Welcome back for another week of What's Next, where we report on the intersection of law and technology. Here's what we've got for you today:

>> Should Big Tech brace for more lawsuits seeking to dismantle the industry's "Old Boy's" clubs?

>> Judge Lucy Koh is not messing around when it comes to attorney fees in the Zoom privacy litigation.

>> Korein Tillery and Boies Schiller Flexner argue that YouTube's copyright protection tools should not be reserved solely for major companies.

Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster.

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Announcing Two Incredible Keynote Speakers for the Women, Influence & Power in Law Conference

WIPL is known for having some of the most engaging and energizing keynote speakers attend to share their thoughts, experiences, war stories and tips on effective leadership. And this year is no exception. This year, we are grateful to welcome two remarkable women come and inspire us: Tina Tchen, the President and CEO of the "Times Up" Legal Defense Fund and Paula Boggs, Founder of Boggs Media LLC and Former Executive Vice President, General Counsel and Secretary, Law and Corporate Affairs at Starbucks from 2002-2012. READ MORE

The Lawyers Behind the Suits Calling Out Tech's 'Old Boy's' Clubs

Two shareholder derivative lawsuits filed last week demanding that Oracle and Facebook each replace three of their board members with Black and minority leaders did not mince any words. The suits started with pictures of mainly white board members and executive leadership teams. They alleged that Oracle and Facebook were known to have "the oldest and most egregious 'Old Boy's Club' in Silicon Valley." The lawsuits also said that "[i]f Oracle simply disclosed that it does not want any Black individuals on its Board, it would be racist but honest." And "[a]t Facebook, apparently Zuckerberg wants Blacks to be seen but not heard."

Frank Bottini of Bottini & Bottini in La Jolla, California, and Louise Renne of Renne Public Law Group in San Francisco jointly filed the lawsuit against Oracle, and Bottini & Bottini took on Facebook alone. Bottini said he hopes the powerful language in the complaint gets people's attention. "We need them to take action now to be good corporate citizens and actually do what they say they're trying to do," he said.

We sat down with the pair to discuss the lawsuits. Answers have been edited for length and clarity.

➤➤ You two worked together on the shareholder derivative suit over Google's executive sexual harassment scandal. Did you learn anything from that case that you're bringing to the Oracle litigation?

Bottini: Well the first takeaway is that it was wonderful working with Louise. We're so fortunate she's still working. She's had such a long and illustrious career.

Renne: I pay him to say these things.

Bottini: This is really kind of a civil rights case. It's a shareholder case, but it has a civil rights element. And Louise has incredible experience in the civil rights area, so that's why she's such a critical member of the team to try to get a good result here.

Renne: We do have a good team. One of my partners is Ruth Bond. She is related to Julian Bond, the civil rights icon. I think between all of us, we do have a commitment to do everything we possibly can to make sure we improve diversity and inclusion, and I think the shareholders feel exactly the same way.

➤➤ How did you decide the type of relief you're seeking in the suits, specifically asking to replace three board members with Black and minority leaders?

Bottini: The purpose of a shareholder derivative case—you try to get some money from the company, because that's important—but here the thing that's more important is effectuating changes that will have a long-term effect at the company. When we started looking at Oracle, we said what kind of changes would really make a difference at the company and help improve and advance the economic opportunities for Blacks and minorities. At Oracle, they say diversity and inclusion starts at the top. So with respect to changing out the board members, there are no Blacks on the board, and there are no Blacks among executive management, so that's why there's a request that the message is set at the top. It's hard to claim that you're really trying to do something about it when you don't have a single Black person among the top managers. The other ones are all related to changes that we think corporate governance experts have said are the types of governance practices that can help not only make the changes at a company but make them stick.

➤➤ Do you plan to file similar lawsuits in the near future?

Renne: Let's just say never say never.

Bottini: There are some other companies—certainly Oracle is not the only one. You can see from Facebook that's another glaring example. And there are some companies that lack diversity at the top. Everybody recognizes, especially in Silicon Valley, that the companies haven't been successful in achieving diversity. Everybody runs it up the flagpole and talks about "Oh yeah, diversity is great. We're all for diversity." Silicon Valley is great at being a cheerleader, but they're not great at achieving real results. That's what needs to change.

Keep an eye on The Recorder for the full Q&A.

U.S. District Judge Lucy Koh, Northern District of California

Koh Sets the Tone for Attorney Fees in Zoom Privacy Litigation

In a consolidated Zoom Video Communications privacy class action in the U.S. District Court for the Northern District of California, Judge Lucy Koh appointed Tina Wolfson of Ahdoot & Wolfson and Mark Molumphy of Cotchett Pitre as interim co-lead class counsel. As for the plaintiffs' steering committee, Koh selected Rachele Byrd of Wolf Haldenstein Adler Freeman & Herz; Albert Chang of Bottini & Bottini; and Eric Gibbs of the Gibbs Law Group.

In the appointment order, Koh laid out some laws of the land that could be colored by her prior experience overseeing the Yahoo and Anthem data breach cases.

"Other than the plaintiffs' steering committee, no other law firms shall work on the instant case without prior approval of the court," she wrote. "Motions for approval of additional plaintiffs' counsel shall identify the additional plaintiffs' counsel and their background, the specific proposed tasks, and why plaintiffs' steering committee cannot perform these tasks. If attorney's fees are ultimately awarded in this case, the court will not award fees for additional plaintiffs' counsel whom the court has not approved. Interim co-lead counsel should seek approval before additional plaintiffs' counsel begin work on the case."

In the Yahoo data breach settlement, the judge has asked to see the total number of people billing by hour in a $30 million attorney fee request. "I'm not going to award any attorney fees until I get it," she said at a hearing in June. The San Jose, California, jurist also pushed back against billing rates in 2018 when she oversaw the Anthem data breach litigation. In that case, Koh appointed a special master to investigate potential overbilling and said she was "deeply disappointed" in the fee request.

Copyright Protection for All

Korein Tillery and Boies Schiller Flexner are representing Grammy award-winning musician Maria Schneider in a class action complaint that's asking a court to require YouTube to offer its copyright enforcement tools to everyone, not just major record companies and studios.

Only qualifying artists can use YouTube's primary copyright policing tool called Content ID. To use the automated system, creators have to prove a need and that their content can be claimed through the tool.

"Smaller rights holders, including plaintiffs and the class, are, however, denied access to Content ID and thus are relegated to vastly inferior and time-consuming manual means of trying to police and manage their copyrights such as scanning the entirety of YouTube postings, searching for keywords, titles, and other potential identifiers," write a team of attorneys that includes Korein Tillery's George Zelcs and Boies' Philip Korologos.

The proposed class is also asking for disgorgement and damages based on profits from the website's allegedly infringing acts.

On the Radar

Big Tech's Wish List for National Facial Recognition Law "Focusing on a distinction of state use and private-sector usage I think companies are looking toward because the issues of government use, the police, ICE or other law enforcement agencies using this is very significant for obvious reasons," former Microsoft chief privacy officer and Hintze Law partner Mike Hintze said. "With private-sector use when a company may use facial recognition to easily grant employees access, it's a different degree of use. Legislators should not lump all potential uses of facial recognition together, and think about the harms and the appropriate solution." Read more from Victoria Hudgins and Dan Clark here.

PersonalWeb, Glaser Weil Beat Back EMC's 'Exceptional Case' Fee Motion U.S. District Judge Edward Davila of the Northern District of California ruled Monday that though at times PersonalWeb Technologies' tactics may have been "obnoxious," they didn't cross the line into frivolousness or bad faith. Davila seemed to set a high bar for attorneys fees, saying that "something beyond 'unnecessary' motion practice is necessary" for fees; "the motion practice must be demonstrably frivolous or in bad faith," he wrote. Read more from Scott Graham here.

Kline & Specter, Citing Hate Speech Concerns, Halts Advertising on Facebook "We decided to pause our Facebook and Instagram advertising, due to Facebook's current policy on hate speech and related issues," said founding partner Kline & Specter Shanin Specter. "We do not think Facebook cares what we do, but we care what we do, and to whatever extent others are influenced by what we do, we hope they join us." Read more from Erica Silverman here.

Thanks for reading. We will be back next week with more What's Next. Stay safe and healthy, everyone.