Mark leads the Global Data Security, Privacy & Management practice as a partner within the Global Regulatory Enforcement Group. He has recognized experience in litigating putative class actions and other "bet-the-company" suits in the following three areas: (1) data security/privacy; (2) mortgage/financial services; and (3) other complex business litigation.
(1) Data Security/Privacy. Mark has led defense efforts in more than 70 putative class actions arising from alleged consumer privacy violations. Mark routinely represents clients responding to government privacy investigations, including before the Federal Trade Commission, the Office for Civil Rights, the State Attorneys General, and the United States Department of Justice.
(2) Mortgage/Financial Services. For more than two decades, Mark has been a go-to class action defense litigator and counselor for banks and other financial services companies facing claims about their products, disclosures, pricing and sales practices. From the alphabet soup of heavy regulation (e.g. RESPA/YSP; ECOA/FHA; FCRA; FDCPA; HOEPA; TILA) to broad-based attacks styled as "predatory lending" or "consumer fraud" to hard-fought intellectual battles over preemption or class action waivers and through the fall-out from today's economic crisis (e.g. consumer bankruptcy and foreclosure-driven disputes such as "robo-signing"), Mark has succeeded in getting complaints dismissed, class certifications denied and/or favorable settlements negotiated.
(3) Other Complex Business Litigation. Other complex commercial matters defended by Mark include the following types of disputes: antitrust, trade defamation and libel, trade secrets/restrictive covenants, intellectual property, business fraud and trade regulation, franchise and dealer relations, bankruptcy, general contracts, and torts. He has represented large corporations in federal and state courts throughout the country concerning disputes ranging in alleged value from $100,000 to $8 billion.
Overall, Mark has defended more than 150 class and 100 mass actions, and acted as lead defense counsel in three MDLs. This practice has taken him to trial and appellate courts in 27 states from Maine to Washington, and from Florida to California. Arbitration and mediation are also methods of dispute resolution in which Mark regularly engages. He has organized, led and participated in successful mass defense efforts involving private party class actions as well as multi-state attorneys general and other government investigations.
Representative Matters (Since 2000)
(1) Data Security/Privacy
- In Re: Science Applications International Corp. (SAIC) Backup Tape Data Theft Litigation, 2012 WL 2341470, MDL No. 2360 (June 20, 2012). Currently serving as co-counsel for SAIC in eight (8) privacy class actions seeking to impose billions in liability under the Fair Credit Reporting Act, state consumer protection statutes, and common law theories following an alleged breach. The cases have been transferred by JPMDL to the District Court of the District of Columbia.
- Graczyk v. West Publishing Corporation, 660 F.3d 275 (7th Cir.); Young v. West Publishing Corporation, 724 F.Supp. 2d 1268 (2010) (S.D. Fla.); Johnson v. West Publishing Corporation, 801 F. Supp. 2d 862 (W.D. Mo. 2011), reversed without opinion by, Johnson v. West Publishing Corporation, --- Fed.Appx. ---- (8th Cir. Apr 09, 2013) (No. 12-1172, 12-1176). Successfully defended West in putative nation class actions under the Driver's Privacy Protection Act, obtaining dismissals of all cases.
- Beam v. E*TRADE Financial Corporation, Case No. CV-2011-64-7 (Ark. Cir. Ct.); Baxter v. Skype, Inc., Case No. CV-2011-56-7 (Ark. Cir. Ct); Baxter v. Philips Electronics North America Corporation, Case No. CV-201105402 (Ark. Cir. Ct.). October 6, 2011. Secured voluntary dismissals for clients E*TRADE, Skype and PENAC in multimillion dollar "flash cookie" privacy class actions.
- In Re: Countrywide Financial Corp. Customer Data Security Breach Litigation, 2012 WL 2873892 (W.D. Ky.). Defending client from more than forty (40) putative class actions arising from the alleged theft and resale of mortgage-related consumer information. Putative national class settlement for class exceeding seventeen (17) million persons given final approval. Opt out litigation dismissed on our motion in Holmes v. Countrywide Finan. Corp., 2012 WL 2873892 (W.D. Ky. Jul. 12, 2012).
- Rowe v. UniCare Life and Health Insurance Company, Class Action Case No. 09-CV-02286 (N.D.IL). Secured final approval for nationwide class action settlement. In Rowe, plaintiffs alleged that the defendant had improperly set data security permissions, resulting in the exposure of health care, insurance, and payment information for about a quarter-million insureds.
- Saenz v. Kaiser Permanente International, Case No. 1:09-05562 (N.D. Cal.). Obtained voluntary dismissal for client in putative class action alleging violation of California privacy law resulting in hundreds of alleged identity thefts from a population of approximately 29,000 employees.
- Lockwood v. Certegy Check Services, Inc., No. 07-CV-01434 (M.D. Fla.). Defended a series of five putative national class actions arising from the theft of consumer information. Plaintiffs sought to impose up to $8.5 billion in statutory liability under the Fair Credit Reporting Act. Proposed favorable settlement given final approval. Settlement class includes in excess of 30 million consumers.
- In Re: LendingTree, LLC Customer Data Security Breach Litigation, MDL 1974 (W.D.N.C.). Obtained two decisions compelling eight putative national class actions to individual (non-class) arbitration.
- Giordano v. Wachovia Securities, LLC and United Parcel Service, 2006 WL 2177036 (D.N.J. 2006). Established as a matter of first impression the Constitutional point that increased risk of identity theft is not an injury-in-fact and cannot confer federal court subject matter jurisdiction.
- Jurgens v. J.C. Penney Corporation, Inc., Case No. 12PH-CV00900 (Mo. Cir. Ct.). Negotiated and secured approval of a nationwide class action settlement for J.C. Penney over its use of HTML and Flash Cookies / Local Shared Objects (“LSOs”).
- Wood v. Macy’s, Case No. 12PH-CV-00952 (Mo. Cir. Ct.) – negotiated and secured approval of a nationwide class action settlement for Macy’s over its use of HTML and Flash Cookies / Local Shared Objects (“LSOs”).
- Bell v. Blizzard Entertainment, Inc., Case No.: 12-CV-09475 (C.D. Cal.) – currently defending worldwide video game developer and publisher in nationwide class action over its alleged data security practices in relation to an alleged breach.
(2) Mortgage/Financial Services
- Representing mortgage lenders, servicers and trustees in "robo-signing" and other foreclosure-related matters, including Wells Fargo Bank in the New Jersey Order to Show Cause, Docket No. F-9564-12 proceeding In Re Document Irregularities, Docket No. F-059553-10.
- U.S. Bank v. Guillaume, 209 N.J. 449 (N.J. 2012). Represented US Bank, N.A. and obtained a favorable ruling on a challenge to the sufficiency of the pre-foreclosure breach letter. The Court found that pre-foreclosure notice defects are not jurisdictional, overruling a prior appellate decision. The ruling will assist with clearing up the backlog of frozen foreclosure cases in New Jersey.
- Salley v. Option One Mortgage Corp., 925 A.2d 115 (Pa. 2007). Lead counsel in the Pennsylvania Supreme Court case holding that arbitration agreements in form mortgage contracts are not per se unconscionable because certain creditor remedies are carved out from the requirement to arbitrate; overruling or limiting prior state court decisions.
- Glukowsky v. Equity One, 848 A.2d 747 (2004), reconsid. denied, & cert. denied 125 S.Ct. 864 (2005). Lead counsel in the New Jersey Supreme Court's preemption-based dismissal of the putative statewide class action challenging the right of state housing creditors to collect prepayment fees from residential mortgage borrowers. The Supreme Court reversed a unanimous appellate panel that had thrown out as ultra vires and void an OTS regulation upon which the mortgage lending industry had long relied. The U.S. Supreme Court denied certiorari, leaving this New Jersey victory intact.
- Gras v. Associates First Capital Corp., 786 A.2d 886 (N.J. App. Div. 2001). Won, with co-counsel, the then-leading appellate case in New Jersey on the interaction between class actions and mandatory consumer arbitration clauses.
- Represented one of the world's largest consumer finance companies in a confidential mediation involving approximately 1,000 mortgage loans to individuals claiming violations of HOEPA, RESPA, state fraud laws and federal and state fair lending laws.
- Represented multiple national mortgage lenders in class actions alleging racial discrimination, including winning Post-Dukes denial of class certification to potential disparate impact claims In Re Wells Fargo Residential Mortgage Lending Discrimination Litigation, 2011 WL 3903117 (N.D. Ca. 2011), and securing approval for national class settlement In Re First Franklin Financial Corp. Litigation, 2010 WL 961649 (N.D. Cal. 2010).
- Obtained early dismissals for one of the largest purchasers of second mortgage loans in the United States from 13 putative class action cases asserting "predatory lending" claims in Colorado, Indiana and New Jersey on the basis that the named plaintiffs all lacked standing to bring suit. See, e.g. Alexander v. PSB Lending Corp., et al., 800 N.E. 2d 984 (Ind. Ct. App. 2003).
- Represented a well-known national consumer lender in TILA "mass actions" filed in Florida, North Carolina and California.
- Obtained denials of class certification in putative class actions filed against bank clients in Virginia, New Jersey, Maryland and Alabama alleging that the payments of yield spread premiums from lenders to brokers were illegal "kickbacks" under RESPA.
- Beneficial Consumer Discount Company v. Vukman, 29 WAP 2012. The Pennsylvania Supreme Court agreed to review a ruling by the Pennsylvania Superior Court that stripped state trial courts of jurisdiction over foreclosure cases when notices issued to homeowners failed to include information about credit counseling and loan modification opportunities. The decision inspired the Pennsylvania General Assembly to pass unanimous legislation that expressly gave courts the right to dismiss foreclosure actions without prejudice or to craft any other appropriate remedy to allow lenders to address faulty notices.
(3) Other Complex/Business Litigation
- As co-defense counsel, protected confidential sources under the newsperson's privilege and ultimately won summary judgment for the former Warner Books and one of its authors in a defamation case brought by Donald J. Trump in connection with the publication of "Trump Nation". Trump v. O'Brien __A.3d__, 2011 WL 3903013 (N.J. App. Div. 2011) and Trump v. O'Brien, 403 N.J. Super. 281, 958 A.2d 85 (N.J. App. Div. 2008).
- Represented Time Warner and various officers as co-defense counsel in a securities fraud class action arising out of the AOL merger brought on behalf of many of New Jersey's largest state pension funds. Treasurer of New Jersey v. AOL Time Warner, et al., Docket No. MER-L-1349-03.
- Represented Dell Financial Services in an action brought by New York Attorney General Andrew Cuomo alleging violations of the FCRA and ECOA as well as of consumer protection laws with respect to financing and sales practices.
- In re Patrick, No. 5:04–bk–51796–JJT, 2013 WL 951704 (Bkrtcy. M.D. Pa.) (refusing to certify litigation class of debtors against Dell Financial Services). Defending a national consumer class action filed by a putative class of chapter 13 debtors in the U.S. Bankruptcy Court for the Middle District of Pennsylvania. Violations of Sections 506, 1322, and 1325 of the Bankruptcy Code, as well as state law, are alleged. Obtained dismissal of all monetary requests for relief, a decision affirmed by the District Court.
- Representing Quest Diagnostics in putative class action suits alleging improper billing and collection for lab tests. See, e.g. Agostino v. Quest Diagnostic Inc., 2010 WL 5392688 (D.N.J. 2010) and Agostino v. Quest Diagnostic Inc., 256 F.R.D. 437 (D.N.J. 2009).
- Defended CIT (as a lease finance company) in class actions and investigations initiated in New York, New Jersey, Illinois, Florida, Texas, California, Massachusetts and elsewhere arising from the collapse of Norvergence.
- Represented one of the nation's largest banks in joint defense efforts which obtained the dismissal of putative class actions alleging antitrust and RICO conspiracies to fix the prime rate and to fix credit prices and availability using FICO and other credit scoring systems. Lum v. Bank of America, 361 F.3d 217 (3d Cir. 2004); 361 F.3d 217, 2004 U.S. LEXIS 4637 (2004), and Karin J. Black v. JP Morgan Chase, et al., 2011 WL 4102802 (W.D.Pa.) and 2011 WL 3940236 (W.D.Pa.).
- Won approximately $3 million after a three week trial in bankruptcy court on behalf of a commercial landlord and sustained that judgment on appeal before the Court of Appeals for the Third Circuit: In Re New Valley, 181 F.3d 517 (3rd Cir. 1999).
- Coordinated and implemented a national defense strategy for the industry which created a secondary market by purchasing structured settlement payment streams. (See, e.g., Safeco Life Ins. Co. v. Singer Asset Fin. Co., No. C99-1626 (W.D. Wash. March 9, 2000)), advantageously settling a national class action (See, Waldeier v. J.G. Wentworth S.S.C. Ltd., No. 4064 (P.C.C.P. May 24, 2001)), and representing the industry as amicus in the New Jersey Supreme Court. (Owen v. CNA Insurance Company, et al., 771 A.2d 1208 (2000)).
A former member of the Actors’ Equity Union, Mark performed in musical theater productions, industrial shows and commercials from 1974 to 1988, working his way through college and law school. In his last professional show, he met his wife, Dianne, with whom he has two daughters. The Melodias live in Pennington, New Jersey.