
“In a search for class action and mass arbitration counsel with deep e-commerce experience, we came to know B&I. We’re glad we did. We’ve found their counsel to be practical, responsive, and creative in ways we haven’t experienced working with other firms. B&I has become our first call for any mass consumer actions.”
Ken Hirschman, General Counsel, Udemy
With over three decades of experience representing direct marketers and multichannel retailers, David brings deep industry knowledge and a creative, results-driven approach to every case. From defending clients in complex litigation, class actions, and mass arbitrations to offering bespoke preventive strategies, David is dedicated to reducing legal risks and achieving successful outcomes.
Known for identifying strategic opportunities others may overlook, his hands-on, personalized counsel—guided by the principle that every battle is won before it is fought—keeps clients several steps ahead in a fast-changing legal environment. Even when challenges arise mid-course, David has a knack for cutting through preconceptions and seeing paths to resolution that others might miss, helping clients find clarity and innovative solutions where others see only obstacles. Before moving to Maine, David worked under renowned criminal defense attorney and presidential counsel Robert S. Bennett, representing some of the world’s largest defense contractors in high-stakes investigations. His work included the FBI’s Operation Ill Wind, a case that Time magazine described as ‘one of the biggest federal white-collar crime cases ever prosecuted,’ shaking the foundations of the nation’s military-industrial complex. At Brann & Isaacson, David worked for many years alongside his friend and mentor, George Isaacson, in high-profile civil cases and state tax litigation across the United States.
Contact
Email: dbertoni@brannlaw.com
Phone: 207.786.3566
Linkedin:
vCard:
Practice Areas
Education
George Washington University Law School
Washington, DC (J.D.)
University of Rochester
NY (BA in Philosophy, cum laude with distinction)
Bar Admissions
& Membership
Maine
Virginia
District of Columbia
U.S. Supreme Court
U.S. Court of Appeals for the First, Third, Fourth, Fifth, Ninth, and Federal Circuits
U.S. District Court for the District of Maine
Honors & Distinctions
Super Lawyers® in the area of Class Action
Best Lawyers in America® in the field of Tax Law
Editor, Maine Bar Journal (2008–2017)
National Winner, American Intellectual Property Association (AIPLA) Giles S. Rich Moot Court Competition
Professional Affiliations
David teaches complex litigation as an adjunct professor at the University of Maine Law School.
David writes extensively on legal matters, including The Strange Death of Stare Decisis, co-authored with George Isaacson in 2018 and was selected by the American Bar Association to contribute to its leading treatise, A Practitioner’s Guide to Class Action Litigation (2021).
Practice Areas
Privacy & Advertising Class Actions and Mass Arbitrations
David is at the forefront of defending privacy and advertising class actions and arbitrations, using innovative strategies and deep technical expertise to confront alleged violations of state and federal laws, including wiretapping and reference pricing claims.
Advertising & Marketing Compliance
David guides clients through the complex web of state and federal advertising and marketing laws, from the FTC’s 30-day rule to drip pricing and discount promotions.
Product Safety Compliance
David helps clients navigate federal and state product safety regulations, including identifying and reporting hazards to the CPSC, meeting disclosure requirements under Proposition 65, creating compliance protocols, and conducting internal investigations.
State Taxation Compliance and Litigation
David helps clients prevent and, when needed, challenge tax assessments and defend private enforcement actions, including class actions and qui tam/false claims act lawsuits
Other Works
David is also an award-winning screenwriter and filmmaker. His latest film, a sci-fi comedy called Seven Seconds, premiered at film festivals across the United States. His current project is a science fiction legal thriller.
Recent Eyes on eCom Law Posts
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David Bertoni Interrogates AI for Tax Notes State
- Eyes on eCom Law
- Firm Updates
On May 12, 2025, Tax Notes State published the latest article by David W. Bertoni for the Eyes on E-commerce series, “Shock and Audit:…
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Former Price Promotions, Current Legal Risk
- Client Alerts
- Eyes on eCom Law
Former price promotions, you say? Plus ça change, plus c’est la même chose. This isn’t just a quote from Jean-Baptiste Alphonse Karr or a line from Circumstances by…
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Privacy Bounty Hunters, Part I: The Risks Are Real
- Eyes on eCom Law
As I’ve written previously, if you sell anything online, it’s not a question of if—it’s when privacy bounty hunters will comes calling, accusing your company of…
Case Studies
I. Reducing the Threat of Privacy Class Actions
This study is a composite with details modified to protect confidentiality.
Online retailers faced an increasing threat of consumer class action lawsuits arising out of the ordinary operation of their websites, including allegations of “wiretapping” and violations of the Video Privacy Protection Act (“VPPA”).
The threat of such lawsuits has been rising for at least five reasons:
- Third-Party Information Transmissions are Ubiquitous. The operation of virtually every website involves the transmission of clickstream data—that is, data generated by the user’s visit to and navigation through a website, generally collected by JavaScript code—to third parties for a wide variety of purposes. These include websites operated by the state and federal governments (including prosecutors’ offices, legislatures, and the courts). These transmissions are the basis on which substantially all wiretapping and VPPA claims are asserted.
- Courts Offer Scant Guidance. These cases are rife with uncertainty because decisions in wiretapping and VPPA cases are almost always entered at the motion to dismiss stage when the facts alleged, including those which will ultimately prove to be false, must be accepted by the courts as true. Because of the high stakes involved, there are incentives to both plaintiffs and defendants to settle before trial or summary judgment. If plaintiffs lose, it could shut down the cottage industry of lucrative privacy class action. If defendants lose, the potential harm could be ruinous.
- No Harm Need Be Proven. Wiretapping statutes and the VPPA provide for per violation penalties of up to $5,000 without the need to show any real harm, removing a major hurdle to class certification and introducing the possibility of astronomical recoveries. While some cases have been thrown out of federal court for a lack of “standing,” a jurisdictional requirement arising under the U.S. Constitution, this usually results in the case being moved to state courts, many of which have no comparable “injury” requirements and which often have much slower dockets and less rigorous class certification requirements.
- The Third Parties Involved Create Difficult Atmospherics. Many of the cases being filed involve Meta, TikTok, and Google, companies that garner no sympathy from judges and juries and whose privacy practices have been the subject of intense litigation and lucrative settlements. Guilt by association can be difficult to rebut.
- The Fact-Driven Issue of Consent. An important defense to wiretapping and VPPA cases involves fact-driven questions relating to consent. The question of what constitutes consent and the appropriate mechanisms for obtaining consent remain in flux. Some laws, like the VPPA, have special consent requirements that may be difficult to satisfy based on industry standard disclosures, including privacy policies and “pop-up” notices (often directed only to online cookies implementations).
Reducing the privacy class action threat for online retailers, both minimizing liability and reducing the company risk profile to plaintiffs’ lawyers scouring the internet for the next target of opportunity.
Our approach involves the following elements:
- Triaging Risk. All websites involve communications with third party servers, and each such communication is a potential basis for a wiretapping (or VPPA) claim. However, some third parties and third party services present higher risks than others. We help online retailers to identify higher risk relationships that are more likely to trigger litigation (or arbitration, as discussed below), and work with them both on cost/benefit analyses potential ameliorative measures to reduce their risks. Our ability to assist clients in assessing and managing these risks is enhanced by Brann & Isaacson’s sixty years of work with catalog and, later, internet marketers large and small, which gives us deep knowledge of direct marketing and the third-party relationships on which it depends. Our ongoing experience in handling high stakes wiretapping and VPPA cases, going back a decade, keeps our fingers on the pulse of the latest trends.
- To Arbitrate or Not To Arbitrate. We counsel clients on the potential use of online arbitration agreements to blunt the threat of class action lawsuits. We have developed a comprehensive understanding of the benefits and risks of such agreements and designed bespoke terms to suit individual client needs which have evolved (and which will continue to evolve) in step with the growing jurisprudence in this area. One downside of online arbitration agreements is their potential to trigger mass arbitrations – which can be potentially more costly and disruptive than a class action lawsuit. A carefully crafted online arbitration agreement can reduce the chances of facing a mass arbitration and offer unique defenses that may blunt to the power of mass arbitrations to coerce large settlements. Such an agreement can also help level the playing field for individual consumer arbitrations, which by their nature obligate the online retailer to pay thousands of dollars in arbitration fees and costs in contrast to the nominal filing fees imposed on consumers. Ultimately, the better choice for some online retailers may be not to adopt an online arbitration agreement at all, and we help clients develop a clear understanding of the pros and cons that can factor into such a decision.
- Obtaining Agreement to Online Terms. Even if an online retailer decides to include an arbitration agreement, a consumer does not need to be a customer to assert an online wiretapping or VPPA claim. We work with clients to develop strategies for extending online terms to non-customers based on a synthesis of court holdings from across the country.
- Online Disclosures and Consent. We work closely with clients and our team of experienced privacy law attorneys to develop measures that websites can take to strengthen consent defenses and to ensure adequate consumer disclosures that can render a website an unappealing target for plaintiffs’ lawyers. These measures range from crafting additional disclosures in so-called “cookie banners” to the crafting of online terms and privacy policies to modifications to online purchases, registrations, subscriptions, and form submissions.
Recent News
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California Federal Judge Denies Certification in Class Action against B&I Client
- Firm Updates
In a sharply worded May 29, 2025 order, U.S. District Judge Vince Chhabria of the Northern District of California denied a motion for class…
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David Bertoni Interrogates AI for Tax Notes State
- Eyes on eCom Law
- Firm Updates
On May 12, 2025, Tax Notes State published the latest article by David W. Bertoni for the Eyes on E-commerce series, “Shock and Audit:…