Randal L. Gainer

Partner

Seattle
T +1 206.332.1381  |  F +1 206.624.7317

Randy Gainer represents businesses in litigation in state and federal administrative proceedings after they have experienced data breaches. He has successfully defended companies against class action claims brought by customers and patients whose data was allegedly lost or stolen, and he assists businesses working with prosecutors and law enforcement agents to help them investigate and prosecute data thieves. He also litigates computer-related intellectual property claims and contract disputes.

Randy is a Certified Information System Security Professional (CISSP). He advises banks, professional services firms, universities, telecommunications companies, retail businesses and hospital systems regarding compliance with computer network security laws and standards, and helps businesses conduct information system risk assessments and negotiate the data security terms of vendor agreements.

Select Experience

Data Breach
  • Successfully moved to dismiss putative class action claims against South Jersey Hospital, now known as Inspira, related to the theft of a laptop with patient information from a hospital contractor. Polanco v. Omnicell, Inc., et al.
Risk Assessment
  • Helps conduct risk assessments for several retailers, health insurance companies and a financial services company. 
Technology Counseling and Litigation
  • Assisting a retirement investment firm in negotiating the data security provisions of a vendor services agreement.
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Experience

Data Breach
  • Successfully moved to dismiss putative class action claims against South Jersey Hospital, now known as Inspira, related to the theft of a laptop with patient information from a hospital contractor. Polanco v. Omnicell, Inc., et al.
  • As a special assistant attorney general, advises and represents the University of Washington on its information security practices and related matters.
  • As counsel for Noble House Hotels & Resorts, Ltd., provides notification advice and assistance with payment card issues related to data security incidents at some Noble House properties in 2015.
  • As co-counsel for Premera BlueCross and Excellus Blue Cross, assists the insurers in responding to data security incidents potentially affecting some of their members.
  • As co-counsel for Providence Health & Services against a putative class action, obtained a dismissal of all claims. The plaintiffs alleged that the theft of unencrypted backup tapes and optical discs from the car of an employee was negligent and a violation of the Oregon Unfair Trade Practices Act. The plaintiffs sought to certify the case on behalf of a class of 365,000 current and former patients whose patient information was stored on the stolen material. The Oregon Court of Appeals and the Oregon Supreme Court both affirmed the trial court's dismissal of the claims. Paul v. Providence Health System, 273 P.3d 106.
  • As lead counsel for Providence Health & Services in federal administrative proceedings related to the theft of backup tapes, obtained a negotiated settlement. U.S. Dept. of Health & Human Services, Office for Civil Rights, In re: Providence Health & Services.
  • Advised Jetro/Restaurant Depot officials regarding response to the theft of customers' payment card information. Represented Jetro by working with forensic investigators and federal law enforcement agents, and by responding to information and document requests by state attorneys general.
  • Advised managers of Children's Hospital Los Angeles, St. Joseph's Hospital and many other hospitals regarding steps they should take in response to data breaches.
  • Advised officials of online retailer Monoprice regarding response to electronic data breach.
  • Advised a multinational retailer regarding response to payment card data theft by retaining a forensic investigator and by advising the retailer regarding its rights and responsibilities under its merchant bank agreement and pertinent payment card association rules.
Risk Assessment
  • Helps conduct risk assessments for several retailers, health insurance companies and a financial services company. 
  • Led an information system risk assessment for a private university.
  • Led a gap assessment for a large nationwide professional services organization.
  • Reviewed a regional hospital's information security policies and procedures to assist with HIPAA Security Rule compliance.
  • Assisted a global business process solutions company conduct an information system risk assessment and take risk mitigation steps.
  • Advises regional bank officers regarding steps the banks should take to reduce the risks of ACH and wire transfer fraud from commercial customers' accounts.
  • Assisted Charter Communications in conducting an information system risk assessment.
Technology Counseling and Litigation
  • Assisting a retirement investment firm in negotiating the data security provisions of a vendor services agreement.
  • Assisted Texas Children's Hospital with revising its data security requirements for vendor agreements.
  • As co-counsel for a computer software, electronics and personal computer company opposing putative class action claims alleging unlawful use of location information on Windows phones, assisted with briefing related to the plaintiffs' claims under the Stored Communications Act and Wiretap Act.
  • As lead counsel for a security software owner, iovation, in defense against patent infringement claims brought by a competitor in the District of Oregon, obtained summary judgment and settled the claims. Kount Inc. v. iovation Inc.
  • Advised location information technology licensor, TruePosition, regarding legal restrictions pertaining to use of cell site location information.
  • As lead counsel for a cable provider in a Computer Fraud and Abuse Act case against a hacker, worked with company security staff and a forensic investigator to identify a former employee who posted confidential company information on a public website. Obtained a TRO requiring that the former employee remove the information. Charter Communications v. Knowles.
  • As lead counsel for a web-based automobile retailer, Autobytel, settled the class action claims that Autobytel's contractor violated the Telephone Consumer Protection Act by sending text message ads. Christopher Kramer v. Autobytel & B2Mobile LLC.
  • As co-counsel for a bar code reader patent holder in a patent infringement litigation against a competitor machine vision manufacturer, won partial summary judgment dismissing patent infringement counterclaim; case settled. Microscan Systems, Inc. v. Cognex Corporation.
  • As co-counsel for crash sled patent holder in a patent infringement, breach of contract and unfair competition litigation against a former contractor, won partial summary judgment on the infringement claim, and the case settled four days before trial. Illinois Tool Works, Inc. et al. v. Seattle Safety, LLC.
  • Assisted defense counsel by successfully responding to motions alleging spoliation of electronic documents, and prepared witnesses to testify at trial regarding the defendant's computer network and its document retention procedures. McDonough v. Russell Investments. 
  • Assisted Tacoma Screw Products in resolving a dispute with salesforce.com regarding whether certain functionality would be available through the salesforce.com software and services.
  • Represented Epicor Software Corp. in litigation with a software licensee that alleged the software did not meet product specifications. The dispute was settled. 
  • Assisted Amazon in resolving a dispute with a software development vendor regarding whether delivered software met product specifications.
  • Defended a national provider of broadband services in a putative class action by the residents of an area of a county annexed by a city, in which the plaintiffs claimed the cable operator should charge them lower cable television rates. The trial court dismissed the case with prejudice on the basis that it was pre-empted by the federal Cable Act. The Washington State Court of Appeals affirmed the dismissal.
  • Defended EducationDynamics in a case alleging that the company violated the CAN-SPAM Act. The claims were settled. Isomedia v. Spectrum Direct, et al.
  • Won a trial court order, which the Washington Supreme Court unanimously affirmed, holding that the $2.1 million in municipal business taxes on cable internet service that a national cable company had paid to the city of Seattle violated the Internet Tax Freedom Act and should be refunded to the company. Community Telecable v. City of Seattle.
  • Represented a pathology laboratory against a software vendor, prevailing on the laboratory's claim that the billing and report-generating software was defective. Bostwick Laboratories, Inc. v. Cortex Medical Management Systems, Inc.
  • Represented a state agency regarding a Medicaid Management Information System contract against a bidder that believed it was wrongly passed over. The court upheld the award to the bidder chosen by the state. Client Network Services, Inc. v. DSHS.
  • As co-counsel for Yellow Book USA against Verizon Directories Corp. concerning Yellow Book's advertisement and sales practices, secured dismissal of the product disparagement claim and successfully settled the false advertising claim. Verizon Directories Corp. v. Yellow Book USA, Inc.
  • Won a $1.4 million jury verdict for the manufacturer of radio frequency-shielding doors used to protect computer and military facilities in a breach of warranty claim against a component supplier. Huntley Machine & Tool Co., Inc. v. Kirkhill Rubber Co.

Recognitions

  • The National Law Journal: Inaugural list of “50 Intellectual Property Trailblazers and Pioneers” (2014)

Memberships

  • American Bar Association

Community

  • American Civil Liberties Union of Washington (2009 to 2015)
    • Board of Directors Executive Committee
    • Treasurer
  • ISACA
  • ISSA

Pro Bono

  • Co-counsel for the ACLU in a challenge to the executive agency's authority to engage in warrantless wiretapping of U.S. citizens, including an appeal of a summary judgment ruling, first to the Sixth Circuit and then to the U.S. Supreme Court. ACLU vs. National Security Agency

Services

Industries

Admissions

  • U.S. Supreme Court
  • U.S. Court of Appeals, Sixth Circuit
  • U.S. Court of Appeals, Ninth Circuit
  • U.S. District Court, Western District of Michigan
  • U.S. District Court, Eastern District of Washington
  • U.S. District Court, Western District of Washington
  • Washington

Education

  • J.D., Indiana University School of Law, with honors; Notes Editor, Indiana Law Journal
  • B.A., University of California, Berkeley, with honors, Phi Beta Kappa