Technology

On May 8, a Nevada federal court dismissed with prejudice a class action complaint alleging that several Las Vegas hotel operators violated Section 1 of the Sherman Act by agreeing to set hotel room prices using pricing algorithms from the same vendor.  The decision, Gibson v. Cendyn Group, No. 2:23-cv-00140 (D. Nev. 2024), follows the court’s October 24, 2023, dismissal of plaintiffs’ original complaint, which rejected plaintiffs’ allegations of a per se unlawful price-fixing conspiracy but granted leave to amend based on a Rule of Reason theory. Continue Reading No Dice:  Nevada Court Dismisses with Prejudice Algorithmic Price Fixing Theories in Vegas Hotels Case

On May 16, both houses of Illinois’ legislature passed 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 Legislature Passes BIPA Amendment Limiting Violation Accrual

A district court judge in the Northern District of California recently denied class certification in a putative privacy class action against Google and its Real Time Bidding (“RTB”) advertising system. Plaintiffs moved to certify both damages and injunctive relief classes based on allegations that Google shared personal information through its RTB system. The court denied with prejudice certification under Rule 23(b)(3), finding that individual questions about class member’s past consent to—and subjective understanding of—Google’s disclosures would predominate. The district court also denied the proposed injunctive relief class on the grounds that the proposed class definition was “fail-safe” and that plaintiffs had not met their burden to prove that their data was representative of the proposed class, but the court did so with leave to amend and requested further briefing. Plaintiffs subsequently petitioned for leave to appeal the denial to the Ninth Circuit.Continue Reading Affirmative Defense of Consent Leads to 23(b)(3) Class Certification Denial in Google Ad Bidding Privacy Litigation

Plaintiffs appear to be increasingly focused on keeping certain types of class actions, including cases brought under the California Invasion of Privacy Act (CIPA), in California state court, likely seeking to take advantage of less rigorous pleading and class certification requirements.  Some plaintiffs are even bringing individual claims and affirmatively alleging that less than $75,000 is at stake to avoid removal under CAFA or diversity jurisdiction, while purporting to reserve the right to add class allegations at a later stage.  See, e.g., Casillas v. Hanesbrands Inc., 2024 WL 1286188 (C.D. Cal. Mar. 22, 2024) (remanding individual CIPA claim to state court). 

A recent decision in the Central District of California, Doe v. PHE, Inc., 2024 WL 1639149 (C.D. Cal. Apr. 15, 2024), should help defendants seeking to remove putative class actions to federal court under CAFA.Continue Reading A Closer Look: Recent C.D. Cal. Decision Strengthens Defendants’ Arguments for CAFA Removal

A Northern District of California court excluded two groups from certified classes alleging privacy violations against Google, finding that individuals who did not set their own privacy settings did not satisfy the predominance requirement of Rule 23(b)(3).

In Rodriguez, et al., v. Google LLC, 2024 WL 1486139 (N.D. Cal. Apr. 5, 2024), plaintiffs had filed a putative class action against Google alleging that their online activities were transmitted to Google even after they turned off certain internet tracking settings, constituting alleged intrusion upon seclusion, invasion of privacy, and violation of the Comprehensive Computer Data Access and Fraud Act (CDAFA). The court had already certified two classes, but during the class notice process a dispute arose over whether two groups of people who had not set their own tracking settings were part of the class definitions: 1) users of accounts created by businesses or organizations for their employees or members; and 2) users of accounts created for children under thirteen by their parents.Continue Reading In Internet Privacy Case, Predominance Rejected for Persons Who Did Not Choose Their Own Privacy Settings

Another federal district court has dismissed a putative class action complaint asserting that an online retailer’s chat feature violated the users’ privacy under the California Invasion of Privacy Act (“CIPA”), Cal. Penal Code §§ 630 et seqSee Garcia v. Build.com, Inc., Case No. 22-cv-1985-DMS-KSC (S.D. Cal. Mar. 29, 2024), ECF 37. Continue Reading Federal Court Dismisses Class Action Asserting California Wiretapping Claim Based on Website Chat Feature

A federal judge in the Southern District of California recently granted Hwareh.com’s motion to dismiss a proposed class action claiming that third-party source code on its website unlawfully routed information about consumer information to that third party.  See Zarif v. Hwareh.com, Inc., No. 3:23-cv-00565-BAS-DEB (S.D. Cal.).  The court found that the plaintiff—whose claims included asserted violations of the Federal Wiretap Act, 18 U.S.C. § 2510 et seq., and the California Invasion of Privacy Act, Cal. Pen. Code § 631—failed to establish that the court had personal jurisdiction over Hwareh.com, an online pharmacy.  Hwareh.com is incorporated in Delaware and maintains its principal place of business in Missouri, but the plaintiff alleged that its website was available in California and that it maintained a non-resident pharmacy license in the state.  The court’s decision is the latest in a series of decisions clarifying personal jurisdiction in the context of privacy claims.Continue Reading Federal Court Dismisses Wiretapping Claims Against Pharmacy for Lack of Personal Jurisdiction

A Washington court recently dismissed with prejudice putative class action claims against Seattle Children’s Hospital asserting that use of third-party tracking technology on its website constituted wiretapping and other privacy law violations.Continue Reading Washington State Court Dismisses Wiretapping and Other Claims Involving Hospital Website

The United States District Court for the Southern District of Iowa has dismissed on sovereign immunity grounds a putative class action against the University of Iowa Hospitals and Clinics (“UIHC”) for unjust enrichment and violations of the Electronic Communications Privacy Act and Computer Fraud and Abuse Act.  See Yeisley v. Univ. of Iowa Hosps. & Clinics, No. 3:23-cv-00025 (S.D. Iowa Feb. 16, 2024) (unpublished). 

The plaintiff, a patient of UIHC, had alleged that UIHC used a pixel on its website to share her personally identifiable information with third parties for marketing purposes and without her consent.  The Court did not reach the merits of the case and instead granted UIHC’s motion to dismiss on the basis that sovereign immunity barred each of the plaintiff’s claims.Continue Reading Federal Court Dismisses Lawsuit Over Use of Pixel Technology on University Hospital Websites

In class actions challenging data collection, whether the defendant’s privacy policy disclosed the collection is almost always a key question at the dismissal stage.  In a memorandum decision likely to be useful to defendants, the Ninth Circuit recently affirmed dismissal of claims challenging Google’s collection of data from third-party apps on its Android mobile operating system, holding that Google’s Privacy Policy clearly disclosed the collection.  See Hammerling v. Google LLC, No. 22-17024 (9th Cir. Mar. 5, 2024) (unpublished).Continue Reading Ninth Circuit Affirms Dismissal of Data Privacy Claims Based on Disclosure of Collection in Privacy Policy