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Bryan K. Clark is a Shareholder at Vedder Price and a member of the Privacy, CyberSecurity & Media practice group.  He has an extensive media and privacy practice that includes privacy class action defense, mobile-marketing litigation, class action TCPA litigation, copyright litigation, right of publicity litigation, data breach response, FOIA issues, reporter’s privilege issues and prepublication review.

Bell and gavel

One of the best ways for companies facing media and privacy risk to protect themselves from expensive class action litigation is by including an arbitration provision in the applicable terms and conditions. While it’s not always clear at the outset of litigation whether the plaintiff agreed to the terms, companies often have to invoke arbitration quickly out of fear that they will be found to have waived arbitration. But in its coming term, the U.S. Supreme Court is now poised to address the critical point of whether prejudice to the plaintiff is a necessary element for a finding of waiver.
Continue Reading Supreme Court to address role of “prejudice” in evaluating waiver of arbitrability

Phone and gavelThanks to the Supreme Court’s decision in Facebook v. Duguid, 141 S. Ct. 1163 (2021), 2021 will go down as one of the most significant years in the history of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).  And while the second half of 2021 did not produce the fireworks that we saw earlier in the year, there are still some cases worthy of note as we enter the new year.  We summarize here developments since our last update, listed by issue category in alphabetical order.
Continue Reading TCPA Turnstile: 2021 came in like a lion, and went out more like a lamb for TCPA law (TCPA Case Update Vol. 16)

Phone and gavelThe first half of 2021 saw one of the most significant TCPA rulings in many years as Facebook v. Duguid, 141 S. Ct. 1163 (2021), appeared to settle the long-debated question of what constitutes an automatic telephone dialing system (“ATDS”).  But while the Supreme Court’s April ruling was extremely positive for the TCPA defense bar, it by no means brought an end to TCPA claims.  Significant cases have continued to yield decisions, including cases that have sought to interpret Facebook.  And the state of Florida stepped into the abyss in passing a “mini-TCPA” statute that went into effect earlier this month that regulates telemarketing at the state level, with a much broader definition of the relevant technology.  Thus, the TCPA (and related statute) litigation landscape, while upended to some degree, remains unsettled, and we’ll continue to provide our insights.  We summarize here developments since our last update, listed by issue category in alphabetical order.
Continue Reading TCPA Turnstile: TCPA cases in a post-Facebook world (TCPA Case Update Vol. 15)

The European Union’s General Data Protection Regulation (“GDPR”) is well known as the toughest privacy and security law in the world, as it has a wide reach and imposes heavy fines against those who violate its privacy and security standards (which are quite broad). The impact of the GDPR has already been felt in the United States since it went into effect in 2018, and now U.S. lawmakers in numerous states are moving to enact similar legislations. The California Consumer Protection Act (“CCPA”) was the first instance of the GDPR’s impact in the United States, as California put in place a statute and regulations that mirrored the GDPR in several respects. Now Virginia has set in motion what could be a year-long string of states enacting similar legislation. In particular, Washington and New York have proposed legislation following the framework of the CCPA. This article will compare the CCPA to the newly enacted and proposed privacy laws in the United States.
Continue Reading GDPR in the USA? New State Legislation Is Making This Closer to Reality

Phone and gavelOne of the few things that hasn’t changed significantly since our last TCPA update is, well, the TCPA. We have a new year, a new President and multiple new COVID vaccines.  And after the December oral argument in Facebook v. Duguid before the Supreme Court, 2021 could be the year when we receive clarity on the critical TCPA question of what constitutes an automatic telephone dialing system (“ATDS”).  Indeed, the argument seemed positive for the TCPA defense bar, with Justices Alito and Thomas chafing at the anachronistic nature of the statute and Justices Sotomayor and Gorsuch expressing concerns about the idea that every cellphone user could be subject to civil liability.  But for now, the TCPA litigation landscape remains the same bizarre, often inconsistent quagmire that it always has been.  We’ll continue to be your guide through the morass, and we summarize here developments since our last update, listed by issue category in alphabetical order.
Continue Reading TCPA Turnstile: New Year, Same TCPA – For Now (TCPA Case Update Vol. 14)

Phone and gavelMany had hoped that the summer of 2020 might bring the end of the TCPA as we know it, by way of the Supreme Court’s decision in Barr v. American Association of Political Consultants.  Of course, that’s not how things played out. The government-backed debt exception is dead, but the rest of the TCPA is still very much alive.  And while the pace of litigation has slowed because of the ongoing COVID-19 pandemic, TCPA decisions continue to roll in and there have been new developments before the FCC.  We reviewed the TCPA cases published and other developments since our last update and compiled the most noteworthy items, listed below by issue category in alphabetical order.
Continue Reading TCPA Turnstile: No summer vacation for the TCPA defense bar (TCPA Case Update Vol. 13)

Phone and gavelUndoubtedly, the biggest TCPA development in the last month was the recent Supreme Court oral argument in Barr v. American Association of Political Consultants Inc., Case No. 19-631, which has the potential to upend TCPA jurisprudence as we know it.  While we wait for a Supreme Court decision, the oral argument made a few things clear:

Continue Reading TCPA Turnstile: As we wait for a ruling in Barr, new case law abounds (TCPA Case Update Vol. 12)

“Should we do a Zoom?” It has taken little more than a month for the Zoom video conference platform to take its place among the likes of Google, Kleenex and Xerox as brand names synonymous with the product or service being offered. But with that name recognition comes scrutiny, and Zoom is getting plenty. The privacy and security issues associated with Zoom have been well-documented. As a result, Zoom is now facing class action lawsuits from both shareholders and users. And the use of Zoom (and other platforms) can raise ethics issues for lawyers.

Continue Reading Zooming into New Privacy Issues

Phone and gavelWe’re a quarter of the way through 2020 — even if March may have seemed liked several years unto itself — and it is shaping up to be another big year for TCPA litigation.  We’ve gone through the dozens of TCPA decisions published this year and identified the five most notable cases and storylines that we will be following closely for the rest of 2020.

Continue Reading Five Key TCPA cases to Know as We Enter the Second Quarter of 2020 (TCPA Case Update Vol. 11)

The California Consumer Privacy Act (the “CCPA”), as initially passed, was the hastily-drafted alternative to an even more stringent ballot initiative, resulting in a seemingly endless list of open questions about how it would be interpreted and enforced. Since its passage on June 28, 2018, privacy pundits around the nation have opined about the meaning of the first domestic privacy regulation reminiscent of its European cousin, the GDPR.

In response, the California legislature entered its 2019 session considering a whopping 19 possible amendment bills to the CCPA. When the dust settled, seven of those bills were signed into law.

Continue Reading Seven amendments to CCPA answer the statute’s open questions – sort of