Tag Archives: Litigation

D.C. Circuit Hears Oral Arguments in Urban Outfitters ZIP Code Lawsuit

Last week, the D.C. Circuit heard oral argument in the lawsuit filed against Urban Outfitters and Anthropologie over their collection of customer ZIP codes at the point of sale.  The plaintiffs alleged that the practice of requesting ZIP codes at the point of sale during credit card transactions violated two D.C. statutes, the Consumer Protection … Continue Reading

Court Finds FTC Entitled to Partial Summary Judgment Against Dish Network for Telemarketing Violations

Last month a federal court found Dish Network liable for calls that were alleged by the Federal Trade Commission (“FTC”) to violate various provisions of the FTC’s Telemarketing Sales Rule (“TSR”).  Specifically, the FTC’s 2009 complaint asserted that Dish Network initiated, or caused a telemarketer to initiate, calls to numbers on the National Do Not … Continue Reading

FTC and Wyndham to Mediate Dispute Over FTC Data-Security Authority

Earlier this week, U.S. District Court Judge Esther Salas directed the Federal Trade Commission (“FTC”) and Wyndham Hotels and Resorts to seek mediation to resolve their landmark dispute over whether the FTC has the authority to regulate companies’ data-security practices.  As we’ve previously reported, the FTC alleged that Wyndham violated Section 5 of the FTC … Continue Reading

Another Court Finds That an Automated SMS Platform is Not an ATDS

By Ani Gevorkian Last week, the U.S. District Court for the Southern District of California issued an opinion regarding the definition of  an “Automatic Telephone Dialing System” (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”).  The opinion follows a small but growing number of cases holding that courts have their own ability to interpret the … Continue Reading

Breaking Down the Court’s Decision in FTC v. Wyndham Worldwide Corp.

Last week, a federal judge in the District of New Jersey denied Wyndham Hotels and Resorts’ motion to dismiss the FTC’s complaint alleging Wyndham violated the FTC Act by failing to provide reasonable security for its customers’ personal information.  This Covington E-Alert provides a detailed look at the parties’ arguments and the court’s holdings in … Continue Reading

Judge Denies Wyndham’s Motion to Dismiss, Allowing FTC’s Case to Proceed

Earlier today, in a long-awaited decision, Judge Salas of the District of New Jersey denied Wyndham Hotels and Resorts’ motion to dismiss a Federal Trade Commission (“FTC”) lawsuit alleging Wyndham violated Section 5 of the FTC Act by failing to provide “reasonable” security for the personal information of its customers.  The case has been closely watched … Continue Reading

Appeals Court Affirms Dismissal of “Shine the Light” Suits

Last week, the U.S. Court of Appeals for the Ninth Circuit affirmed lower-court dismissals of two lawsuits under California’s “Shine the Light” law.  Shine the Light (or “STL”) requires businesses that disclose customers’ personal information to third parties for those parties’ direct marketing purposes to respond to customer requests for information about such disclosures.  The … Continue Reading

California AG Sues Company for Slow Breach Response, “Public” Display of Social Security Numbers

California Attorney General Kamala Harris has sued the Kaiser Foundation Health Plan for failing to promptly notify employees about a 2011 data breach.  California’s breach notice law requires breaches of personal information to be disclosed “in the most expedient time possible and without unreasonable delay.” Harris alleges that Kaiser violated this requirement after taking too … Continue Reading

Court Tosses Claims Against Google and Others Based on Safari Hack

By Katherine Gasztonyi Last week, Judge Robinson of the District of Delaware dismissed a multi-district lawsuit claiming that Google, Vibrant Media, Media Innovation Group, and WPP violated federal privacy and computer security laws by allegedly circumventing browser privacy settings in order to track users online. This lawsuit stems from a February 17, 2012, Wall Street … Continue Reading

HHS to Issue Guidance on HIPAA Marketing Restrictions

In a court filing on September 11, 2013, attorneys for the U.S. Department of Health and Human Services (HHS) announced that HHS intends to issue further guidance on certain new marketing restrictions under HIPAA, finalized last January as part of the final HITECH omnibus rule, and to delay enforcement of those new marketing restrictions until … Continue Reading

Action Against Magazine Publishers for Sale of Customer Lists Allowed to Proceed

The United States District Court for the Eastern District of Michigan has allowed a putative class action under Michigan law to proceed against several magazine publishers that allegedly sold lists of their customers’ names, addresses, and subscription choices to third parties.  Earlier this week, in a case styled Halaburda v. Bauer Publishing Co., Judge Steeh … Continue Reading

Key Decision in Nike Song-Beverly Litigation

Businesses should take note of this week’s decision in Gormley v. Nike, Inc., a lawsuit under California’s Song-Beverly Credit Card Act, in which plaintiffs allege that Nike violated the Act by requesting ZIP codes from them during credit card transactions in Nike’s retail stores.  Judge Susan Illston of the Northern District of California denied Nike’s … Continue Reading

Supreme Court Rejects Plaintiffs’ Efforts to Stipulate Out of Federal Court

The U.S. Supreme Court unanimously ruled on Tuesday that plaintiffs bringing class actions cannot escape federal jurisdiction by stipulating to seek less than $5 million in damages.  In a nine-page opinion, the Court held that plaintiff Greg Knowles had no power to speak for the proposed class when he stipulated in a lawsuit against Standard … Continue Reading

Supreme Court Nixes FISA Surveillance Suit on Standing Grounds

This week, in a 5-4 decision in Clapper et al. v. Amnesty International USA et al., the United States Supreme Court rejected two theories of Article III standing presented by a group of attorneys, human rights, labor, legal, and media organizations who sought a declaration that surveillance under section 1881a of the Foreign Intelligence Surveillance Act … Continue Reading

Humana’s Quality Assurance Calls Not Exempted From CIPA

On Wednesday, a federal judge in the Central District of California dismissed Humana Pharmacy Inc.’s motion to dismiss a putative class action suit alleging the company illegally recorded telephone calls with customers, finding that the California Invasion of Privacy Act (“CIPA”) does not exempt quality assurance recordings. In its motion to dismiss, Humana argued that CIPA exempts … Continue Reading

Ninth Circuit Revives Privacy Class Action Over ADT Call Recordings

The Ninth Circuit revived a putative class action alleging that ADT Security Services violated the California Invasion of Privacy Act (“CIPA”) by recording the plaintiff’s phone call to the company without consent, remanding the case to allow the plaintiff to file an amended complaint. In a published opinion, the panel wrote that while it agreed … Continue Reading

Two New Decisions on the Wiretap Act and Secondary Liability

The last two weeks have brought two important decisions in the ongoing litigation over behavioral advertising firm NebuAd’s alleged use of a device to intercept data from ISP networks. Several ISPs allegedly permitted NebuAd to install an “appliance” on their networks in order to collect and analyze subscriber data for ad targeting purposes.  In lawsuits … Continue Reading

5th Circuit Rules That Cell Phones Are Not “Facilities” Under SCA

Yesterday the Fifth Circuit ruled in Garcia v. City of San Laredo that personal cell phones are not “facilities” under the Stored Communications Act (SCA), agreeing with a growing number of courts that have reached the same conclusion.  In reaching this decision, the court rejected the claim of plaintiff Garcia, a former police dispatcher for the … Continue Reading

Amazon Settles “Flash Cookie” Lawsuit

On Thursday, November 15, 2012, Judge Robert S. Lasnick of the Western District of Washington dismissed Del Vecchio v. Amazon, stating that the parties had reached a settlement, the details of which were not disclosed.  The suit had alleged (among other things) that Amazon used Flash cookies to backup and “respawn” browser cookies that plaintiffs … Continue Reading

Government May be Immune to Suits Alleging Violations of FACTA

The U.S. Supreme Court ruled on Tuesday that the federal government does not always lose its sovereign immunity to damages lawsuits claiming that an agency violated the Fair and Accurate Credit Transactions Act (“FACTA”) by printing the expiration date of a credit card on a receipt issued to a consumer. In a unanimous decision, authored … Continue Reading

Song-Beverly Act Returns to California Supreme Court

Nearly two years ago, the California Supreme Court held that requesting a customer’s ZIP code in connection with a credit card transaction violated the Song-Beverly Credit Card Act of 1971, a statute that prohibits businesses from recording a customer’s “personal identification information” (“PII”) as a condition of accepting a credit card payment.  On Wednesday, the … Continue Reading

Telemarketing Recap: Recent Key Developments at the FCC, FTC and in the Courts

A number of key developments affecting telemarketing emerged over the past week: 1.  The distinction between informational and telemarketing calls was further defined.  The 9th Circuit held that calls intended to impart information about a customer rewards program could be construed as “dual purpose” calls subject to federal and state telemarketing restrictions.  See Chesbro v. … Continue Reading
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