On August 2, 2024, Illinois’ governor signed into law S.B. 2979, a significant amendment to the Illinois Biometric Information Privacy Act (BIPA). The bill states that an entity that, in more than one instance, obtains the same biometric identifier or biometric information from the same person using the same method of collection, in violation of BIPA’s notice and consent requirement has committed a single violation. As a result, each aggrieved person is entitled to, at most, one recovery for a single collective violation.Continue Reading Illinois Enacts BIPA Amendment Limiting Violation Accrual

In Ohio Carpenters’ Pension Fund v. Deutsche Bank AG, no. 22-cv-10462-ER (S.D.N.Y. Aug. 26, 2024), the U.S. District Court for the Southern District of New York dismissed an antitrust class action alleging a conspiracy between Deutsche Bank and Rabobank to manipulate prices of European government bonds.  Plaintiffs, certain U.S.-based pension funds, alleged that the defendants manipulated the prices they offered to investors to buy or sell EGBs in order to widen the resulting “bid-ask spread” between those prices and increase their profits. Continue Reading Post-Class Period Statistics Alone Cannot Demonstrate Parallel Conduct in Antitrust Action, SDNY Holds

A Central District of California court recently dismissed a putative privacy class action after determining that the movie theater defendants were not Video Tape Service Providers as defined by the Video Privacy Protection Act (“VPPA”).  See Walsh v. California Cinema Investments LLC, 2024 WL 3593569 (C.D. Cal. July 29, 2024).  Two other California federal courts recently have reached similar conclusions, and appeals of those rulings are currently pending before the Ninth Circuit.  See Garza v. Alamo Intermediate II Holdings, LLC, 2024 WL 1171737, at *1 (N.D. Cal. Mar. 19, 2024); Osheske v. Silver Cinemas Acquisition Co., 700 F. Supp. 3d 921 (C.D. Cal. 2023).Continue Reading Another California Federal Court Rules Movie Theater Is Not “Video Tape Service Provider” Under the VPPA.

In Montera v. Premier Nutrition Corp., — F.4th —, 2024 WL 3659589 (9th Cir. Aug. 6, 2024), the Ninth Circuit vacated and remanded a district court’s statutory damages award, holding that an aggregate award of statutory damages is not subject to the Supreme Court’s State Farm due process standard for punitive damages, but should instead be assessed in light of the proportionality and reasonableness of the aggregate award considering the legal violation committed. Continue Reading Ninth Circuit Gives Plaintiffs Second Chance at $91 Million in Statutory Damages

On August 6, 2024, Judge Jorge L. Alonso of the Northern District of Illinois issued an order dismissing Brantley v. Prisma Labs, Inc., a proposed class action suit against the creator of the “Magic Avatar” AI app for lack of standing and lack of personal jurisdiction over the representative plaintiff Tyrone Brantley.Continue Reading Judge Makes Class Action Claims Against “Magic Avatar” AI App Disappear

Website analytics tools targeted in wiretapping lawsuits, such as pixels, often allow businesses to shield or mask collected data to avoid the transmission of sensitive data.  A California federal judge recently dismissed a wiretapping complaint filed against Google that glossed over this nuance “to the point of seeming intentionally slippery” in John Doe I, et al. v. Google LLC, 23-cv-02431, 2024 WL 3490744 (N.D. Cal. July 22, 2024).

The twelve plaintiffs in this case claimed that their healthcare providers installed Google technology on their websites, including Google Analytics, to track and collect data about their website activity for advertising purposes.  Among the data allegedly collected was the plaintiffs’ “personal health information.”  Plaintiffs filed a complaint against Google, asserting a mix of privacy claims, including under the California Invasion of Privacy Act (“CIPA”).  According to the plaintiffs, Google unlawfully wiretapped the plaintiffs’ communications with their healthcare providers’ websites, obtaining allegedly sensitive health data in the process.Continue Reading Court Tosses Google Pixel Wiretap Complaint: Plaintiffs Fail to Allege How Pixel Was Configured or Intent to Collect Health Data

Delivering a significant win for businesses hit with website wiretapping lawsuits, a California federal judge granted a defendant’s motion for summary judgment under the California Invasion of Privacy Act (“CIPA”) in Gutierrez v. Converse Inc., 2024 WL 3511648 (C.D. Cal. Jul. 12, 2024). 

The website tool at issue in this case, like hundreds of other cases, was a third-party-enabled chat feature that businesses install on their websites to connect customers with live customer service agents.  Plaintiff Nora Gutierrez alleged that she visited Defendant Converse’s website with this chat feature installed, and that the chat provider stored her chat communications with Converse’s customer service agents on its servers.  Gutierrez characterized this practice as “wiretapping” and she asserted a claim against Converse for aiding and abetting the alleged wiretapping in violation of the first and second clause of CIPA section 631(a).Continue Reading California Federal Court Grants Summary Judgment to Defendant in CIPA Website Wiretapping Case

Earlier this summer we reported that federal courts of appeals are more closely scrutinizing class action settlements that award class counsel outsized sums not reflecting counsels’ time spent on the litigation.  Last week, the Eighth Circuit joined the trend by reversing an attorneys’ fee award of almost $80 million in a “megafund” case that “had barely gotten off the ground before it settled.”  In re T-Mobile Customer Data Sec. Breach Litig., — F.4th —, 2024 WL 3561874, at *1 (8th Cir. July 29, 2024).Continue Reading Eighth Circuit Reverses “Windfall” Fee Award to Class Counsel

Hundreds of lawsuits have accused businesses of using website analytics tools to “wiretap” their customers’ interactions with their website, but these lawsuits often overlook a basic pleading requirement of any wiretapping claim: the collection of a “communication.”  A California federal judge last week added teeth to this requirement, dismissing a wiretapping lawsuit filed against Great Wolf Resorts, Inc. (“Great Wolf”) because the plaintiff failed to plead what “communication” she had with the Great Wolf website in the first place.  See Augustine v. Great Wolf Resorts, Inc., 2024 WL 3450967 (S.D. Cal. July 18, 2024).Continue Reading California Federal Court Puts Teeth Behind “Communication” Element of Website Wiretapping Claims

A recent Seventh Circuit decision, Wallrich v. Samsung Elecs. Am., Inc., — F.4th —-, 2024 WL 3249646 (7th Cir. July 1, 2024), will be of interest to companies facing mass arbitration demands.Continue Reading Seventh Circuit Reverses Order Compelling Payment of Mass Arbitration Fees