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Financial Services Report, Winter 2016

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Hope you survived all of those awkward Thanksgiving holiday conversations—amazing how divided people are on whether the court got it right in the PHH case, isn’t it? So on we go into the holiday season, while visions of Dodd-Frank repeal dance in our heads. No long winter’s nap for the CFPB, not with the inauguration fast approaching. Will we see a final arbitration rule in our stockings? Will the New Year bring efforts to reinstate Glass-Steagall? How about the promised temporary moratorium on new agency regulations?

We are Morrison Foerster — a global firm of exceptional credentials. Our clients include some of the largest financial institutions, investment banks, and Fortune 100, technology, and life sciences companies. Our lawyers are committed to achieving innovative and business-minded results for our clients, while preserving the differences that make us stronger.Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Prior results do not guarantee a similar outcome.

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Financial Services Report, Winter 2016

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Natalie Fleming Nolen is the Managing Partner of the Washington, D.C. office and a partner in the Litigation Department. She is a trial lawyer and advocate who focuses on complex civil litigation and regulatory proceedings, with a particular emphasis on resolving antitrust issues and class actions that arise in the financial services industry. She has represented clients in trials in state and federal court, as well as administrative proceedings and arbitration forums. Natalie's recent matters include representing a financial institution in a large multidistrict antitrust class action litigation and related litigation by individual companies that opted out of the class action; a leading telecommunications company in merger litigation and related regulatory proceedings; clients in consumer class actions and complex commercial litigation alleging breaches of contract; clients in complex antitrust arbitrations; clients before federal agencies, such as the Consumer Financial Protection Bureau and the Federal Trade Commission; and large companies being investigated by state regulatory authorities. Natalie also advises clients on a variety of commercial real estate issues, including complex contractual matters, foreclosures, and disputes regarding commercial leases. Natalie also has an active pro bono practice. She led a trial team in a challenge to Title IX rules related to sexual harassment and assault in schools; represented several clients in Immigration Court and successfully obtained asylum and withholding of removal; and helped young clients obtain Special Immigrant Juvenile Status. She also successfully obtained humanitarian parole for Haitian women and children impacted by the devastating earthquake in 2010, and represented clients in housing matters including defending against a foreclosure action in two separate trials in New York State Supreme Court. In acknowledgment of her dedication to providing quality pro bono representation, Natalie was awarded the 2012 New York State Bar President’s Pro Bono Service Award in the young lawyer category, and was also awarded the Kathi Pugh Award for Pro Bono Service in 2015.Natalie recently became a Fellow of the American Bar Foundation.

Natalie Fleming Nolen

Partner

Barbara Mendelson’s practice involves advising foreign and U.S. banks in a variety of complex regulatory matters, including sales and acquisitions of U.S. banking and nonbanking firms, Dodd-Frank Act issues, applications to federal and state bank regulators for expansion of activities and new products, Bank Secrecy Act and OFAC matters, and over-the-counter and exchange-based trading of various instruments and derivatives. She has represented foreign banks in their U.S. operations for more than 30 years. Barbara has also been instrumental in forming a number of commercial banks and other subsidiaries of foreign banks. In addition to her bank regulatory practice, Barbara works with sovereign entities and multilateral organizations with respect to the investment of their foreign currency reserves and other assets.Barbara has been recognized in the industry for her exceptional legal work, including being named by Crain’s New York Business as one of the <a href="https://www.crainsnewyork.com/awards/notable-women-law-2021" target="_blank" dir="ltr">Notable Women in Law</a> in both its 2021 and 2019 editions, and in 2020 she was named “Compliance Lawyer of the Year” by C5’s Women in Compliance Awards. She has also been selected as Euromoney Legal Media Group's <a href="http://www.mofo.com/resources/news/200917-mofo-recognized-euromoney-diversity.html">2020 Banking and Finance Attorney of the Year</a>, and was awarded “Best in Financial Services” in 2019 and 2017. Barbara was also awarded the "Lawyer of the Year" designation by Best Lawyers in America (2019 and 2013) in the category of Financial Services Regulation Law (New York City). In addition, she has been recommended by Chambers USA, Chambers Global, Legal 500 US, IFLR1000, Best Lawyers in America, and Who’s Who Legal: Banking. In their 2023 guide, Who’s Who Legal listed Barbara as a “Thought Leader” in their Global Banking Regulation Review, which features the world’s foremost banking regulatory lawyers who have obtained the largest number of nominations from peers, corporate counsel, and other market sources.She is a member of the New York City Bar Association and the American Bar Association. Barbara also serves as president of the board of trustees of Big Brothers Big Sisters of New York City.

Barbara Mendelson

Michael Miller has nearly three decades experience helping clients successfully navigate through the most complex litigation and regulatory challenges they face. He regularly represents clients in major antitrust and class action litigation, and in managing antitrust risks presented by complex transactional and other business matters, including strategy and structuring of transactions to overcome potential regulatory hurdles and achieve strategic business objectives.Mike’s practice includes all aspects of complex financial services, antitrust, privacy, and commercial litigation. He also has an active practice representing clients in merger control proceedings in the United States, Europe, and other jurisdictions as part of the multinational merger notification and review process.Mike has considerable experience representing financial services companies in investigations initiated by various antitrust regulators, the Consumer Financial Protection Bureau, the New York Department of Financial Services, and others. Mike has a history of representing companies before the U.S. and EU competition law regulators in the telecommunications, semiconductors, software, network services, pharmaceutical, industrial, financial services, consumer products, chemical, and technology industries.Mike maintains an active pro bono practice, regularly representing New York City public school students seeking special education and other services from the City and State. <h4 dir="ltr">Representative Experience</h4><ul><li>Glenmark Pharmaceuticals (Eastern District of Pennsylvania). Representing Glenmark in a federal antitrust multidistrict litigation alleging price fixing and market allocation of generic drugs by manufacturers of generic drugs.</li><li>In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (Eastern District of New York). Representing a major financial institution in federal antitrust class and individual actions alleging that the payment card practices of the defendant card networks and financial institutions constitute an unreasonable restraint of trade and illegal monopolization. This is likely the largest private antitrust case ever brought.</li><li>Copperweld Wiring (Northern District of Alabama and other courts). Representing wire manufacturer in antitrust and false-advertising suit against three major copper wire competitors.</li><li>SoftBank/Sprint/T-Mobile. Represented Sprint and SoftBank before DOJ/FCC and at trial against multiple State Attorneys’ General seeking to block the T-Mobile-Sprint merger as anti-competitive. After a two-week trial, the Court dismissed the case and the merger closed successfully. </li><li>Arm Limited/Softbank. Represented SoftBank Group and Arm Limited on complex antitrust and national security issues arising from NVIDIA’s proposed acquisition of Arm from SoftBank for $65 billion.</li><li>Data Breach and Privacy Matters. Representing a variety of clients in connection with regulatory and litigation issues arising out of data breach events and general data security counseling and compliance.</li><li>FCRA Matters. Representing significant information-service provider in actions around the country alleging violations of the FCRA and related statues and in federal and state regulatory proceedings.</li><li>Southwest Gas Holdings. Obtained antitrust regulatory clearances in connection with Southwest Gas Holdings’ $2 billion acquisition of Questar Pipeline and subsequent sale of certain assets. </li><li>Programmatic Advertising. Represented digital programmatic healthcare advertising firm in lawsuit seeking to block acquisition.</li><li>Alcon Vision (Southern District of New York). Won dismissal of all antitrust claims against a contact lens manufacturer.</li><li>Dale v. T-Mobile, et al. (Northern District of Illinois). Won dismissal of antitrust lawsuit against SoftBank. </li><li>EMV Litigation (Northern District of California). Won dismissal of class action antitrust litigation arising out of the introduction of chip card standards to the US payments sector.</li><li>In re Late Fee and Over-Limit Fee Antitrust Litigation (Northern District of California). Won dismissal of class action challenging late and over-limit fees. Dismissal affirmed on appeal.</li><li>In re Dental Supply Antitrust Litigation (Eastern District of New York). Negotiated resolution of individual and class action antitrust litigation in the dental supplies industry. </li><li>Antitrust and Bank Holding Company Act Litigation (Middle District of Florida). Won dismissal of sprawling antitrust and BHCA litigation on behalf of major financial institution.</li><li>Amadeus IT Group (Southern District of New York). Won dismissal of class action litigation in the travel services industry.</li><li>Overdraft Litigation (Eastern District of Pennsylvania). Represented a major financial institution in successfully resolving class action litigation arising out of overdraft practices.</li><li>Other Merger Clearances. Has obtained merger clearances in the US and EU for clients in the financial services, telecommunications, network services, pharmaceuticals, consumer products, oil and gas, consumer products, chemical, packaging, and metals industries.</li><li>GSE FCRA Litigation (Ninth Circuit, District of Arizona). Won dismissal of FCRA litigation against a large government-sponsored enterprise in the District of Arizona.</li><li>Privacy Litigation (District of Colombia; District of Columbia Superior Court). Won motions to dismiss in two actions that alleged violations of various statutory rights to privacy stemming from customer service practices. Both dismissals affirmed on appeal.</li><li>Richbell Information Services, Inc., et al. v. Jupiter Partners LP, et al. Represented Lord Jacob Rothschild and several publicly traded English investment trusts in the New York Commercial Division in litigation arising out of disputes among shareholders. Resolved successfully for client.</li></ul>

Michael B. Miller

Jessica Kaufman is a partner in the Litigation Department of Morrison Foerster's New York office, specializing in complex class actions and commercial litigation. Her trial practice includes representing clients on both sides of a wide variety of business disputes in arbitral fora and federal and state courts. She has deep expertise in class actions and mass tort litigation spanning consumer, environmental, RICO, and data privacy matters. Clients regularly seek Jessica out for creative, strategic thinking as lead and coordinating counsel in nationwide "bet the company" matters.Ms. Kaufman represents financial institutions and other clients facing claims under the federal and state contract and antitrust laws, RICO Act, Right to Financial Privacy Act, Fair Debt Collection Practices Act, and state unfair and deceptive practices statutes. She also regularly advises and represents clients in complex commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multi-district antitrust litigation; a major shipping company defending against contract and UDAAP claims in connection with fee disclosures; and a lingerie company facing consumer protection claims, including claims of false advertising. Ms. Kaufman routinely represents emerging and established financial institutions in actions involving overdraft fees and other deposit, loan, and credit card product fees, disclosures, and practices.Ms. Kaufman is recommended by Legal 500 2018 in the area of Dispute Resolution: Financial Services: Litigation. She received her B.A., with high honors, from Indiana University, Bloomington, where she was elected to Phi Beta Kappa. She earned her J.D. from New York University School of Law in 2006, where she was a Dean's Merit Scholar and founded the Education Law and Policy Society. Prior to attending law school, Ms. Kaufman was a Teach For America corps member and later served on the national staff of that organization.

Jessica Kaufman

Recognized as an authority on financial privacy issues, Nathan helps financial institutions and other companies develop practical solutions for complying with privacy and data security laws. In particular, Nathan tackles the most complex issues relating to the privacy and security of financial information.Co-author of the leading financial privacy treatise, The Law of Financial Privacy, Nathan is recognized in the industry for his exceptional legal work, including being named as an Up and Coming Nationwide Privacy & Data Security practitioner on Chambers USA’s 2018, 2019, and 2020 lists. In his many accolades, his clients praise him as “a tremendous lawyer” who is “smart and quick on his feet,” with a “strong depth of knowledge and experience.” Nathan is also known as “a go-to guy for a deeper dive on bank privacy issues, the Fair Credit Reporting Act and other matters. When he gives you a memo, it is gold-plated – you know that you can rely upon it and that it will be thoughtful” (Chambers USA 2021). Nathan is ranked in Chambers USA and Chambers Global 2021, with clients noting his exceptional work in financial privacy law, proficiency at handling various governmental investigations, and his “deep well of knowledge, which he delivers in a well-organised, thoughtful and extremely helpful manner."As state privacy law appears to be entering a new era with the adoption of the California Consumer Privacy Act (“CCPA”), Nathan is assisting many banks, insurance companies, broker dealers, and other financial institutions in making sense of the complex law and the challenges presented by significant, but often confusing, new privacy obligations. Given the breadth of his work on CCPA issues, Nathan provides clients with valuable benchmarking across the financial industry.Nathan also continues to help companies across industries develop solutions to comply with the myriad state data breach and data security laws that have been enacted since 2003. Understanding the complexities that businesses face in complying with these laws, Nathan testified before Congress on the <a href="https://financialservices.house.gov/uploadedfiles/02.14.2018_nathan_taylor_testimony.pdf" target="_blank">challenges</a> that the ever-growing patchwork of state laws present. These are complexities that he understands intimately, having advised companies on hundreds of significant data incidents, including many of the nation’s largest and highest-profile data breaches.Nathan also has defended companies in Congressional and state AG investigations regarding privacy and data security. He represented Target in its defense of a multistate AG investigation into the company’s 2013 data breach, resulting in a settlement with 47 states and the District of Columbia, at the time the largest-ever multistate settlement for a data security incident.Nathan contributes to the development of the firm’s <a href="/privacy-library/">Privacy Library</a> and MoFoNotes subscription database, which help companies keep apprised of privacy and data security compliance requirements in jurisdictions around the world.

Nathan Taylor

Jeremy Mandell is the co-chair of our Financial Services Group. His practice focuses on financial services regulation, with particular attention to payment and emerging payment issues.Jeremy advises bank, non-bank, and fintech clients on financial services regulatory issues, including issues arising under the Electronic Fund Transfer Act, the Truth in Lending Act, and the Equal Credit Opportunity Act. He has particular experience working on issues related to interbank and emerging payments systems, including blockchain-based payment solutions and stablecoin platforms. He has counseled clients with award-winning apps and innovative products and services on complex issues, bringing a practical, broad-market perspective to product development, ongoing compliance needs, and regulatory engagement.He also has extensive experience working with banks and non-banks on strategic partnerships. As partnerships between banks and fintechs become more prevalent, Jeremy draws on this experience to advise clients on the financial services regulatory and commercial issues that arise in the context of these partnerships.Jeremy is co-editor of The Consumer Finance Law Review, surveying the legal and regulatory approaches to consumer finance law in jurisdictions around the world.Before joining Morrison Foerster, he served as a senior financial services analyst at the Board of Governors of the Federal Reserve System in the Division of Reserve Bank Operations and Payment Systems, where he focused on policy issues related to large-value payments systems. Jeremy leverages this experience to advise clients on various legal and regulatory issues.Jeremy earned his J.D. from The George Washington University Law School in 2010. He earned his M.A. in applied economics from Johns Hopkins University in 2004 and his B.A in economics and international relations from Lehigh University in 2001.

Jeremy Mandell

Co-Chair of Financial Services Group

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).Julie provides clients with creative and practical advice on meeting the requirements of state and federal privacy laws, including the Federal Trade Commission Act (FTC), the California Consumer Privacy Act (CCPA), Children’s Online Privacy Protection Act (COPPA), and the Family Educational Rights and Privacy Act (FERPA). She crafts guidelines and compliance programs for clients’ collection, use, and disclosure of personal information in diverse contexts and throughout the life cycle of their initiatives, such as for connected products (the Internet of Things) and mobile services. She also drafts privacy and cookies policies, online service terms of use, agreements involving online and offline advertising and marketing practices, and agreements concerning a variety of data uses. In addition, Julie helps clients assess and manage privacy risks, including in connection with mergers, acquisitions, and other strategic transactions.Julie creates compliance programs for clients’ use of a wide variety of channels for communicating with and marketing to consumers, including email, telephone, text message, and fax, both in the United States and around the world. She works with clients to develop their social media strategies and to clear their social media content. She also reviews advertising in both traditional and new media for compliance with applicable laws, including Section 5 of the FTC Act and various FTC rules and guides. In addition, she works with clients to structure, market, and implement their sweepstakes, contests, and other promotions in compliance with applicable laws.As a former FTC staff attorney, Julie regularly defends companies in investigations by the FTC and before data protection authorities around the world.<h4>Representative Experience</h4><ul><li>A company that creates online software used by schools in an FTC investigation of alleged COPPA violations.</li><li>A consumer services company investigated by the Korean data protection authority for alleged privacy violations</li><li>A manufacturer in connection with a challenge of its environmental advertising claims by the FTC </li><li>An advertising services company in an investigation of alleged privacy-related violations of the FTC Act</li><li>An online provider of entertainment services in an FTC investigation of alleged COPPA violations</li><li>A beverage company in an FTC investigation of alleged COPPA violations</li></ul>Before attending law school, Julie was a Peace Corps volunteer in The Gambia, West Africa.

Julie O'Neill

Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States. Tiffany’s practice includes leading class actions at the cutting edge of privacy law, including claims involving data security and biometric information. She also has advised extensively on Telephone Consumer Protection Act (TCPA) matters, as well as cases involving unfair business practice claims and consumer advertising issues. Tiffany is a former co-chair of MoFo’s global Litigation Department and the firm’s Complex Litigation + Advisement Practice Group.The Daily Journal recently named Tiffany on its 2023 list of Top Women Lawyers and as a 2023 Leading Commercial Litigator in California. Chambers USA 2023 again ranked her in commercial litigation, while The Legal 500 2023 again recommended her in product liability and marketing and advertising. BTI Consulting Group has recognized Tiffany as one of a small group of attorneys nationwide who represent the “absolute best of the best” in the area of client service. Her clients include leaders in the technology, healthcare, financial services, and retail sectors.She is a former editor of, and frequent contributor to, the Morrison Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a> and a contributing editor of the TCPA Report section of MoFo’s Financial Services Quarterly Report. As a thought leader, Tiffany often speaks to groups of industry peers about key developments in class action privacy litigation.Because she is committed to the firm’s pro bono program, Tiffany works on diverse matters in that arena, including representing numerous clients in connection with guardianship proceedings and immigration proceedings for children.<h5>More About Tiffany</h5>Tiffany earned her B.A. from the University of California, Berkeley with high honors and was a member of Phi Beta Kappa. In 2000, she received her J.D. from the University of California, Boalt Hall School of Law, where she was editor-in-chief of the Asian Law Journal. From 2000 to 2001, she was a judicial clerk for the Honorable Marian Blank Horn of the United States Court of Federal Claims and also served as a judicial clerk for the Honorable Susan R. Bolton of the United States District Court for the District of Arizona from 2001 to 2002.