Category

Litigation

16 July 2019

A Closer Look at California Privacy Law Bar on Two Contract Clauses

*This article first appeared in Law360 on July 8, 2019

In September of 2018, California passed a significant new consumer privacy law, the California Consumer Privacy Act, which is the first U.S. law to regulate how businesses with a presence in California collect, share, and use consumer data. The CCPA not only imposes significant compliance obligations on companies conducting business with California residents but also incentivizes class action litigation through both the CCPA’s private right of action and California’s Unfair Competition law.

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03 July 2019

U.S. Supreme Court Poses New Questions About the Scope of Hobbs Act Review

On June 20, in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., the U.S. Supreme Court vacated a decision of the U.S. Court of Appeals for the Fourth Circuit that had been adverse to the interests of our client, PDR Network. Both the majority and concurring opinions in PDR Network raise interesting issues for lower courts to ponder as they consider how much to defer to agency decision making.

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26 June 2019

Supreme Court Clarifies Broad Interpretation of FOIA Exemption for Confidential Commercial Information

In a very significant FOIA decision for business, Food Mktg. Inst. v. Argus Leader Media, decided on June 24, 2019, the Supreme Court reversed 45 years of understanding that Exemption 4 only protects confidential business information whose disclosure by the government would cause “substantial competitive harm.”

Relying on the plain meaning of words in the statute – rather than what the Court majority characterized as muddled legislative history – the Court found that the D.C. Circuit had engrafted a condition on the Exemption that is not supported by the text.  Rather, so long as the commercial or financial information obtained by the government is “private” or “secret” – the plain and ordinary meaning of “confidential” – it may be withheld from disclosure under FOIA.

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31 May 2019

GDPR: One Year On

The 25th of May, 2019 marked a year since the EU General Data Protection Regulation (“GDPR”) came into force. For most in privacy, involvement with the GDPR has been ongoing for well over this year, but on the first anniversary of the GDPR we take an opportunity to look back and reflect on where we are now in relation to some key areas of interest including enforcement action, privacy litigation, breach notification and developing guidance from the European Data Protection Board (“EDPB”).

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16 May 2019

California Privacy Law Will Likely Prompt Flood Of Class Actions

*This article first appeared in Law360 on May 15, 2019.

The California Consumer Privacy Act, known as the CCPA, is a new law set to go into effect on Jan. 1, 2020. The CCPA is the first U.S. law that will require businesses with an online presence in California to focus on user data and it regulates how businesses collect, share and use such data. One of the most significant risks to online business providers in California is that the CCPA provides for a private right of action for California consumers.

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13 May 2019

Terms and Conditions: Recent Supreme Court Decisions Highlight There is More to Consider than Just the Privacy Policy

Your website is essential to your online business.  By developing and presenting an online presence, however, you take on legal obligations to your users.  It is, therefore, a timely exercise to stop and take stock of your terms and conditions in light of recent developments in the law, consumer expectations, and your legal risk profile.  The privacy policy has been getting a lot of attention lately as many websites, services and apps are rushing to get their new privacy policies in place in light of the California Online Privacy Protection Act (“CalOPPA”).  But updating the privacy policy is only one step in protecting your business in this digital economy. Terms and conditions are an important tool for limiting a company’s exposure to the various legal risks inherent in conducting business online.   Boilerplate provisions can leave you exposed and frustrate your customers.  Companies should critically consider the nature and needs of the business and transactions that may occur on their websites to determine what types of provisions will be beneficial and best practices for creating a binding contract.

Terms and conditions generally specify the rules governing the use of a website or mobile application.  Since every website is different, custom-drafted terms and conditions are necessary to protect a particular business.  Well-crafted terms and conditions might address issues such as payment, taxes, refunds, gift certificates, accounts, disclaimers, user behavior on your site, warranties and limitations on liability.

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31 January 2019

In Landmark Case, Illinois Supreme Court Sets Low Bar For Claims Under Illinois’ Biometric Information Privacy Act

On January 25, 2019, the Illinois Supreme Court unanimously held that a plaintiff does not need to allege any actual injury or damages to successfully state a claim under the Illinois Biometric Information Privacy Act (BIPA). Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (Jan. 25, 2019) (a copy of the opinion is available here). A violation of the statute by itself is sufficient to state a claim, even if no breach or misuse of the biometric information or identifier has occurred. Because BIPA includes stiff liquidated damages for violations, the court’s ruling is likely to lead to renewed interest by the plaintiffs’ bar in class action suits alleging BIPA violations. (more…)

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26 November 2018

The Fifth Edition of The Privacy, Data Protection and Cybersecurity Law Review is Available

The fifth edition of The Privacy, Data Protection and Cybersecurity Law Review takes a look at the evolving global privacy, data protection and cybersecurity landscape in a time when mega breaches are becoming more common, significant new data protection legislation is coming into effect, and businesses are coming under increased scrutiny from regulators, Boards of Directors and their customers. Several lawyers from Sidley’s global Privacy and Cybersecurity practice have contributed to this publication. (more…)

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01 November 2018

Ohio Law Recognizes Safe Harbor in Data Breach Litigation

Companies with robust cybersecurity programs may still be vulnerable to attack. A new, first-of-its-kind law in Ohio now recognizes this fact. On November 1, 2018, the Ohio Data Protection Act (SB 220) establishes a safe harbor from state tort actions in data breach cases for entities that have developed an information security program with “administrative, technical, and physical safeguards for the protection of personal information and that reasonably conforms to an industry recognized cybersecurity framework.” Without establishing minimum cybersecurity standards, the Ohio law affords defendants an “affirmative defense” against state tort actions and establishes an important precedent that may serve as a model for other states and the federal government to follow. (more…)

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