People

Heather Zachary

Partner

Zachary, Heather
Heather Zachary is a partner in the firm’s Regulatory and Government Affairs Department, and a member of the Cybersecurity, Privacy and Communications and Financial Institutions Practice Groups. Her practice focuses on communications regulation, counseling and advocacy on privacy and data security, and civil litigation at the appellate and trial levels.
 
Practice

Ms. Zachary counsels and advocates for clients on a wide range of privacy, consumer protection, and data-security issues. She assists clients in drafting and implementing online and internal privacy policies; complying with federal, state, and international laws regulating privacy and data security; responding to data breaches; preventing and responding to deceptive and unfair trade practices under the FTC Act and state analogues; crafting comprehensive information-security programs and policies; and configuring transactions and new product offerings to avoid privacy and data-security pitfalls.
 
Ms. Zachary’s practice also includes regulatory advocacy, litigation, and counseling for a wide variety of communications clients. She represents wireline telecommunications providers, wireless carriers, broadcasters, video providers, industry trade associations, and information service providers in FCC proceedings (including merger proceedings) and in appellate litigation.
 
Ms. Zachary also represents clients in litigation concerning a broad range of legal issues. Her cases have involved such matters as copyright infringement, trade dress infringement, tortious destruction of property, agency, breach of contract, and energy law. Ms. Zachary has prepared briefs in the US Supreme Court, state supreme courts, several federal courts of appeals, and a number of district courts.  

Honors & Awards

  • Recommended in the areas of energy; media, technology and telecoms; and data protection and privacy in the 2015-2016 editions of The Legal 500 US
  • Named to the 2015 Women Worth Watching list by the Diversity Journal
  • Recognized among Washington's 2015 Trending 40 Lawyers Under 40 by Bisnow Ventures
  • Selected as a leader in Telecom, Broadcast & Satellite law in the 2012-2016 editions of Chambers USA: America's Leading Lawyers in Business
  • Recommended in the area of data protection and privacy law in the 2013 edition of The Legal 500 US

Publications & News

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August 5, 2016

Department of Commerce Now Accepting Privacy Shield Self-Certifications: A Primer for Compliance and Self-Certification

The Privacy Shield framework is a voluntary program that provides companies with a mechanism for complying with EU data protection requirements when transferring personal data from the EU to the US. The framework is open to businesses subject to the enforcement jurisdiction of the US Federal Trade Commission or the US Department of Transportation.

June 22, 2016

The Legal 500 United States 2016 Recognizes 111 WilmerHale Lawyers Across 30 Practice Areas

The guide's rankings are based on a series of criteria, including client feedback, interviews with private practice lawyers, and its own research.

May 27, 2016

WilmerHale Lawyers and Practices Recognized in 2016 Edition of Chambers USA

Chambers USA: America's Leading Lawyers for Business announced its final rankings for the 2016 edition, with WilmerHale ranking among the nation's best in 47 practice area categories. Chambers also ranked 82 WilmerHale lawyers as leaders in their respective fields.

March 1, 2016

European Commission and U.S. Department of Commerce Release Legal Foundation of EU-U.S. Privacy Shield

On Monday, February 29th, the European Commission and U.S. Department of Commerce released a collection of documents summarizing actions taken on both sides of the Atlantic to implement the new Privacy Shield framework.

February 12, 2016

ASICS Acquires FitnessKeeper, Operator of Boston-Based Runkeeper App

ASICS Corporation today announced that it has entered into an agreement to acquire FitnessKeeper, Inc., the operator of fitness tracking app “Runkeeper”—an application that can track and record fitness activities such as running, walking and cycling through GPS on smartphone devices.

December 17, 2015

Barclays Completes Sale of its US Wealth & Investment Management Business to Stifel Financial

On December 4, 2015, Barclays PLC completed the sale of its US Wealth & Investment Management Business to Stifel Financial Corp. WilmerHale represented Barclays through this transaction, which was announced on June 8, 2015.

December 16, 2015

European Union Reaches Agreement on Data Protection Law Reform

On December 15, 2015, the European Union reached an agreement on the final text of the new General Data Protection Regulation. The Regulation will replace the 1995 Data Protection Directive, which is currently the basis for national data protection laws of the Member States of the European Union.

November 16, 2015

ALJ Dismisses FTC’s LabMD Complaint for Lack of Actual or Probable Consumer Harm from Cybersecurity Incidents

On Friday, November 13, Federal Trade Commission Chief Administrative Law Judge D. Michael Chappell issued an Initial Decision in In the Matter of LabMD, Inc. (FTC Docket No. 9357), dismissing the Commission’s Complaint against LabMD, Inc., upon a finding that the FTC had failed to “demonstrate a likelihood that [LabMD’s] computer network will be breached in the future and cause substantial computer injury.”

October 7, 2015

European Court of Justice Issues Opinion Striking Down the Safe Harbor

In a landmark judgment in Schrems v Data Protection Commissioner (C-362/14) (October 6, 2015) (“Safe Harbor judgment”), the European Court of Justice (“ECJ”) found the Safe Harbor Decision of the European Commission (Commission Decision 2000/520/EC of 26 July 2000) to be invalid.

September 17, 2015

Diversity Journal Recognizes Two Partners Among Women Worth Watching

Partners Elizabeth Mitchell and Heather Zachary have been named to Diversity Journal's annual list of Women Worth Watching, which recognizes professional women for their passion, potential and positive influence both inside and outside the workplace.

Recent Highlights

In recent representative matters, Ms. Zachary has:

  •  Advised clients on the requisite privacy and security protections for financial data under the Gramm-Leach-Bliley Act; Fair Credit Reporting Act; Fair and Accurate Credit Transactions Act; federal regulations issued by the FTC, SEC, and federal functional regulators; and analogous state laws and regulations.
  • Played a key role in shaping the FCC’s comprehensive reform of universal service and intercarrier compensation, including by drafting single-party and joint industry comments in multiple rulemaking proceedings.
  • Helped clients navigate complicated international privacy issues, including EU data-protection law and data-transfer restrictions, as well as the divergent laws of individual countries both within and outside the EU.
  • Provided guidance to companies involved in data breaches.
  • Represented a video entrant that sought access to cable-affiliated, terrestrially delivered video programming. This multi-pronged effort included prosecuting a complaint at the FCC against a cable operator, filing comments in the FCC’s related rulemaking proceedings, and successfully defending on appeal favorable FCC rules that grant non-incumbents access to terrestrially delivered programming. Cablevision Sys. Corp. v. FCC, 659 F.3d 695 (D.C. Cir. 2011).
  • Assisted clients in their efforts to leverage and monetize “big data.”
  • Counseled clients on domestic and international privacy and security considerations when deploying new products and services.
  • Advised clients on privacy and data-security issues in a wide variety of transactions.
  • Assisted financial institutions, communications providers, defense contractors, technology companies, investment advisors, equipment manufacturers, and numerous other clients in revising and implementing online and internal privacy policies.
  • Assisted a communications provider with the development of a comprehensive manual addressing state and federal rules concerning cooperation with surveillance efforts and compliance with private subpoenas.
  • Represented a communications provider in FCC rulemakings concerning net neutrality, the National Broadband Plan, and the reclassification of broadband as a Title II telecommunications service.
  • Drafted a comprehensive information security program and a set of more than thirty information-security policies for a major consumer-research company.
  • Counseled clients concerning their compliance with identity-theft and debt-collection laws.
  • Represented two Bell operating companies in separate merger-review proceedings at the FCC.
  • Provided regulatory and public policy advice to a national wireless carrier concerning a multi-billion-dollar auction of cellular spectrum.
  • Represented a national wireless carrier in the FCC’s “bill shock” proceeding concerning unexpected overages on consumers’ monthly voice, data, and messaging bills.
  • Represented a communications provider and a trade association in the FCC’s “AllVid” proceedings concerning competition in the marketplace for video set-top boxes.
  • Helped secure an appellate victory on behalf of a natural gas producer who argued that FERC’s decision to approve a pipeline capacity lease violated the Administrative Procedure Act. Apache Corp. v. FERC, 627 F.3d 1220 (D.C. Cir. 2010).
  • Helped secure an appellate victory for the Air Transport Association of America in a case concerning New York’s “Passenger Bill of Rights.” Reversing the district court, the Second Circuit held that federal law preempts a New York statute that required airlines experiencing extended ground delays to provide certain amenities to passengers. Air Transport Ass’n of America, Inc. v. Cuomo, 520 F.3d 218 (2d Cir. 2008).
  • Helped secure victories in two district court proceedings on behalf of a power equipment manufacturer against parties using similar trade dress. The first proceeding resulted in a jury verdict recognizing the validity of the manufacturer’s trade dress and finding that the trade dress had been infringed. The second proceeding resulted in a settlement negotiated after a favorable summary judgment ruling. 

Professional Activities

Ms. Zachary is a member of the District of Columbia Bar, Oregon State Bar, United States Supreme Court Bar, Federal Communications Bar Association and American Bar Association.

Ms. Zachary co-authored an article discussing the issues faced by communications providers after 9/11, including assistance with surveillance efforts, provision of customer records to law enforcement, export controls, critical infrastructure requirements, and review of transactions involving foreign investors. Navigating Communications Regulation in the Wake of 9/11, 57 Federal Communications Law Journal 351 (2005) (co-authored with Jamie S. Gorelick and John H. Harwood II).

Practices

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Education

JD, Yale Law School, 2001, Chair of Articles Committee, Yale Law Journal; Thurman Arnold Prize for Best Oral Advocate, Yale Law School Moot Court competition

BA, University of Southern California, 1998, Phi Beta Kappa; Valedictorian

Bar Admissions

District of Columbia

Oregon

United States Supreme Court

Clerkships

The Hon. Susan Graber, US Court of Appeals for the Ninth Circuit

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