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Category Archives: Privacy & Security Litigation

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Posted in Privacy & Security Litigation

LabMD Rulings May Shed Future Light on “Reasonable” Data Security Practices

Last week, the Administrative Law Judge handling the Federal Trade Commission’s complaint against LabMD issued a pair of rulings that will require the Bureau of Consumer Protection to testify about the information security standards on which the FTC intends to rely at trial in order to prove that LabMD’s data security practices were inadequate. The ALJ’s rulings open up inquiry into issues at the center of the debate surrounding the FTC’s authority under Section 5 of the Federal Trade Commission Act: what are the data security standards that the FTC expects companies to meet, and has the FTC given the private sector adequate advance notice of these standards?

Posted in Cybersecurity & Data Breaches, Privacy & Security Litigation

Federal Judge Upholds FTC’s Authority to Regulate Commercial Data Security Practices

A New Jersey federal judge yesterday issued the much-anticipated opinion in Federal Trade Commission v. Wyndham Worldwide Corp., denying Wyndham’s challenge to the FTC’s authority to regulate data security under Section 5 of the FTC Act. Although it only represents one district court’s findings on the issue, and was not a complete surprise given some of the judge’s statements during oral argument, the Commission for now has dodged a major bullet that threatened to derail its status as the lead commercial data security regulator in the United States.

Posted in Cybersecurity & Data Breaches, Privacy & Security Litigation

New Federal Court Decision Affirms the Standing Doctrine as a Critical Hurdle to Data Breach Actions

On Monday, a federal district court dismissed two related putative class action suits filed against Nationwide Mutual Insurance Company following a data breach at Nationwide in October 2012 that affected over 1 million individuals. The opinion shows that courts remain skeptical of plaintiffs’ ability to show any real injury from the fact that their personally identifiable information was compromised without some additional evidence of concrete harm such as identity fraud. The opinion also sheds important light on the ability of plaintiffs to overcome this standing barrier by alleging that their injury derives from the violation of a federal statute.

Posted in International/EU Privacy, Privacy & Security Litigation

EU Report Calls for Improvements to Redress Mechanisms Under EU Data Protection Laws

On January 27, the European Agency for Fundamental Rights, an official agency of the European Union, released its report on Access to Data Protection Remedies in EU Member States. As detailed below, the FRA concluded that redress mechanisms for data protection violations in the EU need improvement. More specifically, the FRA found that data protection authorities do not have sufficient powers or resources, there are not enough judges and lawyers with adequate knowledge of data protection issues, civil society organizations (e.g., consumer interest and privacy advocacy groups) have difficulty bringing suits on behalf of victims of data protection breaches, the costs and burdens of proof associated with data protection suits are too high, and Europeans lack awareness of remedies for data protection violations.

Posted in Cybersecurity & Data Breaches, Health Privacy/HIPAA, Privacy & Security Litigation

LabMD Blames its Shutdown on FTC Legal Battle over Security Protections

LabMD recently announced its plans to wind down operations, citing its ongoing legal battle with the Federal Trade Commission over the company’s data security practices as a major cause. In a letter dated January 6, LabMD president Michael Daugherty informed the company’s customers and workforce that the medical testing laboratory would no longer be accepting new specimens after January 11 and that the company’s phones and internet access would be discontinued shortly thereafter. Daugherty’s letter blamed the FTC’s “debilitating investigation and litigation” as a major source of the company’s decision to wind down operations.

Posted in Consumer Privacy, Privacy & Security Litigation

FTC Settles Case Against “Rent-to-Own” Franchisor that Guided Franchisees’ Use of Spyware

On October 22, the FTC announced a settlement with national “rent-to-own” retailer Aaron’s, Inc. on charges that it knowingly assisted its franchisees in tacitly collecting images and information about their customers. Specifically, the FTC alleges that Aaron’s “played a direct and vital role in its franchisees’ installation and use of software on rental computers that secretly monitored consumers including taking webcam pictures of them in their homes.”

Posted in Privacy & Security Litigation

ZIP Code Class Actions Expand into the District of Columbia

Class action litigation challenging the practice of merchants that ask customers to provide their ZIP codes has expanded into the District of Columbia, representing an important new front in ZIP code litigation, which previously had been concentrated in California and Massachusetts, and has important implications for the ability of plaintiffs to establish standing in privacy-related actions more generally.

Posted in Cybersecurity & Data Breaches, Health Privacy/HIPAA, Privacy & Security Litigation

FTC Files Complaint Against Healthcare Company LabMD, Alleging Inadequate Security Controls

On August 28, the Federal Trade Commission (FTC) filed an administrative complaint against medical testing laboratory LabMD based on allegations that the company engaged in “unfair acts or practices” by failing to employ “reasonable and appropriate measures to prevent unauthorized access to personal information.” The FTC’s action in this case stems from an incident in which a file containing personal information on approximately 9,300 individuals allegedly was shared on a peer-to-peer (P2P) network from a company computer with P2P file-sharing software installed. The complaint follows other recent FTC actions in which the agency has relied on its Section 5 authority under the FTC Act to claim that companies’ exposure of data to P2P networks constituted an unlawful, unfair data security practice. The FTC’s action against LabMD makes clear that institutions governed by the Health Insurance Portability and Accountability Act (HIPAA) must also be mindful of the FTC’s increasing enforcement activity related to security controls, including actions against healthcare providers.

Posted in Consumer Privacy, International/EU Privacy, Privacy & Security Litigation

In Hong Kong, When Is Public Data Actually Private Data?

Somewhat of a furor has been caused in Hong Kong by the decision of the Office of the Privacy Commissioner for Personal Data to issue an enforcement notice to stop a company from supplying data on individuals obtained from publicly available litigation and bankruptcy records via a smartphone application, claiming that the company “seriously invaded” the privacy of those individuals.

Posted in Privacy & Security Litigation

Limiting Litigation Risks from Privacy and Data Security Missteps

In Bloomberg BNA’s Privacy and Security Law Report, Hogan Lovells attorneys Des Hogan, Michelle Kisloff, and Chris Wolf have published an article addressing the increased litigation and regulatory risks that companies must address in the evolving privacy and data security landscape. After summarizing recent developments involving class actions and regulatory activities, the article offers guidance on how companies can reduce their financial and reputational exposure.

Posted in Consumer Privacy, Privacy & Security Litigation

Federal Court Certifies Consumer Class Action Alleging comScore Violated Federal Privacy Laws by Exceeding Scope of Users’ Consent

A recent federal court opinion raises concerns that privacy cases alleging violations of a standard user license agreement may be susceptible to class certification.  Last week, the U.S. District Court for the Northern District of Illinois certified a class in a consumer privacy lawsuit against comScore, Inc.   Plaintiffs allege that comScore exceeded the scope of the […]

Posted in Privacy & Security Litigation

Ninth Circuit Rules Reasonable Suspicion of Criminal Activity Required before Forensic Examination of Electronic Device at Borders

On March 8th, the United States Court of Appeals for the Ninth Circuit, sitting en banc, held in United States v. Cotterman that the Fourth Amendment requires border agents to have at least a reasonable suspicion of criminal activity before they may conduct a forensic examination of a person’s electronic device. Hogan Lovells lawyers briefed and Hogan Lovells partner Chris Handman argued as amicus on behalf of the Constitution Project, a bipartisan, not-for-profit organization that promotes consensus-based solutions to the significant constitutional questions facing Americans in the 21st century.

Posted in Consumer Privacy, International/EU Privacy, Privacy & Security Litigation

German Court Holds Presence of Irish Subsidiary Precludes Application of German Data Protection Law to Facebook

In a decision with important implications not only for Facebook but potentially for many companies not primarily located in Europe but with European customers, on February 14 the Administrative Court (Verwaltungsgericht) for the German State Schleswig-Holstein decided that German data protection law is not applicable to U.S.-based Facebook Inc. as well as its European subsidiary, Facebook Ireland Ltd., […]

Posted in Consumer Privacy, Privacy & Security Litigation

Supreme Court Standing Case Has Implications for Privacy Litigation

On February 26, the U.S. Supreme Court ruled in Clapper v. Amnesty International that a group of U.S. citizens and U.S.-based organizations did not have standing to challenge the constitutionality of a provision of the Foreign Intelligence Surveillance Act (FISA) that allows the U.S. Government to monitor the electronic communications of non-U.S. persons located on […]

Posted in Consumer Privacy, Cybersecurity & Data Breaches, Privacy & Security Litigation

A Duty to Patch? FTC Settles First Case Against a Mobile Device Manufacturer, Describes Company’s Obligation to Implement Software Security

In the first enforcement action by the FTC against a mobile device manufacturer, the FTC on February 22 announced that HTC America (HTC) had settled charges alleging that the company had engaged in unfair practices and falsely or misleadingly represented whether third-party and HTC applications could access users’ personal information.  In settling the FTC’s charges, […]

Posted in Consumer Privacy, Privacy & Security Litigation, Social Media

Federal Court Certifies 60,000-Member Class in “Wireless Spam” TCPA Litigation against Insurance Company, for Actions of Its Marketing Vendors

In a decision with important implications for companies that hire outside marketing firms, a federal judge has certified a class of nearly 60,000 individuals who allegedly received an unsolicited text message from a marketing company hired by Stonebridge Life Insurance Company. The plaintiff in Lee v. Stonebridge Life Insurance Company and Trifecta Marketing Company, LLC, 3:11-cv-00043 (N.D. […]