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Category Archives: Litigation

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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

Supreme Court Refuses to Moot TCPA Class Action, Leaving Business Open to More Suits

Posted in Advertising, Litigation, Regulations
The Supreme Court yesterday denied an attempt by a defendant to moot a class action under the Telephone Consumer Protection Act (TCPA), 48 Stat. 1064, Pub. L. 102–243 (Dec. 20, 1991) (codified at 47 U.S.C. § 227), on the basis of an unaccepted settlement offer to the named plaintiff. The case, Campbell-Ewald Co. v. Gomez,… Continue Reading

Brain-Training App Maker to Pay $2 Million to Settle FTC False Ad Claims

Posted in Advertising, Litigation
Lumosity, an online site and smartphone app, is supposed to help its users train their brains so they can achieve their “full potential in every aspect of life.” Unfortunately, the company was unenlightened when it came to avoiding false advertising claims. According to the Federal Trade Commission (FTC), the company claimed that using its products… Continue Reading

False Advertising Contempt Suit Costs LifeLock $100 Million

Posted in Data Security, Litigation, Privacy
On December 17, 2015, the Federal Trade Commission (FTC) announced that Lifelock, Inc. (LifeLock), agreed to pay a record-breaking $100 million to settle charges that it violated an earlier consent agreement related to flawed data security practices issued in March 2010. The LifeLock settlements implicate both the “fairness” of the company’s data security practices and… Continue Reading

Article 29 WP Says Safe Harbor Transfers Illegal; Model Clauses and BCRs Under Review

Posted in Data Security, Litigation, Privacy
The Article 29 Working Party (WP) issued a press release on October 16, 2015 announcing the outcome of the meeting to discuss coordinated action after the Court of Justice of the European Union (ECJ) decision in the matter of Schrems v. Data Protection Commissioner (C-362-14), which invalidated the U.S.-EU Safe Harbor Agreement. While calling for… 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

Is Your Device ID “Personal”? Federal Appeals Court to Decide Under VPPA

Posted in Litigation, Privacy
A federal appellate court will consider early next month whether the Video Privacy Protection Act (VPPA) makes an “Android ID” – a device identifier used in Google’s smartphones –personally identifiable information (PII). The Eleventh Circuit has scheduled oral argument in the case, Ellis v. Cartoon Network, Inc., for June 3, 2015. The plaintiff in the… 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

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

Industry Victory in Prop 65 Appeal: Exposure Averaging Upheld

Posted in Food and Drug, Litigation, Product Safety
A California appeals court has affirmed a trial court ruling that averaging exposure to reproductive toxicants over a relevant “window of susceptability” time period specific to the chemical, and across product lots, was appropriate in a Proposition 65 case involving lead in baby and toddler  foods.  Environmental Law Foundation v. Beech-Nut Corp., (A129831, Alameda County… Continue Reading
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