the cloud, for delivery across devices, in-context and consistently styled.

PrivacyChoice for Publishers is a complete privacy management toolset for websites, including third-party privacy-practice assessment, site and app privacy scans and a choice framework including Do-Not-Track, opt-out and cookie consents.

PrivacyChoice maintains the PrivacyChoice Trackerlist, the most comprehensive database of online tracking companies and practices. Trackerlist has been deployed in more than a dozen open source and commercial privacy applications, including those from Mozilla Collusion, Keynote Systems, Reputation.com, Krux Digital and Ensighten.

Member of the Board of Trustees
Georgiana Bruce Kirby Preparatory School 
Education Management industry
August 2011 - Present (1 year 4 months) Santa Cruz, CA
A private college preparatory middle school and high school located in Santa Cruz, California, Georgiana Bruce Kirby is known for its excellence in academics, exceptional visual and performing arts programs, small class sizes, and its distinguished faculty.

Co-Founder and CEO
Attributor

Privately Held; 11-50 employees; Internet industry
January 2005 - January 2009 (4 years 1 month)
Attributor enables publishers to protect, optimize and monetize online assets. Seven of the top ten book publishers, as well as the world's leading news organizations, rely on Attributor to protect their content from the threat of digital piracy. Leading customers include Macmillan, Harper Collins, John Wiley & Sons, the Associated Press, Financial Times, Agence France-Presse (AFP), and EFE.

Senior Vice President, Communications and Consumer Services
Yahoo! Inc
.
Public Company; 10,001+ employees; yhoo; Internet industry
January 2001 - November 2004 (3 years 11 months)
Developed and executed the company's broadband and subscriber acquisition strategy. Oversaw the company's global communications products, the mobile and broadband businesses, and the bulk of the company's global subscription businesses.

Partner
Amicus Capital

Public Company; 51-200 employees; Computer Software industry
1998 - 2001 (3 years)
Seed-stage venture capital and advisory services for early-stage online businesses. Portfolio includes eGroups (Yahoo!), AvantGo (Sybase), when.com (AOL), Tucows, and On24.

Partner
Venture Law Group

Privately Held; 51-200 employees; Law Practice industry
1993 - 1996 (3 years)

Led the Internet practice at Venture Law Group, an entrepreneurial technology law firm, serving as counsel and advisor to pioneering companies such as Yahoo!, Hotmail, LinkExchange, Silicon Investor and eToys.

Associate, Technology Practice
Morrison & Foerster
Partnership; 1001-5000 employees; Legal Services industry
1988 - 1993 (5 years) 


Education

University of Chicago, J.D., Law, Law and Economics 1983 - 1986
University of Chicago Law Review Managing Board John M. Olin Fellow in Law and Economics, Claremont McKenna College
B.A., Economics 1979 - 1982


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


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 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.


Ms. Skyles is an experienced litigator and trusted legal adviser, who specializes in intellectual property matters.  Ms. Skyles has significant experience with patent litigation matters, complex technology transactions, privacy and data security incident response and compliance, and intellectual property portfolio management and development.  Her litigation experience also includes representing technology companies in e-commerce, class actions, employment, bankruptcy, and corporate derivative suits.

Ms. Skyles recently joined Capital One in McLean, VA, where she serves as assistant general counsel. Before that, Ms Skyles was Of Counsel at Orrick Herrington as a part of its intellectual property group in Washington, D.C.  Previously, she served as head of litigation and risk management/compliance at SafeNet, Inc., a data security and encryption technology company based in Maryland.  Prior to SafeNet, she ran her own law  practice, Skyles Law Group in the greater Washington metro area, where she managed litigation and other dispute resolution matters for a variety of technology and media companies. Before moving to the East Coast, Ms. Skyles worked for over a decade in Silicon Valley. She held the role of Litigation Counsel for Yahoo! Inc., where she oversaw domestic and international litigation and provided legal counsel to business clients in the areas of product planning, product compliance, litigation avoidance, and contractual matters such as technology licensing, indemnities, warranties, joint-ventures, and mergers and acquisitions. Ms. Skyles also worked as a Litigation Associate for Fenwick & West LLP  in Palo Alto, California and was a law clerk for the Honorable William H. Orrick, Jr. of the United States District Court for the Northern District of California.

Ms. Skyles graduated magna cum laude from Cornell University with a B.A. in History. She obtained a J.D. from Stanford Law School, where she was an editor of the Stanford Law Review.   Ms. Skyles is admitted to the California and D.C. bars.  She resides in Rockville, Maryland, with her husband and two (very cute) daughters.