In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 79

MOTION TO AMEND CONSOLIDATION ORDER re # 19 Order on Motion to Consolidate Cases,,,, # 66 Order filed by Perrin Aikens Davis, Brian K. Lentz, Cynthia D. Quinn, Matthew J. Vickery. Responses due by 3/16/2015. (Attachments: # 1 Declaration of STEPHEN G. GRYGIEL, # 2 Declaration of DAVID STRAITE, # 3 Proposed Order)(Kiesel, Paul) (Filed on 3/10/2015)

Exhibit A

KAPLAN FOX & KILSHEIMER LLP
FIRM PROFILE AND ATTORNEY BIOGRAPHIES
CELEBRATING 60 YEARS
Leo Kaplan and James Kilsheimer founded “Kaplan & Kilsheimer” in 1954, making the
firm one of the most established litigation practices in the country. James Kilsheimer was a
celebrated federal prosecutor in the late 1940s and early 1950s in New York who successfully tried
some of the highest profile cases in the country (including co-prosecuting Julius and Ethel
Rosenberg in 1951), and also handled the U.S. Attorney’s Office’s criminal appeals to the Second
Circuit. Co-founder Leo Kaplan was a well-known antitrust lawyer and in 1967 was appointed by
the Southern District of New York to oversee the distribution of all ASCAP royalties under the
1950 antitrust consent decree in United States v. American Society of Composers, Authors and
Publishers, 41-CV-1395 (SDNY), a role he held for 28 years until his passing in 1995.
Now known as “Kaplan Fox & Kilsheimer LLP,” the early commitment to high-stakes
litigation continues to define the firm sixty years after its founding. In September 2014, the
National Law Journal included Kaplan Fox in its inaugural list of the country’s top 50 “elite”
plaintiff firms. In March 2013, the National Law Journal included Kaplan Fox on its list of the
top 10 “hot” litigation boutiques, a list that includes both plaintiff and defense firms. In July 2014,
the firm was one of only five plaintiff firms to be recognized by the Legal 500 2014 US Edition as
a top-ranked firm in more than one practice area. Half of the firm’s litigation partners are ranked
as Thompson-Reuters “Super Lawyers” and the firm now has primary offices in New York and
San Francisco, and branch offices in Chicago, Los Angeles, Washington, D.C., and New Jersey.
OVERVIEW OF PRACTICE AREAS
The firm has four practice areas: Antitrust Litigation, led by Robert Kaplan and Gregory
Arenson; Securities Litigation, led by Frederic Fox; Consumer Protection and Data Privacy, led
by Laurence King; and Private Client Services, led by Sotheby’s former General Counsel
Theodore Kaplan.
Consumer Protection and Data Privacy Litigation
The Consumer Protection and Data Privacy Litigation Practice is headquartered in Kaplan
Fox’s San Francisco office, which opened in 2000, and is led by Laurence King, an experienced

trial lawyer and former prosecutor. Mr. King also recently served as a Vice-Chair, and then CoChair, of the American Association for Justice’s Class Action Litigation Group. Mr. King and our
other effective and experienced consumer protection litigators regularly champion the interests of
consumers under a variety of state and federal consumer protection laws. Most frequently, these
cases are brought as class actions, though under certain circumstances an individual action may be
appropriate.
Kaplan Fox’s consumer protection attorneys have represented victims of a broad array of
misconduct in the manufacturing, testing, marketing and sale of a variety of products and services,
and have regularly been appointed as lead or co-lead counsel, or as a member of a committee of
plaintiffs’ counsel, in consumer protection actions by courts throughout the nation. Among our
significant achievements are highly recognized cases including In re Baycol Products Litigation,
MDL 1431-MJD/JGL (D. Minn.) (victims have recovered $350 million recovered to date); In re
Providian Financial Corp. Credit Card Terms Litigation, MDL No. 1301-WY (E.D. Pa.) ($105
million recovered); In re Thomas and Friends Wooden Railway Toys Litig., No. 07-cv-3514
(N.D. Ill.) ($30 million settlement obtained for purchasers of recalled “Thomas Train” toys painted
with lead paint); In re Pre-Filled Propane Tank Marketing and Sales Practices Litigation, No.
4:09-md-2086 (W.D. Mo.) (settlements obtained where consumers will receive substantially in
excess of actual damages and significant injunctive relief); and Berry v. Mega Brands Inc., No.
08-CV-1750 (D.N.J.) (class-wide settlement obtained where consumers will receive full refunds
for defective products).
Kaplan Fox is an emerging leader in data privacy litigation. For example, Laurence King
filed and successfully prosecuted one of first online data breach cases, Syran v. LexisNexis Group,
No. 05-cv-0909 (S.D. Cal.). In addition to the case at bar, Kaplan Fox is currently co-lead counsel
in the Horizon Blue Cross data breach litigation, see Diana, et al. v. Horizon Healthcare Svcs.,
Inc., 2:13-cv-7418-CCC (D.N.J.), co-lead counsel in In re: Yahoo Mail Litigation, 13-cv-4980LHK (N.D. Cal.), liaison counsel in a data breach case against LinkedIn, see In re: LinkedIn User
Privacy Litigation, 12-cv-3088-EJD (N.D. Cal.) (preliminary approval of settlement granted), and
court-appointed steering committee member advising lead counsel on the appeal of In re: Google
Inc. Cookie Placement Consumer Privacy Litigation, No. 13-4300 (3d Cir.), addressing whether
URLs can contain “content” as defined in the Wiretap Act and whether the theft of PII confers
Article III standing. Finally, the firm is also leading an internet tracking case in New York against
PulsePoint, Inc., an online advertising company accused of hacking Safari’s privacy protections.
See Mount v. PulsePoint, Inc., No. 13-cv-6592 (SDNY) (Buchwald, J.).

Securities Litigation
Kaplan Fox has been a leader in prosecuting securities fraud for 40 years. In 2009,
Portfolio Media’s Law360 ranked Kaplan Fox’s securities litigation practice as one of the top five
in the country (plaintiff side). In 2014, the Legal500 recognized Kaplan Fox as one of the
country’s top eight securities class action practices (plaintiff side).
Some of the firm’s most significant securities recoveries include In re Bank of America
Corp. Sec., Deriv., and ERISA Litig., MDL 2058 (S.D.N.Y.) ($2.425 billion recovered), In re
Merrill Lynch & Co., Inc. Sec. Litig., Master File No. 07-CV-9633 (JSR) (S.D.N.Y.) ($475
million recovered), and In re 3Com Sec. Litig., No. C-97-21083-EAI (N.D. Cal.) ($259 million
recovered). On October 24, 2014, the firm announced the $170 million settlement of claims
against Fannie Mae related to its risk management, finances and mortgage exposure, a settlement
which is pending approval. In re: Fannie Mae 2008 Securities Litigation, No. 08-07831 (SDNY).
Antitrust Litigation
Kaplan Fox has been at the forefront of significant private antitrust actions, and we have
been appointed by courts as lead counsel or member of an executive committee for plaintiffs in
some of the largest antitrust cases throughout the United States. Members of the firm have also
argued before federal Courts of Appeals some of the most significant decisions in the antitrust
field in recent years. For example, Robert Kaplan, son of co-founder Leo Kaplan, argued the
appeal in In re Flat Glass Antitrust Litigation, 385 F. 3d 350 (3d Cir. 2004), and Greg Arenson
argued the appeal in In re High Fructose Corn Syrup Antitrust Litigation, 295 F. 3d 651 (7th Cir.
2002). In a recent survey of defense counsel, in-house attorneys and individuals involved in the
civil justice reform movement, both were named among the 75 best plaintiffs’ lawyers in the
country based on their expertise and influence. In 2014, the Legal 500 ranked Kaplan Fox as one
of the top 12 antitrust litigation firms in the United States (plaintiff side).
Over the years, Kaplan Fox has recovered over $2 billion for our clients in antitrust cases.
Some of the larger more recent antitrust recoveries include In re High Fructose Corn Syrup
Antitrust Litigation, MDL No. 1087, Master File No. 95-1477 (C.D. Ill) ($531 million recovered),
In re Brand Name Prescription Drugs Antitrust Litigation, MDL 997 (N.D. Ill.) ($720 plus
million recovered), In re Air Cargo Shipping Services Antitrust Litigation, MDL 1775
(E.D.N.Y.) ($278 million recovered from settling defendants; case still pending), and In re Infant
Formula Antitrust Litigation, MDL 878 (N.D. Fla.) ($126 million recovered).

The following are the attorneys of the firm who regularly engage in complex litigation:
PARTNERS
ROBERT N. KAPLAN has been with Kaplan Fox for more than 40 years, joining in 1971.
Mr. Kaplan is widely recognized as a leading securities litigator and has led the prosecution of
numerous securities fraud class actions and shareholder derivative actions, recovering billions of
dollars for the victims of corporate wrongdoing. Recently, he was listed by defense and corporate
counsel as one of the top 75 plaintiffs’ attorneys in the United States for all disciplines. Mr. Kaplan
was listed as one of the top five attorneys for securities litigation. He was also recognized by Legal
500 as one of the top six securities litigators in the United States for 2011, 2012 and 2013. He also
has earned a reputation as a leading litigator in the antitrust arena. Mr. Kaplan has a peer review
rating of 5 in Martindale-Hubbell.
Mr. Kaplan has played a significant role in most of the firm’s major cases, both securities
and antitrust matters, including: In re Bank of America Corp. Sec., ERISA & Der. Litig., No. 09MDL-2058 (S.D.N.Y); In re Merrill Lynch & Co., Inc. Sec., Deriv. & ERISA Litig., No. 07-cv9633 (S.D.N.Y.); In re High Fructose Corn Syrup Antitrust Litigation, MDL 1087 (C.D. Ill.); In
re 3Com Securities Litigation No. C-97-21083 (N.D. Ca.); AOL Time Warner Cases I & II; In re
Informix Securities Litigation, C-97-129 (N.D. Ca.); and In re Flat Glass Antitrust Litigation,
MDL 120 (W.D.P.), among others. Recently, he was appointed as one of two co-lead counsel in
the Sandridge Energy Inc. Shareholder Derivative Litigation pending in the United States District
Court for the Western District of Oklahoma.
Mr. Kaplan honed his litigation skills as a trial attorney with the U.S. Department of Justice.
There, he gained significant experience litigating both civil and criminal actions. He also served
as law clerk to the Hon. Sylvester J. Ryan, then Chief Judge of the U.S. District Court for the
Southern District of New York.
Mr. Kaplan’s published articles include: “Complaint and Discovery In Securities Cases,"
Trial, April 1987; “Franchise Statutes and Rules,” Westchester Bar Topics, Winter 1983; “Roots
Under Attack: Alexander v. Haley and Courlander v. Haley,” Communications and the Law, July
1979; and “Israeli Antitrust Policy and Practice,” Record of the Association of the Bar, May 1971.
In addition, Mr. Kaplan served as an acting judge of the City Court for the City of Rye,
N.Y., from 1990 to 1993.
Mr. Kaplan sits on the boards of several community organizations, including the Board of
Directors of the Carver Center in Port Chester, N.Y., the Board of Directors of the Rye Free
Reading Room in Rye, N.Y. and the Board of Directors of the Carver Center Member Visiting
Committee for Thoracic Oncology at the Dana Farber Cancer Center in Boston, Massachusetts.

Education:
 B.A., Williams College (1961)
 J.D., Columbia University Law School (1964)
Bar affiliations and court admissions:
 Bar of the State of New York (1964)
 Bar of the District of Columbia (2013)
 U.S. Supreme Court
 U.S. Courts of Appeals for the First, Second, Third, Seventh, Ninth, and Eleventh
Circuits
 U.S. District Courts for the Southern, Eastern, and Northern Districts of New York, the
Central District of Illinois, and the District of Arizona
Professional affiliations:
 National Association of Securities and Commercial Law Attorneys (past President)
 Committee to Support the Antitrust Laws (past President)
 Member of the Advisory Group Committee of the U.S. District Court for the Eastern
District of New York
 American Bar Association
 American Association for Justice (Chairman, Commercial Litigation Section, 1985-86)
 Association of the Bar of the City of New York (served on the Trade Regulation
Committee; Committee on Federal Courts)
Mr. Kaplan can be reached by email at: [e-mail]
FREDERIC S. FOX first associated with Kaplan Fox in 1984, and became a partner of
the firm in 1991. He has concentrated his work for 30 years in the area of class action litigation
and individual securities litigation. Mr. Fox has played important roles in many major securities
class action cases, including as a senior member of the litigation and trial team in In re Bank of
America Corp. Sec., ERISA & Der. Litig., No. 09-MDL-2058 (S.D.N.Y) (“In re Bank of America”)
arising out of Bank of America’s acquisition of Merrill Lynch, which recently settled for $2.425
billion. Mr. Fox was also a member of the litigation and trial team for one of the first cases tried
to verdict under the Private Securities Litigation Reform Act of 1995.
Mr. Fox is actively involved in maintaining and establishing the firm’s relationships with
institutional investors and oversees the Portfolio Monitoring and Case Evaluation Program for the
firm’s numerous public pension funds and other institutional investors. Mr. Fox currently
represents many institutional investors including governmental entities in both class actions and
individual litigation, including serving as lead or co-lead counsel on behalf of major public pension
funds in pending securities litigation involving Bank of America, Fannie Mae, SunPower
Corporation and Gentiva Health Services Inc. Mr. Fox is also Lead Counsel to a large public

pension fund system in a derivative action against the directors of Wal-Mart Stores Inc. (“WalMart”) involving alleged bribery and fraud at Wal-Mart’s Mexican subsidiary. In the past, Mr.
Fox has served as the lead attorney in In re Merrill Lynch & Co., Inc. Securities, Derivative &
ERISA Litigation, which was settled for $475 million, In re Merrill Lynch Research Reports
Securities Litigation (S.D.N.Y.) (arising from false and misleading analyst reports issued by Henry
Blodget); In re Salomon Analyst Williams Litigation (S.D.N.Y.) and In re Salomon Focal
Litigation (S.D.N.Y.) (both actions stemming from false and misleading analyst reports issued by
Jack Grubman). Mr. Fox is a frequent speaker and panelist in both the U.S. and abroad on a variety
of topics including securities litigation and corporate governance.
In the consumer protection area, he served on the Plaintiffs’ Steering Committee in the
Baycol Products Litigation where there have been more than $350 million in settlements.
Additionally, he served as one of the Co-lead Counsel in In re RC2 Corp. Toy Lead Paint Products
Liability Litigation in the Northern District of Illinois.
Mr. Fox is listed in the current editions of New York Super Lawyers and was recognized
in Benchmark Litigation 2010 as a New York “Litigation Star.”
Mr. Fox is the author of “Current Issues and Strategies in Discovery in Securities
Litigation,” ATLA, 1989 Reference Material; “Securities Litigation: Updates and Strategies,”
ATLA, 1990 Reference Material; and “Contributory Trademark Infringement: The Legal Standard
after Inwood Laboratories, Inc. v. Ives Laboratories,” University of Bridgeport Law Review, Vol.
4, No. 2.
During law school, Mr. Fox was the notes and comments editor of the University of
Bridgeport Law Review.
Education:
 B.A., Queens College (1981)
 J.D., Bridgeport School of Law (1984)
Bar affiliations and court admissions:
 Bar of the State of New York (1985)
 Bar of the District of Columbia (2013)
 U.S. Courts of Appeals for the First, Second, Fourth, Fifth, Sixth and Eleventh Circuits
 U.S. District Courts for the Southern and Eastern Districts of New York and for the
District of Columbia.
Professional affiliations:
 American Bar Association
 Association of the Bar of the City of New York
 American Association for Justice (Chairman, Commercial Law Section, 1991-92)
Mr. Fox can be reached by email at: [e-mail]

RICHARD J. KILSHEIMER first associated with Kaplan Fox in 1976 and became a
partner of the firm in 1983. His practice is concentrated in the area of antitrust litigation. During
his career, Mr. Kilsheimer has played significant roles in a number of the largest successful
antitrust class actions in the country, and he is serving as co-lead counsel for plaintiffs in several
currently pending cases. He also practices in the areas of securities fraud and commercial
litigation.
In December 2007, Mr. Kilsheimer was a featured speaker on the subject “Elevated
Standards of Proof and Pleading: Implications of Twombley and Daubert” at the American
Antitrust Institute Symposium on the Future of Private Antitrust Enforcement held in Washington,
D.C. Mr. Kilsheimer has also served on the Antitrust and Trade Regulation Committee of the
Association of the Bar of the City of New York (2004-2007).
Prior to joining the firm, Mr. Kilsheimer served as law clerk to the Hon. Lloyd F.
MacMahon (1975-76), formerly Chief Judge of the U.S. District Court for the Southern District of
New York.
Mr. Kilsheimer is co-author of “Secondary Liability Developments,” ABA Litigation
Section, Subcommittee on Secondary Liability, 1991-1994.
Education:
 A.B., University of Notre Dame (1972)
 J.D., cum laude, St. John's University (1975)
Bar affiliations and court admissions:
 State of New York (1976)
 U.S. Court of Appeals for the Second Third, Sixth and D.C. Circuits
 U.S. District Courts for the Southern and Eastern Districts of New York and the
Northern District of Indiana
Professional affiliations:
 Association of the Bar of the City of New York
 Federal Bar Council
 Committee to Support the Antitrust Laws
 American Association for Justice
Mr. Kilsheimer can be reached by email at: [e-mail]
LAURENCE D. KING first joined Kaplan Fox as an associate in 1994. He became a
partner of the firm in 1998. While Mr. King initially joined the firm in New York, in 2000 he
relocated to San Francisco to open the firm’s first West Coast office. He is now partner-in-charge
of the firm’s San Francisco and Los Angeles offices.
Mr. King practices primarily in the areas of securities litigation, with an emphasis on
institutional investor representation and consumer protection litigation. He has also practiced in

the area of employment litigation. Mr. King has played a substantial role in cases that have resulted
in some of the largest recoveries ever obtained by Kaplan Fox, including In re 3Com Securities
Litigation (N.D. Ca.), In re Informix Securities Litigation (N.D. Ca.), and AOL Time Warner
Cases. In addition, Mr. King was a member of the trial team for two securities class actions tried
to verdict, as well as numerous other cases where a favorable settlement was achieved for our
clients on or near the eve of trial.
An experienced trial lawyer, prior to joining Kaplan Fox Mr. King served as an assistant
district attorney under the legendary Robert Morgenthau in the Manhattan (New York County)
District Attorney’s Office, where he tried numerous felony prosecutions to jury verdict.
Education:
 B.S., Wharton School of the University of Pennsylvania (1985)
 J.D., Fordham University School of Law (1988)
Bar affiliations and court admissions:
 Bar of the State of New York (1989)
 Bar of the State of California (2000)
 U.S. District Courts for the District of New Jersey, the Eastern District of Pennsylvania,
the Southern and Eastern Districts of New York, and the Northern, Central, and
Southern Districts of California
Professional affiliations:
 New York State Bar Association
 New Jersey State Bar Association
 San Francisco Bar Association
 American Bar Association
 American Association for Justice
 San Francisco Trial Lawyers’ Association
Mr. King can be reached by email at: [e-mail]
JOEL B. STRAUSS first associated with Kaplan Fox in 1992, and became a partner in
the firm in 1999. He practices in the area of securities and consumer fraud class action litigation,
with a special emphasis on accounting and auditing issues. He has been repeatedly selected for
inclusion to the New York Super Lawyers list (Securities Litigation) (2007-2010, 2014).
Prior to joining Kaplan Fox, Mr. Strauss served as a senior auditor at the international
accounting firm of Coopers & Lybrand (n/k/a PricewaterhouseCoopers). Combining his
accounting background and legal skills, he has played a critical role in successfully prosecuting
numerous securities class actions across the country on behalf of shareholders. Mr. Strauss was
one of the lead trial lawyers for the plaintiffs in the first case to go to trial and verdict under the
Private Securities Litigation Reform Act of 1995.

More recently, Mr. Strauss has been involved in representing the firm’s institutional clients
in the following securities class actions, among others: In re Merrill Lynch & Co., Inc. Securities,
Derivative and ERISA Litigation (S.D.N.Y.) ($475 million settlement); In re Prestige Brands
Holdings Inc. Securities Litigation (S.D.N.Y.) ($11 million settlement); In re Gentiva Securities
Litigation (E.D.N.Y.); and In Re SunPower Securities Litigation (N.D.Cal) ($19.7 million
settlement). He has also served as lead counsel for lead plaintiffs in In re OCA, Inc. Securities
Litigation (E.D. La.) ($6.5 million settlement) and In re Proquest Company Securities Litigation
(E.D. Mich.) ($20 million settlement). Mr. Strauss also played an active role for plaintiff investors
in In Re Countrywide Financial Corporation Securities Litigation (C.D.Cal), which settled for
more than $600 million.
Although currently practicing exclusively in the area of law, Mr. Strauss is a licensed
Certified Public Accountant in the State of New York.
Mr. Strauss has also been a guest lecturer on the topics of securities litigation, auditors’
liability and class actions for seminars sponsored by the Practicing Law Institute and the
Association of the Bar of the City of New York and is an adjunct instructor in the Political Science
department at Yeshiva University.
In June 2014 Mr. Strauss was appointed to serve as a member of the New York State Bar
Association’s Committee on Legal Education and Admission to the Bar.
Among his various communal activities, Mr. Strauss currently serves on the Board of
Directors of Yavneh Academy in Paramus, NJ, is a member of Yeshiva University’s General
Counsel’s Council, and serves as Chair of the Career Guidance and Placement Committee of
Yeshiva University's Undergraduate Alumni Council.
In March 2001 the New Jersey State Assembly issued a resolution recognizing and
commending Mr. Strauss for his extensive community service and leadership.
Education:
 B.A., Yeshiva University (1986)
 J.D., Benjamin N. Cardozo School of Law (1992)
Bar Affiliations and Court Admissions
 Bar of the State of New Jersey
 Bar of the State of New York
 U.S. District Courts for the Southern and Eastern Districts of New York and the
District of New Jersey
 U.S. Court of Appeals for the First, Second and Third Circuits
Professional Affiliations:
 Association of the Bar of the City of New York
 New York State Bar Association
 American Institute of Certified Public Accountants

Mr. Strauss can be reached by email at: [e-mail]
DONALD R. HALL has been associated with Kaplan Fox since 1998, and became a
partner of the firm in 2005. He practices in the areas of securities, antitrust and consumer
protection litigation. Mr. Hall is actively involved in maintaining and establishing the firm’s
relationships with institutional investors and oversees the Portfolio Monitoring and Case
Evaluation Program for the firm’s numerous institutional investors.
Mr. Hall currently represents a number of the firm’s institutional investor clients in
securities litigation actions including In re Bank of America Corp. Litigation, which recently
settled for $2.425 billion, In re Fannie Mae 2008 Securities Litigation and In Re Credit Suisse –
AOL Securities Litigation. Recently, Mr. Hall successfully represented institutional clients in In
re Merrill Lynch & Co., Inc. Securities, Derivative & ERISA Litigation, which settled for $475
million; In re Majesco Securities Litigation; In re Escala Securities Litigation; and In re Ambac
Financial Group, Inc. Securities Litigation. Additionally, he was a member of the litigation team
in AOL Time Warner Cases I & II (Ca. Sup. Ct., L.A. Cty.), an opt-out action brought by
institutional investors that settled just weeks before trial. This action, stemming from the 2001
merger of America Online and Time Warner, resulted in a recovery of multiples of what would
have been obtained if those investors had remained members of the class action.
Mr. Hall has played a key role in many of the firm’s securities and antitrust class actions
resulting in substantial recoveries for the firm’s clients, including In re Merrill Lynch Research
Reports Securities Litigation (arising from false and misleading analyst reports issued by Henry
Blodget); In re Salomon Analyst Williams Litigation and In re Salomon Focal Litigation (both
actions stemming from false and misleading analyst reports issued by Jack Grubman); In re Flat
Glass Antitrust Litigation; and In re Compact Disc Antitrust Litigation.
Mr. Hall graduated from the College of William and Mary in 1995 with a B.A. in
Philosophy and obtained his law degree from Fordham University School of Law in 1998. During
law school, Mr. Hall was a member of the Fordham Urban Law Journal and a member of the
Fordham Moot Court Board. He also participated in the Criminal Defense Clinic, representing
criminal defendants in federal and New York State courts on a pro-bono basis.
Education:
 B.A., College of William and Mary (1995)
 J.D., Fordham University School of Law (1998)
Bar affiliations and court admissions:
 Bar of the State of Connecticut (2001)
 Bar of the State of New York (2001)
 U.S. Supreme Court
 U.S. Court of Appeals for the Second and Eleventh Circuits

 U.S. District Courts for the Southern and Eastern Districts of New York
Professional affiliations:
 Executive Committee of the National Association of Securities and Commercial Law
 American Bar Association
 American Association for Justice
 New York State Bar Association
Mr. Hall can be reached by email at: [e-mail]

HAE SUNG NAM first associated with Kaplan Fox in 1999 and became a partner of the
firm in 2005. She practices in the areas of securities and antitrust litigation, mainly focusing in
the firm’s securities practice.
Since joining the firm, Ms. Nam has been involved in all aspects of securities practice,
including case analysis for the firm’s institutional investor clients. She is also a key member of
the litigation teams prosecuting the firm’s highest profile cases, including securities and derivative
actions against Bank of America that recently settled for $2.425 billion, Wal-Mart, and Fannie
Mae, among others. She also has a focus in prosecuting opt-out actions on behalf of the firm’s
clients and has played a significant role in AOL Time Warner Cases I & II (Ca. Sup. Ct., L.A. Cty.)
and State Treasurer of the State of Michigan v. Tyco International, Ltd., et al. The recoveries
for the firm’s institutional clients in both of these cases were multiples of what they would have
received had they remained members of the class action.
Prior to joining the firm, Ms. Nam was an associate with Kronish Lieb Weiner & Hellman
LLP, where she trained as transactional attorney in general corporate securities law and mergers
and acquisitions.
Ms. Nam graduated, magna cum laude, with a dual degree in political science and public
relations from Syracuse University’s Maxwell School and S.I. Newhouse School of Public
Communications. Ms. Nam obtained her law degree, with honors, from George Washington
University Law School. During law school, Ms. Nam was a member of the George Washington
University Law Review. She is the author of a case note, “Radio – Inconsistent Application Rule,”
64 Geo. Wash. L. Rev. (1996). In addition, she also served as an intern for the U.S. Department
of Justice, Antitrust Division.
Education:
 B.A., magna cum laude, Syracuse University (1994)
 J.D., with honors, George Washington University Law School (1997)
Bar affiliations and court admissions:
 Bar of the State of New York (1998)
 U.S. Court of Appeals for the Eleventh Circuit



U.S. District Courts for the Southern and Eastern Districts of New York and the Eastern
District of Wisconsin
Professional affiliations:
 New York State Bar Association
 Asian American Bar Association of New York
 National Association of Women Lawyers
Ms. Nam can be reached by email at: [e-mail]
JEFFREY P. CAMPISI joined Kaplan Fox in 2004 and became partner of the firm in
2012. He practices in the area of securities litigation. Mr. Campisi has been involved in all aspects
of securities practice, including case analysis for the firm’s numerous public pension fund and
institutional investor clients.
Mr. Campisi currently represents public pension funds in In re 2008 Fannie Mae Securities
Litigation (08cv7831) (S.D.N.Y.) and In re 2008 Gentiva Securities Litigation, No. 10-cv-5064
(E.D.N.Y.). Mr. Campisi recently represented institutional investors in the following securities
class actions: In re Merrill Lynch & Co., Inc. Securities, Derivative and ERISA Litigation
(07cv9633) (S.D.N.Y.) ($475 million settlement) and In re Sequenom, Inc. Securities Litigation
(S.D. Cal.) (09cv921) (more than $60 million in cash and stock recovered).
Mr. Campisi served as law clerk for Herbert J. Hutton, United States District Court Judge
for the Eastern District of Pennsylvania.
Education:
 B.A., cum laude, Georgetown University (1996)
 J.D., summa cum laude, Villanova University School of Law (2000), Member of Law
Review and Order of the Coif
Bar affiliations and court admissions:
 Bar of the State of New York (2001)
 U.S. District Court for the Southern and Eastern Districts of New York
Professional affiliations:
 American Bar Association
 New York State Bar Association
 American Association for Justice
 Nassau County Bar Association
Mr. Campisi can be reached by email at: [e-mail]
MELINDA CAMPBELL has been associated with Kaplan Fox since September 2004 and
became a partner of the firm in 2012. She represents investors and institutions in securities fraud
class action litigation.

Ms. Campbell’s current noteworthy cases include: In re Bank of America Corp. Securities
Litigation, No. 09-md-2058(DC) (S.D.N.Y.); In re Ambac Financial Group, Inc. Securities
Litigation, No. 08-cv-411(NRB) (S.D.N.Y.); In re Fannie Mae 2008 Securities Litigation, No. 08cv-7831(PAC) (S.D.N.Y.), and In re Credit Suisse-AOL Securities Litigation, No. 02-cv12146(NG) (D. Mass.).
Ms. Campbell obtained her J.D. from the University of Pennsylvania Law School. While
attending law school, she successfully represented clients of the Civil Practice Clinic of the
University of Pennsylvania Law School, and provided pro bono legal services through
organizations including the Southern Poverty Law Center. Ms. Campbell obtained her
undergraduate degree from the University of Missouri (cum laude).
Ms. Campbell is an active member in the Federal Courts Committee of the New York
County Lawyers Association and served as a panelist in a continuing legal education course
offered by the Committee concerning waiver of attorney-client privilege under Federal Rule of
Evidence 501. Additionally, Ms. Campbell is a member of the New York State Bar Association,
the National Association of Women Lawyers, and the New York Women’s Bar Association.
Education:
 B.A., University of Missouri (2000)
 J.D., University of Pennsylvania Law School (2004)
Bar affiliations and court admissions:
 Bar of the State of New York (2005)
 U.S. Court of Appeals for the First and Eleventh Circuits
 U.S. District Courts for the Southern and Eastern Districts of New York and
Massachusetts
Professional affiliations:
 American Bar Association
 New York State Bar Association
 New York County Lawyers Association
 New York Women’s Bar Association
 National Association of Women Lawyers
Ms. Campbell can be reached by email at: [e-mail]
GREGORY K. ARENSON is a seasoned business litigator with experience representing
clients in a variety of areas, including antitrust, securities, and employee termination. His
economics background has provided a foundation for his recognized expertise in handling complex
economic issues in antitrust cases, both as to class certification and on the merits.

Prior to joining Kaplan Fox, Mr. Arenson was a partner with Proskauer Rose. Earlier in
his career, he was a partner with Schwartz Klink & Schreiber, and an associate with Rudnick &
Wolfe (now Piper Marbury).
Mr. Arenson writes frequently on discovery issues and the use of experts. Recently
published articles include: “Who Should Bear the Burden of Producing Electronic Information?”
7 Federal Discovery News, No. 5, at 3 (April 2001); “Work Product vs. Expert Disclosure – No
One Wins,” 6 Federal Discovery News, No. 9, at 3 (August 2000); “Practice Tip: Reviewing
Deposition Transcripts,” 6 Federal Discovery News, No. 5, at 13 (April 2000); and “The Civil
Procedure Rules: No More Fishing Expeditions,” 5 Federal Discovery News, No. 9, at 3 (August
1999). He was also co-author of “The Good, the Bad and the Unnecessary: Comments on the
Proposed Changes to the Federal Civil Discovery Rules,” 4 NYLitigator 30 (December 1998); coauthor of "The Search for Reliable Expertise: Comments on Proposed Amendments to the Federal
Rules of Evidence," 4 NYLitigator 24 (December 1998); co-editor of Federal Rules of Civil
Procedure, 1993 Amendments, A Practical Guide, published by the New York State Bar
Association; and a co-author of “Report on the Application of Statutes of Limitation in Federal
Litigation,” 53 Albany Law Review 3 (1988).
Mr. Arenson’s pro bono activities include being a co-chair of the New York State Bar
Association Task Force on the State of Our Courthouses, whose report was approved June 20,
2009, and a member of the New York State Bar Association Special Committee on Standards for
Pleadings in Federal Litigation. He also serves as a mediator in the U.S. District Court for the
Southern District of New York. In addition, he is an active alumnus of the Massachusetts Institute
of Technology, having served as a member of the Corporation, a member of the Corporation
Development Committee, vice president of the Association of Alumni/ae, and member of the
Alumni/ae Fund Board (of which he was a past chair).
Education:
 S.B., Massachusetts Institute of Technology (1971)
 J.D., University of Chicago (1975)
Bar affiliations and court admissions:
 Bar of the State of Illinois (1975)
 Bar of the State of New York (1978)
 U.S. Supreme Court
 U.S. Courts of Appeals for the Second, Third and Seventh Circuits
 U.S. District Courts for the Northern and Central Districts of Illinois, and the
Southern and Eastern Districts of New York
 U.S. Tax Court
Professional affiliations:



New York State Bar Association, Task Force on the State of Our Courthouses, Cochair
 New York State Bar Association, Federal Litigation Section, Committee on Federal
Procedure (Chairman since 1997)
 Association of the Bar of the City of New York
 American Bar Association
 Member, advisory board, Federal Discovery News (1999 – present)
Mr. Arenson can be reached by email at: [e-mail]

ASSOCIATES
ELANA KATCHER has been associated with Kaplan Fox since July 2007. She practices
in the area of complex commercial litigation.
Education:
 B.A. Oberlin College (1994)
 J.D., New York University (2003)
Bar Affiliations and Court Admissions:
 Bar of the State of New York (2004)
 U.S. District Courts for the Southern and Eastern Districts of New York
Professional Affiliations:
 New York State Bar Association
 New York City Bar Association
Ms. Katcher can be reached by email at: [e-mail]
MATTHEW P. McCAHILL was associated with Kaplan Fox from 2003 – 2005 and
rejoined the firm in 2013 after working at a prominent plaintiffs’ firm in Philadelphia. He practices
primarily in antitrust, securities and complex commercial litigation. Mr. McCahill’s pro bono
work includes representing Army and Marine Corps veterans in benefits proceedings before the
U.S. Department of Veterans’ Affairs. During law school, Mr. McCahill was a member of the
Fordham Urban Law Journal.
Education:
 B.A., History, summa cum laude, Rutgers College (2000)
 J.D., Fordham Law School (2003)
Bar Affiliations and Court Admissions:
 Bars of the State of New York and the Commonwealth of Pennsylvania
 U.S. District Courts for the Southern and Eastern Districts of New York and the
Eastern District of Pennsylvania
Professional Affiliations:
 New York State Bar Association
 American Bar Association
 Association of the Bar of the City of New York
Mr. McCahill can be reached by email at: [e-mail]
MARIO M. CHOI is a resident of the San Francisco office of Kaplan Fox and practices
in the area of complex civil litigation. Prior to joining the firm in February 2009, Mr. Choi was a
litigation associate at Pryor Cashman LLP and a law clerk to the Hon. Richard B. Lowe, III, Justice
of the New York Supreme Court, Commercial Division.

Education:
 B.A., Boston University (2000)
 M.A., Columbia University (2001)
 J.D., Northeastern University (2005)
Bar Affiliations and Court Admissions:
 Bar of the State of New York (2006)
 Bar of the State of California (2006)
 U.S. Courts of Appeals for the Ninth Circuits
 U.S. District Courts for the Northern, Southern and Central Districts of California and
the Southern District of New York
Professional Affiliations:
 American Bar Association
 New York State Bar Association
 Asian American Bar Association – Bay Area, New York
Mr. Choi can be reached by email at: [e-mail]
PAMELA MAYER has been associated with Kaplan Fox since February 2009. She
practices in the area of securities litigation.
Prior to joining Kaplan Fox, Ms. Mayer was a securities investigation and litigation
attorney for a multinational investment bank. Utilizing her combined legal and business
background, including her M.B.A., Ms. Mayer focuses on the research and analysis of securities
claims on behalf of our firm’s individual and institutional clients and is dedicated full-time to the
firm’s Portfolio Monitoring and Case Evaluation Program. Ms. Mayer also has substantial
litigation experience in the area of intellectual property.
Education:
 B.S., The University of Rochester
 J.D., The George Washington University
 M.B.A., Finance, The University of Michigan
Bar Affiliations and Court Admissions:
 Bar of the State of New York
 U.S. District Courts for the Southern and Eastern Districts of New York
Professional Affiliations:
 New York State Bar Association
Ms. Mayer can be reached by email at: [e-mail]
LAUREN I. DUBICK joined Kaplan Fox in 2013. She practices in the areas of antitrust
and securities litigation, as well as complex commercial litigation. Prior to joining Kaplan Fox,
Ms. Dubick served as a trial attorney with the Antitrust Division of the United States Department

of Justice where she investigated and prosecuted violations of civil and criminal antitrust
laws. During her tenure at the Justice Department, Ms. Dubick played significant roles on some
of the Division’s largest investigations and litigations and led two software merger investigations.
Ms. Dubick also served as a Special Assistant U.S. Attorney in the Eastern District of
Virginia where she gained substantial trial experience prosecuting white collar crimes and other
offenses. During that time, she first-chaired two trials, both of which led to verdicts for the
government. Earlier in Ms. Dubick’s career, she clerked for the late Hon. Ann Aldrich of the U.S.
District Court for the Northern District of Ohio.
Ms. Dubick has been a guest lecturer on judicial discretion and co-authored an article on
consumer protection, “Perspective on Marketing, Self-Regulation and Childhood Obesity: FTC
and HHS Call on Industry to Market More Responsibly,” 13.2 American Bar Association
Consumer Protection Update 19 (2006). She is admitted to practice in the state courts of New
York and Ohio as well as the Fourth Circuit Court of Appeals. Prior to law school, Ms. Dubick
spent several years working in software and new media.
Education:
 B.A., cum laude, Harvard College (2000)
 J.D., magna cum laude, The Ohio State University Moritz College of Law (2007),
Editor of The Ohio State Law Review and Member of the Order of the Coif
Bar Affiliations and Court Admissions:
 Bar of the State of Ohio (2007)
 Bar of the State of New York (2013)
 U.S. Court of Appeals for the Fourth Circuit
 U.S. District Courts for the Southern and Eastern Districts of New York
Ms. Dubick can be reached by email at: [e-mail]
DAMIEN H. WEINSTEIN has been associated with Kaplan Fox since September
2011. He practices in the areas of securities, antitrust, and other areas of civil litigation. During
law school, Mr. Weinstein was an Associate Editor on both the Fordham Law Review and Moot
Court programs.
Education:
 B.A., summa cum laude, University of Massachusetts Amherst (2007)
 J.D., cum laude, Fordham University School of Law (2011)
Bar Affiliations and Court Admissions:
 Bar of the State of New Jersey (2011)
 Bar of the State of New York (2012)
 U.S. District Courts for the Southern and Eastern Districts of New York
Mr. Weinstein can be reached by email at: [e-mail]

OF COUNSEL
W. MARK MCNAIR has been associated with Kaplan Fox since 2003. He practices in
the area of securities litigation. Mr. McNair is actively involved in maintaining and establishing
the Firm’s relationship with institutional investors and is active in the Firm’s Portfolio Monitoring
and Case Evaluation Program for the Firm’s numerous institutional investors.
Mr. McNair is a frequent speaker at various institutional events, including the National
Conference of Public Employee Retirement Systems and the Government Finance Office
Association.
Prior to entering private practice, Mr. McNair was Assistant General Counsel to the
Municipal Securities Rulemaking Board where he dealt in a wide range of issues related to the
trading and regulation of municipal securities. Previously, he was an attorney in the Division of
Market Regulation at the Securities and Exchange Commission. At the Commission his work
focused on the regulation of the options markets and derivative products.
Education:
 B.A. with honors, University of Texas at Austin (1972)
 J.D. University of Texas at Austin (1975)
 L.L.M. (Securities) Georgetown University (1989)
Bar Affiliations and Court Admissions:
 Bar of the States of Texas
 Bar of the State of Maryland
 Bar of the State of Pennsylvania
 Bar of the District of Columbia
Mr. McNair can be reached at [e-mail]
JUSTIN B. FARAR practices in the area of securities litigation and antitrust litigation
with a special emphasis on institutional investor involvement. He is located in the Los Angeles
office. Prior to working at Kaplan Fox, Mr. Farar was a litigation associate at O’Melveny &
Myers, LLP and clerked for the honorable Kim McLane Wardlaw on the Ninth Circuit Court of
Appeals. Mr. Farar also currently serves as a Commissioner to the Los Angeles Convention and
Exhibition Authority.
Education:
 J.D., order of the coif, University of Southern California Law School (2000)
 B.A., with honors, University of California, San Diego
Bar Affiliations and Court Admissions:
 Bar of the State of California (2000)
 U.S. Supreme Court

 U.S. Court of Appeals for the Ninth Circuit
 U.S. District Court for the Central of California
Awards:
 The American Society of Composers, Authors and Publishers’ Nathan Burkan Award
Winner, 2000 for article titled "Is the Fair Use Defense Outdated?"
Mr. Farar can be reached by email at: [e-mail]
LINDA FONG practices in the areas of general business and consumer protection class
action litigation. She joined Kaplan Fox in 2001, and is resident in the firm’s San Francisco office.
Ms. Fong served on the Board of the San Francisco Trial Lawyers Association from 2000 to 2011.
She was selected for inclusion to the California Super Lawyers list for 2011.
Education:
 J.D., University of San Francisco School of Law
 B.S., with honors, University of California, Davis
 Elementary Teaching Credential, University of California, Berkeley
Bar Affiliations and Court Admissions:
 Bar of the State of California
 U.S. Court of Appeals for the Ninth Circuit
 U.S. District Courts for the Northern, Central, Eastern and Southern Districts of
California
Professional Affiliations:
 San Francisco Trial Lawyers Association
 Asian American Bar Association
 American Association for Justice
Awards:
 Presidential Award of Merit, Consumer Attorneys of California, 2000
Ms. Fong can be reached by email at: [e-mail]
GARY L. SPECKS practices primarily in the area of complex antitrust litigation. He has
represented plaintiffs and class representatives at all levels of litigation, including appeals to the
U.S. Courts of Appeals and the U.S. Supreme Court. In addition, Mr. Specks has represented
clients in complex federal securities litigation, fraud litigation, civil RICO litigation, and a variety
of commercial litigation matters. Mr. Specks is resident in the firm’s Chicago office.
During 1983, Mr. Specks served as special assistant attorney general on antitrust matters
to Hon. Neil F. Hartigan, then Attorney General of the State of Illinois.
Education:
 B.A., Northwestern University (1972)

 J.D., DePaul University College of Law (1975)
Bar affiliations and court admissions:
 Bar of the State of Illinois (1975)
 U.S. Courts of Appeals for the Third, Fifth, Seventh, Ninth and Tenth Circuits
 U.S. District Court for the Northern District of Illinois, including Trial Bar
Professional affiliations:
 Illinois Bar Association
 Chicago Bar Association
Mr. Specks can be reached by email at: [e-mail]
WILLIAM J. PINILIS practices in the areas of commercial, consumer and securities class
action litigation. He has been associated with Kaplan Fox since 1999, and is resident in the firm’s
New Jersey office.
In addition to his work at the firm, Mr. Pinilis has served as an adjunct professor at Seton
Hall School of Law since 1995, and is a lecturer for the New Jersey Institute for Continuing Legal
Education. He has lectured on consumer fraud litigation and regularly teaches the mandatory
continuing legal education course Civil Trial Preparation.
Mr. Pinilis is the author of “Work-Product Privilege Doctrine Clarified,” New Jersey
Lawyer, Aug. 2, 1999; “Consumer Fraud Act Permits Private Enforcement,” New Jersey Law
Journal, Aug. 23, 1993; “Lawyer-Politicians Should Be Sanctioned for Jeering Judges,” New
Jersey Law Journal, July 1, 1996; “No Complaint, No Memo – No Whistle-Blower Suit,” New
Jersey Law Journal, Sept. 16, 1996; and “The Lampf Decision: An Appropriate Period of
Limitations?” New Jersey Trial Lawyer, May 1992.
Education:
 B.A., Hobart College (1989)
 J.D., Benjamin Cardozo School of Law (1992)
Bar affiliations and court admissions:
 Bar of the State of New Jersey (1992)
 Bar of the State of New York (1993)
 U.S. District Courts for the District of New Jersey, and the Southern and Eastern
Districts of New York
Professional affiliations:
 Morris County Bar Association
 New Jersey Bar Association
 Graduate, Brennan Inn of Court
Mr. Pinilis can be reached by email at: [e-mail]

DAVID STRAITE joined Kaplan Fox in 2013. He focuses on securities, corporate
governance, hedge fund, antitrust and digital privacy litigation and is resident in the firm’s New
York office. Prior to joining the Firm, Mr. Straite helped launch the US offices of London-based
Stewarts Law LLP, where he was the global head of investor protection litigation, the partner in
residence in New York, and a member of the US executive committee. He also worked in the
Delaware office of Grant & Eisenhofer and the New York office of Skadden Arps.
Mr. Straite is a frequent speaker and panelist in the U.S. and abroad. Most recently, he
spoke on the hedge fund panel at the February 6, 2013 meeting of the National Association of
Public Pension Attorneys in Washington, D.C. (“Structuring Investments – Do I Get to Go to the
Cayman Islands?”); debated the General Counsel of Meetup, Inc. during 2013 Social Media Week
(“David vs. Goliath: the Global Fight for Digital Privacy”); and gave a guest lecture on the Legal
Talk Network’s “Digital Detectives” podcast. He has also given interviews to Channel 10 (Tel
Aviv), BBC World News (London), Channel 2 (New York) and SkyNews (London).
Mr. Straite’s recent work includes representing investors in the Harbinger Capital hedge
fund litigation and the Citigroup CSO hedge fund litigation in New York federal court; pursuing
digital privacy claims as court-appointed co-lead counsel in In re: Facebook Internet Tracking
Litigation and In re Yahoo Mail Litigation in California and In re: Google Inc. Cookie Placement
Consumer Privacy Litigation in Delaware; pursuing corporate governance claims in Delaware
Chancery Court in In re: Molycorp Derivative Litigation; and helping to develop the first multiclaimant test of the UK’s new prospectus liability statute in a case against the Royal Bank of
Scotland in the English courts. Mr. Straite has also co-authored Google and the Digital Privacy
Perfect Storm, E-Commerce Law Reports (UK) (2013), authored Netherlands: Amsterdam Court
of Appeal Approves Groundbreaking Global Settlements Under the Dutch Act on the Collective
Settlement of Mass Claims, in The International Lawyer’s annual “International Legal
Developments in Review” (2009), and was a contributing author for Maher M. Dabbah & K.P.E.
Lasok, QC, Merger Control Worldwide (2005).
Education:
 B.A., Tulane University, Murphy Institute of Political Economy (1993)
 J.D., magna cum laude, Villanova University School of Law (1996), Managing Editor,
Law Review and Order of the Coif
Bar affiliations and court admissions:
 Bar of the State of New York (2000)
 Bar of the State of Delaware (2009)
 Bar of the State of Pennsylvania (1996)
 Bar of the State of New Jersey (1996)
 Bar of the District of Columbia (2008)



U.S. District Courts for the Southern and Eastern Districts of New York; Eastern
District of Pennsylvania; and the District of Delaware
 U.S. Court of Appeals for the Third Circuit
Professional affiliations:
 American Bar Association (Section of Litigation and Section of Business Law)
 Delaware Bar Association
 New York American Inn of Court (Master of the Bench)
 Royal Society of St. George (Delaware Chapter)
 Internet Society
Mr. Straite can be reached by email at: [e-mail]
DEIRDRE A. RONEY joined the San Francisco office of Kaplan Fox as Of Counsel in
2013. Deirdre’s focus is in the area of institutional investor participation in securities litigation.
Prior to joining Kaplan Fox, Deirdre represented governmental entities in public finance
and public-private partnership transactions as an associate at Hawkins, Delafield & Wood in New
York. Before that, she served as a Law Clerk in the U.S. Court of International Trade and a trial
attorney for the U.S. Federal Maritime Commission.
Education:
 J.D., George Washington University School of Law (2003)
Bar affiliations and court admissions:
 Bar of the State of New York
 Bar of the State of California
Ms. Roney can be reached by email at: [e-mail]
GEORGE F. HRITZ joined Kaplan Fox in 2014. He has extensive experience in both
New York and Washington D.C. handling sophisticated litigation, arbitration and other disputes
for well-known corporate clients and providing crisis management and business-oriented legal and
strategic advice to a broad range of U.S. and international clients, including those with small or no
U.S. legal departments, often acting as de facto U.S. general counsel. Mr. Hritz has tried, managed
and otherwise resolved large-scale matters for major financial and high-tech institutions and others
in numerous venues throughout the U.S. and overseas. While he never hesitates to take matters to
trial, he regularly looks for solutions that go beyond expensive victories. He has had great success
in resolving disputes creatively by effectively achieving consensus among all of the parties
involved, often with considerable savings for his clients.
Mr. Hritz clerked for a federal district judge in New York and spent his associate years at
Cravath, Swaine & Moore, one of the leading business litigation firms in the world. In 1980, Mr.
Hritz became one of the seven original partners in Davis, Markel, Dwyer & Edwards, which

ultimately grew to over 50 lawyers and became the New York litigation group of Hogan &
Hartson, then Washington, D.C.’s oldest major law firm. Since 2011, Mr. Hritz has represented
both defendants and plaintiffs in resolving international disputes and provided strategic advice and
assisted clients on managing of other counsel, including monitoring law firm and consultant
performance and billing.
Education:
 A.B., Princeton University, History (1969)
 J.D., Columbia University School of Law (1973) (Harlan Fiske Stone Scholar)
Bar affiliations and court admissions:
 Bars of the State of New York (1974) and District of Columbia (1978)
 U.S. Supreme Court
 U.S. Courts of Appeals for the Second, Third, Fourth, Eleventh and D.C. Circuits
 U.S. District Courts for the Southern and Eastern Districts of New York, the District of
Columbia and others
Professional affiliations:
 D.C. Bar Association
 Federal Bar Council (2d Circuit)
 Advisory Group of the U.S. District Court for the Eastern District of New York
Mr. Hritz can be reached by email at: [e-mail]

Exhibit B

FEBRUARY 11, 2013

LITIGATION BOUTIQUE
HOT LIST

They may be small, but they command attention. The 10 law firms on our Litigation Boutiques Hot List, each fielding no more than 50 lawyers, demonstrate that when it comes to high-stakes cases it’s all about skill, not size.
Whether they’re working on the plaintiffs’ or defense side of big pharma, big oil, white-collar or agriculture matters, the lawyers practicing at these streamlined shops set precedents, righted wrongs or saved companies during
2012. —Leigh Jones

A big commitment pays big dividends
KAPLAN FOX & KILSHEIMER

Lawyers at Kaplan Fox & Kilsheimer
had deposed Bank of America Corp. chief
executive officer Brian Moynihan and
submitted a jury questionnaire and verdict
form in a high-profile securities case when
both sides struck a settlement three weeks
before trial. A big one.
“We were basically ready to go,” said
Robert Kaplan, whose 24-attorney firm
was one of three that reached the $2.43 billion deal to resolve claims that bank directors and officers misled investors about the
financial health of Merrill Lynch & Co. Inc.
before it acquired that firm in 2008. The
agreement, announced on September 28,
was the largest securities class action settlement to emerge from the financial crisis. It
is awaiting approval by U.S. District Judge
Kevin Castel in New York.
The three plaintiffs’ firms, including
Bernstein Litowitz Berger & Grossmann

Assume every case is going to trial.
Prepare every case for trial.
Convince your adversary you’re prepared

to try the case.
FREDERIC FOX, KAPLAN FOX &
KILSHEIMER

and Kessler Topaz Meltzer & Check, are
seeking about $150 million in fees. Kaplan
Fox had 10 attorneys on the case. “So this
was a tremendous endeavor and a big commitment for us,” Kaplan said.
Kaplan Fox, with 10 partners in its New
York home office and one in San Francisco,
specializes in complex securities, antitrust
and consumer litigation. The firm, regularly appointed lead counsel in multidistrict
litigation, has a single attorney of counsel
each in Chicago; Los Angeles; Morristown,
N.J.; and Washington. Kaplan has frequently been named among the top securities
litigators in the country.
The firm is co-lead plaintiffs’ counsel in the securities litigation against the
Federal National Mortgage Association
(Fannie Mae) and its former executives.
On August 30, 2012, U.S. District Judge
Paul Crotty in New York upheld claims that
added in March related to subprime and
intermediate-risk “alt-A” mortgage loans,
rejecting motions to dismiss brought by
Fannie former chief executive officer Daniel
Mudd and former chief risk officer Enrico
Dallavecchia. Kaplan Fox is lead counsel for
the preferred shareholders, while Labaton
Sucharow and Berman DeValerio are lead
counsel for stockholders. Kaplan said the
case is being coordinated with a related
case brought by the U.S. Securities and
Exchange Commission.

FREDERIC FOX, LEFT, AND ROBERT KAPLAN

The firm also has reached agreements
in antitrust litigation against two dozen
airlines accused of adding fuel surcharges
to air cargo shipments. Kaplan Fox and
co-counsel have obtained nearly $500 million in settlements, more than half of them
during 2012. “We’re still litigating away, so
hopefully we’ll have more,” Kaplan said.
—Amanda Bronstad
Reprinted with permission from the February 11, 2013 edition of THE
NATIONAL LAW JOURNAL © 2013 ALM Media Properties, LLC.
All rights reserved. Further duplication without permission is prohibited.
For information, contact 877-257-3382, [e-mail] or visit www.
almreprints.com. #005-02-13-08.

Exhibit C

VOLUME 13 ISSUE 06 [2013] ECLR 1-24

THE PRACTITIONERS’ GUIDE TO E-COMMERCE CASES
VOLUME 13 ISSUE 06 WWW.E-COMLAW.COM
[ 2013] ECLR 1- 24

03 PRIVACY
In three unrelated class actions, Google Inc. is defending wiretap claims related to web
tracking, email scanning, and Wi-Fi sniffing.
07 ADVERTISING
The German Federal Court of Justice ruled on the issues surrounding emails sent via the
tell-a-friend function and whether this form of communication is deemed inadmissible spam.
08 COPYRIGHT
The Constitutional Court of the Czech Republic refused a constitutional complaint of a minor
found guilty of copyright infringement for linking to content protected by copyright.
09 COUNTERFEITING
In re Chloé SAS et al. v. Sawabeh Information Services Co. et al., a federal court in California
granted summary judgment to six luxury brands, finding the second largest B2B website
liable for facilitating counterfeiting by its members.
12 COPYRIGHT
In re Wood v. Sergey Kapustin, et al., a US District Court granted a preliminary injunction
ordering the redirection of traffic from websites containing allegedly infringing material.
13 JURISDICTION
The CJEU considered whether Article 15 of the Brussels Regulation, which allows
consumers to bring proceedings in their country of domicile, requires a causal link between
the means used to direct commercial activity to a consumer's country.
14 DEFAMATION
The South African Internet Service Providers' Association’s spam 'Hall of Shame,' a list of
companies engaging in spamming, which features on its website, received a seal of
approval from the South Gauteng High Court.
16 SELECTIVE DISTRIBUTION
The Berlin Kammergericht held that a brand manufacturer is not allowed to require its
distribution partners to refrain from selling its products via internet platforms such as eBay.
17 SALES TAX
The Illinois Supreme Court ruled that the ‘click through’ nexus law is a ‘discriminatory tax’
under the federal Internet Tax Freedom Act and the State is thus preempted from imposing
it, in a ruling that conflicts with other court decisions on ‘click through’ nexus laws.
19 NET NEUTRALITY
The Cologne Regional Court declared void the general terms and conditions of Deutsche
Telekom to the extent that the incumbent reserved the right to limit the speed of data
transmission for heavy users.
21 LIABILITY
In re Max Mosley v. Google Inc., the Paris Court of First Instance ordered Google to ban
pictures infringing on Mosley’s right to privacy.
23 DEFAMATION
In re Bewry v. Reed Elsevier Ltd and Reed Business Info. Ltd, the High Court granted Bewry
an extension to bring defamation proceedings outside the limitation period of one year.

EDITORIAL BOARD

EDITORIAL

THE PRACTITIONERS’ GUIDE TO E-COMMERCE CASES
[2013] ECLR 1-24 VOLUME 13 ISSUE 06
WWW.E-COMLAW.COM

Editorial: SAS v. WPL
The UK Court of Appeal ruled on
21 November in the dispute
between SAS Institute Inc. and
World Programming Ltd. (WPL)
that the functionality and
programming of a computer
program is not protected by
copyright, finding, as the English
High Court did, in WPL’s favour.
The litigation began when WPL
developed a software system that
was functionally equivalent to
components of programs
developed by SAS. Both systems
allow users to write applications;
SAS’ system requires that this is
done in SAS programming
language while WPL’s system
allows the use of other
programming languages such as
C++. WPL, which had a
customer licence from SAS, was
aided by a ‘Learning Edition’
provided by SAS – designed for
customers’ use in understanding
SAS products – and a SAS user
manual; both were utilised by
WPL alongside the SAS system to
observe and test how the SAS
programs worked and to thus aid
in WPL’s own design.
SAS litigated against WPL on a

JOHN ENSER
Olswang
John is a partner at Olswang and
provides advice to clients active in all
aspects of the media and
communications business. His clients
include record companies, broadcasters,
surviving dotcoms, and household name
retailers, as well as ISPs, portals,
software developers and suppliers of
interactive TV technology.
[e-mail]
DAWN OSBORNE
Palmer Biggs Legal
Dawn has been a Partner at Palmer
Biggs Legal since June 2009, having
previously worked at Rouse & Co. Dawn
specialises in IP litigation, including
copyright and trade marks on the
internet and was involved in the reported
Pitman and Prince domain name
litigation. Her expertise in online
alternative dispute resolution
mechanisms has led her to be a panellist
for the WIPO and NAF deciding domain
name disputes under the ICANN
procedure and for Nominet and .eu for
their procedures.
[e-mail]
MARK OWEN
Taylor Wessing
Mark Owen is a partner in the Trade
Mark, Copyright and Media Group at
Taylor Wessing. He is a leading IP and

02

number of copyright claims both
in terms of the system and the
manual. These included the claim
that WPL, in producing a system
heavily based on the functionality
of SAS’ program, infringed SAS’
system copyright.
Following a judgment in the
English High Court by Arnold J
and a referral to the CJEU, before
Arnold J maintained his position
in a second instance judgment,
SAS brought the matter to the
attention of Lewison LJ in the
Court of Appeal. Lewison LJ
found that software functionality
could not be protected by
copyright since functionality does
not represent the expression of an
intellectual creation. Instead, such
expression remains with the
source code for the program,
which WPL had not been privy
to. WPL’s functional recreation of
SAS’ system instead was born
from studying the program, as
well as the literature SAS
provided to its customers. Had
WPL been able to access the
source code and then copied it,
this would have been an
infringement of copyright.
The Court ruled that insofar as

the ideas in the user manual were
concerned, the manual described
through its keywords, formulae
and so on the functionality of the
system it was produced to aid
with – and the system’s
functionality was not an
expression of an intellectual
creation.
Those involved in software will
need to consider the
consequences of this decision. For
a start, the extent to which
copyright can be found in a
program is clearer than ever
before. This will present
opportunities for developers
provided that they merely study
and test a program’s functionality
as WPL did here. Meanwhile,
developers will want to avoid
finding themselves in a position
akin to that of SAS. Will
functionally very similar
programs become more
common? If so, given that the
challenge of proving
infringement of copyright in a
software system is now a more
difficult one without a provable
infringement of a source code,
developers may find themselves
in a more competitive market.

information law litigator and transactional
lawyer with over 25 years experience.
Mark advises clients in trade mark, copyright, database rights, information law,
data privacy, design and image rights
matter as well as advising on a range of
digital media and commerce issues and
content regulatory matters.
[e-mail]

[e-mail]

TIM PENNY
11 Stone Buildings
Tim is a barrister at 11 Stone Buildings,
Lincoln’s Inn. His practice involves
chancery/commercial, intellectual property and IT related issues. Advisory work
includes advising a major telecoms
provider on European data protection
issues. Recommended as junior Counsel
in The Legal 500 in connection with
Sports Law.
[e-mail]
STEVEN PHILIPPSOHN
PCB Litigation LLP
Steven is a leading authority on fraud. He
has recently given papers at the
International Bar Association, the
International Chamber of Commerce and
to a UK Government Department. He
frequently writes for newspapers and
specialist law publications. He is coeditor of the UK Manual of the
Association of Certified Fraud Examiners
and is a member of the IAAC and the EFraud working party of the Fraud
Advisory Panel.

STEWART ROOM
Field Fisher Waterhouse
Stewart is a partner in Field Fisher
Waterhouse's Technology and
Outsourcing Group, specialising in data
protection, privacy and data security law.
Stewart is a dual qualified barrister and a
solicitor holding full Higher Court Rights of
Audience, with 20 years’ experience as a
litigator and advocate. Stewart is rated as
one of the UK’s leading data protection
lawyers, with expertise in data protection
and data security matters. Stewart's areas
of specialisation include representing data
controllers in regulatory enforcement action
and defending them in litigation, handling
data security breaches, the technological
aspects of data processing and managing
international projects.
[e-mail]
STEPHEN SIDKIN
Fox Williams
Stephen is a founding partner of Fox
Williams. He specialises in advising on
agency and distributorship agreements
and competition law. He frequently writes
on disintermediation, the effect of ecommerce on agency and distributorship
agreements and the competition law
aspects of B2B exchanges. Stephen is
featured in Mondaq’s Survey of Leading
Internet & E-Commerce Lawyers.
[e-mail]

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PRIVACY

Google and the digital privacy perfect storm
In three unrelated class actions, Google Inc. is defending wiretap claims related to
web tracking, email scanning, and Wi-Fi sniffing. These lawsuits will define digital
privacy rights for at least a generation and will test Silicon Valley's guiding spirit.
Background
An evaluation of Google's situation
requires an understanding of a
number of fundamental and
conflicting forces.
1. Advertising is king
When something online is free,
you're not the customer, you're the
product. In other words, free
content brings viewers, and the
advertisers pay for the content. As a
business model, this bargain is
nothing new, but the interactive
nature of the internet changes the
model. For the first time, content
providers have the technological
ability to move beyond simply
delivering content to the user, and
can now collect data on the user and then correlate, repackage and
sell the data.
Many email services are also now
free to the user because the
webmail interface is a platform to
deliver advertising. Social media
complicates the picture
exponentially because viewing
habits can be correlated with
sensitive personal information
often volunteered by the user. Add
to this a network effect producing
massive aggregations of data,
tumbling e-storage costs, and a
new imperative to increase
revenues following several recent
IPOs, and it becomes nearly
impossible for internet companies
to resist pressures to push the
envelope in efforts to gather everdetailed personal data.
2. Diverging views of privacy
The second force shaping the
digital privacy debate is the sharp
divergence in views between
industry and the general public. A
handful of technology companies
now control personal data on
almost half the world's population.
Google's stated mission is 'to
organize the world's information' an idea once seemingly daft but
now eminently believable.
E-Commerce Law Reports - volume 13 issue 06

In contrast the public increasingly
values privacy. The tipping point in
this standoff follows the revelations
of surveillance conducted by the
US National Security Agency.
Although NSA surveillance raises
issues of government conduct, it
has awoken the public to the issue
of surveillance more broadly.
Digital privacy is one of the few
issues that cuts across the political
spectrum. Internet privacy is now
identified by the American Civil
Liberties Union (‘ACLU’) as a 'key
issue' - and because government
surveillance is now largely built on
private surveillance, the ACLU
takes the position that e-commerce
companies must be the 'first line of
defense when it comes to keeping
private information private.' The
ACLU is taking the lead in court
battles over NSA surveillance. On
the other end of the spectrum,
libertarians and conservatives are
quick to note the link between
privacy and ordered liberty:
'Civilization is the progress toward
a society of privacy.'1 In this regard,
a conservative might agree with
Google's Vint Cerf 's comments at a
recent FTC forum that “it's the
industrial revolution and the
growth of urban concentrations
that led to a sense of anonymity”
but would disagree with his belief
that such anonymity is a mere
historical aberration.
3. Contract-based regulation
The third force shaping the debate
is the complex mechanism for
protecting privacy in the US. The
word 'privacy' appears nowhere in
the Constitution. Although the
Fourth Amendment preserves the
right to be free from search or
seizure without a warrant, the right
is trespass-based; privacy as its own
right came later. In 1853, Francis
Lieber, advisor to President
Lincoln, wrote 'No one can
imagine himself free if his
communion with his fellows is

interrupted or submitted to
surveillance.'2 In 1890, two young
lawyers, Samuel Warren and Louis
Brandeis argued for a common-law
right of privacy in an influential
Harvard Law Review - no state
recognised such a right in 1890.
In the Olmstead case of 1928, the
US Supreme Court refused to
extend the Fourth Amendment to
wiretaps, on the theory that there
was no trespass3. But the case is
more famous for the dissent of
Justice Brandeis, who predicted the
rise of electronic surveillance:
'Ways may some day be developed
by which the Government, without
removing papers from secret
drawers, can reproduce them in
court, and by which it will be
enabled to expose to a jury the
most intimate occurrences of the
home . . . Can it be that the
Constitution affords no protection
against such invasions of
individual security?'
Forty years later, Justice Brandeis'
dissent was adopted by the Court
in the landmark Katz decision4.
Constitutional notions of privacy
were now de-linked from ‘trespass’
and defined by the public's
'reasonable expectations of
privacy.' Congress responded by
passing the Omnibus Crime
Control and Safe Streets Act5,
otherwise known as the 'Wiretap
Law,' which promulgated rules
governing the interception of
telephone communications. In
1986, the Wiretap Law was
amended by the Electronic
Communications Privacy Act of
1986 ('ECPA') to include a broader
range of communications. Title I
of the ECPA includes an amended
Wiretap Act, and Title II provides a
new Stored Communications Act
('SCA') providing protections to
communications in temporary
storage. Congress also passed the
Computer Fraud and Abuse Act
(‘CFAA’).
The original Wiretap Law and the

03

PRIVACY

ECPA amendments were meant to
accommodate the Katz court's
'reasonable expectations of
privacy,' but the laws went further
- Congress explicitly adopted a
consent-based regime. Thus, if no
party to a telephone or email
communication consents to the
interception of voice or data,
federal law forbids the interception
without a warrant or other similar
protections.
In 1993, the internet went
mainstream. Immediately
recognising its transformative
potential, the Clinton White House
promulgated principles to govern
its future growth and regulation in
'A Framework for Global
Economic Commerce,' or the
'Clinton-Gore Framework.' The
Clinton-Gore Framework extends
the consent-based model of the
ECPA, and adopts a free-market
and self-regulation approach to ecommerce, including contractbased privacy rights. Although the
Framework is not a law per se, its
logic has been implicitly adopted
by courts ever since. Thus, the
ECPA's prohibitions against
interceptions of electronic data
depend on the interception being
non-consensual even in the
internet age; if one party
contractually consents to the
intercept, it is lawful.
Web-tracking
As originally conceived by Sir Tim
Berners-Lee (the inventor of the
web) cookies were meant to
facilitate the conversation between
the user and the website, nothing
more. However, websites offering
'free' content quickly realised that
they could contract with thirdparty 'ad serving' companies to
write persistent cookies that, when
synchronised with other cookies,
allowed for the tracking of each
web users' internet usage and other
sensitive personal information. In
exchange for allowing this tracking,

04

the website would receive money.
The third party would build a
digital dossier on the user with
detailed personal information
gleaned from the tracking. That
information could then be used to
target advertising to the user.
One of the first internet adserving companies was
DoubleClick, founded in 1995.
Because DoubleClick's third-party
tracking cookies essentially enabled
the interception of users'
communications with external
websites, a consumer class action
was filed in New York in 2000
alleging that the tracking violated
the SCA, the Wiretap Act and the
CFAA, along with various
common law rights. In what is
largely considered the most
important internet privacy judicial
opinion ever written, Judge
Buchwald dismissed the case
largely on the theory of consent.
Because browsers can be set to
block third-party cookies, a user
consents to the tracking if the
blocking feature is not enabled6.
Judge Buchwald's opinion thus
implicitly adopted the ClintonGore Framework. If a user
consents to the interception, it
cannot violate any contract-based
privacy laws.
But what happens if a user does
not consent, and is tracked
anyway? Three class actions are
exploring this very question7.
1. Google, Inc. cookie placement
consumer privacy litigation (2013
WL 5582866 (9 Oct 2013)).
This class action followed
revelations in 2012 that Google's
DoubleClick subsidiary and three
online advertising companies were
circumventing the privacy settings
of Apple's Safari browser. In 2004,
Apple decided to enable cookieblocking protection by default, and
marketed the product as better
protected against unwanted
tracking. Starting in 2010, however,

several companies found a way to
hack Safari to trick the browser
into accepting third-party cookies.
Google admitted to the hacking,
but argued that it had merely 'used
known Safari functionality.'
The Federal Trade Commission
(‘FTC’) charged that Google's
actions violated a previous
settlement and violated its own
privacy policy, and fined the
company $22.5 million. Although
the fine was a record for this type
of violation, the enforcement
action was largely derided as
laughably small. The fine
represented less than four hours of
revenues for the company and no
effort was made to quantify the
excess revenues attributable to the
violation. None of the fine was
distributed to Safari users whose
data was taken without permission.
Later, 37 states found that Google's
actions violated various state
consumer protection laws, and
fined the company $17 million.
Safari users filed their own
private suits consolidated in
Delaware before Judge Robinson.
The plaintiffs asserted claims under
the ECPA and various California
laws. Judge Robinson found
Google's actions 'objectionable'
and ruled that Google was not an
authorised party to the intercepted
communications because it did not
have consent to circumvent the
privacy settings of the browsers.
Nevertheless, she dismissed the
case in its entirety. It was a nearcomplete victory for Google, but
the decision is on appeal to the
Third Circuit Court of Appeals8.
The Google 'Safari-Hacking'
appeal will address five questions
with far-reaching implications.
Two of these questions stand out.
First, does web tracking involve the
interception of 'content' when
URLs are tracked? If these URLs
are deemed not to contain
'content,' there is no violation
under the Wiretap Act nor the
E-Commerce Law Reports - volume 13 issue 06

PRIVACY

SCA, both of which only prohibit
the interception of content.
Because URLs can include search
terms and other substantive
information, they betray far greater
information than IP addresses.
Judge Robinson held that URLs do
not contain content, even if
tracking may involve the
interception of 'communications.'
Second, are consumers harmed
when they are tracked and their
personally identifiable information
is taken without their consent?
Because the Wiretap Act and SCA
only provide statutory damages
when 'content' is intercepted, many
consumers turn to state consumer
protection laws and common law
remedies. But some state statutes
require actual out-of-pocket losses
in order for the claim to be
cognisable, and Judge Robinson
found that the mere theft of
personal information - even
without consent, and even via
hacking - is not sufficient 'harm'
under the Constitution to assert
any common law claims. Although
Judge Robinson's view of 'harm' is
supported by other judges, there is
other authority that runs counter.
The FTC recently charged rent-toown company Aaron's, Inc. with
violations of federal law by secretly
installing tracking software on
rented laptops without consumer
consent. The software tracked
sensitive personal information but
no consumer suffered any out-ofpocket damages. Nevertheless, the
FTC took the position that the
unwanted tracking of personal
information was harm in and of
itself and prosecuted Aaron's.
Interestingly, Google chose not to
cross-appeal the one issue it lost.
Crucially, the court found lack of
consent to the tracking even
though the protection was a
default setting not affirmatively set
by the user. Now that Google has
chosen not to appeal this portion
of the ruling, what impact does it
E-Commerce Law Reports - volume 13 issue 06

have?
This question will have vastly
increased importance after 1
January 2014 when web companies
doing business in California are
required to disclose whether they
respect Do Not Track ('DNT')
signals. DNT signals are HTTP
header fields sent by a user's
browser that tell external websites
not to track the user. Does a DNT
signal negate consent when the
browser clearly tells websites that
the user does not want to be
tracked? Does it matter if the DNT
signal is a default setting, or
affirmatively chosen by the user?
Under Judge Robinson's Google
holding, the answer seems to be an
unequivocal no to both questions the third party is not an authorised
party to the communication. If the
Third Circuit overturns Judge
Robinson's ‘content’ holding,
Google's acquiescence on the
'consent' holding will have
enormous consequences for DNT
and future web tracking liability.
2. Other web tracking cases
There are three other cases
currently asking the same
questions. In re: Facebook Internet
Tracking Litigation, pending in the
Northern District of California9,
Facebook was caught tracking
members' internet use beyond the
scope of consent. Facebook agreed
to stop tracking members postlogout after the practice was
disclosed by the press, and users
filed claims under Titles I and II of
the ECPA, the CFAA and various
California state laws. An unrelated
case in New Jersey against Viacom
(and Google) is also testing many
of the same issues, except that the
case is brought on behalf of
minors10. Finally, the most recent of
the web tracking cases is Mount v.
PulsePoint, Inc., pending in New
York. PulsePoint was caught
hacking Safari's privacy
protections, paid a fine, and agreed

to stop the practice. The issues
echo the Google case, except that
New York claims are asserted
instead of California claims11.
Importantly, the PulsePoint case
has been assigned to Judge
Buchwald, the author of the
DoubleClick opinion12.
Email-scanning
The second test of America's digital
privacy paradigm is the Google
Inc. Gmail Litigation pending in
the N. D. Cal13. Originally a much
smaller case brought on behalf of
email users in Texas, it eventually
merged with other cases and grew
into a multi-billion-dollar
headache for Google. Gmail is a
'free' email service, and Google
makes money by delivering
advertising to users. In 2004,
Google announced that it would
start scanning emails for content to
enable the company to serve
tailored ads and charge more to
advertisers. Although some privacy
advocates such as the Electronic
Privacy Information Center
objected and asked the California
Attorney General's office to
investigate, Google won the day
with its argument that it obtained
user consent in the Terms of Use.
However, not all users believed
they consented to the scanning.
Other cases were soon filed, and
the cases were consolidated in
California. In a landmark opinion
a federal court held that the gmail
Terms of Use were insufficient to
obtain valid consent from any
gmail subscriber - and no attempt
was made to obtain consent from
non-subscribers who emailed
subscribers14. The court held that
the Terms of Use must be explicit
and understandable, and must
state the purpose of the scanning.
Google informed gmail users that
emails might be scanned for
content, but the Terms of Use did
not say it would be scanned, did
not disclose the purpose or that

05

PRIVACY

user profiles would be created.
Google has requested permission
for interlocutory appeal, and the
request is under consideration.
The 'gmail' case will have
implications far beyond Google. In
a consent-based system involving
e-commerce, contracts are often
formed by users clicking 'yes' in a
box following or preceding the
phrase 'I accept the Terms of Use.'
When users visit websites as
visitors and not registered users,
the website simply notes in small
print that use of the website is
conditioned on acceptance of a
Terms of Use, and consent is
assumed even without the
affirmative action. Almost no one
ever reads the terms of use
governing the privacy policies of
websites, including the Chief
Justice of the US Supreme Court,
raising the question of their
enforceability and the viability of
the Clinton-Gore Framework.
And the difficulty extends beyond
wiretapping. Some companies are
burying non-disparagement
clauses in their Terms of Use that
no reasonable consumer would
ever read or accept. KlearGear
included a clause in the Terms of
Use penalising consumers $3,500
for making negative comments
about the company; when one
customer posted a negative review
following the failure to deliver a
product, the customer was sued.
Although not a wiretap case, the
question of whether a valid
contract was formed mirrors the
'consent' issue in the gmail case.
Wi-Fi sniffing
The third wiretap case involving
Google is the Street View case15, a
fascinating illustration of the
difficulty applying outdated
statutes to new technology. In
2007, Google launched its 'street
view' feature. Between 2007 and
2010, while photograhing the
public from public streets, Google

06

surreptitiously captured data
leaking from unencrypted Wi-Fi
networks. Such data included
personal emails, usernames, and
passwords. As with other privacy
violations, Google agreed to stop
the practice after it was caught, and
was fined $25,000 by the FTC and
€145,000 by the German privacy
regulator. Consumers also sued
under the Wiretap Act and various
California laws, arguing that
confidential communications were
intercepted without consent. There
is no doubt that the payload data
are 'communications' within the
meaning of the Wiretap Act, and
there is no doubt that the users of
the unencrypted Wi-Fi networks
never explicitly gave Google
consent to gathering the data.
However, Google argued that the
law did not apply - the
communications could not be
'private' if unencrypted and
leaking beyond the property lines,
and there is a statutory exception
for radio communications readily
accessible to the public.
A federal court in California
rejected Google's defences. Because
the Wiretap Act provides $100
statutory damages to each person
whose communications were
intercepted, Google could face
more than $1 billion in damages.
The exposure increased when a
three-judge panel of the Ninth
Circuit Court of Appeals affirmed
the lower court's decision to reject
the 'readily accessible' defence16.
Google has requested en banc
review, which is pending. Google's
mission will depend on a statutory
reading of an exception to the
prohibition against intercepting
electronic communications. The
only way Google can prevail is if a
group of judges interpret the term
'radio' to encompass a technology
that did not exist when the ECPA
was enacted.
Conclusion

The push for ever-larger online
advertising revenues requires everincreasing surveillance of internet
users, while at the same time the
public is becoming uncomfortable
with the concomitant loss of
privacy rights. Add to that dynamic
a largely contract-based regime
built on 'consent,' a government
enforcement effort largely viewed
as impotent, and a judiciary
increasingly open to privacyrelated class actions, and a perfect
legal storm has formed that will
define digital privacy rights in the
US for the next generation. And
Google is at the centre.
David Straite Of Counsel
Laurence King Partner
Kaplan Fox & Kilsheimer LLP
[e-mail]
[e-mail]
A longer version of this article is featured
online. David and Larry represent
consumers in digital privacy cases.
1. Ayn Rand, The Fountainhead at p.
715 (1943).
2. Francis Lieber, On Civil Liberty and
Self-Government, ch. IX (1853).
3. Olmstead v. United States, 277 U.S.
438 (1928).
4. Katz v. United States, 389 U.S. 347
(1967).
5. Codified at 42 USC 3711.
6. DoubleClick Privacy Litigation, 154 F.
Supp. 2d 497 (S.D.N.Y. 2001).
7. Google is defending an additional
wiretap class action, Google, Inc. Privacy
Policy Litig., 12-cv-01382-PSG (N.D.
Cal.), related to Google’s decision to
unify the privacy policies of all Google
platforms and to co-mingle data.
8. Co-author D. Straite has been courtappointed to a committee advising lead
counsel for the plaintiffs on this appeal.
9. 5:12-md-02314-EJD (N.D. Cal.).
10. Nickelodeon Consumer Privacy
Litigation, MDL 2443 (D.N.J.).
11. The authors are co-counsel to the
Plaintiffs in the PulsePoint litigation.
12. PulsePoint has moved to transfer the
case to Delaware to be consolidated
and/or coordinated with the Google
case. The motion is pending.
13. 5:13-md-02430 (N.D. Cal.).
14. Google Inc. Gmail Litigation, 2013
WL 5423918 (N.D. Cal. Sept. 26, 2013).
15. Google Inc. Street View Elec. Comm.
Litig., 10-cv-02184-JW (N.D. Cal.).
16. Aff'd sum nom., Joffe v. Google, Inc.,
729 F. 3d 1262 (9th Cir., 10 Sept 2013).
E-Commerce Law Reports - volume 13 issue 06

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