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James Brennan

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Earlier this fall, the United States Court of Appeals for the Second Circuit undermined a strategy often used by the plaintiff’s bar in privacy claims: the threat of mass arbitration fees.  In a decision reversing the district court, the Second Circuit held that the petitioners cannot use the Federal Arbitration Act (FAA) to compel arbitration on the basis that a business failed to pay arbitration fees.  This decision adds to a growing body of precedent that courts cannot compel a business to pay arbitration fees, which as discussed previously here on Privacy World, can total in the thousands or millions of dollars in the event of mass arbitration.

Continue Reading Second Circuit Undercuts Plaintiffs’ Threats of Mass Arbitration Fees, Often Used In Asserting Privacy Claims

Last week, the Illinois House of Representatives joined the Illinois Senate in passing amendments to the state’s Biometric Information Privacy Act (“BIPA”) to limit the scope of possible damages for violations of BIPA. As covered extensively here on PW, last year in Cothron v. White Castle, the Illinois Supreme Court held that an individual person accrues a separate statutory claim each time a defendant collects or discloses the individual’s biometric information in violation of BIPA. While the dissent in Cothron accurately observed that the combination of statutory damages and “per-scan” accrual meant that businesses could face “punitive, crippling liability . . . wildly exceeding any remotely reasonable estimate of harm,” the Cothron majority determined that “concerns about potentially excessive damage awards under the Act are best addressed by the legislature.”

Continue Reading Illinois Legislature to Amend BIPA to Overrule Illinois Supreme Court Damages Decision

Earlier this month, arbitration services provider JAMS announced that it created a new set of Mass Arbitration Procedures and Guidelines (“Mass Procedures”) for use in mass arbitrations.  Like competitor American Arbitration Association’s (“AAA”) update to its mass arbitration supplementary rules (“AAA Supplementary Rules”) earlier this year, JAMS’s new procedures include some features that may mitigate some of the more abusive practices common to mass arbitrations, but do not fully eliminate the risks posed by mass arbitrations.  Read on for an overview of these new procedures and the accompanying fee schedule.

Continue Reading Arbitration Provider JAMS Creates New Mass Arbitration Procedures

The Illinois Genetic Information Privacy Act, 410 ILCS 513/1, et seq. (“GIPA”), which was passed in 1998 and amended in 2008, had until recently received little attention from the plaintiffs’ bar. That changed last August, after a court granted certification in a federal GIPA class action involving alleged unauthorized disclosure of consumers’ genetic information to unknown third-party developers by a website that sold DNA analysis reports. See Melvin v. Sequencing, LLC, 344 F.R.D. 231, 233 (N.D. Ill. 2023). Over 50 GIPA cases were filed in 2023 alone in the wake of that ruling, with many more now pending in Illinois state and federal courts. As this litigation trend continues almost a year following the granting of class certification in Melvin, companies are asking: what is GIPA, are we subject to it, and what should we do to mitigate litigation risk?  Employers, insurance companies, and others that collect health- and genetic-related information should read on to learn more.

Continue Reading Employers and Insurance Companies Continue To Be Targeted with Deluge of Claims Under the Illinois Genetic Information Privacy Act

Today, in a unanimous opinion, the Supreme Court of the United States ruled that agencies of the federal government can be sued by individual consumers for violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq.  The decision is significant in that it paves the way for more FCRA…

2023 was another busy year in the realm of data event and cybersecurity litigations, with several noteworthy developments in the realm of disputes and regulator activity.  Privacy World has been tracking these developments throughout the year.  Read on for key trends and what to expect going into the 2024.

Growth in Data Events Leads to Accompanying Increase in Claims

The number of reportable data events in the U.S. in 2023 reached an all-time high, surpassing the prior record set in 2021.  At bottom, threat actors continued to target entities across industries, with litigation frequently following disclosure of data events.  On the dispute front, 2023 saw several notable cybersecurity consumer class actions concerning the alleged unauthorized disclosure of sensitive personal information, including healthcare, genetic, and banking information.  Large putative class actions in these areas included, among others, lawsuits against the hospital system HCA Healthcare (estimated 11 million individuals involved in the underlying data event), DNA testing provider 23andMe (estimated 6.9 million individuals involved in the underlying data event), and mortgage business Mr. Cooper (estimated 14.6 million individuals involved in the underlying data event). 

Continue Reading 2023 Cybersecurity Year In Review

In a decision last week, the Ninth Circuit Court of Appeals affirmed dismissal of a putative class action concerning allegations that Shopify violated various California privacy and unfair competition laws by purportedly concealing its involvement in online consumer transactions.  Briskin v. Shopify, Inc., No. 22-15815, 2023 WL 8225346 (9th Cir. Nov. 28, 2023).  In…

Last week, the Attorney General for California filed a notice of appeal to overturn a federal court ruling that the state’s Age-Appropriate Design Code Act (“CAADCA”) likely violates the First Amendment.  The appeal will put the constitutionality of California’s act before the Court of Appeals for the Ninth Circuit.

Following unanimous votes by the California…

The federal Video Privacy Protection Act (“VPPA”) is one of the most frequently litigated data privacy statutes. This month, a California federal court dismissed VPPA claims brought against Hershey, making clear that VPPA liability does not extend to all websites with playable video clips. Rodriguez v. The Hershey Company, et al., No. 3:23-cv-00398-L-DEB, 2023 WL…

Earlier this week, the Illinois Supreme Court denied a petition for rehearing of its decision in Cothron v. White Castle, a case which has tremendous implications on the effect of Illinois’s Biometric Information Privacy Act (“BIPA”). As previously covered here on PW, the Court’s decision in February concluded that that each separate incident which is a violation of BIPA constitutes a distinct and separately actionable violation of the statute. In other words, plaintiffs may seek to collect liquidated damages per violation—$1,000 per violation, $5,000 per intentional/reckless violation—instead of per plaintiff, even if a plaintiff alleges daily violations over the course of years. This week’s ruling leaves in place the Cothron decision and its exponential expansion of the scope of damages that may be sought by an individual plaintiff.

Continue Reading Illinois Supreme Court Refuses to Reconsider Decision That BIPA Claims Accrue Individually with Each Violation