Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

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David Munkittrick

David Munkittrick is a litigator and trial attorney. His practice focuses on complex and large-scale antitrust, copyright and entertainment matters in all forms of dispute resolution and litigation, from complaint through appeal.

David has been involved in some of the most significant antitrust matters over the past few years, obtaining favorable results for Fortune 500 companies and other clients in bench and jury trials involving price discrimination and group boycott claims. His practice includes the full range of antitrust matters and disputes: from class actions to competitor suits and merger review. David advises antitrust clients in a range of industries, including entertainment, automotive, pharmaceutical, healthcare, agriculture, hospitality, financial services, and sports.

David also advises music, publishing, medical device, sports, and technology clients in navigating complex copyright issues and compliance. He has represented some of the most recognized names in entertainment, including Sony Music Entertainment, Lady Gaga, U2, Madonna, Daft Punk, RCA Records, BMG Music Publishing, Live Nation, the National Academy of Recording Arts and Sciences, Universal Music Group and Warner/Chappell.

David maintains an active pro bono practice, supporting clients in the arts and in immigration proceedings. He has been repeatedly recognized as Empire State Counsel by the New York State Bar Association for his pro bono service, and is a recipient of Proskauer’s Golden Gavel Award for excellence in pro bono work.

When not practicing law, David spends time practicing piano. He recently made his Carnegie Hall debut at Weill Recital Hall with a piano trio and accompanying a Schubert lieder.

David frequently speaks on antitrust and copyright issues, and has authored or co-authored numerous articles and treatise chapters, including:

  • Causation and Remoteness, the U.S. Perspective, in GCR Private Litigation Guide.
  • Data Breach Litigation Involving Consumer Class Actions, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
  • Location Privacy: Technology and the Law, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
  • FTC Enforcement of Privacy, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
  • The Role of Experts in Music Copyright Cases, Intellectual Property Magazine.
  • Nonprofit Education: A Historical Basis for Tax Exemption in the Arts, 21 NYSBA Ent., Arts, & Sports L.J. 67
  • A Founding Father of Modern Music Education: The Thought and Philosophy of Karl W. Gehrkens, Journal of Historical Research in Music Education
  • Jackson Family Wines, Inc. v. Diageo North America, Inc. Represented Diageo in trademark infringement litigation

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Second Circuit Revisits Transformative Use Test in “Fish Sticks n’ Tater Tots” Music Copyright Case

The Second Circuit recently upheld a ruling that streaming giants Apple, Amazon, and Netflix engaged in fair use, in a case concerning the use of plaintiff musicians’ song in a documentary film available for viewing on defendants’ streaming platforms. In doing so, the Court found the eight-second snippet of the song was performed in a … Continue Reading

The “Truth Hurts”: Judge Rules Lizzo is 100% That [Copyright Owner]

Judge Dolly M. Gee of the Central District of California recently awarded singer Lizzo a major victory in a copyright dispute concerning the artist’s hit song “Truth Hurts.” In her ruling, Judge Gee dismissed with prejudice a claim that Lizzo must share copyright ownership of “Truth Hurts” with the plaintiffs in the case, because the … Continue Reading

The House Judiciary Committee Takes on Big Tech

“Mark my words: Change is coming. Laws are coming.” That was the warning David Cicilline (D-RI) – the House Judiciary Antitrust, Commercial, and Administrative Law Subcommittee Chairman – gave on February 25th at the first in a series of hearings following the Subcommittee’s 16-month probe into Big Tech’s gatekeeping power. This one, titled Reviving Competition, … Continue Reading

CLERA or Murkier: Proposed Antitrust Legislation Raises Questions

The Sherman Act was passed in 1890. The Clayton Act in 1914. And they have hardly changed since. Last month, Senator Amy Klobuchar, the new chair of the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights, proposed an overhaul of the antitrust laws: CLERA, the Competition and Antitrust Law Enforcement Reform Act.  … Continue Reading

A New Frontier or Back to Basics? FTC Issues New Guidance on Artificial Intelligence Technology

In the latest piece to come out of the FTC’s new focus on emerging technologies, the FTC Bureau of Consumer Protection issued new guidance on the use of artificial intelligence (“AI”) and algorithms. The guidance follows up on a 2018 hearing where the FTC explored AI, algorithms, and predicative analysis. As the FTC recognizes, these … Continue Reading

Attacking Class Certification on a Motion to Dismiss? A Recent Decision Says There is a Way

Plaintiffs often try to define the broadest possible class at the outset of a case on the belief that the scope of the class can be refined on class certification after discovery has been completed. For this strategy to work, however, plaintiffs must get past the pleading stage. Historically, this has not been too difficult … Continue Reading
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