Molly Melcher focuses her practice on complex commercial, privacy, and intellectual property litigation, counseling, and investigations for technology-based companies. She has handled federal and state trial court cases and appeals relating to privacy, data breach, TCPA, EFTA, CFAA, unfair competition, false advertising, intellectual property, fraud, and warranty issues, with a particular emphasis on consumer class actions.
Prior to rejoining Fenwick & West, Molly was an attorney in the litigation department at Uber Technologies, Inc.
While in law school, she served as a Note Editor for the Boston University Journal of Science & Technology Law.
Consumer Class Actions
Johnson-Hammer v. Nectar Brand LLC: Molly and partner Tyler Newby obtained dismissal of a putative class action alleging violations of California's Karnette Rental-Purchase Act and Unfair Competition Law Act brought against Resident Home, a company that owns and operates several direct-to-consumer brands in the home furnishings space, including Nectar and DreamCloud. The plaintiffs' petition for appeal was denied by the First District Court of Appeal.
In re Lenovo Adware Litigation: Molly, partners Rodger Cole and Tyler Newby and associate Annasara Purcell are currently defending Superfish in a series of twenty-seven (27) federal lawsuits consolidated in the Northern District of California before Judge Whyte. Plaintiffs allege that Superfish’s visual search technology violated their privacy rights and assert legal claims for violation of the Wiretap Act, California Penal Code, and unfair competition.
In re Carrier IQ Consumer Privacy Litigation: Molly and colleagues Rodger Cole, Tyler Newby, Jennifer Johnson and Annasara Purcell are representing lead defendant Carrier IQ in a multidistrict privacy class action that coordinated more than 70 lawsuits filed around the country in the Northern District of California. Other defendants include HTC, Huawei, LG Electronics, Pantech Wireless, Samsung and Motorola Mobility. Plaintiffs claim that Carrier IQ’s diagnostic software, which is embedded on a wide range of smart phones manufactured by Carrier IQ’s co-defendants, allows the tracking and interception of consumers’ data and communications. The main legal claims asserted are violations of the Wiretap Act, Stored Communications Act, and Computer Fraud and Abuse Act. This litigation is one of the most important pending privacy class actions and has been covered by the Daily Journal, The Recorder and Law360.
Boorstein v. CBS Interactive: Molly and colleagues Rodger Cole, Laurence Pulgram and Songmee Connolly secured a victory for client CBS Interactive in a widely watched privacy class action that ultimately led to the first court of appeal decision interpreting California’s Shine the Light Act. A fantasy football player sued CBS alleging the company violated a state law requiring it to disclose information about third-party vendors. The complaint alleged that CBS failed to comply with the Shine the Light statute by not including those disclosures in a privacy rights page on their websites. Our team convinced the trial court to grant its demurrer without leave to amend, arguing that the plaintiff did not have standing to bring a claim against CBS and the suit should be dismissed. The California Court of Appeal agreed and affirmed our trial court victory. Boorstein v. CBS Interactive, Inc., 222 Cal.App.4th 456 (2013). The Ninth Circuit subsequently affirmed the dismissal of four similar suits based on the California Court of Appeal’s decision in Boorstein.
Haskins v. Symantec: Molly and colleagues Laurence Pulgram and Tyler Newby won dismissal on the pleadings of a putative class action asserting false advertising and unfair competition claims based on Symantec’s failure to disclose a security breach that allegedly exposed source code for Norton Anti-Virus software. The decision established a new standard for determining necessity of allegation that a plaintiff actually saw and relied upon purportedly false ads. The trial court’s decision was affirmed on appeal by the Ninth Circuit in 2016.
Horton v. GoPro: Molly and colleagues Rodger Cole, Marybeth Milionis and Annasara Purcell resolved a warranty, false advertising and unfair trade practices class action for GoPro related to its Hero3 video camera. Filed in the Middle District of Florida, the suit alleged that the Hero3 did not reliably and continuously record video as advertised based on GoPro’s online and on-package advertisements. The case resolved on a non-class basis after extensive informal discovery.
Hewlett-Packard Company (HP) v. Source Direct: Molly and colleague Rodger Cole were retained by HP to enforce its copyrights against a third-party maintainer (TPM) providing support services to HP customers. Our team discovered that the TPM had downloaded HP software updates and patches. The team was able to achieve its business goals and ensure the TPM complies with HP’s policies.
Innospan v. Intuit: Molly and colleagues Rodger Cole, Joseph Belichick, Songmee Connolly and Sean Wikner represented Intuit in a trademark lawsuit filed by Innospan seeking $25 million in damages and an injunction requiring Intuit to stop use of its Mint.com trademark. Discovery revealed that Innospan’s case was built on fabricated evidence, with the district court finding that Innospan had submitted false statements and engaged in witness tampering. After ordering forensic production of Innospan’s electronic documents, the court awarded Intuit more than $270K in sanctions and barred Innospan from using its tainted witnesses. At the time of Judge Alsup’s order, the sanction award was the third-largest issued in the history of California federal courts. When Innospan failed to pay the sanctions, violated the witness exclusion order and continued its discovery noncompliance and misconduct, the court dismissed the case based on egregious litigation misconduct. Innospan v. Intuit, 2012 U.S. Dist. LEXIS 47870 (N.D. Cal. 2012). Innospan subsequently appealed the suit to the Ninth Circuit, which affirmed the district court’s dismissal and judgment in favor of Intuit entirely. Innospan Corp. v. Shasta Ventures GP LLC, 2014 U.S. App. LEXIS 12959 (9th Cir. 2014).
Molly Melcher & Lisa Peller London, China Implements Effective IP Enforcement for 2008 Olympic Game Marks, IP Litigator, July/August 2006, at 49-50.