A California Superior Court recently certified a putative class action of California residents “who have used mobile devices running the Android operating system to access the internet through cellular data plans provided by mobile carriers.” See Order Concerning: (1) The Parties’ Expert Exclusion Motions; and (2) Plaintiffs’ Class Certification Motion, Csupo, et al. v. Alphabet
Are You Not Infotained? The Ninth Circuit Tightens Statutory Standing Rules for WPA Claims
The Ninth Circuit on Friday held that vehicle infotainment systems that illegally record private communications might generate an injury-in-fact sufficient to satisfy Article III standing—but (without more) such recordings fail to injure a plaintiff’s “person,” “business,” or “reputation” as is required to gain statutory standing under the Washington Privacy Act (“WPA”).
Federal Court Dismisses Chatbot Claim for Lack of Article III Standing Where Plaintiff Could Not Show Concrete Injury
A federal district court in the Northern District of California granted a motion to dismiss a putative class action where the plaintiff claimed that the defendant violated the California Invasion of Privacy Act (“CIPA”) § 631 for using a third-party chat feature on its website. The court dismissed the plaintiff’s claim for lack of Article III standing but granted leave to amend.
All but One Claim in Pathology Lab Data Breach Class Action Tossed on Motion to Dismiss
Only one claim survived dismissal in a recent putative class action lawsuit alleging that a pathology laboratory failed to safeguard patient data in a cyberattack. See Order Granting Motion to Dismiss in Part, Thai v. Molecular Pathology Laboratory Network, Inc., No. 3:22-CV-315-KAC-DCP (E.D. Tenn. Sep. 29, 2023), ECF 38.
Federal Court Partially Dismisses Hacked Hard Drive Claims Where Plaintiffs Could Only Show Data Deletion, Not Theft
A federal district court in the Northern District of California granted in part a motion to dismiss putative class action claims filed against Western Digital, a hard drive manufacturer whose older devices experienced a cyber-attack, where the plaintiffs alleged that their stored data was deleted but not that it was stolen. While plaintiffs will be permitted to maintain claims related to the data loss, they lack standing to assert claims based on future data misuse.
Ninth Circuit Holds Spam Text Messages Are Not Prerecorded Voices Under TCPA
Last week, the Ninth Circuit rejected an attempt to broaden the scope of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, when it held that text messages not containing audio could not violate the TCPA’s prohibition against sending messages with “artificial or prerecorded voices.” See Trim v. Reward Zone USA LLC, — F.4th –, 2023 WL 5025264, at *4 (9th Cir. Aug. 8, 2023).
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Website Operator and Session Replay Provider Succeed on Personal Jurisdiction Arguments
At the end of last month, courts handed down two decisions in favor of website operators and their service providers in session replay litigation, granting motions to dismiss on personal jurisdiction grounds.
Eleventh Circuit Holds Having Payment Information Posted to Dark Web Establishes Standing in Data Breach Case, Remands Class Certification Order
Last week, the Eleventh Circuit reversed in part and remanded an order certifying a class in a case arising from a data breach of Chili’s restaurants, Green-Cooper v. Brinker International, Inc., No. 21-13146, 2023 WL 4446420 (11th Cir. July 11, 2023). The opinion clarifies the Eleventh Circuit’s view of when data breaches give rise to Article III standing.
Another Court Dismisses VPPA Class Action Because Defendant’s Online Videos Were Only a Peripheral Part of Its Business
Last month, a defendant won dismissal of a putative VPPA class action when the court concluded that the defendant’s use of online videos was not central to the defendant’s business, and the VPPA therefore did not apply. Another court has now reached the same result. See Cantu v. Tapestry, Inc., 3:22-cv-01974 (S.D. Cal. July 10, 2023). This trend highlights the limits of the VPPA’s reach and provides forceful grounds for future motions to dismiss and demand letter responses.
Court Denies Remand of Privacy Suit, Finding Article III Standing Under TransUnion
A federal district court recently denied remand of a proposed class action against Twitter, Inc., rejecting plaintiff’s arguments, including that the removal was improper because his claim was limited to a “statutory damages remedy” that does not confer Article III standing under TransUnion LLC v. Ramirez. See Order Denying Plaintiff’s Motion to Remand, Morgan v. Twitter, Inc., No. 2:22-cv-00122-MKD (E.D. Wash. May 5, 2023).
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