Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Partner

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Associate

Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

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Mitchell Hokanson

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2022 brought a new wave of data privacy lawsuits seeking to impose wiretapping liability on website operators and their service providers—just as the dust settled on the <a href="https://www.mofo.com/resources/insights/220113-web-analytics-session-reply">first wave</a>. To date, plaintiffs have filed over 120 such lawsuits across nine jurisdictions (California, Florida, Illinois, Pennsylvania, Maryland, Massachusetts, Missouri, New York, and Washington) seeking to capitalize on statutory damages. California and Pennsylvania are at the focal point of these filings, with recent circuit court decisions reopening the floodgates.  In addition to moving beyond California and Florida, a chief fixture of this second wave has been a focus on live chat recording. While about one-third of these cases are still premised on session replay—the technology at issue in the <a href="https://www.mofo.com/resources/insights/220113-web-analytics-session-reply">first wave</a> of these cases—the remaining two‑thirds are premised on the alleged wiretapping of online customer service chat communications.Read the <a href="https://www.mofo.com/resources/insights/230112-2022-year-in-review-wiretapping-litigation">client alert</a>.

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Purvi G. Patel is the former managing partner of the Los Angeles Office. She represents retail, e-commerce, and other businesses in significant advertising, unfair competition, consumer fraud, and privacy matters.

Purvi G. Patel is the former managing partner of the Los Angeles Office. She represents retail, e-commerce, and other businesses in significant advertising, unfair competition, consumer fraud, and privacy 

Purvi G. Patel

Purvi G. Patel defends retail, e-commerce, and other businesses in significant advertising, unfair competition, consumer fraud, and privacy matters. She has built a robust practice defending household names in complex and class action litigation in federal and state courts across the country, winning motions to dismiss, defeating class certification, and securing summary disposition in several multi-million dollar lawsuits. Purvi is a strategic and practical thinker who is in tune with her clients’ priorities, which leads to successful outcomes both inside and outside the courthouse.

Purvi Patel

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Erik Manukyan is an associate in the Complex Litigation Department of Morrison Foerster's Los Angeles office.

Erik Manukyan

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Privacy Litigation 2022 Year in Review: Wiretapping Litigation

FTC & Privacy: Will the FTC's Rulemaking Push Result in New Privacy Rules?

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2022 brought a new wave of data privacy lawsuits seeking to impose wiretapping liability on website operators and their service providers—just as the dust settled on the first wave. To date, plaintiffs have filed over 120 such lawsuits across nine jurisdictions (California, Florida, Illinois, Pennsylvania, Maryland, Massachusetts, Missouri, New York, and Washington) seeking to capitalize on statutory damages. 

Privacy Litigation 2022 Year in Review: Wiretapping Litigation

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Meta recently agreed to settle one of the longest-running data privacy lawsuits in the United States.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftn1">[1]</a>  The lawsuit challenged the company’s use of cookies to track users, including after they have logged out of their Facebook accounts.  The significance of In re Facebook, Inc. Internet Tracking Litigation, however, is not so much the decade-long litigation in the Ninth Circuit as the proposed settlement, which would require Facebook to “sequester and delete” all user data that was allegedly collected unlawfully during the class period.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftn2">[2]</a>  This form of non-monetary relief seems unprecedented in private privacy class actions in the U.S.  If approved, such relief could be adopted in future actions alleging unlawful data collection.  In this article, we explore some of the corresponding implications.Although novel in U.S. private privacy class cases, the “sequester and delete” requirement is not without recent precedent in regulatory enforcement actions.  The Federal Trade Commission recently announced a settlement requiring a weight loss company to delete not only the unlawfully collected data, but also any algorithms or other work product derived from that data.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftn3">[3]</a>  This was not the first time that deletion was part of a settlement involving the FTC: in January 2021, the same was required in a settlement between the FTC and a photo app.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftn4">[4]</a>  Other varieties of private class action have long resulted in similar relief; for example, under the Fair Debt Collection Practices Act, a debt collector that fails to verify an individual’s debts can be required to contact credit reporting agencies and have the debt deleted from the individual’s credit report.Retaining the subject data following a data privacy lawsuit settlement can have ongoing liability risk with respect to the ongoing use of that data and, as is true in most jurisdictions, it is difficult, if not impossible, to enforce a release covering future liability.  But once the subject data is destroyed, there is no longer a risk of future liability stemming from the use of that data.  For this reason, deletion can be a preventative measure that reduces the likelihood of exposure to future liability.  By the same token, deletion is one way for the defendant to add value to the settlement without incurring additional out-of-pocket costs.Requiring deletion pursuant to a settlement agreement would also provide plaintiffs with a form of relief that may not have been available at trial.  Privacy class actions usually involve statutory claims, in which case the relief sought and granted is limited to what is provided for in the statute (often statutory damages), or claims in contract and tort law. The relief in those cases is also usually monetary relief and/or an injunction to prevent the defendant from continuing the allegedly unlawful act<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftn5">[5]</a> or from disseminating—but not keeping—the inappropriately collected information.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftn6">[6]</a>  An agreement that the defendant will not benefit from the data that has already been taken, however, has not been a common remedy either sought or granted in trial courts.Overall, including deletion as part of a class action settlement concerning unlawful data collection may be trending in the U.S. and for good reason: it may reduce risks and costs to defendants, add value to the settlement, and provide plaintiffs with meaningful forms of relief.Morrison & Foerster law clerk Sophie Barnett contributed to the writing of this post.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftnref1">[1]</a> Motion for Certification of Settlement Class and Preliminary Approval of Class Action Settlement, In re Facebook Internet Tracking Litigation, No. 5:20-MD-2314-EJD (N. D. Cal.), Dkt. No. 232.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftnref2">[2]</a> Id. at 12.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftnref3">[3]</a> Federal Trade Commission, FTC Takes Action Against Company Formerly Known as Weight Watchers for Illegally Collecting Kids’ Sensitive Health Data (March 4, 2022), <a href="https://www.ftc.gov/news-events/press-releases/2022/03/ftc-takes-action-against-company-formerly-known-weight-watchers">https://www.ftc.gov/news-events/press-releases/2022/03/ftc-takes-action-against-company-formerly-known-weight-watchers</a>.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftnref4">[4]</a> Federal Trade Commission, FTC Finalizes Settlement with Photo App Developer Related to Misuse of Facial Recognition Technology (May 7, 2021), <a href="https://www.ftc.gov/news-events/press-releases/2021/05/ftc-finalizes-settlement-photo-app-developer-related-misuse">https://www.ftc.gov/news-events/press-releases/2021/05/ftc-finalizes-settlement-photo-app-developer-related-misuse</a>.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftnref5">[5]</a> See, e.g., Wolfson v. Lewis, 924 F. Supp. 1413, 1435 (E.D. Pa. 1996).<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftnref6">[6]</a> See, e.g., Michaels v. Internet Ent. Grp., Inc., 5 F. Supp. 2d 823, 842 (C.D. Cal. 1998).

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Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a

Jessica Kaufman

Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a professional services firm in a malpractice action; a lingerie company facing consumer protection claims, including claims of false advertising; and financial institutions facing claims under the federal and state contract and antitrust laws, RICO Act, Right to Financial Privacy Act, Fair Debt Collection Practices Act, and state unfair and deceptive practices statutes. She also regularly advises and represents clients in complex commercial disputes.What do you like best about your work? Our work is our role as problem solvers. As litigators, we help clients address immediate problems. But when we know our clients and their businesses well, our clients also turn to us for longer term advice, to help identify issues before they arise, and think about how to do things better.What do you enjoy doing in your free time? I try to work with my hands. I started learning wheel-thrown pottery last year and enjoy forcing my family and friends to accept impractically shaped mugs, not just at Christmas, but — lucky for them — all year long.How do you see your practice changing in the next few years? I see my practice including more state AG enforcement work in the years ahead. The regulatory environment for our financial services clients is poised to change dramatically at the federal level; active AGs in New York and California will see that as an opportunity to fill the void.

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

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Deleting the Data: A Future Trend in Data Privacy Settlements?

Deleting the Data: A Future Trend in Data Privacy Settlements?

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Meta recently agreed to settle one of the longest-running data privacy lawsuits in the United States.[1]  The lawsuit challenged the company’s use of cookies to

The California Office of the Attorney General (OAG) recently concluded that the California Consumer Privacy Act (CCPA) generally requires a covered business to disclose, upon request, its inferences about a consumer—whether generated internally or obtained from another source—unless the business can demonstrate that a statutory exception applies. In its first formal opinion (No. 20-303) under the CCPA, OGC has thus taken an expansive view of a consumer’s CCPA “right to know” the specific pieces of personal information that a business collects.To learn more, read our <a href="https://www.mofo.com/resources/insights/220322-california-ag-issues-first-ccpa-opinion.html">client alert</a>.

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California AG Issues First CCPA Opinion: Consumers’ “Right to Know” Includes Businesses’ Internally Generated Inferences

California AG Issues First CCPA Opinion: Consumers’ “Right to Know” Includes Businesses’ Internally Generated Inferences

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The California Office of the Attorney General (OAG) recently concluded that the California Consumer Privacy Act (CCPA) generally requires a covered business to 

In an action that may eventually lead to clarification around what constitutes a “financial incentive” for purposes of the California Consumer Privacy Act (CCPA), Attorney General Rob Bonta announced on January 28, 2022 that his office (the AG) was beginning an “investigative sweep” pursuant to the CCPA.  The AG identified its focus on businesses operating customer loyalty programs in California and those businesses’ compliance with the CCPA’s notice requirements relating to financial incentives.  In its press release, the AG indicated that it had sent letters to “major corporations” across industry sectors, including retail, home improvement, travel, and food services.  These letters alleged the recipients’ non-compliance with the CCPA and provided a 30-day period for companies to cure existing issues and come into compliance with the law.To learn more, <a href="https://www.mofo.com/resources/insights/220131-california-ag-issues-notices-of-violations-guidance-loyalty-programs-ccpa.html">read our client alert</a>.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

California AG Issues Notices of Violations: Will We Soon Have Guidance on Loyalty Programs Under the CCPA

In an action that may eventually lead to clarification around what constitutes a “financial incentive” for purposes of the California Consumer Privacy Act (CCPA

California AG Issues Notices of Violations: Will We Soon Have Guidance on Loyalty Programs Under the CCPA

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The California Consumer Privacy Act has been operative for two full years now, and plaintiffs continue to file CCPA claims at a brisk clip. 2021 saw nearly 100 new complaints with CCPA claims with many of the same types of claims we saw in 2020.In our prior <a href="https://www.mofo.com/resources/insights/210106-privacy-litigation-2020-year-review.html">report</a>, we highlighted several ways plaintiffs were challenging the limits of the CCPA’s private right of action.  These included attempts to (i) apply CCPA retroactively, (ii) assert claims for violations of sections other than § 1798.150 (the data breach provision) or in the absence of a data breach, and (iii) use the CCPA as a predicate for other claims (such as California’s Unfair Competition Law). All of these issues remained open when 2021 began. Now, with the first wave of CCPA cases moving through pleading stage, courts are starting to delineate the scope of the Act’s private right of action. These decisions shed helpful light on some of the issues we previously flagged and raise several more.To learn more, <a href="https://www.mofo.com/resources/insights/220118-ccpa-litigation-year-in-review.html">read out client alert</a>.

Privacy Litigation 2021 Year in Review: CCPA Litigation

The California Consumer Privacy Act has been operative for two full years now, and plaintiffs continue to file CCPA claims at a brisk clip. 2021 saw nearly 100 

Privacy Litigation 2021 Year in Review: CCPA Litigation

As subscription models have gained exponential traction, legislatures are clamoring to ensure that their auto-renewal laws keep up with novel consumer protection issues. Several states have introduced or revised their auto-renewal laws, and the Federal Trade Commission has affirmed its commitment to enforce against unlawful offers. Perhaps most notably, California—already a leader in state auto-renewal laws—has significantly amended its law, with the amendments taking effect on July 1, 2022. Other new state requirements took effect on January 1, 2022.To learn more, <a href="https://www.mofo.com/resources/insights/220113-recent-auto-renewal-law-changes.html">read our client alert</a>.

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Forgot to Cancel? Pay Attention to Recent Auto-Renewal Law Changes

AMG Capital v. FTC – SCOTUS Strips the FTC of a Critical Enforcement Tool

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As subscription models have gained exponential traction, legislatures are clamoring to ensure that their auto-renewal laws keep up with novel consumer protectio

Forgot to Cancel? Pay Attention to Recent Auto-Renewal Law Changes

2021 marked another year of important developments in the TCPA landscape as lower courts issued conflicting interpretations of SCOTUS’s ruling Barr v. AAPC and began to apply the definition of “autodialer” that SCOTUS articulated in Facebook, Inc. v. Duguid. Although defendants swung for the fences in an attempt to argue that AAPC rendered the entirety of the TCPA unenforceable for a five year period and had some initial success, the tide seems to be turning. Similarly, although Duguid provided a narrow definition of an “autodialer”, factual disputes about what satisfies that new definition may still need to be resolved on summary judgment.The Dust Has Not Settled on Whether Defendants Can Be Held Liable for Robocalls Made Between 2015 and July 2020 Following SCOTUS’s Landmark Decision in AAPC.In the wake of the Supreme Court’s decision in Barr v. American Association of Political Consultants, Inc. (“AAPC”), 140 S. Ct. 2335 (2020), lower courts have continued to grapple with the question of whether plaintiffs can assert Telephone Consumer Protection Act (TCPA) claims for conduct occurring between 2015 and July 2020—the time period between when the government-backed debt exception amendment to the TCPA was passed and the date that the Supreme Court declared it unconstitutional. A split among district courts quickly emerged. One line of cases followed an early Eastern District of Louisiana decision, Creasy v. Charter Communications, Inc.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn1">[1]</a>, in holding that there could be no liability imposed for calls occurring during the contested five-year time period.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn2">[2]</a> But the majority of district courts declined to adopt Creasy’s reasoning, instead finding that AAPC did not negate the liability of parties that made robocalls during that time period.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn3">[3]</a>To learn more, read out <a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html">client alert</a>.

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Privacy Litigation 2021 Year in Review: TCPA Litigation

Privacy Litigation 2021 Year in Review: TCPA Litigation

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2021 marked another year of important developments in the TCPA landscape as lower courts issued conflicting interpretations of SCOTUS’s ruling Barr v. AAPC and 

Appellate & Supreme Court

Cyber incidents top the list of issues keeping in-house counsel up at night. And as we continue to see the number of incidents climb, we continue to see class actions filed in their wake. So what are the highlights from 2021 and what can we expect in the coming year?<h4>Class Action Filing Trends</h4>We count 36 major data breach class actions filed this past year, treating multiple cases filed against a single defendant as one major class action.<a href="https://www.mofo.com/resources/insights/220104-privacy-litigation-2021-year-review.html?utm_source=publication&utm_medium=email#_ftn1" class="anchor">[1]</a> This is a significant increase over the 25 major class actions filed last year. Here’s what we are seeing in these cases:Plaintiff’s counsel continue to jockey for position. Plaintiff’s attorneys continue to try to beat others to the courthouse.  In five of the major data breach cases filed, plaintiffs filed the first-filed case within a week of announcement of the breach.  On average, cases were filed within four weeks of the announcement. Three of the cases were the subject of MDL proceedings; 21 of them were consolidated.What was stolen. In 26 cases, plaintiffs alleged exfiltration of social security numbers, significantly more than the number of cases we saw last year. Last year, the majority of cases concerned allegedly compromised payment card information. This kind of information allegedly was compromised in about one-third of the cases this year, and about half of the cases concerned alleged exfiltration of sensitive medical data.Who was impacted. As compared to 15% of the cases last year, plaintiffs in about one-third of the cases this year were employees. The rest of the plaintiffs were customers, patients, or account holders.Novel liability theories. We saw further evolution of plaintiff’s counsel’s theories in the last year. In a suit filed in response to the Colonial Pipeline ransomware attack, for example, plaintiff alleges that consumers and gas station owners were harmed by increased gas prices as a result of the company’s negligence.<a href="https://www.mofo.com/resources/insights/220104-privacy-litigation-2021-year-review.html?utm_source=publication&utm_medium=email#_ftn2" class="anchor">[2]</a> And a federal court in Los Angeles followed other courts in rejecting plaintiff’s theory that the value of his personal information decreased due to the breach.<a href="https://www.mofo.com/resources/insights/220104-privacy-litigation-2021-year-review.html?utm_source=publication&utm_medium=email#_ftn3" class="anchor">[3]</a>To learn more, read our <a href="https://www.mofo.com/resources/insights/220104-privacy-litigation-2021-year-review.html">client alert</a>.

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Privacy Litigation 2021 Year in Review: Data Breach Litigation

Privacy Litigation 2021 Year in Review: Data Breach Litigation

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Cyber incidents top the list of issues keeping in-house counsel up at night. And as we continue to see the number of incidents climb, we continue to see class a

Arbitration

Just a few months after the U.S. Supreme Court narrowed the applicability of the federal Telephone Consumer Protection Act (TCPA), Florida has enacted a law that imposes broad prior consent requirements on phone and text solicitations and provides for statutory damages and a private right of action for violations.Read our client alert <a href="https://www.mofo.com/resources/insights/210706-tcpa-like-florida-law-takes-effect.html?utm_source=publication&utm_medium=email">here</a>.