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The Ninth Circuit Relies On Reasonable Consumers' Experiences to Dismiss a Cosmetics False Advertising Case

By Dennis S. Ellis, Katherine F. Murray & Margaret N. Buckles on Mar 30, 2016
The Ninth Circuit's decision in Ebner vs. Fresh, Inc. relied on the experiences of the "reasonable consumer" to dismiss a consumer false advertising class action for failure to state a claim.


Social Media Site Posts Safe from Criminal Defendants’ Pre-Trial Subpoenas, Says a California Appellate Court

By Mary-Elizabeth M. Hadley on Sep 16, 2015
In a decision last week, a California appeals court directed the trial court to quash Defendants’ subpoenas for public and private content from the Facebook, Instagram and Twitter accounts of the murder victim and a witness, rejecting the argument that the Stored Communication Act (“SCA”) violated Defendants’ constitutional rights.


Third Circuit Upholds FTC’s Authority to Regulate Cybersecurity “Unfairness”

By Mary-Elizabeth M. Hadley on Sep 02, 2015
In a much-anticipated decision last week, the U.S. Court of Appeals for the Third Circuit affirmed the authority of the Federal Trade Commission (“FTC” or the “Commission”) to regulate cybersecurity under the unfairness prong of Section 5 of the FTC Act.


A Circuit Split Emerges: At Least for Now, the Protection Afforded to Cell Location Information Depends on Where You Are

By Mary-Elizabeth M. Hadley on Aug 10, 2015
Can the government compel disclosure of historical cell-site location information (“CSLI”) without a warrant? According to the Fourth Circuit, cell phone subscribers possess a reasonable expectation of privacy in such information, and a warrant is required. In contrast, the Eleventh and Fifth Circuits have held that a lower-threshold court order is all that is needed.


Seventh Circuit Expands Standing for Consumers Bringing Suits for Data Breaches

By Kelly Winslow on Jul 27, 2015
This week, the Seventh Circuit held that plaintiffs bringing claims for stolen credit card information have standing to sue to recover fraudulent charges, as well as fraud prevention expenses, resulting from a data breach.


California Court of Appeals Fine Tunes the Reach of the Song-Beverly Act

By Thomas Counts and Elizabeth Dorsi on Jun 09, 2015
Last month, the California Court of Appeals issued long-awaited guidance for retailers concerned that the collection of personal information from their in-store customers subjects them to liability under the Song-Beverly Act.


Video Privacy Protection Act Does Not Protect Device Identifiers, Another Court Rules

By Adam M. Reich on May 08, 2015
On May 7, 2015, the United States District Court for the Western District of Washington (Seattle) joined other courts in narrowly construing the phrase “personally identifiable information” under the Video Privacy Protection Act, 18 U.S.C. § 2710 (the “VPPA”) to exclude a device identifier, even if a third party could use that identifier in combination with other information to identify the individual. The VPPA prohibits video service providers from knowingly disclosing “personally identifiable information” about their customers without their consent.


LinkedIn Reference Searches Do Not Violate the FCRA, Says a Federal Court

By Mary-Elizabeth M. Hadley on Apr 23, 2015
Last week, Magistrate Judge Paul S. Grewal issued an order for the Northern District of California granting LinkedIn Corporation’s (“LinkedIn”) Motion to Dismiss a proposed class action alleging that its “Reference Searches” – which enable employers to find people with whom a job applicant may have worked previously – violated the Fair Credit Reporting Act (“FCRA”).


The Video Privacy Protection Act - Recent Decisions Further Narrow the Contours of Liability

By Behnam Dayanim and Kevin P. Broughel on Apr 14, 2015
The Video Privacy Protection Act (“VPPA”) came into existence in the wake of a Washington Post report of Supreme Court nominee Robert Bork’s video rental history. Although the days of renting VHS tapes are now gone, the VPPA endures. Over the last several years a number of high profile lawsuits have been filed against online video and service providers for alleged violations of the VPPA, causing anxiety among content providers of all stripes. However, two recent decisions perhaps point to an emerging sense among courts that some limitations on the statute’s application are warranted.


Call (and Record) Me, Maybe: Dismissal of Call-Recording Class Action May Signal Reduced Liability for Service Providers

By Ryan Nier and Elizabeth Dorsi on Jul 24, 2014
One of the formalities of many customer service calls is the prerecorded line now engrained in our heads: “This call may be monitored or recorded for quality assurance purposes.” The purpose underlying the business practice (known as “service-observing”) is obvious: call centers want to be able to monitor and/or record calls to help train their employees. The purpose behind the disclosure, however, is legal: while most states allow telephone calls to be recorded with the consent of one party to the call, twelve states require the consent of all parties.


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