Jason D. Hirsch

/My focus

I help clients, often leading technology innovators and companies across all industries that leverage state-of-the-art technology, navigate challenging litigation, regulatory, and internal matters. The counsel I provide draws on more than 15 years of experience mixed between representing clients in complex, bet-the-company litigations and investigations and in-house policy advising at Meta Platforms, Inc. on cutting-edge issues of regulatory strategy, product design and governance, and legal risk mitigation, especially involving the development and use of AI systems for distributing, ranking, and moderating user-generated content.

Based on this experience, and consistent with companies’ multifaceted needs, I counsel clients—from AI developers, social networks, and online marketplaces to providers of enterprise software and SaaS—across a broad set of matters, including:

Litigation

I represent clients in federal and state trial court and appellate litigation, up through the United States Supreme Court, including class actions. The cases involve an array of issues, such as consumer protection, intellectual property, and technology regulations, like the Communications Decency Act, and regularly address novel questions of statutory and constitutional interpretation, including two landmark First Amendment victories at the Supreme Court in support of freedom of speech.

Government Enforcement

I handle inquiries and investigations by the Department of Justice (DOJ), Congress, state attorneys general, the Securities and Exchange Commission (SEC), and the Consumer Financial Protection Bureau (CFPB), as well as internal investigations, including on issues of importance to technology companies, such as civil rights audits and inquiries into algorithmic bias, addictive technologies, distribution of unsafe content, and misclassification of employees.

Regulatory Strategy

I help clients develop strategies to positively shape global legislative and regulatory outcomes related to AI and digital platforms. I also counsel them on building efficient and effective plans for compliance with federal, state, and international technology regulations, such as Europe’s historic AI Act and Digital Services Act, on which I had extensive, in-depth engagements with members of the European Parliament and European Commission over the 18 months preceding its passage. In addition, I help innovators entering highly regulated industries to establish practices compliant with industry-specific regulations.

Governance and Moderation Policies

I advise companies on creating internal policies to govern the development and use of AI and the use of other emerging technologies. I also advise digital platforms on the development of consumer-facing policies and related enforcement protocols to govern their moderation of user-generated content.  

Product Counseling

I counsel companies on navigating legal, policy, and reputational risks related to the products and technologies they develop and use to help clients realize their business objectives. Often, I counsel technology companies on designing and deploying new features, companies across all industries on whether and how to incorporate AI and other emerging technologies into their business, and investors on evaluating risks associated with prospective portfolio companies.

Past experience

Most recently, I led Meta’s policy team responsible for the AI-driven ranking and distribution of content. For years, I worked closely with product and engineering teams and developed a deep understanding of AI and machine-learning models, among other technologies. I also worked closely with Meta’s senior leadership to build strategies that improved regulatory outcomes around content ranking and efficiently complied with significant new global regulations. In the role, I led substantial policy work on the company’s publication of model cards for its most significant AI systems, counseled on product development to mitigate policy risks and maximize opportunities, and developed industry-leading content moderation policies. Further, I served as Meta’s point-person for global engagements about AI-driven content ranking and distribution, regularly meeting with senior executive- and legislative-branch officials in the US and globally.

Previously, I spent ten years at another large international law firm, representing clients in high-stakes litigations and investigations. I litigated nine merits cases at the United States Supreme Court and filed more than 25 briefs with the Court—at the petition stage, on the merits, and as an amicus—including as counsel of record on issues ranging from the First Amendment and election law to intellectual property and veterans’ rights. I also maintained a robust trial-court practice, with a focus on class actions, complex commercial disputes, and government-facing litigation. In addition, I represented clients in a diverse set of investigations by federal and state regulators, most frequently involving securities, financial, or healthcare fraud, and I regularly advised clients on the implications of developing regulations.

/Representative experience

• Currently developing a revised content moderation program, including policies and accompanying enforcement protocols, for major digital platform.
• Counseling major digital platform on compliance with the Digital Services Act and other significant international technology regulations.
• Counseled major technology companies on issues related to the classification of full-time employees and independent contractors under the laws of numerous states.*
• Represented a prominent technology company in a criminal investigation related to internet advertising of pharmaceuticals.*
• In Agency for International Development v. Alliance for Open Society International, Inc., won a landmark First Amendment decision on behalf of a coalition of NGOs engaged in the global fight against HIV/AIDS, declaring that the government may not compel, as a condition of receiving federal funds, grant recipients to publicly support the government’s preferred messages.* 
• In SCA Hygiene Products v. First Quality Baby Products, LLC, helped lead the team representing First Quality at the Supreme Court on the question of applying the defense of laches to patent damages.
• Submitted an amicus brief to the Supreme Court, cited in the ultimate decision, on behalf of the Cato Institute and American Civil Liberties Union in Packingham v. North Carolina. The brief supported a successful First Amendment challenge to a law prohibiting access to a wide range of social media sites for certain convicted felons.*
• Successfully moved to dismiss a putative class action against high-frequency trading firm asserting violations of federal securities law brought shortly after high-frequency trading practices were the subject of Michael Lewis’s novel Flash Boys.*
• Represented prominent financial institution in putative, nationwide class action in bankruptcy court, asserting discharge-injunction claims related to charged-off, sold credit card debts, and in parallel investigations by the DOJ and CFPB.*
• Defended leading companies in the standardized testing industry in a multi-district litigation bringing together a series of nationwide class actions brought by test takers claiming to have lost educational, scholarship, and employment opportunities as a result of erroneously scored tests.*
• In Kingdomware Technologies v. United States, secured Supreme Court victory on behalf of Kingdomware when the Court ruled that a statute giving small businesses owned by service-disabled veterans preferences in VA contracting is mandatory. The decision affects billions of dollars of contracts awarded each year.*
• In Arizona State Legislature v. Arizona Independent Redistricting Commission, secured a landmark victory for the Redistricting Commission when the Supreme Court ruled that the Constitution does not limit the power to draw congressional districts to state legislatures, paving the way for states to use bipartisan and nonpartisan commissions to draw congressional districts.*
• In Reyes Mata v. Lynch, won a significant Supreme Court immigration case that confirmed the right of noncitizens to seek equitable tolling of the time for moving to reopen a removal proceeding due to ineffective assistance of counsel.*
• Represented a major natural gas company in DOJ and state AG investigations of alleged anticompetitive leasing practices as well as in multiple parallel civil litigations asserting Racketeer Influenced and Corrupt Organizations (RICO) Act and Sherman Act claims based on the same practices.*
• Represented a leading financial institution in DOJ and Financial Industry Regulatory Authority (FINRA) investigations and related civil litigation in relation to its role as prime broker to a hedge fund manager convicted of securities fraud.*
• Successfully represented multiple hedge funds in insider trading investigations by the DOJ without any charges being filed.*
• Represented prominent financial institution in a major DOJ investigation into the selling of mortgage-backed securities in response to the 2007 housing market collapse.*

• Successfully represented numerous employees of leading pharmaceutical company in a DOJ investigation into Medicare fraud and off-label marketing.*

* Denotes representations handled by Jason prior to joining Nixon Peabody.

/Looking ahead

From startups to behemoths, companies seeking to leverage AI and other nascent technologies need to weigh the benefits of those tools against the risks posed by a rapidly evolving policy and legal landscape. Experienced outside counsel can serve as an invaluable guide through this challenging environment.

/Insights

• L Suite's Legal AI Conference, San Francisco, California, June 20-21, 2024 (speaker)
• “Defending Clients in Insider Trading Investigations and Enforcement Actions,” Defending Corporations and Individuals in Government Investigations, 2012–2013 edition (chapter co-author)
• United Nations High-Level Event: Addressing Drivers of Vaccine Hesitancy Worldwide, U.N. Headquarters, New York City, June 27, 2019 (panelist)
• The European Commission and World Health Organization’s Global Vaccination Summit, Brussels, Belgium, September 12, 2019 (panelist)