Kathryn Cahoy and Kanu Song | What it means to be a general litigator for social media and technology companies

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General litigation for social media companies requires a broad skill set and offers exciting variation–from privacy to copyright to class action defense to breach of contract.  What does it take to prepare for this type of breadth?

 

More on Kathryn Cahoy and Kanu Song.


Episode Transcript

SPEAKERS

Kanu Song, Wayne Stacy, Kate Cahoy

 

Wayne Stacy  00:01

Welcome, everyone to the Berkeley Center for Law and Technology’s Expert Series podcast. I’m Wayne Stacy, the Executive Director for BCLT. And today we’re focusing on careers in technology. And in particular, we’re talking about the types of legal work needed by social media companies. I’m here with two attorneys from Covington that are both leading experts in what I’m going to leave as the teaser here in helping social media companies, but I’m going to let them explain exactly what that means because the phrase carries a lot of different meaning to a lot of different people. So with us, we have Katherine Cahoy, who specializes in complex commercial litigation, including antitrust privacy, and consumer protection, and Kanu Song who specializes in complex commercial litigation, including class actions and consumer protection. So before we talk about generally what the practice looks like in the social media space, I’d love for the two of you to explain just what your practice looks like day to day in the technology field.

 

Kate Cahoy  01:13

Sure, hi, Wayne, I can go first. This is Kate Cahoy. I am a litigator and I have practiced since since I began in private practice in Silicon Valley. So and with a heavy emphasis on tech companies. So I have kind of created my specialization in class action litigation. But there are lots of different types of class action litigation that are prevalent in, in this area and for tech companies in general and social media companies as well. So I have done, you know, the heavy component of privacy type issues that are privacy class actions, anti trust and other types of consumer class actions, things. For example, claims brought under California’s unfair competition law, claiming that you know, a statement was misleading on a website or you know, something related to that.

 

Wayne Stacy  02:16

How about you Kanu?

 

Kanu Song  02:18

So I am like a litigator, I am actually in general commercial litigation, most of the time, I’m a generalist by choice. So, I do all kinds of litigation, but because my practice is based in San Francisco, a lot of my clients do tend to be tech companies, including social media companies. And in that space, the substantive work that I’ve done has been in intellectual property, privacy, class actions, and contract disputes the classic breach of contract, but also like state law claims that’s sort of tail off to that.

 

Wayne Stacy  02:54

So maybe, to broaden out a little bit, you know, when people think about social media companies, class actions, and consumer protection, maybe don’t come to mind, at least aren’t the first thing that that comes to mind. Can you explain a little bit about what those practices look like, for a tech company or a social media type company?

 

Kate Cahoy  03:17

Sure, so I think, you know, for many companies that are growing or, you know, either now are fairly successful, or getting to that point, I mean, class action litigation is sort of a risk and cost of doing business and, and I for a lot of different companies. So I think it’s something that that many companies face in, you know, they’re some of the issues relating to tack, I think are, you know, you see certain trends in that area where certain types of claims will come up, and then be brought in different forms against different companies. So, um, you know, privacy is a big one right now, where we’re people are really testing the boundaries of both privacy statutes that are already on the books and also the common law of privacy. And, and just generally, you know, the idea that, you know, we’ve seen lots of different types of trends in that area, how data is collected and used, disclosures relating to how that data is collected and used. And, you know, if people see something that they think is, is, is potentially invasive of their privacy or their expectations surrounding privacy, those cases tend to be brought as class actions, because, you know, one person bringing one claim is itself often not, you know, there wouldn’t be a lawyer that would take on that case, they tend to be brought as class actions and litigated collectively. And then you you have, you know, there’s often a question of whether they can be treated collectively and then separately on the merits whether whether there’s a viable claim, but that’s how I think the class action component comes into it. And I don’t know that that’s something specific to tech or social media. But you tend to see like the privacy in general is, you know, heavily focused right now and in this area and lots of suits being filed in the Northern District of California in that area.

 

Wayne Stacy  05:16

Well, that that leads right back to something that Kanu you said about being a generalist in terms of litigation. But your practice takes you into a lot of tech companies, you explain what that means to be a generalists in terms of commercial litigation?

 

Kanu Song  05:34

Yeah, so it just means I like when I don’t have an answer to the question, What does my day look like, because I have a different day, every day. I would like to think that being a good litigator is a fairly universal skill. And it means that people like Kate or myself can solve whatever problem our clients have. And don’t have to necessarily refer it out as soon as it becomes a little bit specialized. I like that kind of practice. I know not everybody does. But for example, I won’t repeat any of our class actions or privacy because Kate is, frankly, the far superior authority on that. But I will say when I work with social media companies, I see some really interesting new, novel issues in the law that tend to come up in this space, because innovation is such a big factor. For example, in soft IP, there are a lot of questions about the different mediums, the different platforms that social media users and companies use nowadays. So for example, even in a podcast recording, there are questions about who owns the video, who owns the audio, who owns the right of publicity for anyone that’s featured on YouTube or Tik Tok. For contrast disputes, it gets really interesting when you start thinking about like, influencers, Instagram personalities, how you comp, computate, like the value of work like that, how you monetize those kind of businesses, these are all issues that are like very new, very novel, we don’t really have like case law precedent on them. And that makes for really interesting clients are really interesting disputes, but at the foundation of all that is just like being good at litigation. So I like work that gives me the opportunity to learn about all those things.

 

Wayne Stacy  07:16

It’s quite a, I mean, it’s quite a list of things that you touch, and you hit a nerve with me because I spent 24 years doing patent litigation. And I knew exactly what my day would look like, just like the day before, just like the day after, it’s, you know, becomes very specialized very deep, you don’t see a lot of new issues that are all nuances on the same issues. So it sounds like the the opportunity to work with these types of tech companies really feeds into the the idea of being a generalist and litigation and makes a pretty exciting practice.

 

Kate Cahoy  07:56

I think that’s exactly right. And, you know, you know, often what we’re seeing, it gives you a medium to creative advocacy is really important, because there aren’t, as Connor pointed out, I mean, that’s part of the fun is there aren’t clear answers or precedents that are dictating, you’re often taking, you know, an analogous precedent from, you know, a totally different industry or time period, possibly before the internet existed, and having to, you know, explain how that should map on to today’s technology, which is something that wasn’t even envisioned at the time that, that whatever the precedent or law issue came out, so it makes it, it makes for a very fun, interesting practice. And it also means that you have to really be creative and find ways to, you know, make arguments that are not not foregone conclusions one way or the other. But yet muster all of this authority to to put together a strong argument that makes it look like you know, that or not makes it look like but that explains explains to the judge, usually how you’re going to walk through, you know, these existing pieces and put them together to get to a result that makes sense in in these cases in for modern technology.

 

Wayne Stacy  09:10

So if I’m a newer attorney, or a law student, thinking about my future, how do I get involved in the type of practice that the two of you have?

 

Kate Cahoy  09:25

I think first, you know, we’re, we’re pretty lucky in this area of California, that that’s a lot of what the litigation work is. So if you have an interest in that this is a really good place to start your practice, whether it’s San Francisco or I mean, I’m in our Palo Alto office, you know, but the Northern District of California is where I think some of really the most interesting questions in this area are coming up and being litigated today. So starting here and looking for, you know, a place that does a lot of litigation based in this area, working with companies that are based in this area. is a good place to start and then you know, and then just, you know, seeking out, like, look at look at what type of work the firm does is that something the type of thing you’re going to be interested in, because that’s, you know, when you join the firm, that’s probably what’s going to be available, at least to start. I mean, the interesting thing about this area is, it shifts so rapidly, what my practice looks like in two years might be really different than what it looks like today. But I think, you know, looking at the work that the firm is doing now, and seeing if that’s kind of, of interest to you, that’s the type of thing that you’ll probably be starting at, you know, when you first start working.

 

Wayne Stacy  10:37

There, you did mention one practice that is typically very specialized, and that’s antitrust. So tell me how you got involved with antitrust and still maintain a more general practice at the same time.

 

Kate Cahoy  10:56

So I can take that one, in the first instance, I, the the anti trust, I mean, for me, it’s through class action work, because of there are a lot of anti trust cases that are brought in whole or in part as class actions as well. So having that specialization, understanding the nuances of rule 23, and how to litigate and do discovery for a class action, which often is strategically, you know, can be different from other types of cases, was the way that I sort of, you know, ended up marrying those two interests. And, you know, when I started practicing, it wasn’t exactly you know, clear that those, those areas were going to relate together as closely as they do. But today, I think having an understanding of antitrust law, and privacy, and you know, other types of consumer claims, you’re starting to increasingly see lawsuits where they’re overlap in those areas or an intersection. So having that kind of broad base, and then, you know, understanding the nuances of rule 23, when most of these cases do have a class action component is the way in which I’ve, you know, been able to sort of navigate that and, you know, and practice in all of those areas.

 

Wayne Stacy  12:08

Well, if you’re speaking to the 1L that’s beginning to think about what classes to take the next two years, what would you suggest that they want to follow your path?

 

Kanu Song  12:24

Federal courts and evidence, absolutely, and IP, this would be, this would be my top picks, and not not a class, but also clerkships. Because there’s a bit of a chicken and egg problem where I think very few people trust you to lead the charge on a new and novel field of law, if you don’t have a good solid foundation for the existing fields of law. And one of the easiest ways to get that as a young lawyer is to clerk

 

Kate Cahoy  12:55

I would add to that, too, you know, take as many legal writing classes as you can, and like skills based classes, whether it’s in a clinic, or you know, through sort of mean, a negotiation seminar or trial practice type course, because those skills and I think, especially legal writing, I mean, they’re really the foundation of our practice and what we do on a day to day basis, the subject area, you’re going to learn, you know, in more depth in practice than you ever could in a class because it’s going to be, you know, kind of a broader, broader base, look at a lot of different things in a class. And you can learn the subject matter, I think, as you go, but the skills you know, that can really start you out on a on a strong footing, no matter what practice area you end up going into.

 

Wayne Stacy  13:46

So I take away from that evidence, evidence and more evidence, your skills practice that lets you practice what you learned and evidence that probably the you know that that works, that that mimics some of what I I learned growing up and going through the system that if you become the master of the evidentiary rules, you become really indispensable to any team.

 

Kate Cahoy  14:12

And civil procedure, I would say, I mean, kind of going along with that, because really, that’s what a lot of what we do. And I remember, you know, when I was a law student thinking, Oh, my gosh, discovery rules that is just beyond boring. I mean, how could I possibly ever need this? But really, like, that’s exactly right, knowing those rules like that is that those are the pathways through which we work and you have to really have a strong understanding of those and you often can think of and bring to the table creative ideas and solutions to problems using the procedural rules if you really understand them well, so yes, paying attention in those classes and and you know, seeing them as something beyond just a box you have to check to get through law school and for the bar exam is a good foundation, I think, especially for civil litigation.

 

Wayne Stacy  14:58

Perfect, that sounds like good Advice. Well, thank you both for your time today. We’ll hopefully get to talk to you again in the future and learn more about how your practices are developing and how the industry is changing.

 

Kate Cahoy  15:15

Yes, thank you. It was a pleasure.