Class Action Litigation

It’s time for our monthly review of insights and news related to the Telephone Consumer Protection Act (TCPA).   The October issue examines a ruling from the U.S. Court of Appeals for the Third Circuit, which held that plaintiffs can use affidavits to help meet the standard for TCPA class certification.  In addition, the review covers a U.S. Senate hearing on the Do Not Call Registry and Federal Communications Commission activity related to robocalls and aspects of the TCPA’s prior express consent requirements.

Click here to read on.

 

Has your company recently beefed up its employee identification and access security and added biometric identifiers, such as fingerprints, facial recognition, or retina scans?  Have you implemented new timekeeping technology utilizing biometric identifiers like fingerprints or palm prints in lieu of punch clocks?  All of these developments provide an extra measure of security control beyond key cards which can be lost or stolen, and can help to control a time-keeping fraud practice known as “buddy punching.”  If you have operations and employees in Illinois (or if you utilize biometrics such as voice scans to authenticate customers located in Illinois), your risk and liability could have increased with the adoption of such biometric technology, so read on ….  Continue Reading The Law of Unintended Consequences: BIPA and the Effects of the Illinois Class Action Epidemic on Employers

This week’s disclosure that a 2013 data breach may have affected all 3 billion Yahoo accounts then in existence could alter the scope of the consolidated data breach cases currently pending against Yahoo in the federal court in San Francisco. In the wake of the court’s August 30 order denying Yahoo’s motion to dismiss the case, the parties have been in the process of negotiating a schedule for discovery and motion practice. The parties had been due to make their joint scheduling submission to the Court today. However, just last night, Judge Lucy Koh issued an order postponing the submission deadline in order to allow the parties to address the impact of Yahoo’s recent disclosure. The court ordered Yahoo to “disclose to Plaintiffs available information regarding the recent data breach disclosure by October 6, 2017, so that the Joint Case Management Statement can propose a realistic amended case schedule.” The court also directed that Yahoo “expedite its production of discovery regarding the recent data breach disclosure and include a proposal to do so” in the parties’ joint scheduling submission, which is now due to be submitted on October 11, 2017.

Continue Reading 3 Billion Compromised Yahoo Accounts May Yield Largest Plaintiff Class Ever

Earlier this month, an appellate panel of the federal DC Circuit unanimously held that individuals affected by a healthcare insurer’s data breach in 2014 could pursue claims against the insurer stemming from the cyberattack. In the process, the panel deepened a circuit split on the question of whether data breach victims have standing to pursue claims based solely on exposure of their sensitive personal information, while also adding significant risk of cyber-liability for companies that collect and store medical records of individuals.

In Attias v. CareFirst, Inc., the plaintiffs asserted claims on behalf of a purported class of one million customers of CareFirst, Inc. (“CareFirst”), a healthcare insurer in the Washington, DC metro area. In the 2014 cyberattack, hackers penetrated 22 computers and compromised the identifying health data of one million customers, including customer names, addresses, email addresses, subscriber ID numbers, and Social Security numbers. The plaintiffs did not allege that they had suffered any direct financial injury as a result of their identifying health data being exposed, but did allege they suffered an “increased risk of identity theft” as a result of CareFirst’s alleged negligent conduct. The district court granted CareFirst’s motion to dismiss, which asserted that the plaintiffs lacked standing to bring their alleged claims because they had not asserted either a present injury arising from the data breach or a “high enough likelihood of future injury.” Continue Reading D.C. Circuit Holds Cyber-Theft of Customers’ Medical Identifying Information Created Sufficient Increased Risk of Harm to Establish Standing

 

The latest edition of the Mintz TCPA Digest has been published and you can read it hot off the presses, here.

This month’s issue features updates on the latest regulatory activities and an article on a potential ruling that could have major implications for pending and future TCPA cases.

Mintz Levin’s TCPA and Consumer Calling Practice team should be on your speed dial.

 

Snatching victory of a sort from the jaws of defeat, shareholders who brought a derivative action alleging that the 2014 Home Depot data breach resulted from officers’ and directors’ breaches of fiduciary duties have reached a settlement of those claims.  As previously reported in this blog, that derivative action was dismissed on November 30, 2016.  That dismissal followed on the heels of dismissals of derivative actions alleging management breaches of fiduciary duties in connection with the Wyndham and Target data breaches.  Despite that discouraging precedent, the Home Depot shareholder plaintiffs noticed an appeal from the trial court’s order of dismissal.  The parties subsequently resumed settlement discussions that had broken off in the fall of 2016, on the eve of argument and decision of Home Depot’s motion to dismiss.  On April 28, 2017, the parties submitted a joint motion disclosing and seeking preliminary approval of the proposed settlement.  If approved, the proposed settlement would result in dismissal of the shareholders’ appeal and an exchange of mutual releases, thereby terminating the fiduciary claims arising from the Home Depot data breach. Continue Reading Appeal in Home Depot Data Breach Derivative Action Results in Settlement of Corporate Governance Claims

 

Counsel for a class of card-issuing banks filed a settlement agreement on March 8 proposing a class settlement to resolve claims arising from the 2014 theft of payment card data from Home Depot point-of-sale terminals.  The contemplated $27.25 million class settlement follows in the wake of over $140 million already paid by Home Depot to settle issuer bank claims through card association settlement processes.  The revelation that Home Depot was able to use private means to settle the vast majority of the bank claims outside of the class action raises significant questions about whether the proposed settlement class satisfies the requirement under Rule 23(b)(3) that a class action provide a superior means to resolve class members’ claims. Continue Reading Does Class Settlement Of Bank Claims In Home Depot Data Breach Litigation Pass The “Superiority” Test?

 

When hackers steal consumer data, injury to consumers is not a foregone conclusion.  This is particularly so where credit and debit card numbers are stolen.  Banks, not consumers, bear the cost of fraudulent charges.  Consumers’ credit ratings are unaffected by such charges, and stolen payment card numbers cannot be used to steal consumers’ identities.   As a result, it can be difficult for consumers in payment card data breach cases to prove damages or injury. Continue Reading Ruling Vacating Target Consumer Class Settlement Highlights The Problem Of Standing In Data Breach Cases

Dismissal Of Home Depot Derivative Action Extends Shareholder Losing Streak

An attempt to impose liability on corporate officers and directors for data breach-related losses has once again failed.  On November 30, 2016, a federal judge in Atlanta issued a 30 page decision dismissing a shareholder derivative action arising out of the September 2014 theft of customer credit card data from point-of-sale terminals in Home Depot stores.  The dismissal of the Home Depot derivative action follows earlier dismissals of derivative actions arising from data breaches perpetrated against Wyndham and Target. Continue Reading A Failed Strategy: Another Derivative Action In A Data Breach Case Goes Down To Defeat