Edward R. McNicholas

EDWARD R. MCNICHOLAS is a partner in the Washington, D.C., office of the international law firm Sidley Austin LLP and a global coordinator of its Privacy, Data Security, and Information Law practice. His practice focuses on clients facing complex information technology, constitutional and privacy issues in civil and white-collar criminal matters.  Mr. McNicholas concentrates his practice on trial and appellate representations of technologically-sophisticated clients including telecommunications carriers, electronic service providers, financial services companies, pharmaceutical manufacturers and other companies facing complex personal information issues.  He is also an experienced counselor, public policy advocate and internal investigator.

Mr. McNicholas has significant experience with a wide-range of cutting-edge Internet and information law matters involving privacy and data protection, electronic surveillance, information security, cloud computing, trade secrets, social media, locational privacy, e-commerce, copyright, defamation, online brand protection, e-discovery, and national security. Mr. McNicholas and Sidley’s Privacy and Data Security practice were selected for Chambers USA: America’s Leading Lawyers for Business for 2008-2012 as well as Chambers Global for 2010-2012, the 2011-2012 Legal 500, and The International Who's Who of Internet, e-Commerce & Data Protection Lawyers 2011-2012. He has also been recognized in Computerworld survey of “Best Privacy Advisers” as one of the “Top 25 Privacy Experts” in the country, and Chambers USA 2010-2011 also separately recognized Mr. McNicholas in nationwide litigation rankings for e-discovery.

His internal investigation and litigation matters have frequently involved complex, multi-jurisdictional, and multi-national litigation issues and have included federal court jurisdictional and constitutional concerns, especially related to the First and Fourth Amendments, securities and investment fraud, corruption issues and other commercial litigation involving allegations of complex frauds. He has particular experience in the use of Internet and financial forensic analyses, the investigation of complex international frauds and electronic discovery issues.

Mr. McNicholas previously served as an Associate Counsel to President Clinton. In that capacity, he advised senior White House staff regarding various Independent Counsel, congressional and grand jury investigations, with a particular focus on issues of Executive Privilege and electronic discovery. He also previously served as a desk officer at the U.S. Office of Government Ethics, where he helped national defense and intelligence agencies establish effective compliance programs.

Mr. McNicholas also regularly represents churches and religiously-affiliated institutions and related nonprofit organizations on constitutional and other legal issues. He is a national co-chair of Sidley’s Religious Institutions Practice, which the New York Times recognized as representing “some of the country’s largest religious organizations.” He was awarded the 2010 Thurgood Marshall pro bono counsel prize by Muslim Advocates for innovative litigation to protect civil liberties.

Litigation Representations

Mr. McNicholas‘ litigation experience includes several matters before the Federal Trade Commission and other regulatory agencies, as well as considerable experience with arbitration proceedings and internal investigations. His major litigation representations include:

• In re: Google Inc. Cookie Placement Consumer Privacy Litigation, MDL No. 2358 (2012) – Representing Internet advertising company, PointRoll, in litigation regarding cookies and browser settings.
• Turner v. Rogers (U.S. 2011) – Represented amici Legal Aid Society of D.C. et al. in significant right to counsel appeal.
• MeadWestvaco Corporation v. Rexam PLC (E.D.Va. 2010-11) – Represented party regarding effect of French blocking statute on U.S. discovery requirements.
• Muslim Advocates v. U.S. Department of Justice, (D.D.C. 2010-11) – FOIA suit regarding criteria for covert surveillance of houses of worship and other religious institutions.
• Accusearch v. Federal Trade Commission (10th Cir. 2008) – Representation of the Office of the Privacy Commissioner of Canada as amicus curiae in appeal from privacy enforcement action.
• MDL 1791: In re National Security Agency Telecommunications Records Litigation - (N.D.Cal. and 9th Cir. 2006-11) Defense of AT&T against constitutional and statutory claims in multiple purported class actions related to alleged national security programs.
• Menges v. Walgreen Co. v. Blagojevich (Illinois state and federal courts. 2005-09) - Defense of Walgreens in suits related to whether pharmacists must dispense Plan B emergency contraception.
• Crawford v. Marion County Election Board (U.S. 2008): Represented the National Law Center on Homelessness and Poverty and a coalition of other national homelessness groups as amici curiae in this significant challenge to voter identification requirements.
• Disability Rights Council v. WMATA (D.D.C. 2005-08) - Defense of former paratransit provider in class action lawsuit alleging systematic violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act, where Sidley prevailed against a motion to implead our client into the class action.
• City of New York v. Fifth Avenue Presbyterian Church (S.D.N.Y., 2d Cir., U.S., 2002-07) - Favorably represented the Fifth Avenue Presbyterian Church in a dispute over its homeless ministry, where Sidley has successfully defended a permanent injunction in favor of our client.
• Living Water Church of God v. Meridian Charter Township (6th Cir. 2006) - Sidley represented a coalition of religious institutions as amici curiae regarding issues under the Religious Land Use and Institutionalized Persons Act.
• Sylvia’s Haven, Inc. v. Massachusetts Development Finance Agency (D. Mass, 2005; 1st Cir. 2006) Represented Sylvia’s Haven, Inc. in appeal of base closure issues, ultimately to the U.S. Court of Appeals for the First Circuit. The action was dismissed after a private resolution.
• AT&T Corp. v. 2PrePaid Inc. (M.D. Fla. 2006) - Obtained damages and permanent injunction against unlawful Internet sales of counterfeit AT&T prepaid calling cards.
• Boothe v. Hanson (Texas District Court 2005) - Obtained a blanket injunction against an elusive Internet critic in a case involving extensive use of Internet forensics. See “As Angry Patients Vent Online, Doctors Sue to Silence Them,” Wall Street Journal, Sept. 14, 2005.
• Hiibel v. Sixth Judicial District Court (U.S. 2004) - Represented the National Law Center on Homelessness and Poverty as amicus curiae in this significant Fourth and Fifth Amendment case regarding requirements to present identity papers during investigations.
• AT&T Corp. v. CyberTelecom, Inc. (S.D. Fla. 2004) - Obtained preliminary and permanent injunctions against Internet distribution of counterfeit AT&T prepaid calling cards in a case involving extensive Internet forensic evidence.
• In re Microsoft Corp. Antitrust Litigation, MDL No. 1332 (D. Md.) - Represented Microsoft in competitor class actions including those brought by Netscape and Burst. These actions were dismissed with prejudice after the parties reached private resolutions.
• Physicians Interactive v. Lathian Systems, Inc. (E.D. Va. 2003) - Obtained preliminary injunction for plaintiffs alleging hacking of computer systems in order to obtain trade secrets. The action was dismissed after the parties reached a private resolution.
• Globalsantafe Corp. v. Globalsantafe.Com (E.D. Va. 2003) - Sidley developed and prevailed on a novel theory of in rem jurisdiction that asserted U.S. jurisdiction to enforce its resolution of an Internet domain name dispute regardless of a directly contradictory order from a court in South Korea.
• Cable News Network, LP, LLLP v. CNNews.com (4th Cir. 2003) - Sidley represented amicus AT&T Corp. on in rem issue regarding domain names under the Anticybersquatting Consumer Protection Act of 1999 (ACPA).
• Bayer & Willis Inc. v. Republic of Gambia (D.D.C. 2003) - Successfully represented AT&T Corp. against claims related to the Foreign Sovereign Immunities Act (FSIA).
• Al-Abood v. El-Shamari (E.D. Va.; 4th Cir. 2000) - Affirming jury trial verdict Sidley won in favor of plaintiff on a variety of fraud, fiduciary duty and conversion theories related to a complex international investment fraud.
• Saenz v. Roe (U.S. 1999) - Represented the National Law Center on Homelessness and Poverty as amicus curiae regarding the protections of the Fourteenth Amendment’s right to travel.

Community Service

Mr. McNicholas frequently advises organizations that combat homelessness regarding complex constitutional issues at both the trial and appellate levels and before legislative bodies. His work for such organizations contributed substantially to the firm being awarded the 2004 Counsel Pro Bono Award by the National Law Center on Homelessness and Poverty.

Mr. McNicholas now serves as the Chairman on the Board of Directors for the National Law Center on Homelessness and Poverty.

Selected Recent Articles and Other Publications

Mr. McNicholas is a frequent commentator on privacy, data security, and information law issues and has written extensively on various information law and civil liberties topics for a variety of publications. He currently serves on the Advisory Board for the BNA Privacy & Security Law Report and one of his articles received a 2010 Burton Award for Legal Achievement. Many of his privacy articles are collected on the www.Sidley.com/InfoLaw site, including:

• “Standing to Challenge Statutory Violations of Privacy Laws After First American Finance Corporation v. Edwards,” By Edward R. McNicholas and Jonathan P. Adams, BNA’s Privacy & Security Law Report (July 23, 2012).
• “Rapid Data Breach Reporting Now Required By Vermont’s Attorney General,” By Edward R. McNicholas and Ryan M. Sandrock, BNA’s Privacy & Security Law Report (June 18, 2012).
• “Privacy and Security,” in Business and Commercial Litigation in Federal Courts (3d Ed. 2011) (co-author of chapter on implications of privacy and data security laws for commercial litigation).
• Information Security and Privacy: A Practical Guide for Global Executives, Lawyers and Technologists (2011) (contributor) (ABA Section of Science and Technology Law publication).
• “First Look: Leaked Draft of New EU Data Protection Regulation Suggests Significant Impacts for Global Businesses,” co-author, BNA's Privacy and Security Law Report (December 9, 2011).
• “Regulated Social Media: Practical Advice for Addressing Evolving Technologies in Regulated Industries,” by Edward McNicholas and Sabrina Ross, BNA’s Privacy & Security Law Report (June 14, 2010).
• “An Uneasy Peace: Maine’s Act to Prevent Marketing to Minors and the Continuing Problems of Privacy for Children and Teens,” by Edward McNicholas and Colleen Rutledge, BNA’s Privacy & Security Law Report (September 14, 2009).
• “Developments in Data Breach Liability,” by Alan Raul, Edward McNicholas, et al., Privacy & Data Security Law Journal (September 2009).
• “End of the Notice Paradigm?: FTC’s Proposed Sears Settlement Casts Doubt On the Sufficiency of Disclosures in Privacy Policies and User Agreements,” by Alan Raul, Edward McNicholas, et al., BNA’s Electronic Commerce & Law Report (July 15, 2009).
• “Reconciling European Data Privacy Concerns with US Discovery Rules: Conflict and Comity,” by Alan Raul, Edward McNicholas, et al., Global Competition Litigation Review (July 2009).
• “National Security Letters: Practical Advice For Understanding and Handling Exceptional Requests,” by Edward McNicholas, BNA Privacy & Security Law Report (March 30, 2009).
• “Assessing the EU Working Party’s Guidance on Harmonizing U.S. Discovery and EU Data Protection Requirements,” by Alan Raul, Edward McNicholas, et al., BNA Privacy & Security Law Report (March 9, 2009).
• “SEC Sanctions Broker-Dealer/Investment Advisor for Willfully Failing to Safeguard Customers’ Personal Data,” by Alan Charles Raul and Edward McNicholas, Privacy & Data Security Law Journal (January 2009).
• “Damages for the Harm of Data Breaches and Other Privacy Claims,” by Alan Raul, Edward McNicholas, and Jennifer Tatel, BNA Privacy & Security Law Report (September 15, 2008).
• “Competitive Privacy: Towards A New Area of Privacy Litigation?,” by Edward McNicholas and Jennifer Tatel, IAPP Privacy Tracker (July/August 2008).
• “A Path to Resolving European Data Protection Concerns With U.S. Discovery,” by Stanley W. Crosley, Alan Charles Raul, Edward R. McNicholas and Julie M. Dwyer, Privacy and Security Law (October 2007).