The U.S. Chamber of Commerce Institute for Legal Reform has published “Ill-Suited: Private Rights of Action and Privacy Claims,” a white paper authored by Hogan Lovells’ Mark W. Brennan, Alicia Paller, Adam Cooke, and Joseph Cavanaugh explaining why private litigation is a poor enforcement tool for privacy laws. As detailed in the paper, when it comes to privacy interests, “harms” are largely inchoate and intangible, and the wrongdoers are often unknown or unidentifiable. Even where class members may have suffered a concrete injury, the data indicates that they are unlikely to receive material compensatory or injunctive relief through private litigation. Meanwhile, plaintiffs’ counsel often walks away with millions of dollars, court dockets are unduly cluttered, and companies are forced to expend resources on baseless litigation.
The Supreme Court has granted review in a case under the federal Driver’s Privacy Protection Act (DPPA) where plaintiffs’ lawyers used a state FOIA statute to obtain targets for solicitation to become plaintiffs in a case against car dealers for allegedly excessive fees. The case presents a conflict between the prohibition against obtaining drivers’ records for marketing and the statutory permission to use the records in connection with litigation.