Mark Mermelstein, a trial lawyer with more than 20 first-chair trials, specializes in white collar criminal defense and complex litigation, particularly in technology-related matters. He also handles Cybersecurity, Privacy, Litigation and Enforcement matters.
Mark focuses his work representing corporations and individuals facing allegations of securities fraud, healthcare fraud, environmental crimes, violations of the Foreign Corrupt Practices Act (FCPA) and the False Claims Act, mail/wire fraud, and embezzlement.
Mark also focuses on asset recovery for corporate crime victims such as those victimized by cybercrime, including theft of trade secrets, hacking, counterfeiting and other business crimes. In this regard, Mark routinely leads data breach and cybersecurity incident response efforts, as well as proactively advises on data breach mitigation strategies.
Mark has written many articles and has spoken extensively on many aspects of his practice. A frequent commentator on matters related to white collar crime, he has been recommended by Legal 500 in both White Collar Criminal Defense, and Cybersecurity.
ENGAGEMENTS
Representative experience includes the following:
Environmental Crimes
- Represented environmental consultants in three of the four criminal investigations initiated by the State Water Resources Control Board and Attorney General’s Office regarding allegations of fraud on the California Underground Storage Tank Fund.
- Represented a bottling company in a federal criminal investigation into violations of the Clean Water Act.
- Represented a hotel engineer in a federal criminal investigation into violations of the Clean Water Act.
- Represented numerous seamen in federal criminal investigations regarding violations of the Clean Water Act.
Asset Recovery
- Represented the victim of art fraud when he was sold a phony Picasso painting for US$2 million. By referring to the matter to the United States Attorney’s Office for a successful criminal prosecution, and asset forfeiture seizure, recovered more than the client’s US$2 million cash outlay.
- Represented a major international union that was fraudulently induced to enter into more than US$25 million of over-priced office equipment leases. By initiating a state court lawsuit was able to extricate the client from the leases and resolve the litigation on favorable terms.
- Represented an Internet company that was the victim of cyber-extortion when the perpetrator demanded payment of money in exchange for not releasing company and customer trade secret information.
Healthcare
- Represented a chain of nursing homes in connection with a D.A.’s Office investigation into allegations of an elder abuse homicide at one of its residences, the related civil litigation and the related licensing investigation.
- Represented numerous physicians and other healthcare professionals in connection with federal or state criminal investigations into allegations of Medicare/Medical fraud or drug distribution by writing prescriptions without medical necessity.
- Achieved a verdict after jury trial for Aetna below the settlement offer, where the health insurer had been accused of insurance bad faith by decedent seeking more than US$20 million.
Mail/Wire/Securities Fraud
- Represented a French investment company in connection with a U.S. Attorney’s Office investigation into allegations of fraud in connection with the purchase of a failed insurance company, Executive Life, and related civil litigation.
- Represented a senior executive at KB Home in connection with a U.S. Attorney’s Office investigation into allegations of stock options backdating, related Securities & Exchange Commission investigation and civil litigation.
- Represent numerous environmental consultants in criminal and civil proceedings brought by the California State Water Resources Control Board and qui tam whistleblowers related to allegations of fraud on the California Underground Storage Tank Cleanup Fund
- Represented National Basketball Association player in U.S. Attorney’s Office investigation Secured complete dismissal of manslaughter charges against a motorist accused of killing a prominent municipal employee in an alcohol-involved car accident.
With his substantial trial experience, he knows how to devise winning strategies for trial and has the judgment to know when it is best to find an alternative solution. A sample of Mr. Mermelstein’s trial and evidentiary hearing successes appears below.
- Obtained complete dismissal of all allegations of impropriety in a high stakes child custody battle for a multi-millionaire business executive.
- Won a hung jury verdict for ConAgra Foods, where the food manufacturer was facing a US$40 million claim from a distributor for breach of contract.
- Obtained numerous not guilty jury verdicts for individuals accused of a wide array of criminal conduct.
Admitted In
- California
- New York
Clerkships
- Hon. Jane R. Roth, United States Court of Appeals, Third Circuit, (1997-1998)
Court Admissions
- United States Courts of Appeals
- Ninth Circuit
- United States District Courts
- Central District of California
- Northern District of California
Education
- University of Pennsylvania Law School, J.D., 1997, magna cum laude
- McGill University, B.A., 1994, First Class Honors
Honors
- Top Cyber/Artificial Intelligence Lawyers 2018 by Daily Journal, January 24, 2018
- The National Trial Lawyers: Top 100
- Recommended by The Legal 500 United States (White-Collar Criminal Defense) 2015
- Recommended by The Legal 500 United States (Cyber Crime) 2015
- Corporate Livewire Winner, Global Awards, 2015
- Voted Southern California Rising Star by Los Angeles Magazine and Southern California Super Lawyers – Rising Star Edition Magazine
- Editor, University of Pennsylvania Law Review
- Commendation for participation in the pro bono civil rights panel, U.S. District Court for the Central District of California
Memberships
- American Bar Association
- Los Angeles County Bar Association
- State Bar of California
- State Bar of New York
Speeches
- “Lessons from the Frontlines: The CPA Disciplinary Process, and How the California Board of Accountancy Has Succeeded in Making It Easier to Take Away Your License,” California Society of CPAs (October 8, 2020).
- Co-Presenter, “Social Media, Internet and Email Evidence at Trial: Admissibility of Electronic Evidence,” Strafford (February 28, 2017).
- Co-Presenter, “Asymmetric Cyberwarfare: How to Prepare for and Defend Against Cyberattacks When You’re Bound by Law and Your Attacker is Not,” Law and Forensics (December 19, 2016).
- Co-presenter, “Cybersecurity Whistleblowers: The Next Wave of SEC Whistleblowing,” Orrick Webinar (December 8, 2015).
- Moderator, “Managing Privacy and Cyber Risk with Cyber Insurance,” The Nineteenth Annual Canadian IT Law Association Conference (October 26, 2015).
- Co-Presenter, “Cybersecurity: Powering Off Tomorrow’s Online Offenders,” PwC LA Dinner Series (April 16, 2015).
- Co-Presenter, “Strategic Remedies for Fraud Victims: Early Warning Signs and Resources,” IIA-ACFE Full-Day Joint Fraud Conference (November 12, 2014).
- Co-presenter, “Cyber Security: Mitigating Business Risk,” Canadian IT Law Association Annual Conference (October 20, 2014).
- “Is it a Data-breach Incident or Cyber-attack? Lessons From the Frontlines of the Cyber-Security War,” IAPP Knowledge Net Meeting (August 27, 2014).
- Co-Presenter “White Collar Roundtable,” Association of Federal Defense Attorneys (February 21, 2014).
- Co-Presenter, “Strategic Remedies for Fraud Victims: Early Warning Signs and Resources,” Institute of Internal Auditors Inland Empire Chapter (February 19, 2014).
- Co-Presenter, “Trials and Tribulations of Underground Storage Tank Fraud in California,” PEMA (February 18, 2014).
- Co-presenter, “UST Enforcement: The Environmental Consultant Perspective,” California Unified Program Annual Training Conference (February 3, 2014).
- Co-presenter, “Theft of Trade Secrets Through Cyberspace,” Cyberspace Law Institute & Winter Working Meeting (January 31, 2014).
- “Theft of Trade Secrets – Assessing and Responding to the Internal and External Threat,” Orrick Breakfast Roundtable and Webinar (December 4, 2013).
- “Strategic Remedies for Fraud Victims: Early Warning Signs and Resources,” Inland Empire Chapter-Association of Certified Fraud Examiners (October 24, 2013).
- “The Dynamics of a Trade Secret Case – The Joys, Burdens and Frictions of the In-House and Outside Counsel Relationship,” AIPLA Trade Secrets Summit (October 22, 2013).
- “Strategic Remedies for Cybercrime Victims,” Canadian IT Law Association (October 10, 2013).
- “What Do You Do If You Detect Fraud?/Cybercrime,” CCIA 2013 Fall Conference (October 4, 2013).
- “What makes Jurors Tick? Jury Selection & Persuasion,” Bridgeport Conference (September 12, 2013).
- “Criminal Law: Balancing Victims’ Rights and Civil Liberties in the Internet Era,” ABA Cyberspace Law Section (August 9, 2013).
- “Changes In CA UST Enforcement: What You Need to Know to Protect Yourself,” National Institute for Storage Tank Management (June 27, 2013).
- “Theft of Trade Secrets Decision-Making and Solutions,” Bridgeport Conference, Trade Secrets and Cybersecurity: What Every Attorney Should Know (May 17, 2013).
- “Strategic Remedies for Cybercrime Victims,” Cyberspace Law Institute and Winter Working Meeting, American Bar Association, Business Law Section (January 25, 2013).
- “Fraud Victims: Options & Resources,” Radio interview on VoiceAmerica (download mp3) (March 8, 2012).
- “Ponzi and other Schemes: Strategic Remedies,” California Society of CPAs, Fraud and Economic Damages section (February 4, 2009).
- “What Civil Litigators Need To Know About Criminal Law,” Lord Bissell Brook LLP, Los Angeles (December 7, 2006).
- “Defending an Extraterritorial Search,” International Criminal Justice and White Collar Crime Conference, Steamboat Springs, Colorado (February 17, 2003).
- “Criminal Law: Balancing Victims’ Rights and Civil Liberties in the Internet Era,” ABA Cyberspace Law Section (August 9, 2013).
Publications
- Co-Author, “Checklist of Potential FCA Risks for Healthcare Providers Receiving CARES Act Funds,” ABA Practice Points, October 29, 2020
- Quoted, “Global Scam Ravaging Hollywood: Silver-Tongued Imposter Poses As Top Female Producers to Catfish Victims,” Deadline Hollywood, February 21, 2018
- Quoted, “Top Cyber/Artificial Intelligence Lawyers 2018,” Daily Journal, January 24, 2018
- Co-Author, “The Propriety of Prosecutorial Bluffing,” Law360, November 28, 2017
- Quoted in “Small Business Suing Equifax After Data Breach Face Standing Hurdle,” MLex,, September 26, 2017
- Co-Author, “SEC Settlement Can Bring Unintended Consequences for CPAs,” Fortune100, September 7, 2017
- Quoted, “Cannabis Company Cyberattack Reveals Industry’s Vulnerability to Hacking,” LA Weekly, February 6, 2017
- Executive Editor, Trust Anchor
- Co-Author, “Baca Case Shows Utility of Judicially Compelled Immunity,” Daily Journal, December 7, 2016
- Co-Author, “Data Breach Logs: The New ‘Hot’ Document,” Corporate Counsel, January 19, 2016
- Co-Author, “The Cybersecurity Playbook: Building Effective Attack & Breach Preparedness,” Inside the Minds: Understanding Developments in Cyberspace Law. Thomson Reuters/Aspatore, 2015
- Co-Author, “The Rise of the Cybersecurity Whistleblower,” The Recorder, October 1, 2015
- Co-Author, “Jury Nullification: A Tool in the Criminal Defense Lawyer’s Toolbox?,” Bloomberg BNA United States Law Week, September 15, 2015
- Co-Author, “Email at Trial,” California Lawyer, August 3, 2015
- Co-Author, “Filer Beware! E-Filing Error Can Destroy Trade Secret Status,” Trade Secrets Watch, July 31, 2015, reprinted as “E-Filing Error Can Destroy Trade Secret Status,” Law360, August 7, 2015
- Co-Author, “Will Your Cyber Insurance Respond When You Need It Most?,” Orrick Client Alert, May 21, 2015
- Co-Author, “6 Steps for Adding WISP to Your Cybersecurity Strategy,” Corporate Counsel, May 19, 2015
- Co-Author, “All Bets Are Off: Kentucky Downs Trade Secrets Case Presents Novel Question Under Kentucky’s Uniform Trade Secrets Act,”
- Trade Secrets Watch, April 24, 2015
- Co-Author, “Going for Brokerages: FINRA and SEC Take Aim at Deficient Cyber Policies and Practices,” Bloomberg BNA Privacy & Security Law Report, April 6, 2015
- Co-Author, “Opinion: SEC’s Home-Turf Venue Gives Undue Advantage,” Mark Mermelstein, Guy Singer, and Kevin Askew collaborated on this article which first appeared online in the National Law Journal on March 9, 2015
- Contributor, “Rookie Mistakes: Litigators On Their Past Trial Blunders,” Law360, October 28, 2014
- Co-Author, “Trade Secret Plaintiff Goes Three Rounds, Takes a Beating,” Orrick Trade Secrets Watch, September 26, 2014
- Co-Author, “Is It a ‘Cyberattack’ or a ‘Data-Breach Incident’?” Corporate Counsel, July 15, 2014
- Co-Author, “Referring Trade Secrets Theft for Criminal Prosecution,” New York Law Journal, June 10, 2014
- Co-Author, “The ‘I Was Just Trying to Land a New Job’ Defense to Criminal Trade Secret Theft Charges,” Trade Secrets Watch, November 20, 2013
- Co-Author, “From Victim to Victor: Corporate Crime in the Internet Era,” Business Law Today, November 2013
- Co-Author, “Strategic Remedies for Victims of Trade Secrets Theft,” Law360, September 16, 2013
- Co-Author, “AGs to the Front Lines: State Attorneys General Begin Wielding Unfair Competition Laws against Foreign IP Thieves,” Trade Secrets Watch, July 2013
- Co-Author, “Strategic Remedies For Cybercrime Victims,” Journal of Internet Law, Vol. 16, No. 12, June 2013. Cited in “Microsoft the Botnet Hunter: The Role of Public-Private Partnerships in Mitigating Botnets,” Harvard Journal of Law and Technology, note 109.
- Co-Author, “It’s Not Just for Patents Anymore: Using the ITC to Combat Theft of Trade Secrets,” Trade Secrets Watch, June 2013
- Co-Author, “The War on Cybercrime: How Far Can You Go?” Corporate Counsel, April 16, 2013
- Co-Author, “More Corporate Crime Victims Recovering Investigation Fees,” Law360, April 8, 2013
- Author, “Strategic Remedies for Corporate Crime Victims,” Los Angeles Lawyer, October 2012
- Co-Author, “On Tap the Government’s Use of Wiretaps in Insider Trading Prosecutions Shows a Willingness to Use Nontraditional Methods of Investigation,” Los Angeles Lawyer, April 2012
- Panelist, “White Collar Defense Roundtable,” California Lawyer, July 2010
- Co-Author, “When Transactional Attorneys Face Criminal Liability,” Los Angeles Lawyer, December 2009
- Co-Author, “Walk the Line,” Los Angeles Lawyer, December 2006, reprinted as “What Civil Attorneys Need to Know About Criminal Law,” ABA White Collar Crime Bulletin, February 2008.
- Co-Author, “AGs to the Front Lines: State Attorneys General Begin Wielding Unfair Competition Laws against Foreign IP Thieves,” Trade Secrets Watch, July 2013
- Author, “Hanging Together,” Los Angeles Lawyer, October 2004
- Author, “Searching Far and Wide,” Los Angeles Lawyer, November 2003. Reprinted as “Defending an Extraterritorial Search,” The Practical Lawyer, December 2003
- Co-Author, “Strategic Remedies For Cybercrime Victims,” Journal of Internet Law, Vol.16, No. 12, June 2013
- Co-Author, “In the Fifth Dimension,” Los Angeles Lawyer, October 2002
- Co-Author, “It’s Not Just for Patents Anymore: Using the ITC to Combat Theft of Trade Secrets,” Trade Secrets Watch, June 2013
- Co-Author, “Grace Under Pressure: Fifteen Steps You Should Take to Manage Successfully a Search of Your Client’s Office Pursuant to a Federal Warrant,” Corporate Counsel’s Quarterly July 2002, The Practical Lawyer, October 2003, Law Department Management Advisor, September 2002, and The Lawyer’s Brief, June 2002
- Co-Author, “The War on Cybercrime: How Far Can You Go?” Corporate Counsel, April 16, 2013
- Co-Author, “Walk the Line,” Los Angeles Lawyer, December 2006, reprinted as “What Civil Attorneys Need to Know About Criminal Law,” ABA White Collar Crime Bulletin, February 2008
- Author, “Searching Far and Wide,” Los Angeles Lawyer, November 2003. Reprinted as “Defending an Extraterritorial Search,” The Practical Lawyer, December 2003
- Co-Author, “Grace Under Pressure: Fifteen Steps You Should Take to Manage Successfully a Search of Your Client’s Office Pursuant to a Federal Warrant,” Corporate Counsel’s Quarterly July 2002, The Practical Lawyer (October 2003), Law Department Management Advisor (September 2002) and The Lawyer’s Brief, June 2002