-Kirsten Grind (April 17, 2013)

By Stephen M. Kramarsky

One of the most basic questions for any party considering litigation is “Who is my defendant?” While the answer to that question has typically been straightforward, the Internet adds its own wrinkles. In a simple copyright case, for example, defendant is generally the infringer (leaving aside any contributory infringers). But if the infringement takes place over the Internet, the copyright owner may not know much about who the infringer is. Even in the best case, a plaintiff is unlikely to start with much more than an IP address—a number that identifies a computer or group of computers that may have been used to download or share all or part of an infringing file.

Legal procedures exist to identify the user associated with an IP address, and until recently those procedures were fairly routine. IP addresses are assigned to users by their Internet service providers (ISPs), and it is possible to determine what ISP “owns” a given IP address. So, once a plaintiff has determined the IP address of a suspected infringer, a subpoena can be served on the ISP asking for details about the subscriber associated with that address. Under New York state law, there is even a procedure (pursuant to CPLR §3102(c)) for doing this before the commencement of an action.

Copyright cases, however, are usually brought in federal court, where no such procedures exist. In such cases, plaintiffs generally sue the alleged infringers as anonymous defendants (John Does) identified by IP address and then serve subpoenas on the ISPs requesting the subscriber information. ISPs generally do not resist these subpoenas, but they will often inform the subscribers that their information has been subpoenaed, and those users may move to quash. Until recently, courts have not had much sympathy for such motions, but a few recent developments have caused some courts to reevaluate the issue. In just the last few months, at least three different federal district court judges in New York have examined motions to quash ISP informational subpoenas. Somewhat surprisingly, those three judges reached three different answers, each of which is worth review.

Anonymity on the Internet

Anonymity is a hallmark of the Internet, and to a certain extent, this is simply a function of the technology. The most common way to track Internet activity is by IP address and, as courts increasingly recognize, an IP address does not necessarily represent a single person or even a single computer. For example, in the simplest possible home computer setup, a computer is hooked up directly to a router, which is in turn connected to the ISP. In that set-up, one can think of the IP address as representing the single home computer (though in fact the computer likely has a different address) because it is the IP address of the router that connects the computer to the Internet, but even this oversimplified model presents issues. Most ISPs use a system called “dynamic DNS addressing,” in which the routers’ IP address may change over time and a given IP address can be reused and reassigned to different subscribers. In addition, IP addresses can be faked and, even if the IP address can be mapped with certainty to a given computer, there is no way to know who was using the computer at the time any infringement took place. In a case involving hundreds of thousands of dollars in potential personal liability, it is vitally important to get those issues right.

What’s more, the simple “one computer” model is almost never accurate. Most homes and offices have multiple computers, smart phones, gaming consoles and other Internet-connected devices all sharing one router (and thus one IP address). Given only the router’s IP address, there is no way to know what device inside the home or office was used for the infringing conduct. If a wireless network is in use, there is also a chance that the conduct was committed by an outsider, whether sharing the connection or exploiting an insecure or hacked wireless access point. Courts are increasingly sensitive to these issues and are less and less likely to assume that the subscriber who “owns” a given IP address is necessarily the person responsible for the acts of that address.

In addition to the basic structural issues, current file-sharing technology presents its own challenges. The most common current file-sharing technology for large files (legitimate and otherwise) is called BitTorrent. BitTorrent works by breaking files up into small pieces and seeding those pieces to a group of computers connected together in a peer-to-peer network. That group of peer computers is sometimes called a “swarm” and, by default, every computer that joins the swarm to get the file is also sharing all the pieces it has already downloaded. This is an extremely efficient method, as it distributes the burden of serving the file across many machines rather than burdening a single source with the demands of serving the entire file to everyone who wants it. It also happens to make it very difficult to identify the original source of the file.

Generally, courts considering motions to quash ISP subpoenas have not given much weight to these issues. If an IP address is associated with infringing conduct—even if only as one part of a “swarm”—plaintiff will generally be permitted to seek the associated subscriber information. Even where the court recognizes that the subscriber may not actually have participated in the conduct, the general view has been that the search has to start somewhere. But recently, that view has started to shift and it is worth looking at why.

Typical Case: ‘John Wiley & Sons’

To understand the exceptional cases, it is helpful to look at a typical one. In John Wiley & Sons v. John Does Nos. 1-35,¹ decided by the federal court in the Southern District of New York in late December 2012, Judge Robert W. Sweet was faced with what has become a common situation. Plaintiff Wiley filed a complaint alleging that various unknown defendants “used internet protocol addresses (‘IP addresses’) to access, copy and distribute Wiley’s copyrighted works through the networks of their ISPs” using BitTorrent.² Plaintiff moved ex parte for ISP subpoenas seeking subscriber information. The court granted the motion, and one of the subscribers (John Doe No. 25) then came forward with a motion to quash as to her information. Although the motion itself revealed the identity of John Doe No. 25, the court held that was not dispositive and that the motion was not moot. It went on to find, however, that Doe No. 25′s identity was a proper subject of discovery and therefore denied the motion to quash.

Wiley is not a controversial opinion, but it provides a useful roadmap to the issues. The court first noted that the First Amendment affords some privacy to Internet users, but that anonymity cannot be used to mask or facilitate copyright infringement. Then, citing two Second Circuit cases, it set out the factors to be considered in striking that balance between privacy and enforcement:

1) whether plaintiffs have made a concrete showing of a prima facie claim of actionable harm; 2) the specificity of the discovery request; 3) the absence of alternative means to obtain the subpoenaed information; 4) a central need to obtain the subpoenaed information to advance the claim; and 5) the party’s expectation of privacy.³

The court then briefly analyzed each of these factors and held that all favored disclosure of Doe No. 25′s identity: Plaintiff had made a prima facie showing of infringement, had issued limited requests, had no alternative means of securing the information at issue and had demonstrated a need for the information to advance its claim. As for the fifth factor, expectation of privacy, the court held that Doe No. 25 was entitled to only a “minimal” expectation of privacy in the “transmission or distribution of copyright materials.” The court also considered Doe No. 25′s argument that her ex-husband, not she, had been the person using the computer to download the materials at issue. Although noting the problems inherent in equating IP addresses with individual conduct, the court considered those issues premature at the early discovery phase and so ordered that Doe No. 25′s information be produced.

Atypical Case: ‘Patrick Collins’

If Wiley is the typical case, Patrick Collins Inc. v. Doe,⁴ decided a month earlier in November 2012, is the opposite. In Patrick Collins, plaintiff was the owner of the copyright in the adult film “Gangbanged.” Plaintiff sued defendant and eight other John Does, identifying them by IP address and alleging that they had shared the film through BitTorrent. Plaintiff also filed similar suits against dozens (or hundreds) of other defendants, in each case naming a group of John Doe defendants based on the IP addresses found in their BitTorrent swarm. Plaintiff then sought leave to issue ISP subpoenas for the names, addresses, phone numbers and email addresses of all of the John Doe defendants.

In May 2012, Eastern District Magistrate Judge Gary Brown issued a report and recommendation in those related cases largely denying plaintiffs their discovery.⁵ Brown found, among other things, that plaintiffs were engaging in improper litigation tactics, that an IP address was not likely to identify a particular infringer, and that plaintiffs were not entitled to join multiple BitTorrent users in one case. He recommended that the court dismiss the cases against all defendants except “John Doe 1″ in each case (with leave to re-file individual cases) and permitted subpoenas only for the names and address (not email address or phone numbers) of those first John Doe defendants. He also took the extraordinary step of requiring that the ISPs deliver the information to the court ex parte and not to plaintiffs’ counsel.

Plaintiff in Patrick Collins objected to the magistrate’s findings and asked the court to reverse them, but the court instead adopted the findings in their entirety—including the holding that plaintiff had engaged in improper litigation tactics and that, in this case, it was not likely that the IP addresses would lead to the identity of a particular infringer.

At the heart of these extraordinary opinions is what one court called “plaintiff’s copyright-enforcement business model,” which it identified as “essentially an extortion scheme, for a case that Plaintiffs have no intention of bringing to trial.”⁶ That “business model” consists of identifying the IP addresses of computers in BitTorrent swarms downloading adult content, commencing mass lawsuits based on those IP addresses and then using ISP discovery to contact the individuals associated with those IP addresses and coerce or embarrass them into a quick settlement. Several courts have objected to this practice on the grounds that discovery is supposed to be a tool for trial preparation, not a way to bludgeon the opposition into settlement:

The relatively small group of lawyers who police copyright infringement on BitTorrent have customized the concept of extracting quick settlements without any intention of taking the case to trial.⁷

The opinion in Patrick Collins follows this lead. It contains a lengthy discussion of the BitTorrent adult film cases with citations and quotes from numerous opinions—all very recent and all from New York federal courts—describing plaintiff’s improper use of ISP discovery. Based on those decisions and the facts before Brown, the court concluded that plaintiff engaged in improper litigation tactics, and the rest of the opinion largely flows therefrom.

For example, the court finds that it is not likely that a given IP address will identify a particular infringer, citing the insecurity of wireless networks and the shared nature of IP addresses in most modern router setups. As set forth above, these are valid concerns and the decision certainly is not factually wrong. But it is hard to imagine a court reaching that conclusion were plaintiff not so manifestly abusing the court’s discovery process.

Similarly the Patrick Collins court comes down squarely against plaintiff’s right to join all members of a given swarm in a single case, requiring it instead to file separately against each John Doe defendant (at much greater cost). “Swarm joinder” is a complex issue and there are arguments in favor of it and against it, largely relating to whether the defendants are likely to have substantially similar trial issues. Courts across the country and even within the Second Circuit are sharply divided on whether and when it is appropriate, and there are well-reasoned opinions on both sides. But when a plaintiff has sued several hundred defendants at once and shows no intention of actually taking the cases to trial, it is not surprising that the court is disinclined to allow the process to continue. Read in a vacuum, Patrick Collins contains some fairly aggressive holdings, but in the context of an obviously abusive litigant, it is clear the court had little choice.

Middle Ground: ‘Malibu Media’

If there is a middle ground between protecting the rights of copyright holders (however the courts may feel about the content) and preventing harassment, it may be found in Judge J. Paul Oetken’s decision in Malibu Media v. Doe No. 4.⁸Malibu Media is another BitTorrent pornography case in which the court had already limited plaintiff’s request for expedited ISP discovery by denying its request for phone numbers and requiring that defendants and the ISPs be given a chance to object to the subpoenas prior to the production of any information. John Doe No. 4 did so.

Rather than basing its opinion on the litigation tactics of the adult film industry, the court in Malibu Media considered the same five-factor balancing test set out in Wiley. In doing so, it reached the same conclusion as the Wiley court on the first four factors, but it took a more careful look at the fifth factor—defendant’s expectation of privacy. Noting the sensitivity of allegations relating to pornography and the possibility that the owner of an IP address might not actually be the infringer, the court held that the fifth factor required careful balancing. To achieve that balance, the court ordered that all defendants be permitted to proceed anonymously, with their information filed under seal.

The Malibu Media solution is elegant: It protects the privacy interest of defendants (who may or may not be infringers) while giving plaintiffs an opportunity to pursue their cases, if that is in fact what they intend to do. While it does not entirely shut down a plaintiff bent on abusing discovery to coerce a quick settlement, it certainly reduces the effectiveness of such tactics. Courts (and litigants) faced with similar issues in the future could do worse than to consider a similar compromise.

Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, focuses on complex intellectual property litigation.

Endnotes:

1. 12 CIV. 2968 RWS, 2012 WL 6732906 (S.D.N.Y. Dec. 28, 2012).

2. Id. at *1.

3. Id. (internal quotations omitted), citing Sony Music Entertainment v. Does 1-40, 326 F. Supp. 2d 556, 562 (S.D.N.Y.2004) and Arista Records v. Doe 3, 604 F.3d 110, 118 (2d Cir. 2010).

4. Patrick Collins v. Doe 1, 12-CV-1154 ADS GRB, 2012 WL 5879120 (E.D.N.Y. Nov. 20, 2012).

5. CIV.A. 11-3995 DRH, 2012 WL 1570765 (E.D.N.Y. May 1, 2012).

6. Media Products v. John Does 1-26, 12 CIV. 3719 HB, 2012 WL 3866492 (S.D.N.Y. Sept. 4, 2012) (internal alterations omitted).

7. Id.

8. In re BitTorrent Adult Film Copyright Infringement Cases, 12 CIV. 2950 JPO, 2012 WL 5987854 (S.D.N.Y. Nov. 30, 2012).

-Jonthan Randles (September 28, 2012)

By Thomas E.L. Dewey

In its recent decision, Wyly v. Weiss¹ the U.S. Court of Appeals for the Second Circuit, deciding an issue of first impression, held that the determination that a class settlement was fair and reasonable precluded former class plaintiffs from pursuing a legal malpractice action against class counsel. Its ruling, some may say, forecloses altogether any subsequent malpractice action against former class counsel. This article examines the Second Circuit’s decision in Wyly and discusses the different inquiries surrounding counsel’s performance in federal class actions and state malpractice cases.

Controversy in ‘Wyly’

The Securities Class Action and Related Settlement. The controversy underlying Wyly has a long, tumultuous, and frankly dramatic history—a history that spanned the course of 14 years and involved at least seven law firms.

Starting as a putative class action in 1998, investors filed suit against certain officers and directors of Computer Associates International, Inc. (CA) alleging that the company violated Sections 10(b) and 20(a) of the Securities and Exchange Act by disseminating false and misleading information to securities analysts and the investment community.² The class period in the 1998 action spanned approximately six months, from Jan. 20, 1998, through July 22, 1998.³ Thereafter, in 2002, 13 additional class actions were filed against the CA defendants, again alleging violations of federal securities laws and Generally Accepted Accounting Principles (GAAP).⁴ The 1998 and 2002 class actions were consolidated on July 25, 2002.⁵ At that time, the firms Milberg Weiss and Shiffrin & Barroway were appointed as co-lead class counsel. The class period for the 2002 actions spanned from May 28, 1999, through Feb. 25, 2002.⁶

While the civil litigation was pending, federal authorities, including the Securities and Exchange Commission and the U.S. Attorney’s Office for the Eastern District of New York were investigating Computer Associates’ accounting practices. Aware that the investigation was ongoing, the parties entered into a settlement in 2003, which included the 2002 action even though no discovery had been taken in the 2002 action. During the fairness hearing, counsel represented that it was well aware of the ongoing criminal probe and “had taken all of that into account” that the settlement was fair and reasonable.⁷

The settlement, approved by the court, awarded plaintiffs 5.7 million shares of common stock, then valued at $130 million to $150 million and as its fee, class counsel would receive 1.4 million shares of CA common stock, valued at approximately $42 million to $56 million.⁸ In all respects, the court’s 2003 order approving the settlement appeared to put an end to the class plaintiffs’ claims against CA. Or so the parties thought.

Criminal Charges in the Wake of the 2003 Settlement. The events leading up to and following the 2003 settlement exposed not only a massive accounting fraud within CA, but also uncovered efforts by nearly all of CA’s top executives to obstruct the federal investigation by withholding documents and providing false testimony to federal officials.⁹ Of particular notoriety, just months after the class settlement was finalized, 23 boxes of documents were delivered to Sullivan & Cromwell, the law firm hired by the board to conduct an internal investigation into the alleged accounting irregularities at the company.¹⁰ The documents purportedly showed that Computer Associates executives systematically backdated sales contracts in order to reach revenue targets.¹¹

At the end of the criminal probe, CA’s top executives, including its former CEO, Sanjay Kumar, and general counsel, Steven Woghin, were charged with, and pled guilty to, securities fraud and obstruction of justice.¹²

Plaintiffs’ Efforts to Reopen the Settlement. With the 2003 settlement seemingly ironclad, where did this leave class plaintiffs, who, like the federal authorities, were misled for some time by the company’s efforts to conceal evidence? Zeroing in on the 23 boxes of documents not produced during discovery, plaintiffs turned to class counsel, requesting that they move to reopen the settlement.¹³ After class counsel declined,¹⁴ plaintiffs hired the firm Bickel & Brewer to move to reopen the settlement on the grounds that defendants withheld documents and other evidence during the settlement process.¹⁵ Years of motion practice and discovery in the district court failed to disturb the 2003 settlement and in August 2007, the district court denied plaintiffs’ motion, leaving the 2003 settlement intact.¹⁶

Plaintiffs’ Suit for Malpractice Against Class Counsel. Three months later, plaintiffs sued class counsel in New York Supreme Court, alleging, among other things, that counsel had committed legal malpractice in facilitating the 2003 settlement.¹⁷

The crux of plaintiffs’ legal malpractice claim was that before settling, counsel failed to pursue adequate discovery in the 2002 class action.¹⁸ Plaintiffs alleged that, with pressure from the board to settle and more interested in getting their fee approved, counsel had falsely represented to the court that they “possessed the knowledge of the facts and circumstances underlying the strengths and weaknesses of the claims in the 2002 action.”¹⁹ In reality, plaintiffs argued, there had been no activity in the 2002 action—no pleadings, no motion practice and only limited discovery (which took place after the parties agreed to settle).²⁰

Class counsel filed a motion with the district court that had approved the 2003 settlement, seeking to enjoin the state court proceeding.²¹ Former class counsel argued that the state court action was an impermissible collateral attack on the 2003 settlement and that plaintiffs were simply trying to re-litigate issues already determined first in 2003 when the district court approved the settlement, and then again in 2007, when it denied plaintiffs’ motion to reopen the settlement.²²

The district court agreed. Acting pursuant to its authority under the All Writs Act, 28 U.S.C. §1651, and the Anti-Injunction Act, 28 U.S.C. §2283, the district court permanently enjoined the state proceeding on the grounds that plaintiffs’ malpractice action would, in substance, re-litigate the issue of counsel’s performance—an issue which, the court held, had been fully litigated and decided when the court approved the settlement and awarded counsel fees.²³

Plaintiffs appealed and lost. Ruling on an issue of first impression, the Second Circuit held that the approval of a class settlement and award of fair and reasonable attorney fees precludes a subsequent suit for malpractice.²⁴ The court’s holding boiled down to a question of issue preclusion: When approving a class action settlement, is the issue of whether counsel exercised reasonable care, skill, prudence and judgment in the performance of their legal services fully and fairly litigated?

Yes, said the Second Circuit: “We conclude that the deficient-performance prong is identical to the reasonable-performance issue that the District Court decided as a necessary component of the Settlement Order.”²⁵ In so holding, the court clarified that when a district court approves a settlement in a class action, a necessary component of that determination is whether counsel performed adequately.²⁶

Counsel’s Performance

The Second Circuit’s ruling in Wyly begs two questions: What do courts really look at when they examine counsel’s performance in approving a class settlement, and is the analysis really the same when determining whether counsel has committed malpractice?

Counsel’s Performance Under Settlement Standards. In federal court, a class settlement will be approved if it “is fair, adequate, and reasonable, and not a product of collusion.”²⁷ Among other things, courts undertake an analysis of counsel’s performance in both determining the procedural fairness of the settlement and whether and how much to award in attorney fees.

In the Second Circuit, approval of a class settlement requires an analysis of the procedural and substantive fairness of the settlement. In particular, the former examines counsel’s performance during the settlement process. In D’Amato v. Deutsche Bank²⁸ the court explained that “[a] court reviewing a proposed settlement must pay close attention to the negotiating process, to ensure that the settlement resulted from arm’s-length negotiations and that plaintiffs’ counsel have possessed the experience and ability, and have engaged in the discovery, necessary to effective representation of the class’s interests.”²⁹

Counsel’s Performance Under Malpractice Standards. Does this analysis really measure up to that undertaken by a court determining whether an attorney committed legal malpractice? Under New York law, an attorney will be held liable for malpractice if “plaintiff can establish that the attorney failed to exercise the skill commonly exercised by an ordinary member of the legal community, that such negligence was the proximate cause of damages, and that but for such negligence, the plaintiff would have prevailed in the underlying action.”³⁰ Conduct that may fall within the scope of negligence includes counsel’s ignorance of the rules of practice, failure to comply with conditions precedent to suit, or neglect to prosecute or defend an action³¹—conduct similar to that alleged by the Wyly plaintiffs. New York courts faced with this issue have consistently held that this is a question of fact for a jury, not the judge.³²

Conclusion

And so, in the settlement context, issues of fact regarding the adequacy of counsel’s performance are determined by the judge (and indeed are left within the sound discretion of the district court³³) while in the malpractice context, the jury determines this issue. Is this a distinction without a difference? The Second Circuit says yes but New York state courts—which have consistently held that questions of fact regarding counsel’s negligence should be resolved by the jury—may very well disagree.

Where, then, has the Second Circuit left class plaintiffs and their counsel? The practical application of Wyly is on the one hand, plaintiffs entering into a class settlement are not only releasing their claims against defendants, but also are likely releasing any—and probably all—potential claims against counsel, and on the other, counsel are seemingly immunized from any future malpractice claims. Would a jury have come to the same conclusion in Wyly as the district court? We will never know. And furthermore, a practical application of Wyly may prevent its holding from ever being tested in state court.

Thomas E.L. Dewey is a member of Dewey Pegno & Kramarsky. Maureen A. Fitzgerald, an attorney at the firm, contributed to this article.

Endnotes:

1. —F.3d—, 2012 WL 4800354 (2d Cir. Oct. 10, 2012).

2. Id., at *1.

3. Id.

4. Id.

5. Id.

6. Wyly, 2012 WL 4800354, at * 1

7. Id.

8. Wyly, 2012 WL 4800354, at *2.

9. See United States v. Kumar, 06-cr-5442, Crim. Indictment (E.D.N.Y. Sept. 22, 2004).

10. Wyly, 2012 WL 4800354, at *3.

11. “In CA Probe: Recovered E-Mails, Surprise Cache of Documents,” The Wall St. J. Sept. 24, 2004, at A1.

12. Wyly, 2012 WL 4800354, at *2; see also “Ex-CA chief gets 12 years,” CNNMoney, available at http://money.cnn.com/2006/11/02news/newsmakers/kumar/index.htm., Nov. 2, 2004.

13. Wyly, 2012 WL 4800354, at *3.

14. Id.

15. Id.

16. In re Computer Assoc. Class Action Sec. Litig., No. 98-CV 4839 (TCP), 02-CV-1226 (TCP), 03-CV-4199 (TCP), 2007 WL 2261683 (E.D.N.Y. Aug. 2, 2007), aff’d Federman v. Artzt, 339 Fed. App’x 31, 33-34 (2d Cir. 2009).

17. Wyly v. Milberg Weiss, No. 07603883, Compl. (N.Y. Sup. Ct. 2007).

18. Id. at ¶¶119-127.

19. Wyly Comp. ¶78.

20. Id. ¶80-82.

21. Wyly, 2012 WL 4800354, at *4.

22. Wyly v. Weiss, —F.3d—, 2012 WL 4800354, at *4 (2d Cir. Oct. 10, 2012).

23. Id.

24. Id., at *1.

25. Id., at *9 (emphasis added).

26. See id., at *11.

27. Joel A. v. Giuliani, 218 F.3d 132, 138-139 (2d Cir. 2000); In re Global Crossing Sec. and ERISA Litig., 225 F.R.D. 436, 455 (S.D.N.Y. 2004).

28. 236 F.3d 78 (2d Cir. 2001).

29. Id. at 85.

30. McCoy v. Tepper, 690 N.Y.S.2d 678, 679 (2d Dept. 1999).

31. Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430 (2d Dept. 1990) (The general rule is that an attorney may be held liable for ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action.”); Grago v. Robertson, 370 N.Y.S.2d 255, 258 (3d Dept. 1975)

32. See Thompson v. Seligman, 863 N.Y.S.2d 285, 286 (3d Dept. 2008) (holding plaintiff raised questions of fact with respect to defendants’ duty to investigate her claim and negligence in performing this duty); McCoy v. Tepper, 690 N.Y.S.2d 678, 679 (2d Dept. 1999); Gray v. Wallman & Kramer, 585 N.Y.S.2d 46, 49 (1st Dept. 1992) (holding that the issue of counsel’s negligence in failing to obtain satisfaction of a mortgage requires a factual determination to be made by a jury).

33. Joel A., 218 F.3d at 139-140 (“considerable deference is accorded to the judgment of the district court”): Robertson, 370 N.Y.S.2d at 258 (noting that the determination of whether a mistake of judgment rises to the level of negligence requires a determination to be made by the jury).

-Peter Lattman (May 28, 2012)

-David Glovin & Patricia Hurtado (May 19, 2012)

Before joining the firm, Angela, a member of the New York bar, worked as a litigation associate at Quinn Emanuel Urquhart & Sullivan, LLP in New York, and at Bryan Cave LLP in St. Louis.  Her practice has included products liability, trademark, class action, bankruptcy and other commercial litigation matters.

Angela previously served as a law clerk to the Honorable T. S. Ellis, III, United States District Judge for the Eastern District of Virginia. Angela received her J.D. from the University of Virginia School of Law, where she was a Notes Editor for the Virginia Law Review and elected to the Order of the Coif.

Angela received a Bachelor of Journalism, summa cum laude, from the University of Missouri.

-Stephen M. Kramarsky (March 13, 2012)

Before joining the firm, Ms. Fitzgerald worked as a litigation associate at Sullivan & Cromwell LLP, where her practice included regulatory and enforcement matters, white collar criminal defense and internal investigations, and multiple civil matters, including bankruptcy, insurance, and tax litigation. In October 2009, Ms. Fitzgerald was recognized by the Legal Aid Society for outstanding pro bono service.

Ms. Fitzgerald previously served as a law clerk to the Honorable Thomas C. Platt of the United States District Court for the Eastern District of New York and later to the Honorable Myron H. Bright of the United States Court of Appeals for the Eighth Circuit.

Ms. Fitzgerald previously received her J.D. summa cum laude from Touro Law Center, where she was Editor-in-Chief of the Touro Law Review. Before attending law school, Ms. Fitzgerald worked as a sales administrator and executive assistant at Christie’s in New York.

Ms. Fitzgerald received her B.A. in Art History from Skidmore College.

Before joining the firm, Daniel served as a law clerk to the Honorable Johnnie B. Rawlinson of the United States Court of Appeals for the Ninth Circuit.  He had previously served as a law clerk to the Honorable Sandra L. Townes of the United States District Court for the Eastern District of New York.

Prior to his clerkships, Daniel worked as a litigation associate at Fulbright & Jaworski L.L.P., where his practice focused on complex commercial contract, white-collar criminal investigation, real estate and bankruptcy matters.

Daniel received his J.D. cum laude in 2008 from Cardozo School of Law, where he was an Associate Editor of the Benjamin N. Cardozo Law Review and elected to the Order of the Coif.  He received his B.A. cum laude from Binghamton University.