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Overseas Data Not Safe from U.S. Government Search Warrant Power

By Behnam Dayanim and Mary-Elizabeth Hadley on May 01, 2014
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

By Devon Winkles on Apr 30, 2014
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

By Behnam Dayanim and Mary-Elizabeth Hadley on Apr 10, 2014
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

By Behnam Dayanim on Mar 31, 2014
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.

FCC Takes First Steps to Clarify TCPA Rules

By Matt Gibson on Mar 28, 2014
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.

Cybersecurity and Data Theft: Obama Cares

By Behnam Dayanim, Ryan Nier and Elizabeth Dorsi on Mar 10, 2014
Check out our latest Stay Current discussing the Obama Administration’s Cybersecurity Framework and its implications for US business.

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
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.

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
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.

“Expectorating” the Shell Doesn’t Spit Out the Liability

By John P. Phillips and Sean D. Unger on Feb 21, 2014
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.

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
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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