Mark Mermelstein, a trial lawyer
with more than 20 first-chair trials, specializes in white collar criminal
defense and complex litigation. He is
also global co-chair of the firm’s Cybersecurity and Data Privacy team.
Mark focuses his work representing
corporations and individuals facing allegations of securities fraud, healthcare
fraud, environmental crimes, money laundering, violations of the Foreign
Corrupt Practices Act (FCPA) and the False Claims Act, mail/wire fraud, and embezzlement.
Mark also focuses on asset recovery for corporate crime
victims such as those victimized by cybercrime, such as theft of trade secrets,
hacking, counterfeiting and other business crimes. In this regard, Mark routinely
leads data breach and cybersecurity incident response efforts, as well as
proactively advises on data breach mitigation strategies.
Mark has written many articles and has spoken
extensively on many aspects of his practice. A frequent commentator on matters
related to white collar crime, he has been recommended by Legal 500 in both
White Collar Criminal Defense, and Cybersecurity.
Representative experience includes the following:
environmental consultants in three of the four criminal investigations
initiated by the State Water Resources Control Board and Attorney
General’s Office regarding allegations of fraud on the California
Underground Storage Tank Fund.
a bottling company in a federal criminal investigation into violations of
the Clean Water Act.
a hotel engineer in a federal criminal investigation into violations of
the Clean Water Act.
Represented numerous seamen in federal criminal
investigations regarding violations of the Clean Water Act.
the victim of art fraud when he was sold a phony Picasso painting for US$2
million. By referring to the matter to the United States Attorney’s Office
for a successful criminal prosecution, and asset forfeiture seizure,
recovered more than the client’s US$2 million cash outlay.
a major international union that was fraudulently induced to enter into
more than US$25 million of over-priced office equipment leases. By
initiating a state court lawsuit was able to extricate the client from the
leases and resolve the litigation on favorable terms.
Represented an Internet company that was the victim
of cyber-extortion when the perpetrator demanded payment of money in
exchange for not releasing company and customer trade secret information.
a chain of nursing homes in connection with a D.A.'s Office investigation
into allegations of an elder abuse homicide at one of its residences, the
related civil litigation and the related licensing investigation.
numerous physicians and other healthcare professionals in
connection with federal or state criminal investigations into
allegations of Medicare/Medical fraud or drug distribution by writing
prescriptions without medical necessity.
Achieved a verdict after jury trial for Aetna below
the settlement offer, where the health insurer had been accused of
insurance bad faith by decedent seeking more than US$20 million.
a French investment company in connection with a U.S. Attorney's Office
investigation into allegations of fraud in connection with the purchase of
a failed insurance company, Executive Life, and related civil litigation.
a senior executive at KB Home in connection with a U.S. Attorney's Office
investigation into allegations of stock options backdating, related
Securities & Exchange Commission investigation and civil litigation.
numerous environmental consultants in criminal and civil proceedings
brought by the California State Water Resources Control Board and qui tam
whistleblowers related to allegations of fraud on the California
Underground Storage Tank Cleanup Fund
Represented National Basketball Association player in
U.S. Attorney's Office investigation
With his substantial
trial experience, he knows how to devise winning strategies for trial and has
the judgment to know when it is best to find an alternative solution. A sample
of Mr. Mermelstein's trial and evidentiary hearing successes appears below.
complete dismissal of manslaughter charges against a motorist accused
of killing a prominent municipal employee in an alcohol-involved car
complete dismissal of all allegations of impropriety in a high stakes
child custody battle for a multi-millionaire business executive.
hung jury verdict for ConAgra Foods, where the food manufacturer was
facing a US$40 million claim from a distributor for breach of
Obtained numerous not guilty jury verdicts for
individuals accused of a wide array of criminal conduct.
The Waymo v. Uber trade secrets litigation has been underway for less than two months but the case has already hit quite few speed bumps with multiple discovery battles, Waymo’s efforts to obtain a preliminary injunction from Judge William Alsup of Northern District of California, a fight over arbitration, assertions of 5th Amendment rights, and now an appeal to the Federal Circuit that has temporarily halted a portion of the district court proceedings.
As a quick recap of how we got here, Waymo alleges that one of its former key managers in charge of Waymo’s driverless car business, Anthony Levandowski, downloaded more than 14,000 files to start a competing company—Otto—that Uber later purchased. The key technology relates to a LiDAR system, which is mounted on top of the car and gives the driverless car the ability to “see” other cars and obstacles. Waymo is seeking a preliminary injunction enjoining Uber from using or disclosing any of Waymo’s trade secrets and from selling any devices based on Waymo’s patents. In aid of the PI hearing on May 3, 2017, the parties are engaging in expedited discovery. Since this case started, the docket has been quite active and full of interesting, thorny legal issues. READ MORE →
A recent case in the Southern District of Florida serves as a reminder that even trade secrets may be subject to production to opposing counsel. Magistrate Judge Jonathan Goodman recently ordered a defendant “swingers’” club to produce its email distribution list to plaintiffs inEdmonson v. Velvet Lifestyles, LLC (S.D. Fla. Dec. 5, 2016). READ MORE →
In Direct Technologies, LLC v. Electronic Arts, Inc., the Ninth Circuit set forth an interesting take on what is sufficient to demonstrate reasonable efforts to maintain secrecy under the California Uniform Trade Secrets Act (“CUTSA”). In the case, plaintiff Direct Technologies, LLC asserted a trade secret misappropriation claim against defendant Electronic Arts regarding the disclosure of its usb drive prototype for Electronic Arts to a third-party. The district court granted summary judgment for Electronic Arts, finding that no reasonable jury could find that Direct Technologies had taken reasonable efforts to maintain the confidentiality of its prototype. READ MORE →
Last week, the Texas Supreme Court provided its first opinion interpreting the Texas Uniform Trade Secrets Act in a case involving an issue that often causes discomfort to lawyers on both sides of the “v” in trade secret misappropriation cases: how much of their trade secrets do plaintiffs have to disclose to enable the defendant to adequately defend itself? The opinion in In re M-I L.L.C. d/b/a M-I Swaco, 2016 WL 2981342 (Tex., May 20, 2016) demonstrates this tension. READ MORE →
There are many ways to gain trade secret protection, but also many ways to lose it. As the recent motion to dismiss ruling in Fleetwood Packaging v. Hein from the Northern District of Illinois illustrates, how a company vacuum packs its confidential information can make all the difference between preserving it and watching it get spoiled by a competitor. READ MORE →
First rule of thumb in trade secrets litigation? A trade secret must be kept secret. It is painfully obvious, but modern practitioners must not grow complacent due to the convenience of electronic filing. Although trade secrets law does not command absolute secrecy, a recent e-filing snafu in HMS Holdings Corp. v. Arendt offers a cautionary tale from New York on how one botched upload could jeopardize a client’s most prized possession. READ MORE →
As many companies are considering purchasing cyber insurance, they often wonder: “Will my insurer be there when I have a data breach?” Cyber insurers have generally been good in paying claims. But the recent lawsuit featured in this Orrick Client Alert demonstrates that as the landscape evolves, insurers may refuse to cover breach costs by arguing that insureds failed to meet “minimum requirements” for cybersecurity. Tending to cybersecurity policies and procedures before breaches occur is more important than ever. READ MORE →
Earlier this month, AmTote International, Inc. sued the famed Kentucky Downs racetrack, three high-ranking Kentucky Downs employees, and Encore Gaming, LLC in federal court alleging misappropriation of trade secrets related to horse racing betting machines. AmTote’s lawsuit presents the interesting question of whether the “inevitable disclosure” doctrine applies under Kentucky law. READ MORE →
Not everyone is happy about the proposed EU Trade Secrets Directive. When we last touched on this topic a couple of months ago, the European Union looked poised to enact a sweeping new legal regime that would harmonize trade secrets law across all member states. The new framework was supposed to be a single, clear, and coherent legal regime for the protection of trade secrets. And it was aimed at making it easier for national courts to deal with the misappropriation of confidential business information, remove trade-secret-infringing products from market, and facilitate compensation for illegal actions. READ MORE →
Last week, New York attorney Douglas R. Dollinger asked the Honorable Vince Chhabria of the Northern District of California to reconsider an order sanctioning Dollinger and his client to the tune of $93,365.92 in monetary sanctions and dismissing all of the client’s claims with prejudice as terminating sanctions. The Court’s sanctions, and Dollinger’s request for reconsideration, are the result of a series of attempts by Plaintiff to manufacture standing for a company that didn’t exist. Plaintiff tried on numerous occasions to identify a company with standing, but was repeatedly countered by Defendants and eventually pounded with both monetary and terminating sanctions. READ MORE →