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Douglas Behr

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Supreme Court Requires Plaintiffs to Show Harm or Risk of Harm, Not Bare Procedural Violation, to Get Statutory Damages

Posted in Cybersecurity, Data Security, Litigation, Privacy
Joe Ravi | CC-BY-SA 3.0 Last year, we noted that the Supreme Court had granted certiorari in a case that could limit the ability of plaintiffs to sue defendants over bare statutory violations without the showing of actual injury. The case implicates a wide variety of statutes that grant monetary awards to successful plaintiffs on… Continue Reading

Appeals Court Agrees That Health Solutions Provider’s Insurance Requires Defense in Data Disclosure Class Action

Posted in Data Security, Litigation, Privacy
Availability of insurance is often among the first questions that arises when a company encounters a data breach or other Internet-related problem involving company records, even where the company lacks a cyberinsurance policy. The federal Fourth Circuit Court of Appeals recently affirmed a ruling by a District Court that required insurance coverage for an inadvertent… Continue Reading

New York Appellate Court Rules That Facebook Cannot Bring a Pre-Execution Challenge to a Search Warrant for Its Customers’ Records

Posted in Litigation, Privacy
On July 21, 2015, the First Department of the New York Supreme Court, Appellate Division, ruled that Facebook could not bring a pre-execution challenge judicially issued search warrants for records associated with customer Facebook accounts on behalf of its customers.  In In Re 381 Search Warrants Directed to Facebook Inc., 2015 NY Slip Op 06201,… Continue Reading

The Dark Side of Loyalty Programs

Posted in Litigation, Privacy
Loyalty programs operated by retailers allow the retailer to track the purchases made by customers and offer customers tailored information about products and sales. However, there is a dark side to such programs. The tracking may also provide plaintiffs’ lawyers a method of identifying potential class members thereby providing a basis for such litigation to… Continue Reading

High Court to Decide If Congress Can Let Consumers Sue Over Publication of Inaccurate Personal Information Without Concrete Damages

Posted in Cybersecurity, Data Security, Litigation, Privacy
The Supreme Court of the United States granted certiorari late last month in a case with important implications for consumer privacy and for the ability of Congress generally to create wholly new protections for consumers. Plaintiffs must always show that they have standing – a legally-protected interest that allegedly has been violated – before a federal… Continue Reading

Third Circuit Says Privacy Class Action Members are “Ascertainable” in Suit Against Aaron’s Stores Because There are Records

Posted in Data Security, Privacy
Every class action lawsuit always involves the question of how to identify, or “ascertain”, who is a member of the class.  Consumers keep expensive products or at least keep records related to their purchase.  Inexpensive or transitory products are generally gone by the time litigation commences and no records of the purchase exist.  In such… Continue Reading

Smart Customer Service Is Smart Risk Management

Posted in Litigation
We were recently reminded that a company’s customer interface is, at times, part of the risk management process. Handled smartly and risk can be minimized; handled poorly and a class action lawsuit can result. According to a class action lawsuit currently in federal court, a customer called customer service to complain of damage to his… Continue Reading

Watch What You Listen To (and Watch)

Posted in Privacy
The flow of data over the Internet creates privacy concerns in strange situations. For instance, when Pandora, the music streaming service, integrated its subscribers’ profile pages with their Facebook accounts, Pandora apparently made music preferences and listening choices available to the subscribers’ friends. The result was a suit alleging a violation of a Michigan statute… Continue Reading
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