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Tara Brailey

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Tara Brailey is an associate in the Litigation Department and a member of Proskauer’s Commercial Litigation and Sports Law Groups. Her practice involves a variety of complex commercial litigation matters, with a focus on antitrust, consumer product, contract and partnership disputes. She has represented clients in both state and federal courts, as well as in arbitrations and government investigations. Tara has experience with various stages of litigation, including coordinating discovery, briefing dispositive motions, and preparing witnesses for depositions and trial.

Tara has handled matters for clients across a broad range of industries, including financial services, hospitality, technology, telecommunications, and sports and entertainment. She has particular experience counseling professional sports leagues and other clients active in the sports business.

Tara also maintains an active pro bono practice and has been awarded Proskauer’s Golden Gavel Award for excellence in pro bono work. She has represented clients in housing court, family court, and a variety of immigration proceedings. Most recently, Tara represented an immigrant detainee filing a habeas petition in federal court to a successful resolution.

Prior to joining Proskauer, Tara earned her J.D. from the UC Berkeley School of Law, where she served as an associate editor of the California Law Review and a senior article editor of the Berkeley Journal of International Law. While at Berkeley Law, Tara also served as a co-director of the California Asylum Representation Clinic, a student-run legal services project that enables law students to represent asylum-seekers under the supervision of attorneys from the East Bay Sanctuary Covenant.

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The Ninth Circuit recently issued an opinion that could shape how companies draft and revise two oft-encountered types of contracts: terms of service agreements (“TOS”) and arbitration clauses.

In Jackson v. Amazon.com, Inc., the Ninth Circuit affirmed the district court’s order denying Amazon.com, Inc.’s motion to compel arbitration in a case brought by a proposed class of “Amazon Flex” drivers. Amazon Flex is a delivery program run through a smartphone app that Amazon uses to engage individuals to make Amazon deliveries in their personal cars. 

A recent Ninth Circuit decision centered on something most consumers use many times every day: smartphone apps.

In Wilson v. Huuuge, Inc., the Ninth Circuit affirmed the denial of defendant Huuuge’s motion to compel arbitration against a user of its smartphone casino app. Addressing a question of first impression, the Court considered the circumstances under which an app user who downloads or uses an app can be said to have constructive notice of the app’s terms and conditions. The Court ultimately held Huuuge failed to provide reasonable notice of its app’s Terms of Use, which included an embedded arbitration provision, and thus the app user was not bound to the terms.

Late last month, in Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., the Second Circuit affirmed a $2.7 million sanctions award against defendant ePRO after repeated instances of discovery misconduct. Finding that the district court’s award properly reflected the additional costs plaintiff Klipsch Group Inc. was forced to bear due to ePRO’s actions, the Second Circuit disagreed with ePRO that the sanctions were impermissibly punitive and disproportionate. In an era of increasingly complex digital discovery, this case serves as both a sword and a shield: it protects litigants who pursue corrective discovery efforts to remedy an opponent’s willful mishandling of discoverable information, and it punishes litigants who flout their duties to maintain and disclose relevant information.