‘In re Nickelodeon’: Third Circuit’s Post-‘Spokeo’ Standing Analysis Flawed

nickBy Logan Cochran, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law.

For the second time in less than a year, the U.S. Court of Appeals for the Third Circuit has ruled on minor consumers’ claims that Google and Viacom had “unlawfully collected personal information about them on the Internet, including what webpages they visited and what videos they watched on Viacom’s websites.”  In re Nickelodeon Consumer Privacy Litigation.  Although several issues raised by the plaintiffs substantially overlapped with the Third Circuit’s November 2015 decision In re Google Inc. Cookie Placement Consumer Privacy Litigation, two claims involved questions of first impression for the court: (1) a violation of the federal Video Privacy Protection Act (VPPA), and (2) an alleged invasion of privacy under New Jersey law.  Continue reading

Post-“Spokeo,” More Suits Should Be Vulnerable to Article III Standing Attacks

supreme courtIn the wake of the U.S. Supreme Court’s decision in Spokeo Inc. v. Robins, defendants in pending cases where the only harm the plaintiff alleged is violation of a federal statute should be filing new motions to dismiss due to lack of Article III standing.  A Video Privacy Protection Act (VPPA) case decided recently by the First Circuit could provide an immediate opportunity to witness the impact of the Spokeo decision.

In Spokeo, the Court reaffirmed that plaintiffs must possess Article III standing to bring suit, and held that such standing required plaintiffs to allege that they were concretely injured by defendants’ actions.  The Court held that the Spokeo plaintiff’s mere allegation that the defendant violated the terms of the Fair Credit Reporting Act (FCRA) was not necessarily enough to provide standing.  Because Congress cannot abrogate standing requirements, even by providing private rights of action, each plaintiff must allege a concrete and particularized harm.  A “bare procedural violation” is not sufficient to confer standing, the Court explained.  Because the Ninth Circuit did not apply the correct standing test, the Court remanded the case for the lower court to determine whether the plaintiff could allege a concrete injury. Continue reading

Proposed FCC Privacy Rule Takes Unauthorized Aim at ISPs and the First Amendment

FCC*Jared McClain, WLF staff attorney, contributed to this post.

On March 31, 2016, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking (NPRM) purporting to bring “clarity, choice, and security” to the broadband industry. In the name of accomplishing those seemingly worthwhile and innocuous goals, the Commission released a 147-page document that details a complex scheme to curtail Internet Service Providers’ (ISPs) right to use the data they lawfully collect on customer behavior. WLF filed comments last week laying out a number of commonsense, statutory, and constitutional arguments against the Proposed Rule in its current form. Continue reading

Tennessee Breach-Notification Law Indicative of Data-Security Regulators’ Lack of Creativity

daz_HDT_Zetoony_DavidGuest Commentary

David Zetoony, Partner, Bryan Cave LLP

There is no shortage of data-privacy and security laws in the United States.  By our count there are now about 300 state and federal statutes.  They include breach-notification laws, data-disposal laws, data-safeguard laws, payment card information-protection laws … the list goes on and on.  Many of these laws, and practical strategies for managing compliance with them, are discussed in a Washington Legal Foundation Contemporary Legal Notes paper I authored, Data Privacy and Security Practical Guide for In-House Counsel.

Nonetheless the push continues to be a push for more regulation to make sure that the consumer data held by companies is secure. Continue reading

Court’s “FTC v. Amazon” Decision Endorses Agency’s Disregard for Economic Analysis

amazonOn May 24, 2016 a subcommittee of the House of Representatives Energy and Commerce Committee held a hearing on a number of bills (17, to be exact) regarding the Federal Trade Commission’s consumer-protection mission. A number of proposals seek to fortify the vigor and transparency of the economic analysis FTC must perform when taking action against alleged “unfair” acts or practices under § 5 of the FTC Act. Some observers, (including former FTC Commissioner Josh Wright, who testified at the hearing) feel the Commission often gives short shrift to the “not-outweighed-by-countervailing-benefits-to-consumers-or-competition” language in the statute’s Unfairness Statement.

Wright’s testimony offers as an example the Commission’s 2014-2015 actions against several mobile app sellers’ “in-app purchase” sales practices. While on the Commission, Wright dissented from FTC’s complaint that Apple acted unfairly in how it designed the mechanism for app buyers to make purchases within the app. FTC alleged that Apple did not do enough to prevent children from making in-app purchases their parents did not authorize. In his dissent, Wright criticized FTC for failing to consider the countervailing benefits of Apple’s approach, such as relieving consumers of the need to constantly enter passwords, as well as the costs associated with government micromanagement of app design. Continue reading

Sixth Circuit Reins in False Claims Act Plaintiffs in First-of-its-Kind Health Information Case

6th CircuitThe US Court of Appeals for the Sixth Circuit recently dealt qui tam plaintiffs and their lawyers a setback in their campaign to expand federal False Claims Act (FCA) liability in the healthcare industry.  Addressing an issue of first impression, the court affirmed the dismissal of a relator’s claim that non-compliance with the Health Information Technology for Economic and Clinical Health Act (HITECH Act) gives rise to FCA liability.  U.S. ex rel. Sheldon v. Kettering Health Network not only found the relator’s complaint deficient on several grounds, but it also held that a dismissed state-court action that Ms. Sheldon filed subsequent to bringing the FCA suit precluded the federal action. Continue reading

Video-on-Demand Available of WLF Web Seminar, Product Liability Risks of “The Internet of Things”

Speaker: H. Michael O’Brien, Wilson Elser Moskowitz Edelman & Dicker LLP

Mr. O’Brien’s Powerpoint slides are available here.

Program description: The rapid proliferation of objects equipped with sensors and wireless capability, colloquially known as the “Internet of Things,” has inspired privacy and data-security concerns. Less considered, but no less serious, are the tort-liability risks that accompany these technologically-complex products. This program assessed how networked products could give rise to both traditional and unique failure-to-warn, design-defect, and other product-liability claims, and how businesses in the chain of supply, production, and sales can manage such risks.