Caveat Vendor

    FTC Data Security Case Moves Forward

    by Behnam Dayanim and Mary-Elizabeth Hadley on Apr 10, 2014
    Posted in
    • Regulation and Enforcement
    • Privacy and Security
    • Complex Litigation
    In a much-anticipated decision earlier this week, the U.S. District Court for the District of New Jersey affirmed the Federal Trade Commission’s authority to pursue data security concerns as unfair trade practices even in the absence of regulations setting out substantive security requirements. Check out our Stay Current for more information on the case and its holding.
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    Shades of Gray – Broad Definition of “Consent” Creates Formidable Obstacle to Privacy Class Claims

    by Behnam Dayanim on Mar 31, 2014
    Posted in
    • Privacy and Security
    • Complex Litigation
    The Electronic Communications Privacy Act (“ECPA”) is a regular source of attention from plaintiff counsel eager to ground causes of action in the antiquated statute. As we have written, those efforts in recent years appear to have been gaining some traction.
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    FCC Takes First Steps to Clarify TCPA Rules

    by Matt Gibson on Mar 28, 2014
    Posted in
    • Regulation and Enforcement
    • Privacy and Security
    In a pair of rulings released late yesterday afternoon, the Federal Communications Commission (FCC) acted on a pair of petitions asking the agency to clarify its interpretation of the Telephone Consumer Protection Act of 1991 (TCPA) and the FCC's implementing regulations as they apply to the use of autodialing equipment to convey text-based, non-telemarketing notices to consumers.
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    Cybersecurity and Data Theft: Obama Cares

    by Behnam Dayanim, Ryan Nier and Elizabeth Dorsi on Mar 10, 2014
    Posted in
    • Regulation and Enforcement
    • Privacy and Security
    Check out our latest Stay Current discussing the Obama Administration’s Cybersecurity Framework and its implications for US business.
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    All You Need Is… Harm? SCOTUS Denies Cert To Eighth Circuit Opinion on Article III Standing

    by Thomas A. Counts, Ryan C. Nier, and Sophie J. Sung on Mar 10, 2014
    Posted in
    • Privacy and Security
    • Complex Litigation
    Not everyone can be heard in federal court. The gatekeeping function of Article III’s “injury-in-fact” requirement – which mandates that a plaintiff have suffered an ‘injury’ that is actual and concrete – is a well-established hurdle for plaintiffs seeking to get a foot in the door in federal court. This requirement, referred to as “standing,” can be particularly difficult for plaintiffs to meet in privacy cases, where they may struggle to articulate traditional economic or physical harm.
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    The Gift that Keeps on Giving: FTC Settles with Additional Text Marketers in Ongoing Gift Card Enforcement Sweep

    by Matt Gibson on Mar 04, 2014
    Posted in
    • Privacy and Security
    • Regulation and Enforcement
    • Consumer Protection
    Last week the Federal Trade Commission (FTC) added a new settlement to a string of recent victories in its year-long campaign against marketers that have allegedly used deceptive practices in sending text messages that promise “free” gift cards and other valuable merchandise.
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    “Expectorating” the Shell Doesn’t Spit Out the Liability

    by John P. Phillips and Sean D. Unger on Feb 21, 2014
    Posted in
    • Complex Litigation
    • False Advertising
    • Consumer Protection
    Every once in a while you can envision a judge smiling as he writes an opinion – either because the facts are interesting or because the issues provide an opportunity to spin a phrase that is just too good to pass up. Judge Silverman’s decision yesterday for the Ninth Circuit in Lilly v. ConAgra Foods, Inc., Case No. 12-55921, is one of those opinions.
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    Ninth Circuit Issues Important Case Interpreting Article III Requirements in Statutory Rights Cases

    by Thomas A. Counts, Sean D. Unger, and Ryan C. Nier on Feb 05, 2014
    Posted in
    • Privacy and Security
    • Complex Litigation
    Today, the Ninth Circuit issued a decision that may have broad-reaching impact on litigation strategies in those cases. In Robins v. Spokeo, Inc., Case. No. 11-56843 (February 4, 2014), the Ninth Circuit held that in most circumstances, the allegation of a statutory violation will alone satisfy Article III’s pleading-stage standing requirement.
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    One More Time: FCC Seeks Public Comment on Request to Exempt “On Demand Texts” From New TCPA Regs

    by Matt Gibson on Jan 24, 2014
    Posted in
    • Privacy and Security
    • Regulation and Enforcement
    While readers may have thought that requests for clarification of the Federal Communications Commission’s (FCC) rules under the Telephone Consumer Protection Act (TCPA) had become passé, they have not. Earlier this week, the FCC released a new Public Notice in which the agency seeks comment on the Retail Industry Leaders Association’s (RILA) request for clarification whether an “on-demand text service” is subject to the FCC’s prior written consent rule that went into effect last October.
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    For Some Disease and Health-Related Claims, Two Trials Is Too Much, Says FTC Commissioner

    by Behnam Dayanim and Devon Winkles on Jan 14, 2014
    Posted in
    • Regulation and Enforcement
    • Consumer Protection
    • False Advertising
    Perhaps one of the most controversial changes in approach at the Federal Trade Commission in recent years has been the agency’s requirements for disease and health-related claims. Now there appears to be some dissent within the agency itself.
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