Justin O. Kay

Class Action Defense

Justin assesses and defends every class action based on the same principle — finding the most efficient exit strategy. Often this approach involves a creative and aggressive early motion to eliminate class claims, including motions to dismiss, to strike, to stay and to bifurcate or limit discovery. Justin has resolved numerous class actions using proactive strategies and frequently resolves cases via class-wide settlement, including over objections. His experience also includes navigating landmines in the class settlement negotiation and court approval process.

Risk Mitigation and Compliance Counseling

Clients also retain Justin to implement practical compliance strategies that minimize the risk of a lawsuit. This proactive counsel is perhaps where Justin brings the most value to his clients. He draws on his litigation experience, knowledge of the law and understanding of theories asserted by plaintiffs’ attorneys to help design compliance strategies that keep clients one step ahead of the Plaintiffs’ Bar. Justin also writes, speaks and serves as a resource for journalists reporting on class actions and privacy laws, including appearing on broadcast radio and television news programs.

Before practicing law, Justin served as an intelligence officer for the Department of Defense’s National Geospatial Intelligence Agency (formerly the National Imagery and Mapping Agency).

Representative Experience

• Currently counseling clients with regard to compliance with various state and federal privacy laws (including the California Consumer Privacy Act (CCPA), the Illinois Biometric Information Privacy Act (BIPA), the Telephone Consumer Protection Act (TCPA)) and defending related class actions, individual actions, and pre-suit demands.
• Represented one of the nation’s leading data companies in an NAD challenge regarding a competitor’s claims regarding the competitor’s influencer marketing platform. The NAD concluded that certain of the competitor’s claims were unfounded, and directed the competitor to modify or discontinue those claims.
• Represented one of the nation’s leading data companies in an action against a former employee and a competitor to enforce restrictive covenants and protect confidential/proprietary information.
• Represented numerous clients across industries (retail, finance, insurance, education, hospitality, healthcare, media, automotive) in dozens of class actions, individual actions, and pre-suit demands involving the TCPA.
• Represented numerous clients in post-closing contractual disputes regarding indemnification and purchase price adjustment.
• Represented several of the nation’s largest retailers in roughly a dozen consumer class actions challenging the efficacy of a popular nutritional supplement; helped use dismissal asserting novel Rule 8 plausibility theory in Eckler v. Wal-Mart Stores, Inc., No. 12cv727 (S.D. Cal. Nov. 1, 2012) to leverage nationwide settlement and obtain court approval of settlement (over objections) for less than $3 million (including all attorneys’ fees and costs of notice).
• Represented health care provider in defending purported national class action alleging violations of FACTA.
• Represented manufacturer of consumer products in defending purported national class action challenging warranty practices and disclosures—case settled for a nominal amount without a class being certified.
• Represented pharmaceutical company in defending a securities fraud shareholder class action challenging the company’s valuation of auction rate securities—obtained court approval of a class-wide settlement of less than $2 million (including all attorneys’ fees and costs of notice) in a case involving a single day, $600 million drop in market value. Also won dismissal of related shareholder derivative suit.
• Represented former construction company in defending claims regarding fees asserted by company’s former attorneys; won dismissal of complaint by District Court and affirmance by the D.C. Circuit. See King & King, Chartered v. Harbert Int’l Inc., 503 F.3d 153 (D.C. Cir. 2007); King & King, Chartered v. Harbert Int’l Inc., 436 F. Supp. 2d 3 (D.D.C. 2006).
• Represented major national wireless carrier in its process to reband the 800 MHz spectrum band through negotiations, mediations, arbitrations, and administrative actions before the Federal Communications Commission involving hundreds of incumbent private and public safety licensees.

Personal Interests

When not practicing law, Justin enjoys spending time with his wife, Cristin, and their sons, Brayden and Bailey.