Mark L. Krotoski

In representing an international retail company, led the forensic investigation concerning a cyberattack involving the acquisition of millions of customer records in all U.S. jurisdictions and more than 100 countries, provided guidance on legal obligations and coordinated with law enforcement, resulting in the identification and conviction of the perpetrator outside the United States. In an active “no-poach” investigation by the Antitrust Division, coordinated an internal company investigation and response resulting in the closing of the investigation with no charges or enforcement action. Represents clients on cyberattacks and violations of the Computer Fraud and Abuse Act including data breach class action cases.

Represented international technology company during Antitrust Division investigation involving alleged exclusionary conduct during standards setting process in creating a new Wi-Fi connectivity standard resulting in closed investigation. Represented senior vice president of a leading global materials company during Antitrust Division cartel investigation which ultimately was closed. Represent companies in the Antitrust Division Leniency Program and in navigating the leniency process. Represent companies and executives involving “no poach” and wage-fixing allegations and investigations. Assist international and domestic companies in establishing effective compliance programs, including under new Antitrust Division Compliance Guidelines. Assist international and domestic companies in Dawn Raids Training to be prepared in the event of legal process issued during a new investigation. Lead counsel in the conviction of an executive involved in colluding on bids and pricing strategies for automotive instrument panel clusters supplied to a major automobile manufacturer. Lead counsel in the conviction of a former executive and company director who obstructed an investigation into automotive parts. Lead counsel for the retrial of a former airline executive accused of manipulating fuel surcharge rates on air cargo shipments from Miami to South America, resulting in a plea conviction five days before the trial. Supervised investigations related to price fixing, bid rigging and market allocation among global corporations operating in the automotive parts and air cargo sectors.

Represented financial services company before the Securities and Exchange Commission Cybersecurity Unit and Department of Justice involving a sophisticated hacker who executed unauthorized trades, resulting in no enforcement action. Represented non-profit in civil action against firm and former employer involving copyright infringement and violations of the Computer Fraud and Abuse Act, resulting in a settlement before trial. Represented general counsel of international company during investigation of data breach by the Department of Justice and Securities and Exchange Commission. In the Yahoo data breach involving “at least 500 million” stolen user accounts, represented the manager of incident response during all phases of the investigation by the Department of Justice, Securities and Exchange Commission and Special Committee. Represented numerous companies in responding to ransomware and other cyberattacks, including through all phases involving the internal forensic investigation under attorney client privilege, review of data to determine notification requirements, notifications to federal and state regulators, responding to federal and state regulatory investigations, and follow-on litigation. Led investigation of international company targeted in a cyberattack and trade secret destruction and referred the case for criminal prosecution, resulting in the conviction of a former employee. Represented companies in complying with standards under the New York Department of Financial Services Cybersecurity Regulation. Represented international company during investigation under the Payment Card Industry Data Security Standard, resulting in no company fines or penalties. Represented international company concerning reported data loss issues before the California Attorney General’s Office, resulting in no enforcement action. Represented numerous international and domestic companies during investigations of cyber fraud and unauthorized wire transfers (referred to as a “business email compromise”). Represented multiple companies in cyber risk assessments during an acquisition of or merger with another company. Represented leading insurance company and led investigation involving an underwriter who disclosed personal and sensitive information to others. Represented companies in complying with standards under the New York Department of Financial Services Cybersecurity Regulation. Lead counsel in a jury trial resulting in the conviction related to the intrusion into the Yahoo account of Alaska Governor Sarah Palin and obstruction of justice. Successfully argued the appeal before the U.S. Court of Appeals for the Sixth Circuit, which upheld the convictions (United States v. Kernell, 667 F.3d 746 (6th Cir. 2012)). Lead counsel in jury trial conviction involving a computer intrusion “time bomb” that corrupted more than 50,000 company records (United States v. Shea, 493 F.3d 1110 (9th Cir. 2007)). Obtained a conviction for computer intrusion involving multiple prominent high-technology companies (United States v. Heckenkamp, 482 F.3d 1142 (9th Cir. 2007)).

Represent companies involving economic espionage, trade secret misappropriation and other intellectual property theft in DOJ investigations. Achieved the landmark conviction in the United States involving source code under the Arms Export Control Act and International Trafficking in Arms Regulation, as well as securing the first sentencing under the Economic Espionage Act of 1996. This case centered on foreign economic espionage, including the misappropriation of a trade secret with the intent to benefit a foreign government (under 18 U.S.C. § 1831). Co-counsel in a case that resulted in a conviction for foreign economic espionage, encompassing the misappropriation of trade secrets with the aim of benefiting foreign instrumentalities (under 18 U.S.C. § 1831). Lead counsel on the investigation and charges against a foreign national involving computer intrusions targeting NASA and a leading provider of computer network equipment, along with the theft of trade secrets, including source code. Lead counsel in the investigation and subsequent conviction of a company vice president for the theft of trade secrets from his former employer, a Fortune 15 company. Led various criminal convictions and investigations involving the misappropriation of trade secrets.

Represented an executive in an insider trading investigation by the DOJ, resulting in no charges. Represented an executive in a grand jury investigation and successfully persuaded the court that the Fifth Amendment precluded any testimony. Referred numerous cases to law enforcement, in appropriate cases, for investigation and prosecution involving cybercrime, trade secret misappropriation, fraud and other offenses. Routinely represent companies and executives in grand jury investigations.

Lead counsel in an undercover investigation that resulted in the prosecution of the largest CD and DVD manufacturing piracy scheme ever pursued in the United States at the time. Secured convictions of three key manufacturers on charges including copyright infringement, trademark violations, counterfeit label production and FBI seal violations. Lead counsel supervising undercover operation targeting an Internet “warez” conspiracy involving pirated movies, games and software; coordinated approximately 40 simultaneous searches across the United States and abroad; implemented case strategies leading to 30 convictions within one year and a total of 40 convictions for various criminal copyright violations. Lead counsel on the first convictions under a newly established federal “camming” statute, addressing unauthorized recording of motion pictures in exhibition facilities, and a new statute concerning the uploading of prereleases on the internet, specifically for criminal copyright infringement by distributing copyrighted works on computer networks. Lead counsel on the first conviction in California and the second in the United States under the Digital Millennium Copyright Act (DMCA). Lead counsel on convictions for unauthorized manufacturing and distribution of satellite television access devices, along with DMCA violations, as part of a satellite piracy scheme. This included the manufacturing and distribution of software and devices utilized to illegally access satellite programming.