Caveat Vendor

Call (and Record) Me, Maybe: Dismissal of Call-Recording Class Action May Signal Reduced Liability for Service Providers
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.
Cell Phones Are Not Like Pockets, Says SCOTUS
The Supreme Court this week continued its foray into the implications of technology for the Fourth Amendment with a unanimous ruling that the government generally requires a warrant before it can search a cellphone seized in the course of an arrest.
Warrantless Cell Tracking Won’t Work . . . At Least Not in the Eleventh Circuit
The Eleventh Circuit, in a decision earlier this week, held that subscribers have a reasonable expectation of privacy in historical cell site location information such that obtaining that data without a warrant violates the Fourth Amendment.
Supreme Court OKs Lanham Act for Food Labeling, Despite FDCA
Recent years have seen an explosion in food-based litigation. Although most of the litigation has been brought by consumers, on Thursday the Supreme Court opened the door to more litigation among competitors when it ruled that POM Wonderful’s Lanham Act challenge against Cola-Cola was not precluded by the Food Drug and Cosmetic Act (FDCA).
Overseas Data Not Safe from U.S. Government Search Warrant Power
In a decision last week, U.S. Magistrate Judge James C. Francis IV in the Southern District of New York became the first to hold that the U.S. Government can obtain user data stored outside the United States through search warrants.
POM Decertification Wonderful for Class Defendants, Not So Sweet for Plaintiffs
As most pomegranate aficionados no doubt are aware, pomegranates sometimes can be sweet and sometimes a bit tangy. Well, for present and future class defendants in consumer products advertising litigation, POM Wonderful likely is tasting fairly sweet.
FTC Data Security Case Moves Forward
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.
Shades of Gray – Broad Definition of “Consent” Creates Formidable Obstacle to Privacy Class Claims
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.
All You Need Is… Harm? SCOTUS Denies Cert To Eighth Circuit Opinion on Article III Standing
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.
“Expectorating” the Shell Doesn’t Spit Out the Liability
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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