Privacy & Cybersecurity Litigation partner Michelle Visser, counsel David Cohen and associate Nicole Gelsomini authored this blog post for the Washington Legal Foundation on the unsettled state of the law on constitutional standing in privacy and cybersecurity cases in the wake of two recent Supreme Court developments. Constitutional standing challenges are, and will continue to be, an important potential tool for privacy and cybersecurity defendants seeking to dismiss certain class actions brought in federal court. To establish standing, a private plaintiff must show, among other things, that he or she faces an actual or imminent concrete injury from the defendant’s conduct. As explained in the Washington Legal Foundation post, however, the Supreme Court recently passed on two chances to clarify the test that will govern this standing inquiry, leaving defendants to wade through conflicting and ambiguous lower court precedent. The uncertain and nuanced state of this area of law underscores the importance of retaining experienced cybersecurity and privacy defense counsel when faced with this type of suit.
Posts by: David Cohen
In June 2018, medical laboratory LabMD obtained the first-ever court decision overturning a Federal Trade Commission (FTC) cybersecurity enforcement action. (The team directing that effort – led by Doug Meal and Michelle Visser – joined Orrick in January 2019). There, the Eleventh Circuit held that an FTC cease-and-desist order imposing injunctive relief requiring LabMD to implement “reasonable” data security was impermissibly vague. In the wake of LabMD, the FTC’s new Chairman, Joseph Simons, stated that he was “very nervous” that the agency lacked the remedial authority it needed to deter allegedly insufficient data security practices and that, among other things, the FTC was exploring whether it has additional untapped authority it could use in this space. In this regard, Chairman Simons and Commissioner Rebecca Kelly Slaughter announced that the FTC is examining whether it can “further maximize its enforcement reach, in all areas, through strategic use of additional remedies” such as “monetary relief.” READ MORE
A recent decision from the Supreme Court of Illinois heightens the risks faced by companies collecting biometric information by holding that an individual who is the subject of a violation of Illinois’ Biometric Information Privacy Act—but who suffered no separate harm from the violation—is an “aggrieved party” with a cause of action under the statute. Rosenbach v. Six Flags Entertainment Corp., No. 123186 (Ill. Jan. 25, 2019). This decision will only further embolden plaintiffs’ lawyers to bring biometric privacy suits, and the risk to companies collecting biometric information will likely increase as newly enacted and proposed legislation comes into effect. In this post, we discuss what happened, what is on the horizon, and some steps to consider. READ MORE
Rivera v. Google, a recent federal court decision from the Northern District of Illinois, highlights how challenges to Article III standing are a versatile and useful tool for corporate defendants in privacy and cybersecurity litigation. At the same time, the litigation underscores the significant legal risk faced by entities that collect biometric information and the consequent need to proactively assess and mitigate that risk. READ MORE