In a new post on the Inside Class Actions blog, our colleagues discuss a recent Fourth Circuit opinion holding that statements about the importance a company places on data security are not actionable following a data breach. The case, In re Marriott International, Inc., — F.4th —-, No. 21-1802 (4th Cir. Apr. 21
Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions, MDL proceedings, and other multi-party lawsuits. His trial victories include a jury verdict in an employment class action lawsuit that The National Law Journal ranked among the 25 most notable defense verdicts of the year.
Privacy and Consumer Protection
Eric was named "Most Valuable Player" in Privacy & Consumer Protection by Law360. He has an extensive practice representing Internet service providers, publishers and advertisers in class action litigation involving claims of unauthorized collection and disclosure of personally identifiable information ("PII"). He has successfully represented Microsoft, AOL, CBS, McDonald’s, Mazda, the Indianapolis Colts, and other companies in obtaining the dismissals of putative class action lawsuits that asserted federal law claims under the Electronic Communications Privacy Act ("ECPA"), Computer Fraud and Abuse Act ("CFAA"), and Video Privacy Protection Act ("VPPA"), as well as state law claims under the Illinois Biometric Information Privacy Act ("BIPA") and for unfair practices, trespass, and invasion of privacy.
Eric also represents companies in connection with matters arising under the Fair Credit Reporting Act ("FCRA"), Fair and Accurate Credit Transaction Act ("FACTA"), Telephone Consumer Protection Act ("TCPA"), and other consumer protection statutes.
Employment and ERISA
Eric has extensive experience defending companies in individual and class action litigation brought under federal and state laws concerning discrimination, retaliation, whistleblowing, wage and hour disputes, and wrongful termination, as well as in class action litigation involving the Employee Retirement Income Security Act ("ERISA"). Eric has the rare distinction of having tried and won a jury verdict in a class action lawsuit alleging "pattern or practice" discrimination on the basis of age in connection with a corporate reduction in force. Bush, et al. v. Deere & Company (C.D. Ill.). He also secured the reversal on appeal of a class certification order in a "stock drop" lawsuit that claimed breaches of fiduciary duty in the administration of a company retirement savings plan. In re Schering Plough Corporation ERISA Litig., 589 F.3d 585 (3d Cir. 2009). Eric also represents clients in EEOC investigations.
Financial and Fintech
Eric's practice includes the representation of financial and fintech companies on a broad array of civil litigation, arbitration, and regulatory enforcement matters relating to financial products and services, including matters for Wells Fargo Bank, JPMorgan Chase, Synchrony Bank, Envestnet, Yodlee, and MidFirst Bank.
An Illinois federal district court recently rejected dismissal of Illinois Biometric Information Privacy Act (“BIPA”) claims in In re Clearview AI, Inc., Consumer Privacy Litigation, No. 21-cv-135 (N.D. Ill.). The Clearview plaintiffs alleged that Clearview violated their privacy rights without their knowledge and consent by scraping more than three billion photographs of facial images from the internet and using artificial intelligence algorithms on the images to harvest individuals’ unique facial biometric identifiers and corresponding biometric information. Clearview sought dismissal of the BIPA claims under the First Amendment, extraterritoriality doctrine, dormant commerce clause, and BIPA’s express exemption for photographs. The court rejected these grounds, and declined to dismiss the BIPA claims.
Continue Reading Court Rejects Dismissal of Illinois Biometric Information Privacy Act Against Clearview AI in Pending Multidistrict Litigation
On Thursday, the Illinois Supreme Court unanimously ruled in McDonald v. Symphony Bronzeville Park LLC that the exclusivity provisions of the state’s workers’ compensation statute do not preclude liquidated damages claims under the Biometric Information Privacy Act. The decision narrows the defenses available to employers facing employment-related BIPA claims.
Illinois’s Workers’ Compensation Act generally provides the exclusive means by which an employee can recover against an employer for a work-related injury and requires such claims to be adjudicated before the Illinois Workers’ Compensation Commission, subject to several exceptions. One of those exceptions is for injuries that are not compensable under the Workers’ Compensation Act. At issue in McDonald was whether an alleged employment-based BIPA violation—here, the alleged use of a fingerprint-based timekeeping system without the required disclosures or consent—was the type of injury covered by the Workers’ Compensation Act.
Continue Reading Illinois Supreme Court Rules Workers’ Compensation Act Does Not Bar BIPA Liquidated Damages Claims
An Illinois state appellate court recently issued a ruling that could reduce defendants’ litigation exposure on certain types of Biometric Information Privacy Act (“BIPA”) claims. On September 17, the panel clarified in Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563 (1st Dist. Sept. 17, 2021), that the statutes of limitation applicable to BIPA claims vary depending on the nature of the claim. Claims for failing to provide a written retention policy, give notice, or obtain consent prior to collecting an individual’s biometric information may be brought within five years. But claims for violating BIPA’s selling, disclosing, or disseminating information provisions must be brought within one year.
Continue Reading Illinois Court Splits Time on BIPA Statute of Limitations
In one of the first decisions evaluating Telephone Consumer Protection Act (TCPA) claims under the FCC’s recent omnibus TCPA order, the Northern District of California dismissed a putative class action lawsuit alleging that AOL violated the TCPA when users of its Instant Messenger service (AIM) sent text messages to incorrect recipients. After the court dismissed…
By Eric Bosset
Judge Phyllis Hamilton of the U.S. District Court for the Northern District of California recently permitted a lawsuit arising out of a major data security breach suffered by social-media application developer RockYou to survive a motion to dismiss in part, based on the theory that plaintiff had stated a “generalized injury” sufficient to maintain Article III standing—at least at the initial pleading stage—because the breach of plaintiff’s personally identifiable information (“PII”) allegedly caused loss of an “ascertainable but unidentified ‘value’ and/or property right inherent in [plaintiff’s] PII.” Although this decision trends away from a recent dismissal [PDF] of a privacy suit by the U.S. District Court for the Central District of California on standing grounds, based on failure by that plaintiff to allege that the defendant caused any “actual or imminent harm,” it is a narrow ruling, the primary impact of which was to shift on these facts the timing of application of the operative standing test from the pleadings stage to the summary judgment stage.
Recognizing that the plaintiff was advancing a novel theory of damages for which supporting case law is scarce and that there is no clearly established law regarding the sufficiency of allegations of injury in the context of the disclosure of online personal information, the RockYou Court declined to hold as a matter of law that plaintiff had failed to allege an injury in fact sufficient to support Article III standing. (Under Lujan, Article III standing requires “injury in fact” that is “concrete and particularized”). Notably, though, the Court also stated that it would dismiss plaintiff’s claims for lack of standing should it become apparent, after discovery, “that no basis exists upon which plaintiff could legally demonstrate tangible harm via the unauthorized disclosure of PII” (emphasis added). The Court also rejected as a matter of law the characterization of PII disclosure as “lost money or property” and noted its doubts about plaintiff’s ultimate ability to prove the damages alleged in the complaint. Additionally, the Court dismissed with prejudice several of the causes of action asserted, based on plaintiff’s failure to allege the more particularized elements of injury required for these claims—including a claim under California’s Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200 et seq.), which requires a plaintiff to prove that a violation caused loss of money or property.…