The Eleventh Circuit, sitting en banc, recently applied TransUnion to hold that a plaintiff lacked Article III standing to bring claims under the Fair Debt Collection Practices Act.  Hunstein v. Preferred Collection & Mgmt. Servs., Inc., No. 19-14434, 2022 WL 4102824 (11th Cir. Sept. 8, 2022)(en banc).  The en banc decision reversed a controversial panel decision allowing a plaintiff to sue a collection agency for disclosing information about his debt to the agency’s mail vendor.

Continue Reading Eleventh Circuit, Sitting En Banc, Reverses Panel Decision And Holds FDCPA Plaintiff Lacks Standing

Last week the Third Circuit reversed a summary judgment ruling in favor of Harriet Carter Gifts and NaviStone for alleged violations of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, or WESCA.  See Popa v. Harriet Carter Gifts, Inc., Case No. 21-2203, 2022 WL 3366425 (3rd Cir. Aug. 16, 2022). This lawsuit is one of many recent putative class actions attempting to apply decades-old wiretapping laws against websites and their service providers.  The named plaintiff is a consumer that allegedly shopped on Harriet Carter Gifts’ website while NaviStone’s marketing software was installed on the website.  Plaintiff argued that defendants violated WESCA by simultaneously sending her interactions with Harriet Carter’s website to NaviStone.

Continue Reading Third Circuit Revives Wiretapping Claims Against Marketing Software Company

The Northern District of California denied class certification in a data breach suit against Zoosk, an online dating service, concluding that the lead plaintiff had waived any right to represent a class by agreeing to a class-action waiver.  See Order Denying Class Certification, Flores-Mendez v. Zoosk, Inc., No. 3:20-04929-WHA (N.D. Cal. July 27, 2022).

Continue Reading Class Certification Denied in Data Breach Class Action Based on Class-Action Waiver in Terms of Service

On July 21, the federal district court denied remand of a proposed class action against Build-A-Bear Workshop, Inc., rejecting the plaintiff’s attempt to remand based merely on Build-A-Bear raising lack of standing as an affirmative defense in its answer.  See Order Denying Motion to Remand, Ruby v. Build-A-Bear Workshop, Inc., No. 4:21-cv-01152-JAR (E.D. Mo. July 21, 2022).

Continue Reading Court Denies Motion to Remand Build-A-Bear TCPA Suit When Standing Raised as an Affirmative Defense

Last week, the Northern District of California dismissed a putative class action lawsuit against Google, which alleged that the company used a secret program called “Android Lockbox” to spy on Android smartphone users.  See Order Granting Motion to Dismiss, Hammerling v. Google LLC, No. 21-cv-09004-CRB (N.D. Cal. July 18, 2022).  The complaint alleged ten different claims for relief under a variety of legal theories, including privacy, fraud, contract, and California’s Unfair Competition Law.  The Court granted Google’s motion to dismiss on all claims.  Although the Court gave plaintiffs leave to amend, it noted that the deficiencies in the complaint “will be difficult to cure,” signaling that plaintiffs face an uphill battle in keeping this lawsuit alive.

Continue Reading Court Tosses “Android Lockbox” Secret Spying Program Class Action

Last week, an Illinois federal district court granted the defendant’s motion to stay in Stegmann v. PetSmart, No. 1:22-cv-01179 (N.D. Ill.).  The case implicates the evolving law surrounding the scope of the Illinois Biometric Information Privacy Act (“BIPA”) and  a pending Illinois Supreme Court case that could provide an important defense to certain BIPA suits.

Continue Reading Federal Court Stays Suit Implicating Accrual of Claims Under the Illinois Biometric Information Privacy Act

A California federal district court recently granted in part the dismissal of certain federal and state privacy claims, including a California Consumer Privacy Act (“CCPA”) claim, in Hayden v. The Retail Equation, Inc., No. 8:20-cv-01203 (C.D. Cal.).  Plaintiffs in Hayden alleged that twelve retailers unlawfully shared customer data with a computer software firm, The Retail Equation (“TRE”), which in turn created “customer risk scores” to identify potentially fraudulent customer returns.  This customer risk score was alleged to include information about the customers’ purchase histories, information gleaned from social media, as well as personal information, including name, government identification card or passport information, address, sex, race, and date of birth.  TRE and the retailers sought dismissal of: (1) the Fair Credit Reporting Act (“FCRA”) claim; (2) the CCPA claim; (3) the California invasion of privacy claim; (4) the Unfair Competition Law (“UCL”) claim; and (5) unjust enrichment claim.  The Court dismissed all but the invasion of privacy claim.

Continue Reading Court Grants in Part Dismissal of Certain Privacy Claims, Including CCPA Claim, Against The Retail Equation and Retailers

Last week, a federal court in Illinois dismissed a putative class action complaint alleging violations of the Illinois Biometrics Information Privacy Act (“BIPA”) for engaging in “impermissible group pleading.”  The ruling serves as a reminder that a complaint that fails to plead specific facts as to each defendant does not meet the Rule 8 pleading

An Illinois federal district court recently rejected dismissal of Illinois Biometric Information Privacy Act (“BIPA”) claims in In re Clearview AI, Inc., Consumer Privacy Litigation, No. 21-cv-135 (N.D. Ill.).  The Clearview plaintiffs alleged that Clearview violated their privacy rights without their knowledge and consent by scraping more than three billion photographs of facial images from the internet and using artificial intelligence algorithms on the images to harvest individuals’ unique facial biometric identifiers and corresponding biometric information.  Clearview sought dismissal of the BIPA claims under the First Amendment, extraterritoriality doctrine, dormant commerce clause, and BIPA’s express exemption for  photographs.  The court rejected these grounds, and declined to dismiss the BIPA claims.

Continue Reading Court Rejects Dismissal of Illinois Biometric Information Privacy Act Against Clearview in Pending Multidistrict Litigation

A California federal district court recently granted partial dismissal of privacy claims brought by several Google users in Rodriguez v. Google, LLC, No. 20-cv-5688 (N.D. Cal.).  The Rodriguez plaintiffs claimed that Google engaged in unlawful wiretapping under section 631 of the California Invasion of Privacy Act (“CIPA”) by collecting data from third-party apps after users turned off certain data tracking in their Google privacy settings; they also claimed that Google breached a unilateral contract they had formed by selecting those privacy settings.  The court disagreed, and dismissed these two claims without leave to amend.  

Continue Reading Court Grants Dismissal of Wiretapping and Contract Claims in Putative Privacy Class Action Involving Google Privacy Settings