The number of class actions filed is on the rise in industries that interface with consumers and collect or handle data. From social networking and content-streaming companies to App providers, your client’s business practices may implicate privacy issues or require privacy-related precautions. The Federal Bar Association is pleased to present a variety of vital CLE sessions, including one on privacy law in the age of data collection, at the Annual Meeting and Convention in Atlanta, Georgia September 14-16. Register today at www.fedbar.org/FBACon17.
Evaluate the nation’s most electrifying data privacy class action cases, as counsel will discuss their experiences in defending these complex lawsuits. Everyone is talking about privacy: From breaches with protected health information to data transfers to social media, everyone has data and it can all lead to a class action lawsuit. Learn how to decide whether to assert standing as a defense; identify which arguments are the most persuasive on class certification; and gain insight about traps preventing settlement in privacy class actions. Casie D. Collignon (BakerHostetler), Anthony J. Ferrante (FTI Consulting, Inc.), and Paul G. Karlsgodt (BakerHostetler) will lead the session on “Defending Privacy Class Actions.”
An increasing incidence of privacy breaches arising from hacking, transmitting customer data to third parties, theft or loss of personal information, and other causes has precipitated an upswing in the number of plaintiffs’ counsel filing class actions that allege violations of federal and state consumer privacy laws. Currently, the law has been focused on standing, causation, and injury.
Under federal law, numerous requirements must be satisfied before a class can be certified, including number of class members, commonality of issues, typicality of the plaintiff claims or defenses, and whether there is an ascertainable class. Speakers at the Annual Meeting and Convention will review standing as an important defense to assert and preserve.
To establish standing in federal court, a plaintiff must suffer an “injury in fact,” that is “concrete and particularized” and there must be “a causal connection between the injury and the [alleged] conduct.” Given these requirements, a number of privacy class actions have been dismissed for lack of standing because plaintiffs fail to articulate some cognizable injury resulting from the use, misuse, or sale of information about them. Another challenge for plaintiffs is proving commonality. The Federal Rules of Civil Procedure requires a showing that questions of law or fact common to class members predominate over questions affecting only individual members.
With these privacy lawsuits proliferating, businesses should take steps now to protect themselves from claims before they are filed, and lawyers shall lay the groundwork for a defense in case they are filed. At least some courts have refused to certify a class when the facts showed that potential class members likely received different information, suffered discordant injuries, or had different expectations about a business practice, requiring individual assessment of notice and consent.
The potential liability resulting from privacy and data breach class actions is substantial. With so much at stake, class certification will undoubtedly be a critical battleground in future cases. To attend the CLE session on “Defending Privacy Class Actions” and the 2017 Annual Meeting and Convention, visit www.fedbar.org/FBACon17. You can take advantage of early bird rates by registering on or before August 4.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.