David F. McDowell

Senior Counsel | Los Angeles

dmcdowell@mofo.com | (213) 892-5383

(213) 892-5383

My team and I are uniquely positioned to advise clients in a fast-paced retail environment disrupted and increasingly determined by technology.

Throughout his career, David has been on the forefront of legal issues facing retailers and consumer product manufacturers. His victories before the California Supreme Court eliminated nearly all consumer class actions over sales tax cases and all pre-Proposition 64 “no injury” cases. Dave speaks the language of his clients, providing practical and timely legal advice that is tailored to today’s fast-moving retail environments. His combination of experience and practicality has led to successes in the appellate and trial courts in cases that have defined the rights and limited the duties of retailers in a variety of arenas, including marketing practices, advertising and other promotions, labeling of goods, use of retail property for solicitation and signature gathering, and other areas important to retailers and consumer product companies.

As part of his regular practice focus on unfair business practice issues, false advertising, and consumer class action litigation, Dave is currently working extensively where consumers interact directly with technology, such as privacy and data security and accessibility under the ADA and related laws. He also previously served as co-chair of MoFo’s firmwide Litigation Group.

Privacy and Data Security

Dave represents Target Corporation in connection with its investigations and ongoing litigation and regulatory inquiries related to the theft of customers’ credit and debit card data. He has also advised many other companies on data security and breach-related issues, and represents well-known technology companies in privacy class actions across the United States and household-name retailers in dozens of other alleged invasion of privacy litigations and FTC investigations.

Technology Accessibility

Dave also represents a substantial number of companies in claims brought by consumers, the DOJ, and advocacy groups regarding accessibility barriers to technology. These include Netflix, Target, and H&R Block in groundbreaking cases over the accessibility of websites, mobile applications, and streaming video technology. In addition, he has defeated penalty claims brought by putative classes relating to accessibility issues. He presently advises a number of Fortune 500 companies on regulatory and compliance issues under the ADA, Rehabilitation Act, Video Communications Act, California Unruh Act, and other laws.

He received the 1990 Pro Bono Associate Award of the Legal Aid Foundation of Los Angeles and the 2000 Pro Bono Civil Liberties Award of the ACLU Foundation of Southern California.

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  • Represented Target Corporation in a security incident involving theft of payment card and other personal information relating to up to 70 million individual customers. We served as primary counsel in handling all aspects of the company’s investigation and response, and consumer and state regulator notices, and we defended the company in consumer class action litigation and regulatory investigations from the FTC, state AGs, and the SEC relating to the incident.

  • Represented Target Corporation in the California Supreme Court where the Court affirmed a precedent-setting decision by a California Court of Appeal, barring consumer class action lawsuits against retailers that allegedly charged sales tax reimbursement on items that (according to the plaintiffs) were not taxable.

  • Represented FanDuel in over 40 multidistrict litigation class action matters involving allegations of false advertising and misuse of confidential or proprietary information. Plaintiffs allege that FanDuel employees have access to confidential or proprietary company information and use that information to gain an unfair advantage in contests on other competing fantasy sports websites.

  • Represented Costco in an MDL proceeding of 30+ state-based class actions alleging that Costco sold motor fuel in various states without disclosing or adjusting for temperature expansion and, as a result, Costco is liable under these states’ common laws (for claims that include breach of contract and breach of warranty) as well as under the various states’ consumer protection statutes.

  • Lead counsel in trial court victory that the Court of Appeal recently affirmed. The plaintiff in the case contended that Costco (and other defendants) violated California’s Unfair Competition Law by charging sales tax reimbursement on Ensure, which the plaintiff alleged was exempt from sales tax.

  • Won summary judgment on behalf of Banana Republic in a lawsuit in which plaintiffs argued that Banana Republic had engaged in a “bait-and-switch” advertising scheme that “lured” them into the store to shop. The plaintiffs claimed they were damaged in the amount they allegedly “overpaid” for the items at issue, as well as their “lost time” spent shopping in the store. The court granted our motion for summary judgment, agreeing that the plaintiffs did not suffer the requisite injury or damage to assert claims under the UCL, False Advertising Law (FAL), or CLRA.

  • Represented Sunrun in a class action matter alleging that Sunrun violated the Contractors’ State Licenses law and the Unfair Competition Law. The judge issued a tentative ruling in favor of the plaintiffs and then reversed the ruling after oral argument, thereby defeating the UCL claims of over 10,000 putative class members.



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