Helene Freeman named as Law360's Legal Lion - March 13, 2020

The full Ninth Circuit sided with Led Zeppelin on Monday and rejected a high-profile copyright lawsuit accusing the band of stealing the intro to "Stairway to Heaven" from a little-known song, landing the group’s attorneys at Davis Wright Tremaine LLP and Phillips Nizer LLP on this week’s legal lions list. Led Zeppelin and its affiliated music companies are represented by Peter J. Anderson of Davis Wright Tremaine LLP and Helene Freeman of Phillips Nizer LLP.

Partner Edward Schauder comments on the implications of sports suspensions and cancellations in The Guardian.
 

Finances will be shattered by sports suspensions.  But it won't be the stars who suffer. (March 12, 2020)

Speaking Engagement - Ilene Jaroslaw, White Collar Criminal Defense Practice Co-Chair and council member of the American Bar Association (ABA) Criminal Justice Section (CJS), will moderate "Internal Investigations on Cutting Edge: Perspectives From the Front Lines" during the 2019 ABA Annual Meeting on August 8th. | Details

Speaking Engagement - Bradley Simon, Co-Chair of the White Collar Criminal Defense Practice, will be a panelist at the 17th Annual International Bar Association (IBA) Anti-Corruption Conference in Paris, France (June 25 - 26, 2019)

Date:  Tuesday, June 25, 2019  |  Time:  11:15 AM - 12:30 PM
Panel:  "Due process and procedural fairness for individuals in corproate bribery enforcement actions"

A strong focus on anti-bribery enforcement actions against corporations, coupled with widespread and increasing use of nontrial resolutions to conclude these cases, raises concerns about the rights and interests of individual defendants, including due process
and procedural fairness. This panel will explore this dichotomy, from the perspective of in-house corporate counsel, white-collar
defence practitioners and prosecutors. Panellists will be invited to discuss strategies for navigating these issues in the specific context of self-reporting and internal investigations.
 

Speaking Engagement - Monica McCabe, Chair of the Intellectual Property Law Practice, will be a panelist during the Connecticut Bar Association 2019 Connecticut Legal Conference on June 10th. The panel will address, "Sampling, Streaming, and the Music Modernization Act" (9:00 - 11:00 a.m.) | Details

This Continuing Legal Education (CLE) program will give an overview of issues faced by musicians and the music industry in the technological age, specifically focusing on streaming and sampling versus copying, and what the Music Modernization Act is and how it will affect musicians going forward. | Panel Details: http://www.ctlegalconference.com/a06/

Speaking Engagement - Patrick Burke, Chair of the Data Technology & Cybersecurity Group, will be a panelist at the upcoming program, "Blockchain Perspectives: Business, Regulatory and Accounting Challenges" hosted by Grant Thornton on June 4, 2019. | Details

Grant Thornton hosts, "Blockchain Perspectives: Business, Regulatory and Accounting Challenges," a program on Tuesday, June 4th (9:00 a.m. to 12 Noon).  Patrick Burke participates in the panel discussion addressing, "Regulatory Landscape for Cryptocurrency Firms and Industry Response" | For more information and to register to attend, please click here.

Media - Environmental Law partner Eileen Millett is one of the New York State Bar Association's (NYSBA) new diverse class of committee chairs, co-chairs and vice-chairs highlighted by the New York Law Journal in their June 3, 2019 issue. | Read here

In April, Eileen was announced as co-chair of the NYSBA’s Task Force to examine the impact of New York’s adoption of the Uniform Bar Exam (UBE).  The NYLJ article also features the cover of the June-July edition of the NYSBA Journal with 40 photos of the new diverse committee chairs, co-chairs and vice-chairs of NYSBA committees. 

Speaking Engagement - Patrick Burke will keynote the fireside chat during the 2019 Lighthouse Illuminations Summit, May 20 - 22, 2019 in Miami, Florida. | Details

The Illuminations Summit brings together legal practitioners, e-discovery, compliance, and information governance thought leaders from around the world.

Upcoming CLE Program - Employment and Labor Law Senior Counsel, Evan Spelfogel, who is a Fellow of the College of Labor and Employment Lawyers, moderates a 3-hour human rights Continuing Legal Education Program (CLE) on May 14, 2019 | Details

On Tuesday, May 14, 2019 at 5:30 p.m., the College of Labor and Employment Lawyers hosts a 3-hour Continuing Legal Education (CLE) program on the #MeToo movement, workplace sex discrimination and recently enacted New York State and New York City requirements concerning mandatory sexual harassment workplace training.
  
Guest Speakers: Caroline Downey, General Counsel, New York State Division of Human Rights, and Dana Sussman, Deputy Commissioner, New York City Commission on Human Rights. 

This event will be held at the law firm of Seyfarth Shaw in New York City.  The cost of attendance is $50.00.  3.5 CLE credits will be available.

Credit Card Payments: here

 
Registration information and questions to: Evan Spelfogel: espelfogel@phillipsnizer.com

Media - Bradley Simon, Co-Chair of the White Collar Criminal Defense Practice, was quoted by the New York Times after the actress Felicity Huffman plead guilty on Monday in the college admissions scandal. | Read here 

Brad questions why Ms. Huffman’s husband, the actor William H. Macy, was not charged. 

“It may be that he cooperated with federal agents and provided important information as to the involvement of
others, although most likely not his wife. He also could get charged in the future.”

(Link: New York Times subscription required)

Media - Alan Behr, Partner in the Intellectual Property Law Practice, is quoted by IP Pro Magazine regarding the filing of a European multimedia trademark application by a video game developer requesting the protection of its gory slow-motion kills appearing in its Sniper Elite games. | Read here

Speaking Engagement - Michael Galligan, Partner in the Trusts & Estates, International and Immigration Practices is a member of the faculty for the May 6, 2019 Practising Law Institute (PLI) "International Estate & Tax Planning 2019" full-day Continuing Legal Education (CLE) program. | Details

Full Details and Registration: here

OVERVIEW
Why You Should Attend:

This foundational program will focus on the legal and tax framework you need to advise those individuals whose personal, financial and business connections span national borders. In addition to the usual estate and tax planning issues, international private clients face special challenges arising from the global progression toward increased transparency, heightened reporting requirements and more stringent tax enforcement. By attending you will learn about essential legal and tax rules, available planning opportunities, and potential pitfalls for both clients and advisers.
 

Speaking Engagement - Lauren Wachtler co-moderates, "Working with Men to Advance Women in the Profession," during the New York State Bar Association (NYSBA) Commercial & Federal Litigation Section Spring Meeting (May 3 - 5, 2019) | Details

New York State Bar Association (NYSBA)
Commercial & Federal Litigation Section Spring Meeting 2019
"Working with Men to Advance Women in the Profession"
10:40 a.m. - 11:55 a.m.
(1.5 CLE credits in Diverity, Inclusion and the Elimination of Bias) 

Media - The Associated Press quotes Bradley Simon, Co-Chair of the White Collar Criminal Defense Practice, and co-lead of the College and University Integrity Initiative, after more plead guilty in the college admissions scandal. | Read here

Brad believes additional indictments should be expected as parents and coaches cooperate with federal prosecutors.

“You can rest assured that there is going to be a new wave of indictments...They wouldn’t need so many cooperators for existing cases. What seems to me is that these individuals who are cooperating are helping the government to make new cases.” 

Speaking Engagement - Alisha McCarthy, an associate in the Litigation Department co-presents on the panel, "Fusion Between Entertainment Law and Employment Law" at the Employment Law Institute 2019 on Wed., April 24, 2019. | Details

On Wednesday, April 24, 2019 at the Employment Law Insitute 2019 conference, Alisha McCarthy and her co-panelist will discuss: the use of mandatory arbitration agreements in the entertainment industry, particularly in high profile cases; lack of diversity on arbitration panels; misclassification of employees as independent contractors; FLSA and overtime issues for on-air talent (exempt v. non-exempt); and unpaid wages in the fallout of the Fyre Festival.

Details and Registration here.

Speaking Engagement - Patrick Burke, Chair of the Data Technology & Cybersecurity Group, was featured on April 24, 2019 in a webinar for the Financial Services section of the Association for Corporate Counsel (ACC) on "The BitLicense, Virtual Currency and its Regulation”.  

Patrick discussed New York State’s BitLicense program, regulatory regimes in other states and around the world, and provided an overview of top virtual currencies, cryptocurrency exchanges and stablecoins. 

Media - Litigator Helene Freeman, Partner in our Intellectual Property and Entertainment Law Practices, quoted by Bloomberg Law in article about a lawsuit filed by muralists and the use of their street art without permission in ads by Mercedes Benz | Read here

“There have been many cases by graffiti artists, and they’ve generally prevailed...I don’t think fair use is a claim that can be articulated here. Mercedes used the art for what it was.”

Media - Sports Business Journal reports on Ed Schauder's representation of the Berra family, which includes a feature film about the life of Yogi Berra, the New York Yankees legend (Subscription required)

Speaking Engagement - White Collar Criminal Defense Practice co-chairs, Ilene Jaroslaw and Bradley Simon, who lead Phillips Nizer's College and University Integrity Initiative, were the featured presenters on April 17, 2019 to the National Association of College and University Attorneys (NACUA), New York Chapter, on Lessons Learned From The College Admissions Scandal.

Reference - Press Release: Phillips Nizer launches College and University Integrity Initiative: Ilene Jaroslaw and Bradley Simon, two veteran federal prosecutors, to assist universities and administrators in confronting and resolving admissions investigation issues.

Media - Ilene Jaroslaw, Co-Chair of the White Collar Criminal Defense Practice and co-lead of the College and University Integrity Initiative was quoted by Bloomberg in, “Parents in College Scandal Make a Legal ‘Declaration of War’,” an article published today. | Read here

Media -  As new charges are filed, Bradley Simon, co-chair of the White Collar Criminal Defense Practice, addresses the possibility of jail time for those involved in the college admissions scandal in a New York Times article. | Read here

“This is somewhat uncharted waters because this is a really unique case — we haven’t seen a case where dozens of parents are being hauled off into court before.”

“Judges and prosecutors are always very sensitive to the court of public opinion in determining what sentences they get...They will feel some pressure to send a message. A lot of people are really horrified by this. It undermines the system. It smacks of breathtaking self-entitlement.”

(Link: New York Times subscription required)

Speaking Engagement - Patrick Burke, Chair, Data Technology & Cybersecurity Group, to moderate "The Eight Hottest Topics in Fintech Regulation," a roundable at the LendIt Fintech USA conference on April 8, 2019 (San Francisco, CA). | Details & Registration

Media - Law360 quotes Bradley Simon, co-chair of the White Collar Criminal Defense Practice and co-lead of Phillips Nizer's College and University Integrity Initiative regarding the guilty plea of Gordon Caplan, former Willkie Farr & Gallagher co-chair, in the college admissions scandal. | Subscription required

Caplan didn't simply agree to plead guilty, noted Brad Simon, a partner at Phillips Nizer LLP and ex-federal prosecutor who co-leads the firm's new College and University Integrity Initiative. He also issued a statement that expressed "deep anguish."

"I think he probably got good advice that coming in early and making a quite heartfelt statement of contrition will serve him well," Simon said. "I think he probably made a wise decision."

Accolade/Media - Eileen Millett named co-chair of New York State Bar Association (NYSBA) Task Force to examine the impact of New York’s adoption of the Uniform Bar Exam (UBE). The New York Law Journal quotes Eileen regarding the potential repercussions. | Read here (Subscription required)

“If students are no longer taking NY practice, then we really have lost something of value,” said Millett, who added that knowledge of New York law is necessary for the state courts to remain a pre-eminent destination for settling international commercial transactions.

Millett, a partner at Phillips Nizer, added that the changing economics of the profession is also having an impact on the lack of preparation judges are encountering. With more students going to law school, the competition has intensified and some can’t find jobs in the kinds of firms that train beginning lawyers before sending them to court.

Media - Partner Ilene Jaroslaw, co-chair of our White Collar Criminal Defense Practice, comments on a U.S. Supreme Court ruling clarifying who can be held liable for fraudulent investment schemes. | Read here

CLE Program - Lauren Wachtler, co-chair of the Litigation Department, acts as "counsel" for the mock trial presentation, "Mammograms on Trial," during the 23rd Annual Ellen P. Hermanson Memorial Symposium on March 26, 2019. | Details & Registration

Speaking Engagement - Patrick Burke co-presents on the webinar, "Why Companies Should Consider Certifying Under the EU-US Privacy Shield" hosted by the Association of Corporate Counsel (ACC), Information Governance Network, on March 21, 2019 from 2:00 - 3:00 PM EST | Member Registration

Media - Ilene Jaroslaw, Co-Chair, White Collar Defense Practice and member of Phillips Nizer's College and University Integrity Initiative quoted in, "‘Full House’ to big house in college scheme? Experts differ," regarding the potential fate of those charged in the college admissions scandal. | Read here

Reference - Press Release: Phillips Nizer launches College and University Integrity Initiative: Ilene Jaroslaw and Bradley Simon, two veteran federal prosecutors, to assist universities and administrators in confronting and resolving admissions investigation issues | more

Media - Fashion Practice Chair, Alan Behr, comments on allegations of copyright infringement and trade dress protection involving COOGI, the Australian fashion brand made famous by rapper Biggie Smalls/The Notorious B.I.G., against the Brooklyn Nets, the NBA, Nike Inc., among others. | Read here

Media - Law360 quotes Patrick Burke in "'Training Wheels' Come Off New NY Cybersecurity Rules" (Subscription Required)

“We understood that the regulation raised the bar, and that particularly for institutions that weren't banks or insurers, this was a whole new game...When we came across those who weren't used to these kind of obligations and hadn't met the criteria, we'd work with them to get there. Getting everyone's mind focused on these issues made a big difference...When the training wheels come off, everybody has to take more responsibility for compliance, and with a new superintendent there could be a new approach...”

Media - Patrick Burke addresses the susceptibility of blockchain-based software to cyberattacks in LegalTech News article, "Users Beware: Blockchains Are Susceptible to Attacks," after reports of more hacks to blockchain-backed cryptocurrencies and smart contracts. (Subscription Required)

“With anything involving software, anything involving anything online, it’s always an IT security risk,” said Phillips Nizer partner and former New York state Department of Financial Services deputy superintendent Patrick Burke.” So while the blockchain itself is generally pretty impregnably accept for the ‘51% attacks’, the software written around the blockchain is as susceptible as any other software.”

“At DFS, we would look at [a blockchain's] vulnerability to 51% attacks,” Burke said. ”You have to look at the number of miners it would take, what is the criteria for controlling [it], is it proof of work, proof of stake [and] how small of a group can pull off a 51% attack.”

Note:  Prior to joining Phillips Nizer, Patrick served as a Deputy Superintendent at the New York State Department of Financial Services (DFS), where he launched and headed the DFS Office of Financial Innovation.  In that role, he oversaw policy and examinations of New York’s licensed and chartered financial institutions pursuant to the Department’s Cybersecurity and Virtual Currency regulations. | More here...

Media - Brad Simon, co-chair of the White Collar Criminal Defense Practice, quoted by the New York Daily News regarding the college admissions bribery scandal and penalties in white collar cases. | Read here 

Media - Christian Hylton, co-chair of our Land Use & Government Relations Practice, addresses community concerns in an interview with NY1 regarding the development by one of our clients of two 39 story apartment buildings near the Brooklyn Botanic Garden. | Video

The city held a hearing on March 12, 2019, a first step in a Land Use Review to explore the environmental impact of the proposed development.

Media - Brad Simon addresses the surprising omission of actor William H. Macy, husband of actress Felicity Huffman, who was not charged in the National College Admissions bribery scandal.  As Brad comments in the article, it appears Macy “participated in the bribery at least as a co-conspirator.” | Read here

CLE Program - Lauren Wachtler, Co-Chair of the Litigation Practice, serves as Program Chair of the New York State Bar Association (NYSBA) CLE, "Taking the Lead 2019: Winning Strategies and Techniques for Commercial Cases," on March 12th. | Details here

This program will showcase methods of creating compelling opening and closing statements and direct and cross-examinations of witnesses through a re-enactment of an actual commercial trial.

Media - Ilene Jaroslaw was featured as one the key players in NPR’s Marketplace broadcast last week. Host Kai Ryssdal is frequently asked: Why didn’t any Wall Street CEOs go to jail after the financial crisis? Ilene gives an in depth look at what happened. | Listen here

Media - Tom Jackson, Chair of the Technology Practice, quoted by Business Travel News in, “Marriott's Plans for Data Protection,” an article highlighting the multinational hotel group’s potential changes to its cybersecurity protocols as a result of a data breach to the reservation system of its subsidiary Starwood Hotels in 2018. | Read here

At the time of the announcement of the breach, it was reported that over 300 million customers were potentially affected.  Starwood was acquired by Marriott International in 2016.

Media - Brad Simon comments on the ongoing legal battle facing Huawei Technologies Co.’s chief financial officer Meng Wanzhou, daughter of the company’s founder, in the Bloomberg article, “Huawei’s Efforts to Derail U.S. Prosecutions Face Steep Odds.”  | Read here

China’s biggest smartphone maker is using its financial and political clout to fight U.S. allegations that the company was involved in bank fraud, technology theft and spying.  Meng is fighting extradition to the U.S. from Canada where she was arrested in December 2018.

Media/News - Two Former EDNY Prosecutors Join Phillips Nizer to Lead New White-Collar Practice (New York Law Journal, February 27, 2019) (Subscription required)

Ilene Jaroslaw and Bradley Simon, two former federal prosecutors in the Eastern District of New York, are joining Phillips Nizer to launch a new white-collar and investigations practice in New York.

Media - Partner Ilene Jaroslaw comments on the recent U.S. Supreme Court ruling which stated criminal defendants have the right to initiate an appeal even after pleading guilty and waiving most of their appeal rights. (Subscription required)

"If a criminal defendant instructs his lawyer to file a notice of appeal, a lawyer must do so to protect his client’s rights...It is immaterial whether the lawyer thinks an appeal would be meritless."

Media - IPPro Magazine quotes Alan Behr, member of the Intellectual Property Practice, regarding an alleged violation of the Digital Millennium Copyright Act (DMCA). A Kickstarter fundraiser of a movie edit was halted by Warner Bros. Studios.

Media - Law360 quotes Ilene Jaroslaw in "Epstein Ruling Puts Pressure On Acosta, DOJ" regarding the Jeffrey Epstein sex trafficking case and non-prosecution deal (Subscription required)

"Ilene Jaroslaw...pointed out that whether or not the Miami office reopens the case, a decision vacating the non-prosecution agreement could catch the eye of other U.S. attorneys who may have jurisdiction...the non-prosecution agreement was not a global agreement that would have bound federal prosecutors outside Miami. However, Jaroslaw noted that U.S. attorneys’ offices may have chosen to pass on bringing charges against Epstein if they believed the Miami office had it under control. If the court tears up the non-prosecution agreement, it could change the equation, she said.

“It seems to me that the U.S. attorneys’ offices in other states would absolutely have a green light to re-investigate those cases and, as warranted, bring new prosecutions.”

Media - Patrick Burke comments on JPMorgan's new digital currency "JPM Coin" in the article, "JPMorgan’s New Digital Currency: Will Benefits Outweigh Risks?" appearing on Law.com/LegalTech News (Subscription required)

“One risk is that somehow there’s a glitch in the software and the accounting gets screwed up and people feel like they’ve lost money. And one way that there can be a glitch is if there’s a hack of the system so they need to be very careful about their cybersecurity around the blockchain...Since it’s staying in the bank it’s at much lower risk for money laundering or violation of sanctions. So they’re safer as these things go compared to a cryptocurrency that’s out in the wild.” 

Media - Patrick Burke quoted by Cyber Defense Magazine in, "QuadrigaCX Cryptocurrency Exchange — Password or Death Fail?" about the death of Gerald Cotten, Founder, sole Director, and CEO of QuadrigaCX, the Canadian cryptocurrency exchange. | Read here

Cotten died in December 2018 reportedly as the only individual with the master password to access the internal server for the exchange.  Since the initial reports of Cotten's passing, alarming information has come to light, including alleged missing coins, cash, and other digital assets, and possible fraud.

"It’s one thing to trade your cryptocurrency on an unregulated exchange; it’s another to trust them to store your coins safely for you.  If you are not day-trading, you do not need to store your crypto on an exchange.  The safest place is with companies that specialize in providing ultra-safe custody for digital assets."

Media - Finance Magnets quotes partner Patrick Burke in "Is QuadrigaCX the New Mt Gox?"  QuadrigaCX, the Canadian crypocurrency exchange is under investigation after the reported death of its founder and CEO Gerald Cotten.

Media - Law360 quotes Thomas Jackson in "Yahoo Breach Deal's Failure Shows Vagueness Doesn't Pay," highlighting a U.S. District Court refusal to approve a $50 million data breach deal between Yahoo! and its users. (Subscription Required)

Excerpt:

"Central to the concerns Judge Koh is raising is why it took 143 attorneys from 32 firms to file a complaint, oppose a stay, oppose a demurrer and file a motion for class action certification, and how that work could conceivably justify an award, on average, of over a million dollars for each of the firms...the court in its decision painted a picture of Yahoo as the poster child for bad behavior...It took particular pains to point out that Yahoo's estimate for settlement purposes of the number of accounts affected was not accurate, as well as other misdeeds, including Yahoo's denial in public filings that it knew anything about unauthorized access to personal data, its withholding of information and its delay, in some cases for a period of years, in notifying users of something it had contemporaneous knowledge of, leaving them in the dark as far as any actions they needed to take to protect themselves against the potential misuse of the compromised data."

Media - Alan Behr, member of the Intellectual Property Law Practice, has been quoted by IPPro magazine in the article, "Oracle v Rimini: The shifting sands of copyright". | Read here

The U.S. Supreme Court will resolve a conflict in the Circuits concerning whether the copyright statute's authorization of recovery of “full costs” includes costs, such as expert witness fees, for which recovery is not otherwise authorized under the general statutory provision defining recoverable costs in every federal case. Alan commented on that question and the broader problem of ambiguity and interpretation of a copyright statute dating from 1976—on that he believes is long overdue for overhaul or full replacement.

Media - Thomas Jackson, Chair of the Technology Practice, quoted by Law360 in "Apple's Facebook, Google App Bans Shake Up Privacy Fight."  The article reports on Apple's recent block of an internal marketing research app Facebook and Google distributed to consumers, including minors. (Subscription required)

Excerpt:

"I don’t regard a teenager — or for that matter an adult — being incentivized to download a 'survey' app based on a statement that trusting the app 'may give' Facebook’s developers 'access to your data' and tapping a 'Trust' button as having given his or her consent."

Media - Leading up to Sunday's Big Game, Ed Schauder breaks down the potential windfall for a Super Bowl-winning athlete cemented in history. | "Super Bowl Presents Lucrative Memorabilia Opportunities for Players" published on January 31, 2019

Speaking Engagement - Patrick Burke, Chair of the Data Technology and Cybersecurity Group, "The State of the E-Discovery Union: A Roundtable on the Industry and the Profession" at Legaltech (January 30, 2019; NYC)