Tag Archives: Litigation

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

Court Holds Interception of Unsecured Wi-Fi Communications Does Not Violate the Wiretap Act

Late last month — in a decision that seems to have been largely overlooked in the privacy trade press — a federal judge in Illinois held [PDF] that the Wiretap Act did not prohibit the interception of communications sent over unsecured Wi-Fi networks provided by hotels, restaurants, coffee shops and other commercial entities.  The decision came … Continue Reading

Judge Dismisses Putative Class Action Against “Who’s-Who of Social Media Companies”

A court in Texas recently dismissed a lawsuit it described as “an aspiring class action against a veritable who’s-who of social media companies.”  The Plaintiffs in Opperman v. Path claimed that the Defendants improperly used their smartphone apps to copy, upload, and store Plaintiffs’ address book information without their consent. According to the court, the Plaintiffs’ … Continue Reading

Twitter Appeals Ruling Requiring It to Produce User’s Tweets and Subscriber Information

Earlier this week, Twitter appealed a New York state judge’s ruling that required the company to produce an Occupy Wall Street protestor’s tweets, email address, and certain subscriber information.  The trial court judge had reasoned that the public nature of Twitter meant that the defendant lacked privacy interests in his tweets and that the government’s … Continue Reading

Court Dismisses VPPA Suit Against Netflix

The past few years have witnessed a series of attempts by plaintiffs to apply the Video Privacy Protection Act (“VPPA”) — a statute passed in 1988 to protect against certain disclosures of video rental records — to the video distribution technologies of today.  For example, in Sterk v. Redbox Automated Retail, plaintiffs sued the video … Continue Reading

New Holding That CIPA Not Preempted By Federal Wiretap Act

Adding to a growing body of decisions considering federal preemption of the California Invasion of Privacy Act (“CIPA”), Judge Chen of the Northern District of California held yesterday that there is no complete preemption, either express or implied, by the federal Wiretap Act.  As a result, Judge Chen granted plaintiff’s motion to remand one class … Continue Reading

Low Case Against LinkedIn Dismissed In Its Entirety

Yesterday, deeming LinkedIn’s motion to dismiss suitable for decision without oral argument, Judge Koh of the U.S. District Court for the Northern District of California dismissed all eight claims in Low v. LinkedIn with prejudice, ending this litigation.  Covington successfully represented LinkedIn in this case, in which plaintiffs alleged that the purported transmittal to certain third … Continue Reading

Supreme Court Dismisses Edwards

By Mali Friedman and Simon Frankel With all eyes on the Affordable Care Act today, the United States Supreme Court also quietly dismissed a case that could have had a profound impact on a wide range of citizens’ rights litigation—First American Financial Corp. v. Edwards.  Stating only that the writ of certiorari had been “improvidently … Continue Reading

Settlement Reached in Data Security Breach Lawsuit Against Bank

Yesterday, Village View, Inc. reached a settlement with Professional Business Bank, a California state-chartered bank subject to regulation by the Federal Deposit Insurance Corporation (FDIC), over the company’s lawsuit against the bank arising from a data security breach.  In March 2010, Village View lost nearly $400,000 after the company’s bank account was compromised by hackers.  … Continue Reading

Key Holdings in the In re iPhone Application Dismissal Order

By: Shel Abramson The United States District Court for the Northern District of California recently dismissed with prejudice most claims asserted by consumer plaintiffs in In re iPhone Application Litigation, including causes of action under the Stored Communications Act (“SCA”), the Wiretap Act, and other federal and state laws.  Plaintiffs asserted that Apple and a group … Continue Reading

Court Dismisses CFAA, Trespass Claims Against Amazon

By Brian Ryoo The United States District Court for the Western District of Washington recently dismissed in part an online privacy lawsuit alleging that Amazon “circumvented” browser privacy controls in order to track users’ web browsing activities.  The plaintiffs in Del Vecchio v. Amazon had alleged that Amazon “exploit[ed]” browser controls in Internet Explorer by … Continue Reading

Carrier IQ Class Action Sent Back to State Court

Judge Feess of the Central District of California recently rejected Carrier IQ’s attempt to litigate in federal court a class action concerning whether Carrier IQ’s software, installed on a wide range of smart phone devices from many different manufacturers running on various wireless networks, violated California law.  Judge Feess remanded the case to state court … Continue Reading

Supreme Court Refuses to Hear Class Action Suit Stemming From Data Breach

Last week, the U.S. Supreme Court declined to hear an appeal of a Third Circuit Court of Appeals decision that put an end to a proposed class action lawsuit stemming from a data breach.  The suit, Reilly v. Ceridian Corp., was brought by two individuals who were among approximately 27,000 employees at 1,900 companies whose personal and financial … Continue Reading

Court Dismisses Video Privacy Suit Against Sony

A judge in the Northern District of California recently agreed with the Seventh Circuit that the Video Privacy Protection Act (“VPPA”) does not provide a private right of action premised solely on an allegedly unauthorized retention of information.  Plaintiffs sued Sony Computer Entertainment America LLC (“SCEA”) and Sony Network Entertainment International LLC (“SNEI”) for alleged violations of the … Continue Reading

Court Won’t Undo Dismissal of in re Facebook Privacy Litigation

Last week, Judge Ware of the Northern District of California denied a motion to amend his November 2011 dismissal, with prejudice, in In re Facebook Privacy Litigation, a case in which plaintiffs had argued that Facebook improperly transmitted users’ personal information, including User ID numbers or usernames, to third party advertisers. In his most recent … Continue Reading

Minnesota AG Files First HIPAA Enforcement Action Against Business Associate

Last month, the Minnesota Attorney General filed a lawsuit in federal court against Accretive Health, Inc. alleging that the company violated various provisions of HIPAA as well as Minnesota consumer privacy and protection law.  Although HIPAA-covered entities have been the subject of enforcement actions by state AGs and the Department of Health and Human Services, … Continue Reading

ABA Urges U.S. Courts to Respect Foreign Data Protection Laws

Last week, the American Bar Association adopted a rule calling on U.S. courts to “consider and respect, as appropriate, the data protection and privacy laws of any applicable foreign sovereign . . . with regard to data sought in discovery in civil litigation.”  In an extensive report accompanying the new rule, the ABA detailed the … Continue Reading

Personal Injury Defendant Denied Access to Plaintiff’s Private Facebook Content

An Eastern District of Michigan judge held that a personal injury defendant could not discover the plaintiff’s private Facebook content under Rule 26(b) governing the discoverability of evidence.  Tompkins v. Detroit Metropolitan Airport, No. 2:10-cv-10413-BAF-RSW (E.D. Mich, Jan. 18, 2012).  Although—as the court noted—the private portions of a user’s Facebook account are not generally privileged … Continue Reading

Supreme Court Holds That Private Plaintiffs May Bring TCPA Claims In Federal Court

On Wednesday, the United States Supreme Court unanimously held that the Telephone Consumer Protection Act (“TCPA”) allows private citizens to seek relief in federal (in addition to state) court.  Overturning an Eleventh Circuit decision that Congress had vested jurisdiction over private TCPA actions exclusively in state courts and disagreeing with numerous other Circuit courts that … Continue Reading

Class Action Filed Following Zappos Data Breach

A putative class action was filed on Monday against Amazon.com following an online hacking attack that potentially compromised the personal information of up to 24 million customers of its online shoe retailer Zappos.com.  An email sent to customers from Zappos.com’s CEO on Sunday assured users that full credit card information and other payment information was not … Continue Reading

Webinar on the Evolving Nature of Privacy “Harm” Friday, December 16 (1-2:30 pm EST)

Class action lawsuits are increasingly being brought against organizations that have suffered data breaches, as well as against companies that are alleged to have allowed third parties access to online or mobile users’ confidential information without authorization (for example the recent Del Vecchio v. Amazon and Low v. LinkedIn cases).  A repeated issue in these … Continue Reading

Amazon Case Dismissed; No Adequate Facts Pled To Establish Plausible Harm

The United States District Court for the Western District of Seattle recently dismissed an online privacy case involving the alleged improper use of browser and Flash cookies in Del Vecchio v. Amazon.  Finding that the plaintiff “simply not plead adequate facts to establish any plausible harm,” this opinion follows closely on the heels of several … Continue Reading

Court Holds That CAN-SPAM Preempts Michigan Anti-Spam Suit

A federal district court in Michigan recently held that the federal CAN-SPAM Act preempts Michigan’s anti-spam law.  Unlike the federal law, Michigan’s statute offers individuals who receive unsolicited commercial email, or “spam,” a private cause of action.  The decision, by Judge Janet T. Neff of the Western District of Michigan in Hafke v. Rossdale Group, … Continue Reading
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