Class Action

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

On March 22, the Western District of Washington granted a motion to remand cases removed from state court in In re Fred Hutchinson Data Security Litigation, 2:23-cv-01893-JHC, 2024 WL 1240681 (W.D. Wash. March 22, 2024). In doing so, it highlighted for litigators and companies alike a lesson in the importance of understanding how courts determine citizenship when determining diversity jurisdiction under the Class Action Fairness Act (“CAFA”).Continue Reading Relying on CAFA’s Discretionary “Home-State” Exception, Federal Court Punts Data Breach Class Action Back to State Court

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 case you missed it, below are recent posts from Privacy World covering the latest developments on data privacy, security and innovation. Please reach out to the authors if you are interested in additional information.

Kyle Fath to Discuss California DELETE Act and Data Brokers on NAI Panel on Wednesday, December 13 | Privacy World…

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…

Earlier this fall, the Fourth Circuit vacated the district court’s class certification order in the Marriott data breach MDL because of the potential applicability of a class action waiver defense. See In re Marriott Int’l Consumer Data Security Breach Litig., 78 F.4th 677 (4th Cir. 2023). Our post on this decision can be found here. On remand, the district court took little time to conclude that Marriott had waived the class action waiver in the Choice of Law and Venue provision of the putative class members’ contracts and that regardless “the adhesive provision, buried on the last page of the Terms cannot direct this Court to ignore the provisions of Rule 23 of the Federal Rules of Civil Procedure.”  In re Marriott Int’l Consumer Data Security Breach Litig., 2023 WL 8247865 (D. Md. Nov. 29, 2023). The district court thus reinstated the classes as earlier certified.Continue Reading District Court Quickly Reinstates Class Certification in Marriott Data Breach Litigation

Data breaches are an all-too-familiar issue, affecting businesses of all sizes and across all industries. Beyond dealing with the operational and reputational impacts and other resulting fallouts of a data breach, businesses also face enhanced class action litigation risk.

A recent high-profile case serves as a valuable reminder that companies should consider reliance upon a well-established mechanism of mitigating class action litigation risk. In In re Marriott International, Inc., Consumer Data Security Breach Litig., 78 F.4th 677 (4th Cir. 2023), the Fourth Circuit Court of Appeals reversed the district court’s certification order in a data breach class action dispute due to the effect of a class action waiver signed by all putative class members. The Marriott decision demonstrates how class action waivers can be utilized as a core strategy for mitigating heightened data breach litigation risks.Continue Reading Recent Marriott Data Breach Class Action Decision Underscores the Importance of Class Action Waivers

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

Squire Patton Boggs’ Kyle R. Dull and Julia B. Jacobson recently authored an article published by Competition Policy International in the CPI TechREG Chronical, that details “dark patterns,” which are misleading or otherwise manipulative user experiences intended to influence a consumer’s behavior and prevent them from making fully informed choices. Dark patterns are not merely…

In case you missed it, below are recent posts from Privacy World covering the latest developments on data privacy, security and innovation. Please reach out to the authors if you are interested in additional information.

Data Protection Impact Assessments: Are You Ready? | Privacy World

Introducing Our AI Webinar Series | Privacy World

Scott Warren…