David T. Cohen

Of Counsel

New York, Boston

David Cohen provides strategic litigation defense counsel across many business sectors to help clients navigate complex privacy and cybersecurity litigation and enforcement matters. He counsels companies that have suffered a data breach or are accused of privacy violations, including those related to biometric privacy, and defends them against the class action litigation or regulatory actions by state attorneys general and the Federal Trade Commission (FTC) that frequently follow. David’s matters have included some of the most closely watched privacy and cybersecurity actions in U.S. history, including the groundbreaking defense of LabMD in LabMD v. FTC where he helped to persuade the U.S. Court of Appeals for the Eleventh Circuit to become the very first court to overturn a cybersecurity enforcement action by the FTC.

David also offers privacy and cybersecurity risk-based counseling to help clients minimize their chances of regulatory scrutiny and litigation. He is a regular contributor to Trust Anchor, Orrick’s Privacy and Cybersecurity blog, and is called upon by industry publications and news sources to weigh in on breaking legal developments. David is also an active member of the Sedona Conference Working Group 11 on Data Security and Privacy Liability.

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Outside the office, David performs classical vocal music in the New York City area.

Engagements
- Represented LabMD in its successful petition to the U.S. Court of Appeals resulting in the first-ever court decision overturning a Federal Trade Commission cybersecurity action.
- Represented Supervalu in obtaining full dismissal of all consumer class actions filed over unauthorized network intrusions suffered in 2014.
- Represented Sony in government investigations stemming from criminal cyber-attacks on certain of Sony’s computer networks.
- Represented Wyndham Hotels & Resorts in securing a favorable settlement to terminate a Federal Trade Commission lawsuit stemming from unauthorized network intrusions into certain Wyndham-branded hotels.
- Represented Heartland Payment Systems in obtaining dismissal of issuing bank class actions filed across the nation related to a data security breach.

E:[email protected]

Addresses:

51 West 52nd Street
New York, NY 10019-6142
United States

222 Berkeley Street
Suite 2000
Boston, MA 02116
United States

vCard

Practices

Admitted In
- New York
- District of Columbia
- Massachusetts
Clerkships
- Hon. Thomas L. Ambro, United States Court of Appeals, Third Circuit, 2007-2008
Court Admissions
Supreme Court of the United States
United States Courts of Appeals
- Third Circuit
- Eleventh Circuit
United States District Courts
- Southern District of New York
Education
- Brown University, A.B., Philosophy and Music, 2003, magna cum laude; Phi Beta Kappa; Meiklejohn Prize in Logic
- Boston College Law School, J.D., 2007, summa cum laude; Order of the Coif; James W. Smith Award for Highest Academic Rank; Editor in Chief, Boston College Law Review
Memberships
- Certified as CIPP/US by International Association of Privacy Professionals. This certification is not granted by any governmental authority.
- The Sedona Conference, Working Group 11 on Data Security and Privacy Liability
- International Association of Privacy Professionals
Speeches
- Panelist, "Online Meeting for the Sedona Conference Draft Commentary on a Reasonable Security Test," Sedona Conference Working Group 11 on Data Security and Privacy Liability (April 9, 2020)
- Panelist, “Data security and privacy case law update,” The Sedona Conference: Working Group 11 Midyear Meeting 2018, Los Angeles, CA (September 13, 2018)
- Panelist, “Privilege issues in data security litigation,” The Sedona Conference: Working Group 11 Annual Meeting 2018, Charlotte, NC (March 19, 2018)
- Panelist, “Privilege issues in data security litigation,” The Sedona Conference: Working Group 11 Midyear Meeting 2017, San Diego, CA (September 18, 2017)
- Speaker, “Practical Tips from 2015 Data Breach Litigation Decisions and Enforcement Actions,” ACC-SFBA CLE Lunch Seminars (January 2016)
- Presenter, “Developments in Private Litigation and Regulatory Enforcement Stemming from Data Security Breaches,” Lawline Seminar (August 13, 2015)
- Speaker, “Lunchtime Legal Briefing Teleconference - Navigating the Telephone Consumer Protection Act - When Can You Make That Call or Send That Text?” (September 2013)
Publications
- Co-author, “Courts, Regulators Should Limit Excessive Privacy Penalties,” <em>Law 360</em> (October 28, 2020)
- Co-author, "Seventh Circuit Bolsters Article III Standing for Actions Under the Illinois Biometric Information Privacy Act," Trust Anchor Blog (May 14, 2020)
- Co-author, "Key Steps in Defending Companies Against Cybersecurity Breach Litigation," American Bar Association Litigation and Trial Practice Committee Newsletter (Spring 2020)
- Co-author, "The Sedona Conference Commentary on Application of Attorney-Client Privilege and Work-Product Protection to Documents and Communications Generated in the Cybersecurity Context," The Sedona Conference (November 2019)
- Old Rule, New Theory: Revising the Personal Benefit Requirement for Tipper/Tippee Liability Under the Misappropriation Theory of Insider Trading, 47 B.C. L. Rev. 547 (2006), reprinted in Insider Trading: Regulatory Perspectives 1 (C. Vidya ed., 2007)
- Jane E. Willis and David T. Cohen, “Ninth Circuit Brings Greater Scrutiny to Class Counsel's Fees in In re Mercury Interactive Corp.,” Bloomberg Law Reports: Class Actions/Securities Litigation and Enforcement (October 2010)
- Douglas H. Meal and David T. Cohen, “How High Court's Clapper Ruling Will Impact Breach Cases,” Law360 (February 26, 2013)
- Douglas H. Meal, David T. Cohen and Daniel M. Routh, “Supreme Court’s Clapper Decision Raises Bar For Standing in Data Security Breach Litigation,” Bloomberg BNA's Privacy and Security Law Report (April 1, 2013)
- Douglas H. Meal and David T. Cohen, “Massachusetts High Court Decision on ZIP Codes Increases Legal Risk for Retailers,” Chain Store Age (May 2, 2013)
- Douglas H. Meal and David T. Cohen, “FTC's Payment Processor Lawsuits Signal Growing Privacy Risks,” Payment Source (July 15, 2013)
- Douglas H. Meal and David T. Cohen, “Data Breach Plaintiffs Continue To Face Challenges,” Law360 (July 22, 2013)
- Douglas H. Meal, James S. DeGraw, Paul D. Rubin and David T. Cohen, “FTC's Increasingly Aggressive Assertion Of Authority,” Law360 (October 9, 2013)
- Douglas H. Meal and David T. Cohen, “Takeaways From 9th Circ. FCRA Ruling Against Spokeo,” Law360 (February 14, 2014)
- Douglas H. Meal and David T. Cohen, “Private Data Security Litigation in the United States,” in Inside the Minds: Privacy and Surveillance Legal Issues (Aspatore 2014)
- Doug Meal, Mark Szpak and David Cohen, “St. Joseph Demonstrates Challenges For Breach Plaintiffs,” Law360 (February 26, 2015)
- David T. Cohen and Michelle Visser, “Wash. Decision Illustrates Challenges For Breach Plaintiffs,” Law360 (April 13, 2015)
- James DeGraw, David Cohen and Joe Cleemann, “Nomi Highlights Risks Of Publicizing Privacy Policies,” Law360 (May 27, 2015)
- Jason A. Brown, David Cohen and Joe Cleemann, “FTC Is Looking Beyond Consumer Harm Post-Breach,” Law360 (September 30, 2015)
- James DeGraw, David Cohen and Sunil Shenoi, “FCC Expands Data Security Enforcement With Cox Action,” Law360 (November 19, 2015)
- Seth Harrington, Michelle Visser, David Cohen and Adam Winship, “FTC Study Could Lead To Changes In PCI DSS Certification,” Law360 (April 6, 2016)
- Michelle Visser, David Cohen, and Adam Winship, “Data Breach Plaintiffs Invoking Tyson May Face Difficulties,” Law360 (April 13, 2016)
- Michelle Visser, David Cohen and Dan Routh, “Spokeo Decision Narrows the Path for Data Breach Plaintiffs,” The Daily Journal (San Francisco) (July 1, 2016)
- Doug Meal, David Cohen and Joseph Cleemann, “Amazon Unfair Practice Case May Affect Data Breach Cases,” Law360 (July 1, 2016)
- Deborah Gersh, David Cohen, Caleb Dulis and Jamie Liebert, “LabMD and FTC's Attempt to Expand Data Security Authority,” Law360 (August 3, 2016)
- Seth Harrington, David Cohen and Lindsey Sullivan, “Practical Tips for In-House Counsel From Recent Private Data Security Breach Litigation,” Bloomberg BNA’s Privacy and Security Law Report (September 13, 2016)
- Heather Sussman, Doug Meal, David Cohen, and Joseph Santiesteban, “Recent Decisions Highlight Product Cybersecurity Issues,” Law360 (November 18, 2016)
- David Cohen, Ani-Rae Lovell, “Another Way To Challenge Standing In Data Breach Cases,” Law360 (April 24, 2017)
- Co-author, “High Hurdles Faced by Data Security Breach Shareholder Derivative Plaintiffs,” Bloomberg BNA Privacy and Security Law Report (May 2017)
- James DeGraw, Michelle Visser, David Cohen, Joseph Santiesteban and Nicole Gelsomini, “FTC’s First Foray into Gig Economy Data Security,” Law360 (August 28, 2017)
- David Cohen, “Is D.C. Circuit’s Data-Breach Standing Decision a Tipping Point for High Court Review?,” The WLF Legal Pulse (October 19, 2017)
- Doug Meal, Michelle Visser and David Cohen, “With ‘LabMD’ Decision Looming, FTC Workshop Delves into Privacy & Data Security Harms,” The WLF Legal Pulse (December 21, 2017)
- David Cohen, Michelle Visser, Tom Wakefield and Rebecca Harlow, “City Suits: The Next Frontier of Data Breach Actions,” The New York Law Journal (February 21, 2018)
- Co-author, “Ninth Circuit’s Flawed Zappos Decision is Cautionary Tale for Corporate Victims of Cyberattacks,” Washington Legal Foundation Legal Backgrounder (May 4, 2018)
- Co-author, “What litigating the LabMD case showed us about US cybersecurity regulation,” IAPP’s Privacy Perspectives (June 27, 2018).
- Co-author, “DCMS publishes report on IoT security, privacy and safety including draft code of practice for security in consumer IoT products and associated services,” Thomson Reuters’Computer and Telecommunications Law Review (August 17, 2018)

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