Last week, the Second Circuit affirmed dismissal of a putative class action under the Video Privacy Protection Act (VPPA), holding that the alleged transmission of code containing video titles and a unique user ID to a third-party is not a disclosure of “personally identifiable information” (PII). The decision, Solomon v. Flipps Media, Inc., 23‐7597 (2d Cir. May 1, 2025), aligns the Second Circuit with the Third and Ninth Circuits in holding that the VPPA only prohibits the disclosure of information that would “readily permit an ordinary person to identify a specific individual’s video-watching behavior.” Continue Reading Second Circuit Affirms VPPA Dismissal: Data Is Not “Personally Identifiable Information” If Only Experts Can Decipher It
No Final Judgment, No Attorneys’ Fees: The Supreme Court Clarifies the Meaning of “Prevailing Party” in Lackey v. Stinnie
In Lackey v. Stinnie, the Supreme Court has clarified who qualifies as a “prevailing party” eligible for attorneys’ fees under certain statutes. The decision carries significant implications for the availability of attorneys’ fees in class action cases where defendants are able to moot claims before a court enters a final judgment.
At issue in Lackey was whether plaintiffs could obtain attorneys’ fees under 42 U.S.C. §1988(b), which allows the “prevailing party” to recover attorneys’ fees in certain civil rights cases. Plaintiffs secured a preliminary injunction but were not able to obtain any further relief (including a final judgment) because the government voluntarily ceased the challenged conduct. In a 7-2 opinion authored by Chief Justice Roberts, the Supreme Court held that the plaintiff did not qualify as a “prevailing party.”Continue Reading No Final Judgment, No Attorneys’ Fees: The Supreme Court Clarifies the Meaning of “Prevailing Party” in Lackey v. Stinnie
California Federal Court Allows Software Vendor to Enforce Website Operator’s Arbitration Agreement in Privacy Lawsuit
Plaintiffs sometimes try to sidestep an arbitration agreement with one company by suing only a second company for interrelated conduct. Last month, a California federal court applied principles of fairness under the doctrine of “equitable estoppel” to reject this tactic, holding that a software vendor (Twilio) could enforce a plaintiff’s arbitration agreement with a website operator (Keeps) that was not named as a defendant. Perry-Hudson v. Twilio, Inc., 2024 WL 493333 (N.D. Cal. Dec. 2, 2024).Continue Reading California Federal Court Allows Software Vendor to Enforce Website Operator’s Arbitration Agreement in Privacy Lawsuit
California Federal Court Puts Teeth Behind “Communication” Element of Website Wiretapping Claims
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
Fourth Circuit Holds that the Enforceability of Arbitration Agreements Containing Class Waivers Must Be Resolved Before Class Certification
A significant recent decision by the Fourth Circuit confirms that arbitration agreements that contain class-action waiver provisions can be a powerful tool to defeat class certification. In In re Marriott International, Inc., the Fourth Circuit observed that while “no court has had occasion to expressly hold as much,” the “consensus practice” of courts is to “resolve the import of waivers at the certification stage—before they certify a class, and usually as the first order of business.” 2023 WL 5313006, at *6 (4th Cir. Aug. 18, 2023). The Fourth Circuit held that courts must address the implication of an arbitration clause containing a class-action waiver before, not after, a class is certified. And because the district court in this case did not do so, the Fourth Circuit vacated the district court’s class certification ruling. Id. at *1.Continue Reading Fourth Circuit Holds that the Enforceability of Arbitration Agreements Containing Class Waivers Must Be Resolved Before Class Certification