By Katrina Dewey | June 14, 2021 | Lawyer Limelights, News & Features, Susman Features
Susman Godfrey lawyers have a knack for being in the center of the hottest legal issues around. Take powerhouse Los Angeles partner Davida Brook, for instance.
She and the firm made headlines recently for their representation of Dominion Voting Systems in its epic $1.6B defamation lawsuit against Fox regarding its coverage of the 2020 Presidential Election.
That’s just one of the defamation suits she’s handling – a flourishing area in which she’s become something of an expert following her work for #MeToo victims.
She’s also in the midst of a vast legal effort to corral two of the most trafficked sites on the Internet, YouPorn and Pornhub.
Forget the steamy old “Boogie Nights” version of the porn industry, where a studio uses a San Fernando Valley home to produce films that are light on wardrobe and heavy on sex.
While gritty and high-risk, the established porn industry can still make a plausible claim to legitimacy and law-abiding behavior, posting a notice at the start of each film that all performers are over 18, and letting viewers where they can obtain verifying documentation required by federal law since 1995.
These days, the dominance of the established porn industry is rapidly ceding market share to home-made clips uploaded to YouPorn, Pornhub and similar sites that users can watch for free.
In these typically homemade videos, neither producers nor performers are pros and the platforms have little incentive to police content, a situation highlighted in numerous complaints accusing them of hosting videos of sex-trafficking victims, children under 18 and people who were filmed without their knowledge or consent.
The reach of the new world of online porn is staggering – as recently as December, Pornhub was the eighth-most visited website in the world, topping both Wikipedia and Netflix. And while many of the performers chose to be there, a significant number did not. Others may have consented once, but now want the videos removed and feel powerless to achieve that in the widely lawless universe.
That’s where Brook and fellow Susman Godfrey partners Arun Subramanian and Krysta Kauble Pachman come in.
In February, the attorneys filed a proposed class-action suit accusing MindGeek, the parent of YouPorn, Pornhub and RedTube, of violating U.S. sex-trafficking laws by posting and profiting from thousands of videos of minors performing sex acts.
“Over the course of the last decade, Defendants have knowingly benefited financially from thousands – if not millions – of videos posted to their various websites featuring victims who had not yet reached the age of majority,” the complaint states. “Rather than address this horrifying and pervasive trend, for years Defendants took almost no action, refusing to so much as institute any semblance of an age-verification policy that would prevent the uploading of this deeply problematic content.”
The reason for that, according to the complaint is “simple: greed. As Pornhub’s own Senior Community Manager publicly acknowledged via a Reddit post, age verification would be a ‘disaster’ for Pornhub because it ‘costs us money to verify’ and would result in a 50 percent reduction in traffic.”
The case – like many that Brook has handled – is on the cutting edge of technological and legal issues that dominate political debate in the early 21st century, from the power of tech companies to gender-based discrimination and harassment highlighted by the #MeToo movement.
The Trump era brought to a boil long-simmering concerns on both fronts. For much of the past four years, Democrats complained that Facebook and other social media platforms, shielded from liability for user-posted content under Section 230 of the Communications Decency Act of 1996, failed to prevent misuse of their sites by foreign operatives trying to sway the 2016 election that put Trump in office.
Republicans, meanwhile, claimed that Silicon Valley was censoring conservative content. Lawmakers on both sides indicated a willingness to curb, if not abolish, Section 230 protections for Internet platforms – and adult-oriented websites were among the first to feel the impact.
In April 2018, the Fight Online Sex-Trafficking Act, or FOSTA, decreed that Section 230 doesn’t limit civil claims or criminal charges for conduct that constitutes sex trafficking or enables prostitution.
That law opened the door to a series of suits against sites streaming user-generated porn, including the case filed by Brook and her colleagues.
The lead plaintiff in the MindGeek case, identified only as Jane Doe to protect her privacy, claims that an ex-boyfriend posted videos on Pornhub of them having sex – recordings that were made when she was only 16 and sometimes without her knowledge.
Doe was clearly identifiable in the videos, which began appearing on porn sites in December 2019, according to the suit filed in U.S. District Court for the Central District of California. They distressed Doe so much that she contemplated suicide, ultimately withdrawing from school and seeking therapy.
Because many thousands of similar victims exist, the suit seeks certification of a class including any person who was under 18 in a video uploaded to one of the MindGeek sites during the past 10 years.
“It’s going to be an interesting case,” Brook says. “With more and more tech and media companies taking on ever-enlarging roles in our day to day lives, recognizing the trends is important. How are the laws responding to those trends, and what role do we as lawyers play in helping to define – and enforce – those lines?”
The opportunity to address novel and important issues was a driving force in Brook’s decision to become a lawyer. While most of her family worked in medicine, the Los Angeles native was fascinated by the law as early as the age of 12.
“Medicine always frustrated me because of the one-off nature of clinical work,” she says. “You help one person, and then you move on and you help the next person. Then you move on and you help the third person. God bless our medical care professionals for that degree of patience. But I was attracted to the law’s ability to have a quicker impact.”
After earning her bachelor’s degree at Columbia University, Brook took a job with the American Israel Public Affairs Committee, helping establish chapters at historically Black colleges, Hispanic-associated schools and Christian campuses.
Intent on earning a law degree, she was accepted at Stanford.
While a first year law student, she co-founded Building a Better Legal Profession, a nonprofit that ranked law firms based on their commitment to promoting women and people of color to equity partner. The effort gave her a front-row seat to the impact of the 2008 financial crisis.
“It got me really focused on law firms that had actually made some headway in terms of promoting women and people of color,” recalls Brook. Ultimately, she accepted a position at Sidley Austin, which her research showed had the most women and minorities in equity partnership roles in Los Angeles at the time.
She went on to clerk for 9th U.S. Circuit Court of Appeals Judge Ray Fisher while her husband, Kevin Scott, was clerking for then-U.S. District Judge Mariana Pfaelzer.
As a trial judge, Pfaelzer maintained a full docket and tended to self-select the most complicated cases of the day. Scott would regale Brook – whose clerkship focused more on research and writing – with courtroom tales about the attorneys he saw in action.
One day, he came home a little exasperated and a lot impressed.
“I’ll never forget it,” she recalls. “He put his stuff down on the table, and he was like, ‘Oh my gosh, there were five little Davidas running around my courtroom today, and it was just exhausting.’”
“I was, like, ‘Excuse me?’” she says. “And he replied, ‘There’s this firm, Susman Godfrey. It’s your people. Go check it out.’”
And so she did, meeting Susman Godfrey’s managing partner Kalpana Srinivasan at Cleo Mediterráneo. The dynamic duo had more than a little in common: both had graduated from Stanford Law School and both had clerked for Judge Fisher.
The firm felt like it would be a perfect fit, Brook recalls. “I was hard-pressed to find another white-collar office of any type, let alone a trial shop, that had so many women in positions of power. It offered extensive courtroom work, and that’s what it was all about. It had that promise of early opportunity, whether you like it or not, and getting to operate above your pay grade.”
The job lived up to her expectations, says Brook, who joined Susman Godfrey in 2012 and made partner six years later.
From the start, there has been no shortage of adrenalin.
In one of her earliest cases, Brook represented entrepreneur Steven Lamar seeking unpaid royalties from Beats headphones, Dr. Dre, record executive Jimmy Iovine and Apple, which had recently acquired Beats.
About an hour into deposing an Apple executive, the tech giant’s counsel told her they could pack up as the trial judge had just granted Beats’ motion to dismiss.
She barely missed, well, a beat. “We’re going to reverse that decision,” she responded. “So we can either finish the deposition now or we can finish the deposition in eight months.”
The group spent another seven hours on the record, and Brook proved herself correct – she and Lamar’s legal team convinced the California Court of Appeals to overturn summary judgment. Lamar had entrusted Brook, a fourth-year associate at the time, with the appeal. So when the case was sent back to the lower court for trial, she conducted direct examination of the client herself.
It lasted for three days and the trial ended in a $25M victory – not including prejudgment interest, attorney’s fees, and the like.
“This was his big idea and let’s just say it had not played out the way the parties had agreed it would,” she says. “He had been waiting for years to share his story and to have the opportunity to tell a jury of his peers what had happened to him and why they should help right the wrong.”
Righting the wrongs has been a mantra for Brook’s career, including suits related to the #MeToo movement and a variety of defamation matters.
One of her earliest #MeToo cases saw her on defense, representing a woman sued over a social media post in which she had made an accusation of sexual misconduct. Brook helped get the suit dropped, and watched as a caseload of #MeToo claims took root. “We were able to help out these women who had suffered all sorts of wrongs,” Brook says.
She’s also currently part of a Susman Godfrey team representing hedge fund billionaire Louis Bacon, who accused Canadian fashion mogul Peter Nygard, a longtime neighbor in the Bahamas, of a coordinated smear campaign.
“Defamation is seeing a boom,” Brook says, “for better and for worse. Some of the defamation suits are being brought viciously, with an intent to silence people, but others are 100 precent justified and a reaction to the fact that anyone can go online these days and reach an audience of millions and have a real effect on the state of play and someone’s reputation.”
In the past year, she has worked pro bono on a number of voting rights cases, representing Arizona Secretary of State Katie Hobbs and Wisconsin Governor Tony Evers. Her team won dismissal of the Arizona and Wisconsin cases. And, following a bench trial in Wisconsin, protected the official vote count there, as well.
Bringing together her voting rights and defamation expertise, she is a member of the Susman Godfrey all-star team representing Dominion Voting Systems against Fox News Network, Sydney Powell, Rudy Giluiani and Mike Lindell/MyPillow. Clare Lock is also representing Dominion.
“These are going to be truly unprecedented cases,” Brook says.
The claims stem from the ongoing and oft-repeated claims by Fox and its personalities that Dominion’s voting machines were faulty, resulting in Joseph Biden Jr. being elected president, rather than Donald Trump.
It is certain the cases will keep her at the heart of the fast-moving conversation about technology, the media and the law for a mighty long time.
She wouldn’t have it any other way.
About the author: Katrina Dewey (firstname.lastname@example.org) is the founder and CEO of Lawdragon, which she and her partners created as the new media company for the world’s lawyers. She has written about lawyers and legal affairs for 30 years, and is a noted legal editor, creator of numerous lawyer recognition guides and expert on lawyer branding. She is based in Venice, Calif., and New York. She is also the founder of Lawdragon Campus, which covers law students and law schools. View our staff page.