Lawyer Limelight: Stuart Davidson

Stuart Davidson’s case files read like a resumé of 21st Century America’s thorniest social and legal dilemmas, from prescription-drug pricing to digital privacy and professional sports injuries.

The Robbins Geller partner, based in Boca Raton, Fla., recently won a record-breaking $650M, an award approved this past February, in a class action case that argued social media giant Facebook collected and stored biometric identifiers such as faceprints without obtaining informed consent from users.

He’s also leading several aspects of In re: EpiPen Marketing, Sales Practices & Antitrust Litigation, being handled in federal court in Kansas, and previously handled litigation for retired National Hockey League players against the NHL who suffered concussions and repeated head trauma.

In some ways, he says, it’s a natural progression from the Public Defender’s Office in Broward County, home to Fort Lauderdale, where he began his career.

“I loved the idea of representing people who couldn’t afford top-notch and expensive lawyers,” says Davidson, who earned his law degree, summa cum laude, at Nova Southeastern University after undergraduate studies at the State University of New York at Geneseo. “I always wanted to dedicate my professional life to supporting the Constitution and representing the underdog and the underprivileged.”

That had been his dream since high school, and he imagined he’d be a so-called “lifer” at the Public Defender’s Office. While on leave after he and his wife had their first child, however, he received a job offer from a private firm with a much higher salary.

Faced with the likelihood of rising expenses as his family grew, Davidson couldn’t say no. From that role in securities and white-collar criminal defense litigation at a small boutique firm, the husband and father of two moved on to the firm now known as Robbins Geller Rudman & Dowd, gradually transitioning to a specialty in consumer and privacy class action litigation.

“I always said to myself, even when I was younger, that I would never do a job where I didn’t look forward to going to work every morning when I woke up,” Davidson says. “Representing victimized, defrauded consumers just gave me a new purpose in life.”

LD: It definitely seems like a more public-interest application of your legal skills. When did you realize you wanted to become a lawyer?

SD: Probably when I was in high school; I knew when I went to undergrad that a legal career was the most likely path for me. I always enjoyed debating and arguing with people, and I actually preferred talking with my parents’ friends rather than my friends. I had really stimulating conversations with adults when I was a kid, whether about the law or politics or current events. I was always very liberal, also. I was very much in favor of social justice and opportunities for the underprivileged, the underserved and the underrepresented.

LD: Did you look for ways to emphasize the skill sets you’d need to do that while you were in school?

SD: There were definitely some experiences that helped. I had a business law professor in undergrad who was also the elected Public Defender of Livingston County, New York, and that fascinated me. I also interned for the Public Defender's Office in Rochester, New York, while I was in undergrad, and I remember working with very senior public defenders there on defending the serial killer Arthur Shawcross, and that absolutely captivated me. I would help interview new clients at the Public Defender's Office when they had just been arrested and needed to talk to a lawyer for the first time. These people who were accused of committing various criminal offenses, and I saw them not as criminals, but as people and as human beings who had rights under the Constitution that deserve to be protected. “There but for the grace of God, go I.”

I'm not a religious person at all, but that phrase resonates with me. It could be you someday or it could be somebody you love, somebody you care for, behind those bars. So fighting for this person's rights is necessary to protect everyone's rights.

LD: It sounds like you were clear about your career path from the start. Did you ever consider other options while you were in law school, maybe because of a course or field of practice that intrigued you?

SD: That’s an interesting question. To everybody’s surprise, I think, I was one of the best law students in my class. Out of about 300 students, I graduated ninth and got 4.0s on just about every one of my classes, graded onto the Law Review and was interviewed by all the major law firms here in south Florida. I told virtually every single one of them, “I appreciate your interest in me, but I have no interest in working for you.” Because I knew where I wanted to go, I knew what I wanted to be. I knew what would give me that fire in the belly to wake up every day looking forward to going to work. And I'm glad I was able to do that. Plus, it gave me tremendous trial and evidentiary skills and that's something a lot of new lawyers never get.

LD: That’s so true. With the number of trials shrinking, there are fewer ways to build a significant volume of courtroom experience.

SD: I think working for a Prosecutor's Office or a Public Defender's Office, whether at the state or federal level, after law school is really important for a lawyer's growth. You get thrown into the lion's den as a very young lawyer and you make mistakes. In my first job at the Public Defender's Office, I worked in the misdemeanor division before Judge Joel Lazarus, who could be somewhat cantankerous and threatened to hold me in contempt and throw me in jail on at least two occasions in my first year of practicing law. I was new, I was learning and I was making mistakes. It helped prepare me.

LD: The preparation definitely delivered for you. You’ve accomplished some amazing things on behalf of consumers with cases like Facebook. I understand it involved a class of users in Illinois, where state law forbids collection of biometric information like retina scans, voiceprints or scans of hand and face geometry without informing users that it’s being gathered and obtaining a written release.

SD: Yes. That statute has been on the books for a while, but it hadn’t really been used in any litigation until we and our co-counsel started filing cases. And it was an absolute odyssey.

LD: I believe it. Going up against a company as large as Facebook, with the resources it can muster, would be a challenge under even ideal conditions.

SD: Absolutely. To say that Facebook and their lawyers, who were exceptional, fought us tooth and nail on every single issue would be an understatement. And we just kept winning. I think we were on the right side of every one of those issues, and I don't think the judge ever got anything wrong. And of course I'll say that, but the U.S. Court of Appeals for the Ninth Circuit agreed with us. We literally were weeks away from starting trial when the Appeals Court stayed the case while it was considering whether the judge was right to grant class certification.

LD: And when Facebook appealed, the U.S. Supreme Court decided not to take the case. Were you guys ready to go to trial?

SD: We were. And it paid off – to the point that there was a record-breaking settlement that, by any measure, is one of the best consumer-related privacy settlements ever.

LD: I remember class certification was a big hurdle in the case, though it seems obvious from a layman’s perspective that the group of affected people would be Facebook users in Illinois.

SD: I think class certification is always challenging. When you file an individual case, all you have to do is prove your individual case, but when you ask the court to certify a class action, you have to meet several very stringent requirements and if you – as the plaintiff and proposed class representative – don’t meet any one of them, you lose. So to get a class certified – even in a case that seems as simple as this one – is a hurdle, and Facebook lodged many, many challenges. A lot of them were very technical. One, obviously, was whether there was any standing to sue at all, because there was no evidence of actual harm to the plaintiffs. The harm that we alleged was that Facebook had violated a statute that the Illinois legislature that entitled plaintiffs to seek statutory damages in lieu of showing actual harm. So that was really the challenge: whether plaintiffs can sue a company for a violation of statute, even if they can’t show that they personally suffered any injuries outside of the statute. That’s an ever-evolving area of the law that the Supreme Court seems to take up every single term in one form or another.

LD: When it’s a struggle just to get into the courtroom, the record recovery is all the more impressive.

SD: The judge was also really pleased by the 22 percent claims rate, which is unheard of in our practice.

LD: Really? Tell me more about that.

SD: The claims rate refers to the ratio of people who got notice of the $650M settlement and opted to claim a portion. For reasons I will never understand, there is always a huge percentage of class members who just ignore those notices, no matter how prominently you place them. Here, we had Facebook put the notices in the app and on the Facebook website, so when Illinois users logged in to their accounts, they were told, “We have $650 million to give you. Do you want a share of that?” You’d be shocked at how many people just don’t reply in such cases, no matter how easy you make it.

I don’t think anybody has ever really figured out why so many people ignore settlement notices to get their share of a class recovery, but there have been studies that show that well under 10 percent of class members will make a claim. Sometimes, it’s 1.5 percent. Sometimes, it’s 3 percent. Rarely, does it even approach 10 percent. Here, the plaintiff, the defense and the judge all got together and said, “What can we do to change that dynamic?” And we went above and beyond what we’ve ever done before and got 22 percent of class members to make a claim, way higher than the norm. It’s something we’re very proud of, and hopefully, we can use what we learned in that settlement and notification process to improve upon claims rates in the future.

LD: That’s awesome. People, especially now, can really use that extra money. Plus, digital privacy has become a major concern, as have debilitating injuries from pro sports. That’s an area you’ve been heavily involved in with the NHL case. Tell me more about that.

SD: That case ended nearly two years ago, with a settlement for all our individual clients, who numbered about 300, rather than on a class action basis. We started the action in 2014 on behalf of several very well-known retired professional hockey players who in their later years started suffering terribly from the effects of repetitive head trauma. Some turned to alcohol and drugs, some couldn’t control their tempers and became violent and some, unfortunately, took their own lives.

It’s a cause that I’ll forever be proud to be associated with, but unfortunately, after many years of litigation, millions of documents and hundreds of depositions, the judge denied class action status. While that blocked the broader group of retired hockey players from participating, it left a window of opportunity to resolve the case on behalf of our individual clients, which we did. They were all very thankful, but I’ll always be disappointed that we couldn’t do better for them. We tried, we had excellent lawyers on our team who worked really hard and we gathered, I thought, sufficient evidence to show that the NHL knew about the long-term neurological effects of getting your head bashed in, whether that’s through fighting, which the NHL fostered for years, or just getting checked against the board or getting struck by a hockey stick. We felt that we had marshaled enough evidence to prove that they knew and should have done something more to protect the brain health of their players. But at the end of the day, the judge made a legal determination that the case was not appropriate as a class action.

LD: The EpiPen case, which involves an emergency treatment device for life-threatening allergic reactions, is another one that’s garnered a huge amount of attention. That’s ongoing, right?

SD: Yes, it is. That one was certified as a class-action, and the trial is scheduled for September. One of the things I’m focused on now is helping get the team and our special trial counsel, Mark Lanier, ready for that September trial, which we have every expectation will actually go forward. That will be, I think, watched by millions of people around the world because that’s just how ubiquitous the EpiPen is, and the outrage over how the price just skyrocketed, becoming unaffordable for many people.

LD: Last question. Do you have a favorite book, TV show or movie about the legal profession?

SD: This may surprise you, but I don’t read or watch TV shows about the law, because that’s my life, eight to 10 hours a day, seven days a week.

I do like history, though, and the closest I come to reading about the law and the legal industry would be books about the founding of this country and the incredible human beings who were involved in leading it over the years, from Thomas Jefferson to George Washington and Abraham Lincoln. They certainly all had flaws, but they nonetheless rose to a moment that comes around once or twice in a millennia to create this country of ours and, with respect to Lincoln, keep it together.

One book that was just unbelievably good was “Destiny of the Republic,” about James Garfield, who died from an assassin’s bullet fairly early into his presidency. He probably would have gone down as one of the four greatest presidents but for that and the medical mistakes afterward that caused him to die. Right now, I’m finishing up a book called “Storm of Steel,” which is a firsthand account of a German solider on the front lines of World War I. He kept a diary, and it was translated into 40-odd languages. Reading it, you feel like you’re right there in the trenches of World War I.

Of course, I battle every day in my own trenches fighting for defrauded consumers against the country’s largest corporations and their exceptionally talented lawyers, but when compared with the horrors experienced in the Great War, my fight is much more enjoyable and rewarding.