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Dustin is a litigator whose practice primarily focuses on intellectual property disputes, including patent, trademark, and trade secret matters. He also has experience in litigation involving data access, including claims made under the California Unfair Competition Law, the Computer Fraud and Abuse Act, and the California Computer Data Access and Fraud Act.

 

Keypoint: The Southern District of New York dismissed a VPPA claim after finding use of the Meta Pixel does not violate the VPPA when used to transmit information about a visitor’s general activity on a webpage, even where that webpage also hosts video.

In June 2022, a plaintiff filed a complaint in the Southern District of New York that alleged the defendants violated the Video Privacy Protection Act (“VPPA”) by using the Meta Pixel. More than eight months later, the court dismissed the complaint after finding the plaintiff failed to state a claim for relief under the VPPA. Taking all the plaintiff’s allegations as true, the court nevertheless found a website that used the Meta Pixel to send information to Meta when a website visitor visited a webpage that contained both video and non-video content did not violate the VPPA.

Continue Reading Privacy Litigation Update: SDNY Dismisses Video Privacy Protection Act Claim

Keypoint: In the wake of a recent California decision that allowed claims alleging use of chat functionality on website violated California wiretapping laws, three California district courts have dismissed nearly identical claims causing a split in Central District of California courts.

Following a February decision that allowed a complaint that alleged a website operator’s use of a customer support chat feature violated California wiretapping laws to proceed past the pleading stage, three California district courts have since dismissed nearly identical claims. The result leaves companies who may find themselves named as defendants in these lawsuits uncertain whether they will be able to escape litigation at the less costly motion to dismiss stage. In the below post, we analyze these decisions and their impact on future litigation over these claims.

Continue Reading Privacy Litigation Update: California courts strike back against claims that website chat functionality violates wiretapping statutes

Keypoint: Slurry of litigation filed by privacy-plaintiffs has survived its first motion to dismiss challenge in a California court but faces tougher challenges ahead.

Anyone who has called into customer service for any major company has likely been told: “This call is being recorded for quality assurance.” Companies have long used those prepared messages to put callers on notice that their communications are recorded, avoiding claims that the companies have violated wiretapping laws in states that require all parties to a communication to consent for the communication to be recorded. Companies are now facing claims that offering the ability for their website visitors to chat with a virtual or human agent violates these same wiretapping statutes when the website visitor accesses the site from an all-party consent state. In this post, we examine the rise of these chat-based wiretapping claims and how website operators may hope to avoid them.

Continue Reading Privacy Litigation Update: California courts will soon hear motions to dismiss in litigation that alleges chat functionality violates wiretapping statutes

Keypoint: In states with “two-party” consent laws, Privacy-Plaintiffs are bringing class action lawsuits against companies that use “session replay” technology on their websites.

Last month in the Northern District of Illinois a class action complaint was filed that alleges two defendants, TikTok and ByteDance, violate Federal and State wiretapping laws. The complaint alleges the conduct violates the Federal Wiretap Act and Massachusetts, Maryland, and Missouri state equivalent laws. The complaint does not allege violation of California, Florida, or Pennsylvania wiretapping laws despite similar claims being filed most often in these jurisdictions. The complaint also does not allege violation of any Illinois statute despite being filed in the Norther District of Illinois.

In this post, we explain what session replay technology is and how courts across jurisdictions have handled claims that the technology violates wiretapping statutes in two-party (also known as “all party”) consent states to date.

This article is part of our ongoing series of articles examining different types of privacy lawsuits filed across the country. Please click here to read our prior article on Video Privacy Protection Act lawsuits.

Continue Reading Privacy Litigation Update: Illinois class action lawsuit joins string of wiretapping claims arising out of website operator use of session replay technology

Keypoint: Plaintiffs’ attorneys continue to expand lawsuits relating to website tracking technologies.

Chick-fil-A once again found itself in the spotlight last week when it was named as a defendant in a lawsuit filed in the Northern District of California. The complaint alleges the plaintiff was harmed not by Chick-fil-A’s food products, but rather by Chick-fil-A’s operation of “Stories of Evergreen Hills,” which Chick-fil-A describes as a “series of animated short films, collectibles, and experiences created by Chick-fil-A®, Stories of Evergreen Hills™ follows a young girl named Sam as she discovers how little acts of kindness can bring people together.”

In the below post, we provide an overview of the case against Chick-fil-A and the Video Privacy Protection Act that forms the foundation of the plaintiff’s complaint.

Continue Reading Privacy Litigation Update: Plaintiffs Assert VPPA Claims Against Fast-Food Restaurant