In the largest piece to come out of the FTC’s new focus on emerging technologies, the FTC Bureau of Consumer Protection issued new guidance on the use of artificial intelligence (“AI”) and algorithms. The guidance follows up on a 2018 hearing where the FTC explored AI, algorithms, and predicative analysis.
David Munkittrick is a litigator and trial attorney. His practice focuses on complex and large-scale antitrust, copyright and entertainment matters in all forms of dispute resolution and litigation, from complaint through appeal.
David has been involved in some of the most significant antitrust matters over the past few years, obtaining favorable results for Fortune 500 companies and other clients in bench and jury trials involving price discrimination and group boycott claims. His practice includes the full range of antitrust matters and disputes: from class actions to competitor suits and merger review. David advises antitrust clients in a range of industries, including entertainment, automotive, pharmaceutical, healthcare, agriculture, hospitality, financial services, and sports.
David also advises music, publishing, medical device, sports, and technology clients in navigating complex copyright issues and compliance. He has represented some of the most recognized names in entertainment, including Sony Music Entertainment, Lady Gaga, U2, Madonna, Daft Punk, RCA Records, BMG Music Publishing, Live Nation, the National Academy of Recording Arts and Sciences, Universal Music Group and Warner/Chappell.
David maintains an active pro bono practice, supporting clients in the arts and in immigration proceedings. He has been repeatedly recognized as Empire State Counsel by the New York State Bar Association for his pro bono service, and is a recipient of Proskauer’s Golden Gavel Award for excellence in pro bono work.
When not practicing law, David spends time practicing piano. He recently made his Carnegie Hall debut at Weill Recital Hall with a piano trio and accompanying a Schubert lieder.
David frequently speaks on antitrust and copyright issues, and has authored or co-authored numerous articles and treatise chapters, including:
- Causation and Remoteness, the U.S. Perspective, in GCR Private Litigation Guide.
- Data Breach Litigation Involving Consumer Class Actions, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
- Location Privacy: Technology and the Law, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
- FTC Enforcement of Privacy, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
- The Role of Experts in Music Copyright Cases, Intellectual Property Magazine.
- Nonprofit Education: A Historical Basis for Tax Exemption in the Arts, 21 NYSBA Ent., Arts, & Sports L.J. 67
- A Founding Father of Modern Music Education: The Thought and Philosophy of Karl W. Gehrkens, Journal of Historical Research in Music Education
- Jackson Family Wines, Inc. v. Diageo North America, Inc. Represented Diageo in trademark infringement litigation
The recently released Carlton Fields 2016 Class Action Survey reports that class actions are up for the first time in four years. While data privacy class actions still make up a relatively small portion of class action filings, their growth is expected to continue.
As class actions increase, arbitration clauses remain a popular first line of defense. The Carlton Survey reported that nearly 50 percent of companies employ arbitration clauses that address class actions. Still, enforcing such arbitration clauses often generates mini-litigations in their own right. Two recent decisions from the Fourth Circuit are of interest in this regard.
Customer information has become an increasingly valuable business asset. And, the volume and detail of other available information about consumers has increased along with it, well beyond mere customer names and addresses to preferences, purchasing history, and online activity. This means that when a business is sold, customer information is often sold along with it. But careful diligence is required in handling this intangible asset, and the recent settlement in the RadioShack bankruptcy case is instructive.
When are U.S. social media companies subject to European data privacy laws? As we reported in 2013, the answer is often contingent on geographic location – where the relevant data is processed. In 2013, for example, a German court ruled that Facebook was not subject to German data protection laws because the relevant data was processed in Ireland, not Germany.
However, in 2014, a different German court at the same level found, in a separate case, that Facebook could be subject to German data protection laws, finding that the relevant data was processed outside the E.U. in the United States rather than Ireland.
But geography isn’t everything. As an Austrian court decision last week makes clear, the location of data processing is not the only potential hurdle for would-be plaintiffs bringing suit against U.S. companies in the E.U. The Vienna Regional Court dismissed a case against Facebook, not because of national borders, but because of the identity of the plaintiff and how he used his Facebook accounts.
Data security is big news. And so is the Federal Trade Commission (“FTC”). Put the two together in a crucible of litigation, and it is sure to be a blockbuster. That is what the closely-watched case FTC v. Wyndham, now pending before the Third Circuit Court of Appeals, is shaping up to be.
Data security seems to make headlines nearly every week, but last Friday, a new player entered the ring. The Federal Communications Commission (“FCC”) took its first foray into the regulation of data security, an area that has been dominated by the Federal Trade Commission. In its 3-2 vote, the FCC did not tread lightly – it assessed a $10 million fine on two telecommunications companies for failing to adequately safeguard customers’ personal information.
After a decision denying class certification last week, claims by Hulu users that their personal information was improperly disclosed to Facebook are limited to the individual named plaintiffs (at least for now, as the decision was without prejudice).
The plaintiffs alleged Hulu violated the federal Video Privacy Protection Act by configuring its website to include a Facebook “like” button. This functionality used cookies that disclosed users’ information to Facebook. But, the U.S. District Court for the Northern District of California credited expert evidence presented by Hulu that three things could stop the cookies from transmitting information: 1) if the Facebook “keep me logged in” feature was not activated; 2) if the user manually cleared cookies after his or her Facebook and Hulu sessions, or 3) if the user used cookie blocking or ad blocking software.
On October 16, 2013, the Federal Communications Commission’s (“FCC”) new rule implementing the Telephone Consumer Protection Act (“TCPA”) will go into effect.
These are rules with teeth, as the TCPA allows recovery of anywhere between $500 and $1,500 for each improper communication and does not require a showing of actual injury. This makes the TCPA a particularly attractive vehicle for class actions. Accordingly, we highlight some of the more salient changes in the new rule below.