Mark L. Krotoski

Mark has significant experience helping clients manage crises, including ransomware attacks and other cyber incidents, economic espionage and trade secret misappropriation, and responding to antitrust investigations, including navigating dawn raids. Leveraging his experience as a former federal prosecutor, Mark provides clients with practical advice to handle difficult issues as well as their collateral effects. 

Prior to joining private practice, Mark most recently served as the Assistant Chief of the National Criminal Enforcement Section in the DOJ’s Antitrust Division, where he supervised international criminal antitrust matters and prosecuted cartel cases. For more than nine years, Mark served as co-head of the privacy and cybersecurity practice of another international law firm.

He served as the national coordinator for the Computer Hacking and Intellectual Property (CHIP) Program in the Computer Crime and Intellectual Property Section of the DOJ’s Criminal Division and as a federal prosecutor in Silicon Valley in the Northern District of California as a cybercrime prosecutor. As national coordinator, he oversaw approximately 250 federal prosecutors specially trained to prosecute cybercrime and intellectual property enforcement cases. He successfully prosecuted and investigated virtually every type of computer intrusion, cybercrime and criminal intellectual property violation.

He also served as the chief and deputy chief of the Criminal Division of the Northern District of California U.S. Attorney’s Office. As chief and deputy chief, he supervised cases involving white collar crime, securities fraud, computer intrusion, intellectual property, economic espionage, organized crime and antiterrorism. As a Special Assistant Attorney General in California, Mark was counsel of record on 10 amicus briefs filed in the U.S. Supreme Court on criminal justice matters.

Mark is a prolific writer and speaker on criminal antitrust enforcement, cybersecurity, cybercrime and trade secret issues, as well on government investigations, white collar issues and the use of electronic evidence in investigations and at trial. 

Mark remains active in pro bono matters. His pro bono cases include representing a global humanitarian organization cooperating in a federal bribery investigation, which resulted in the conviction of an external consultant; non-profit organizations suffering cyberattacks and providing guidance on complying with regulatory obligations and remediation measures; and an investigation regarding the embezzlement of funds from a non-profit school organization, resulting in a civil court judgment; among other pro bono matters.

• Criminal Antitrust Cases and Investigations
  • Represented international technology company during Antitrust Division investigation involving alleged exclusionary conduct during standards setting process in creating a new Wi-Fi connectivity standard resulting in closed investigation.
  • Represented senior vice president of a leading global materials company during Antitrust Division cartel investigation which ultimately was closed.
  • Represent companies in the Antitrust Division Leniency Program and in navigating the leniency process.
  • Represent companies and executives involving “no poach” and wage-fixing allegations and investigations.
  • Assist international and domestic companies in establishing effective compliance programs, including under new Antitrust Division Compliance Guidelines.
  • Assist international and domestic companies in Dawn Raids Training to be prepared in the event of legal process issued during a new investigation.
  • Lead counsel in the conviction of an executive involved in colluding on bids and pricing strategies for automotive instrument panel clusters supplied to a major automobile manufacturer.
  • Lead counsel in the conviction of a former executive and company director who obstructed an investigation into automotive parts.
  • Lead counsel for the retrial of a former airline executive accused of manipulating fuel surcharge rates on air cargo shipments from Miami to South America, resulting in a plea conviction five days before the trial.
  • Supervised investigations related to price fixing, bid rigging and market allocation among global corporations operating in the automotive parts and air cargo sectors.

• Cyber and Data Security, Unauthorized Access, Computer Intrusions, Cybercrime

  • Represented financial services company before the Securities and Exchange Commission Cybersecurity Unit and Department of Justice involving a sophisticated hacker who executed unauthorized trades, resulting in no enforcement action. 
  • Represented non-profit in civil action against firm and former employer involving copyright infringement and violations of the Computer Fraud and Abuse Act, resulting in a settlement before trial.
  • Represented general counsel of international company during investigation of data breach by the Department of Justice and Securities and Exchange Commission.
  • In the Yahoo data breach involving “at least 500 million” stolen user accounts, represented the manager of incident response during all phases of the investigation by the Department of Justice, Securities and Exchange Commission and Special Committee.
  • Represented numerous companies in responding to ransomware and other cyberattacks, including through all phases involving the internal forensic investigation under attorney client privilege, review of data to determine notification requirements, notifications to federal and state regulators, responding to federal and state regulatory investigations, and follow-on litigation.
  • Led investigation of international company targeted in a cyberattack and trade secret destruction and referred the case for criminal prosecution, resulting in the conviction of a former employee.
  • Represented companies in complying with standards under the New York Department of Financial Services Cybersecurity Regulation.
  • Represented international company during investigation under the Payment Card Industry Data Security Standard, resulting in no company fines or penalties.
  • Represented international company concerning reported data loss issues before the California Attorney General’s Office, resulting in no enforcement action.
  • Represented numerous international and domestic companies during investigations of cyber fraud and unauthorized wire transfers (referred to as a “business email compromise”).
  • Represented multiple companies in cyber risk assessments during an acquisition of or merger with another company.
  • Represented leading insurance company and led investigation involving an underwriter who disclosed personal and sensitive information to others.
  • Represented companies in complying with standards under the New York Department of Financial Services Cybersecurity Regulation.
  • Lead counsel in a jury trial resulting in the conviction related to the intrusion into the Yahoo account of Alaska Governor Sarah Palin and obstruction of justice. Successfully argued the appeal before the U.S. Court of Appeals for the Sixth Circuit, which upheld the convictions (United States v. Kernell, 667 F.3d 746 (6th Cir. 2012)).
  • Lead counsel in jury trial conviction involving a computer intrusion "time bomb" that corrupted more than 50,000 company records (United States v. Shea, 493 F.3d 1110 (9th Cir. 2007)).
  • Obtained a conviction for computer intrusion involving multiple prominent high-technology companies (United States v. Heckenkamp, 482 F.3d 1142 (9th Cir. 2007)).

• Economic Espionage and Trade Secret Misappropriation

  • Represent companies involving economic espionage, trade secret misappropriation and other intellectual property theft in DOJ investigations. 
  • Achieved the landmark conviction in the United States involving source code under the Arms Export Control Act and International Trafficking in Arms Regulation, as well as securing the first sentencing under the Economic Espionage Act of 1996. This case centered on foreign economic espionage, including the misappropriation of a trade secret with the intent to benefit a foreign government (under 18 U.S.C. § 1831).
  • Co-counsel in a case that resulted in a conviction for foreign economic espionage, encompassing the misappropriation of trade secrets with the aim of benefiting foreign instrumentalities (under 18 U.S.C. § 1831).
  • Lead counsel on the investigation and charges against a foreign national involving computer intrusions targeting NASA and a leading provider of computer network equipment, along with the theft of trade secrets, including source code.
  • Lead counsel in the investigation and subsequent conviction of a company vice president for the theft of trade secrets from his former employer, a Fortune 15 company.
  • Led various criminal convictions and investigations involving the misappropriation of trade secrets.

• White Collar Cases and Grand Jury Investigations

  • Represented an executive in an insider trading investigation by the DOJ, resulting in no charges. 
  • Represented an executive in a grand jury investigation and successfully persuaded the court that the Fifth Amendment precluded any testimony. 
  • Referred numerous cases to law enforcement, in appropriate cases, for investigation and prosecution involving cybercrime, trade secret misappropriation, fraud and other offenses.
  • Routinely represent companies and executives in grand jury investigations. 

• Other Intellectual Property Enforcement Cases

  • Lead counsel in an undercover investigation that resulted in the prosecution of the largest CD and DVD manufacturing piracy scheme ever pursued in the United States at the time. Secured convictions of three key manufacturers on charges including copyright infringement, trademark violations, counterfeit label production and FBI seal violations.
  • Lead counsel supervising undercover operation targeting an Internet "warez" conspiracy involving pirated movies, games and software; coordinated approximately 40 simultaneous searches across the United States and abroad; implemented case strategies leading to 30 convictions within one year and a total of 40 convictions for various criminal copyright violations.
  • Lead counsel on the first convictions under a newly established federal "camming" statute, addressing unauthorized recording of motion pictures in exhibition facilities, and a new statute concerning the uploading of prereleases on the internet, specifically for criminal copyright infringement by distributing copyrighted works on computer networks.
  • Lead counsel on the first conviction in California and the second in the United States under the Digital Millennium Copyright Act (DMCA).
  • Lead counsel on convictions for unauthorized manufacturing and distribution of satellite television access devices, along with DMCA violations, as part of a satellite piracy scheme. This included the manufacturing and distribution of software and devices utilized to illegally access satellite programming.

• Honors & Awards
  • Antitrust Writing Award, Concurrences (2017)
  • Recognized as a Cybersecurity Trailblazer, The National Law Journal (2016)
  • Recognized in the inaugural Incident Response 30, Cybersecurity Docket (2016)
  • Award of Distinction, Assistant U.S. Attorney General, Antitrust Division, U.S. Department of Justice
  • Distinguished Service Award, Assistant U.S. Attorney General, Criminal Division, U.S. Department of Justice
  • Award for Superior Performance, Assistant U.S. Attorney, Executive Office of the United States Attorneys Director
  • William J. Schafer Award of Excellence (for U.S. Supreme Court amicus briefs), Association of Government Attorneys in Capital Litigation

• Associations

  • Member, MLex San Francisco Advisory Board
  • Member, Antitrust Law Section, American Bar Association
  • Member, Antitrust & Unfair Competition Section, The State Bar of California
  • Member, Federal Bar Association
  • Member, Bay Area Recently Retired Former Feds
  • Former member, Cybersecurity & Privacy Law Section, Bar Association of San Francisco
  • Former member, American Society for Industrial Security (ASIS)
  • Former member, Computer Hacking and Intellectual Property (CHIP) Prosecutors Working Group
  • Former bencher, William A. Ingram Inn, American Inn of Court
  • Former member, Criminal Rules and Practice Committee, U.S. District Court for the Northern District of California
• Publications

Criminal Antitrust Cases and Investigations

• Co-author, Antitrust Cartel Leniency and Sentencing Handbook, American Bar Association, Section of Antitrust Law (2023).
• Co-author, “Protection of Attorney-Client Communications and Data Security in Cross-Jurisdiction Investigations” chapter, International Investigations and Merger Reviews, American Bar Association, Section of Antitrust Law (2022).
• Co-author, “Double-Check Whistleblower Programs to Prep for Antitrust Anti-Retaliation Act,” Bloomberg Law (Jan. 7, 2021).
• Co-author, “Prospects Improve for Enactment of the Criminal Antitrust Anti-Retaliation Act of 2019,” Competition Policy International (Dec. 2019).
• “Landmark Antitrust Division Policy to Incentivize Corporate Compliance and Mitigate Antitrust Risk,” BNA's Antitrust & Trade Regulation (Oct. 2019).
• Co-author, “Mitigating the Risk of Enforcement Actions and Litigation From ‘No Poach’ and Other Agreements,” BNA's Antitrust & Trade Regulation (Oct. 1, 2019).
• “Extradition Lessons Learned,” MLEX AB Extra (Nov. 28, 2016).
• “Experts” chapter, Antitrust Evidence Handbook, American Bar Association, Section of Antitrust Law (3d ed. Jan. 2016).
• “Extradition in International Antitrust Enforcement Cases,” Antitrust Source (April 2015).
• “Key International Tools Used to Investigate Cartels and Enforce The Sherman Act Abroad,” International Antitrust Bulletin, 18-20 (March 2015).
• “Establishing Withdrawal From An Antitrust Conspiracy,” ABA Antitrust Trial Practice Committee, Trying Antitrust, 2-4 (Winter 2015) (based on recent Supreme Court guidance).
• “Essential Elements For An Effective Anti-Cartel Program,” ABA Cartel & Criminal Practice Committee Newsletter, 11-35 (Spring 2014).
• “New Guidance on the Collection and Seizure of Electronic Evidence in International Cartel Cases,” International Antitrust Bulletin 15-17 (August 2014).

Cyber and Data Security, Unauthorized Access, Computer Intrusions, Cybercrime

• Co-author, “How Health Care Cos. Can Prepare for DOJ's Cyberfraud Push,” Law360 (Feb. 23, 2022).
• Co-author, “The Big Computer Fraud and Abuse Act Questions High Court Is Considering,” Law360 (Dec. 2, 2020)
• “DOJ Cybercrime Efforts That Led To New Cybersecurity Unit,” Law360 (Jan. 7, 2015).
• Co-author, “Using ‘Digital Fingerprints’ (or Hash Values) for Investigations and Cases Involving Electronic Evidence,” United States Attorneys' Bulletin, Vol. 62 (May 2014).
• “Overcoming the Unique Challenges Presented in ‘Time Bomb’ Computer Intrusion Cases,” United States Attorneys’ Bulletin, Vol. 62 (March 2014).
• Co-author, “Using Log Record Analysis To Show Internet And Computer Activity In Criminal Cases,” United States Attorneys' Bulletin, Vol. 59 No. 6 (November 2011).
• “Effectively Using Electronic Evidence Before And At Trial,” United States Attorneys' Bulletin, Vol. 59 No. 6 (November 2011).

Economic Espionage and Trade Secret Misappropriation

• Co-author, Defend Trade Secrets Act Handbook, Wolters Kluwer (4th Ed. 2024) (pending publication).
• Co-author, “Reviewing The First Foreign Economic Espionage Cases,” BNA Bloomberg (May 8, 2015) (summarizing the first 10 economic espionage prosecutions).
• Co-author, “Time to Modernize and Strengthen Trade Secret Law, Corporate Counsel,” BNA Bloomberg (Dec. 1, 2015).
• “Defend Trade Secrets Act Ex Parte Seizure Provision: Striking a Reasonable Balance in Addressing The Need For Prompt Recovery of Stolen Trade Secrets,” BNA Bloomberg (Sept. 11, 2015).
• “What Legal Options Does Your Company Have After Your Trade Secrets Are Stolen by Cyber Espionage or Cyber Attack?” BNA Patent, Trademark & Copyright Journal (April 17, 2015).
• Co-author, “Stealing Trade Secrets and Confidential Information With Computers: Time to Resolve the Lingering Circuit Split,” BNA's Patent, Trademark & Copyright Journal (Feb. 27, 2015).
• “Do You Know Whether Your Trade Secrets Are Adequately Protected?” BNA's Patent, Trademark & Copyright Journal (Nov. 21, 2014).