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 Crimes

  • Represented 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.
  • Represented a bottling company in a federal criminal investigation into violations of the Clean Water Act.
  • Represented 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.

Asset Recovery

  • Represented 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.
  • Represented 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.

Healthcare

  • Represented 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.
  • Represented 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.

Mail/Wire/Securities Fraud

  • Represented 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.
  • Represented 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.
  • Represent 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.

  • Secured complete dismissal of manslaughter charges against a motorist accused of killing a prominent municipal employee in an alcohol-involved car accident.
  • Obtained complete dismissal of all allegations of impropriety in a high stakes child custody battle for a multi-millionaire business executive.
  • Won a hung jury verdict for ConAgra Foods, where the food manufacturer was facing a US$40 million claim from a distributor for breach of contract.
  • Obtained numerous not guilty jury verdicts for individuals accused of a wide array of criminal conduct.

Posts by: Mark Mermelstein

A Bump in the Road: An Update on the Waymo v. Uber Litigation

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

Baring It All: Judge Orders Swingers’ Club to Produce Email Distribution List

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 in Edmonson v. Velvet Lifestyles, LLC (S.D. Fla. Dec. 5, 2016). READ MORE

No Explicit Efforts to Maintain Secrecy? No Problem, Suggests the Ninth Circuit

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

Practical Tips: Keeping Trade Secrets Safe During Litigation – Texas Supreme Court Edition

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

Trade Secrets Unwrapped: Packaging Materials Case Demonstrates The Importance Of Keeping Confidential Information Sealed Shut

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

Filer Beware! E-Filing Error Can Destroy Trade Secret Status

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

Will Your Cyber Insurance Respond When You Need It Most?

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

All Bets Are Off: Kentucky Downs Trade Secrets Case Presents Novel Question Under Kentucky’s Uniform Trade Secrets Act

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

New Opposition to the EU Trade Secrets Directive

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

Trade Secret Plaintiff Goes Three Rounds, Takes a Beating

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