Privacy Law Symposium: Enforcement, Litigation and Risk Management Agenda and ...

332 Pages·2012·10.84 MB·English

Privacy Law Symposium:
April 23, 2012 Enforcement, Litigation and Risk

Management
KELLEY DRYE & WARREN LLP

www.kelleydrye.com
Agenda and

Supplemental Resources
Presented by Kelley Drye & Warren LLP
April 23, 2012

12:00 – 12:30 PM Pacific: Registration and Lunch Served

12:30 – 12:35 Welcome

12:35 – 1:20 Panel 1
Avoiding an FTC Privacy Investigation and What To Do When You Find Yourself the Target of
One
A number of data practices are clearly catching the FTC’s eye. Kelley Drye privacy attorneys Dana B.
Rosenfeld and Alysa Z. Hutnik will discuss which business practices are most likely to draw the FTC’s
attention, and practical steps that businesses can take to reduce their risk of becoming the next target of an
FTC privacy investigation or improve their defenses if businesses are investigated. And for those companies
that do find themselves at the center of an investigation, learn key practice pointers that should go into
every business’s strategy when determining how best to respond to the investigation.

1:20 – 2:05: Panel 2
Top Issues in Class Action Lawsuits Arising Out of Privacy, Data Security, and New Media
Technology
California is a hotbed for consumer class action lawsuits, and business practices involving the collection and
use of personally identifiable information can often prompt class actions. Kelley Drye litigators Keri E.
Campbell and Lauri A. Mazzuchetti will discuss the top issues at play in class action suits involving
privacy, information security, mobile applications, and related areas.

2:05 – 2:15: Break

2:15 – 3:00: Panel 3
Insurance Coverage for Data Privacy Liability – Do You Already Have It, and If Not, Can You Buy
It?
Companies suffering data security breaches have had varying degrees of success in their efforts to obtain
insurance coverage for their liabilities and costs of defense. Kelley Drye insurance recovery lawyers Edward
E. Weiman and Richard D. Milone will provide an overview of the types of insurance coverage
potentially available in the data privacy context, focusing on which types of policies might apply, which
arguments are likely to prevail to establish coverage, and what practical steps a company should take to
maximize its insurance recovery in the event of a data breach.
Presented by Kelley Drye & Warren LLP
Privacy & Information Security, Litigation, and Insurance Recovery Practices

Visit us on the web at www.KelleyDrye.com. For updates on privacy, data security and advertising law
issues and trends, subscribe to our blog, www.AdLawAccess.com. Find Kelley Drye Advertising Law on
Facebook and Twitter @KelleyDryeAdLaw.

Dana B. Rosenfeld Alysa Z. Hutnik
Chair, Privacy & Information Partner, Privacy &
Security Practice Information Security and
Partner, Advertising & Advertising & Marketing
Marketing Practice Practices

Washington, DC Washington, DC
202.342.8588 202.342.8603
[email protected] [email protected]

Keri E. Campbell Lauri A. Mazzuchetti

Partner, Litigation and Partner, Litigation Practice
Entertainment & Media
Practices Parsippany, NJ
973.503.5910
Los Angeles, CA [email protected]
310.712.6145
[email protected]
Edward E. Weiman Richard D. Milone
Partner, Litigation and Chair, Washington, DC
Insurance Recovery Practices Litigation and Insurance
Recovery Practices
Los Angeles, CA
310.712.6177 Washington, D.C.
[email protected] 202.342.8425
[email protected]
Privacy and Information Security Practice
Privacy issues are a major focus of Congress, government agencies, state Attorneys General, the media,
industry and consumers. The rules are changing rapidly – from looming comprehensive federal legislation;
to a patchwork of federal and state laws, regulations and guidance; to expanding industry association
requirements and guidelines. Kelley Drye is at the forefront of this evolving area of law. We counsel clients
on privacy and security laws governing the collection, use and protection of personal information, and on
managing risks and reducing exposure to investigations and litigation arising from how companies handle
personal data. We have a national reputation for providing high quality legal services and practical, efficient
and timely advice on a broad range of privacy and data security issues. Our team includes several former
Federal Trade Commission (FTC) officials and a deep bench of consumer protection law specialists, which
uniquely positions us to guide our clients through all aspects involved in privacy and data security matters.
Kelley Drye’s Privacy and Information Security practice group helps clients achieve their business goals and
a competitive edge while balancing the risks of maintaining customer and employee data. Our attorneys
assist clients in designing and updating marketing programs; perform privacy and/or data security
compliance and strategic planning and business reviews, including data mapping; draft and amend
information security policies and programs; prevent and optimally resolve data breaches; design oversight
and monitoring programs for third party handling of customer and employee data; develop and provide
privacy training, and represent clients in connection with FTC and state Attorney General investigations and
class action litigation. We serve clients in all types of highly-scrutinized industries, including consumer
products and retail, hotel and leisure, financial services, and telecommunications, broadband, and technology
and mobile services.
Kelley Drye’s Privacy and Information Security practice group includes recognized leaders in the field,
including two former directors of the FTC’s Bureau of Consumer Protection, an Assistant Director, and
attorney advisors. While at the FTC, members of our group directed the implementation and enforcement
of the Children’s Online Privacy Protection Act (COPPA) and the Gramm-Leach Bliley Act (GLBA), and
targeted Internet privacy, identity theft, and electronic commerce consumer protection issues. Our group
also includes the past chair of the American Bar Association’s Privacy and Information Security Committee,
former editor-in-chief of the ABA’s Data Security Handbook and The Secure Times newsletter, the co-chairs of
the ABA Consumer Protection Law Developments treatise, and co-chair of the Federal Communications Bar
Association’s Privacy and Data Security Committee.
The firm’s Privacy and Information Security practice is internationally recognized in Chambers Global, is
nationally ranked in Chambers USA and U.S. Legal 500, and was named one of the top five privacy advisers
among law firms and consulting firms around the world in a survey published by Computerworld magazine.
Notably, sources tell Chambers researchers that the group “prioritizes risk to provide practical, thoughtful
advice in a timely manner.”
Litigation Practice Group
Throughout the firm’s history of more than 170 years, Kelley Drye litigators have guided clients through the
thicket of business litigation. Known for effectively resolving challenging cases, Kelley Drye’s litigation
practice has long been highly-regarded by leading companies around the world. In the most recent Super
Lawyers publication, 20 litigation partners were recognized as leading litigators. Kelley Drye is also listed
among 24 “Highly Recommended” firms for litigation in a survey of Fortune 500 corporate counsel
conducted by BTI Consulting. This recognition is the result of exceptional client service as well as
adherence to three significant principles at the core of our litigation practice:
We Are Trial Lawyers. Our litigators are experienced trial lawyers. Our partners have tried significant and
challenging cases in federal and state courts, arbitration tribunals and administrative bodies around the
country. It is our strongly held view that to obtain the best results in a litigation at the lowest possible cost
and with efficient use of resources, the strategy and the key tasks need to be handled by experienced trial
lawyers who can develop a compelling narrative around the client’s position. Too many firms leave
depositions, brief writing, discovery and even strategy to litigators who are not trial tested. As a result, there
is often wasted discovery with costly wheel spinning and lost opportunities to develop the key evidence that
will have a powerful effect in promoting a resolution or winning a trial. Our litigation partners lead cases
with hands-on involvement and in the process train associates to properly develop the best evidence to
promote settlements or win trials.
We Are Business Lawyers. All of our litigators understand that in business litigation, cases must be
handled in a way that advances the broader business interests of our clients. Early in their careers, we instill
in our litigators this value so that litigation does not become sport for the lawyers but rather a tool to
advance the client’s business objectives. In this regard, all our litigators understand the difference between
forceful and effective advocacy that has the desired impact on courts and adversaries leading to satisfactory
resolution, versus tactics that create conflicts and drive up litigation costs without advancing the client’s
interests. On numerous occasions clients have commented that Kelley Drye litigation teams get along with
each other and have productive relationships with co-counsel and adversaries while still forcefully
advocating the client’s position.
We Are Mindful of the Costs of Litigation. Many litigators have resisted pricing principles and
budgeting that are common in other businesses, relying on the argument that those could not effectively be
applied to the unpredictable world of litigation. At Kelley Drye, we are sensitive to our clients’ needs to
implement budgets, properly price litigation and increase efficiency in handling litigation. Our work is
designed, discussed and approved to stay within a realistic budget, in order to avoid unpleasant billing
surprises. We are committed to developing mutually beneficial fee arrangements based on our clients’ needs-
-including straight hourly billing, task-based billing and budgeting, blended rates, discounted hourly billing
based on volume and monthly or annual budgets with caps, as well as flat fees and full or partial
contingency arrangements.
Areas of Focus
The firm’s clients do business across all the major sectors of the economy, and include some of the world’s
largest financial institutions, pharmaceutical companies, technology and consumer products companies. We
have represented in significant litigations JPMorgan Chase, Raymond James Financial, Shinhan Bank, Mylan,
Inc., Merck KGaA, Avon, Polo Ralph Lauren, Reader’s Digest, BP Products North America, Dow Chemical,
Millennium Holdings, Alcatel-Lucent and many other major corporations. Since many industries face legal
issues rooted in one or more specific areas of law, we have woven a number of specialized areas of practice
throughout our industry groups, so that clients receive the insights of lawyers who are experienced and
focused on their issues.
Financial Services
Kelley Drye represents leading financial institutions across an array of legal issues. Our attorneys have
represented banks, lenders, investment managers and other financial institutions in the U.S. and abroad. We
handle complex and sophisticated matters covering the spectrum of claims present in today's legal
landscape, including fraud, false claims, derivative shareholder suits, bankruptcy litigation, class actions,
breach of contract disputes, and claims arising from current issues such as stock options backdating,
secondary liability, predatory lending, truth in lending, securities fraud and mortgage-backed securities. We
regularly handle matters involving federal and state enforcement agencies on behalf of our financial services
clients.
Pharmaceuticals
Pharmaceutical companies face a wide range of litigation and regulatory matters including false claims act
and regulatory litigation, product liability, pricing, fraud, consumer protection, class actions, federal and state
investigations, antitrust, intellectual property and general commercial litigation. Our lawyers understand the
unique regulatory and complex jurisdictional and cross-border issues that arise for our pharmaceutical
clients.
Consumer Products
Protecting a brand name in the highly competitive environment of retail and consumer products and dealing
with advertising issues, antitrust, unfair competition and intellectual property claims requires the guidance of
skilled professionals who understand how to protect and preserve a brand and its intellectual property. We
have handled all types of litigation centered on brands and related intellectual property and have tried
significant cases to protect both patents and trademarks.
Industrial and Manufacturing
Large, international manufacturers and industrial companies must deal with expensive products liability
actions, environmental litigation and class action cases, as well as trademark and competition issues. Kelley
Drye has represented automotive, chemical, energy and other heavy manufacturing companies in these and
other types of litigation matters. We have teams of lawyers who have tackled the challenge of defending
some of the largest targets of product liability and toxic tort litigation. Kelley Drye lawyers have been
integrally involved in litigation involving Agent Orange, asbestos and the industrial accident at Bhopal, and
currently we represent a defendant oil company in cases alleging more than $1 billion in property damage
and personal injuries arising out of a large oil spill.
Technology and Telecommunications
Through close coordination with members of our Government Relations and Telecommunications
practices, Kelley Drye’s litigators stay well informed of legislation and precedent-setting cases that affect our
telecommunications clients’ industry and operations. Our experience includes representation of technology
companies in litigation involving class actions, contract and pricing disputes, intellectual property, theft of
trade secrets, government contracting and regulatory issues. We also regularly litigate cases involving laws
governing the use of specific technologies such as the Computer Fraud and Abuse Act and the Digital
Millenium Copyright Act, as well as laws governing data privacy.
Representing Foreign Companies in U.S. Litigation
Kelley Drye has guided numerous international corporations through litigation in the U.S. Our attorneys
understand and anticipate the unique challenges that foreign-based companies face in defending litigation in
the U.S. Our publication, “Understanding Litigation in the United States: A Guide for Foreign Executives
and Attorneys,” explains to foreign executives the complex U.S. litigation process, with advice about the
issues they need to consider. We have significant experience handling litigation for clients headquartered in
numerous countries, including Germany, India, Japan, Korea, Brazil, United Kingdom, France, Argentina,
Colombia and Spain.
Insurance Recovery Practice Group
Over the past twenty years, Kelley Drye’s Insurance Recovery attorneys have secured hundreds of millions
of dollars of disputed insurance proceeds for clients in a diverse array of matters in courts across the
country. The group, with partners in New York, Los Angeles and Washington, D.C. has been recognized as
a leading Insurance Recovery practice for 2008, 2009, 2010 and 2011 by Chambers USA and for 2010 and
2011 by U.S. Legal 500. The group also received a BTI All Star Award for client service in 2011.
Kelley Drye represents exclusively policyholders in coverage disputes. Our clients include companies (large,
medium, and small), individuals, and trade associations. We have extensive experience is all phases of
policyholder representation, including counseling in the purchase and renewal of coverage, evaluating the
insurance implications of corporate mergers and acquisitions, analyzing potential claims, and negotiating
consensual resolutions with insurers whenever possible.
When pre-suit resolution is not attainable, we litigate aggressively, using our thoughtful and
uncompromising approach to business litigation. Unlike some policyholder practices, our attorneys have
extensive experience trying, and winning, high-stakes insurance coverage and bad faith cases in front of
juries. As just one example, our team won a $23 million bad faith verdict on behalf of a national hotel
chain, one of the largest bad faith verdicts in California history.
Our lawyers have decades of experience handling claims under conventional Comprehensive General
Liability, Directors & Officers’ First Party Property, Pollution, Business Interruption, Builders’ Risk,
Employment Practices, Motion Picture/Television Production, and Entertainment Errors & Omissions,
policies. In addition, we have developed niche specialties handling Construction Defect, Tour Cancellation,
and Media Liability insurance coverage claims.
Our attorneys regularly speak and write on insurance issues and are recognized as leaders in the field. For
example, we recently authored special chapter on Media Liability insurance for the multi-volume treatise on
California insurance law, published by Matthew Bender & Company, and for the forthcoming treatise on
insurance law with national application, New Appleman on Insurance Law Library Edition.
Dana B. Rosenfeld
PARTNER
WASHINGTON, D.C.
EMAIL: [email protected]
PHONE: [phone]

Dana Rosenfeld is a partner in the firm’s Washington, D.C. office and chair of the Privacy and Information
Security practice. A former assistant director of the Federal Trade Commission (FTC) Bureau of Consumer
Protection, Ms. Rosenfeld’s practice focuses on all facets of privacy and data security, advertising and
consumer financial issues at the federal and state level. She represents clients before the FTC and state
Attorneys General – including recent matters for major retailers, food companies, dietary supplement
manufacturers, and financial services institutions – and provides ongoing compliance advice related to
existing consumer protection laws, best practices and self-regulatory programs.
Ms. Rosenfeld counsels companies in developing and implementing policies on data collection, use and
security, consistent with the requirements of the Children’s Online Privacy Protection Act (COPPA), the
Gramm-Leach-Bliley Act (GLBA), the Privacy and Safeguards Rules, the Red Flags identity-theft regulations,
the FTC Act and corresponding state laws. United States Trustees have recognized her privacy expertise by
appointing her Consumer Privacy Ombudsman in the Tower Records, Ritz Camera, and Steve & Barry’s
bankruptcy proceedings, where she submitted reports and recommendations to the courts regarding the
disposition of customer lists and other personally identifiable information.
From August 1998 to October 2001, Ms. Rosenfeld was an assistant director of the FTC’s Bureau of
Consumer Protection. Prior to this appointment, she was senior legal advisor to the Director of the Bureau
of Consumer Protection, and an advisor to FTC Chairman Robert Pitofsky. As assistant director, Ms.
Rosenfeld was responsible for coordinating consumer protection policy on advertising and electronic
commerce issues.
With a major role in developing the FTC’s privacy initiatives, Ms. Rosenfeld helped promulgate the agency’s
Rules implementing COPPA and GLBA. She also advised the Commission in connection with reports such
as the May 2000 Report to Congress, Privacy Online: Fair Information Practices in the Electronic Marketplace. Ms.
Rosenfeld assisted in the development the FTC’s privacy agenda under Chairman Timothy Muris, and
chaired the Bureau of Consumer Protection’s Internet Legal Issues Task Force effort to apply consumer
protection rules and guides to electronic commerce, which focused primarily on the format and presentation
of disclosures in Internet advertising.
Ms. Rosenfeld is ranked as a leading practitioner in the Privacy and Data Security area by Chambers USA,
2010 and 2011, where clients rave: “She manages projects in a cost-efficient manner that helps us maintain a
competitive edge. She is efficient, knowledgeable and has excellent response times – she’s a gem!” She is
also mentioned in US Legal 500 for her work in the Marketing and Advertising and Data Protection and
Privacy areas, 2010 and 2011.
Representative Experience
Consumer Protection and Privacy Investigations
Represented the Council of Better Business Bureaus and the Children’s Advertising Review Unit of the
National Advertising Review Council in developing the Children’s Food and Beverage Advertising Initiative,
a self-regulatory program designed to encourage the advertising of healthy foods and active lifestyles to
children. This project also included the revision of the industry’s Self-Regulatory Guidelines for Children’s
Advertising.
Represented leading children’s specialty retailer in an FTC investigation of the company's in-store and online
privacy practices. Successful in convincing the FTC to close the investigation without pursuing law
enforcement or remedial action.
Represented national toy chain in FTC investigation of the company’s gift card practices.
Represented leading academic research company in separate privacy investigations by the FTC and 42 state
Attorneys General, and negotiated FTC consent order and state Assurance of Voluntary Compliance.
Represented several companies responding to breaches of data security, including the disclosure of such
breaches to consumers and state and federal authorities, as appropriate.
Represented major online retailer in FTC investigation of Mail Order Rule violations, resulting in closing of
investigation.
Represented national financial services company in FTC investigation of Gramm-Leach-Bliley Safeguards
Rule violations, resulting in closing of investigation.
Represented major telecommunications company in FTC investigation of Fair Credit Reporting Act and
Equal Credit Opportunity Act violations, resulting in negotiation of favorable settlement.
Represented online retailer in investigation of security breaches involving customer information by New
York Attorney General’s Office, resulting in negotiation of Assurance of Discontinuance.
Represented leading online retailer in FTC privacy investigation, resulting in closing of investigation.
Advocacy and Counseling
Regularly counsel companies in developing and implementing privacy policies and data collection and use
practices, consistent with the requirements of the Children’s Online Privacy Protection Act, the Gramm-
Leach-Bliley Act Privacy and Safeguards Rules, California privacy laws, and FTC and state law enforcement
precedent.