Privacy Litigation & Compliance

In 1991, Congress enacted the [Telephone Consumer Protection Act] to ‘crack down on intrusive telemarketers and scam artists’ by enabling consumers to pursue a fair measure of individual relief in small claims court without the need for a lawyer.  Today, however, the statute’s interpretation has ‘strayed so far from its original purpose’ that it is the ‘poster child for lawsuit abuse.’  Instead of protecting consumers from undesirable practices by unscrupulous actors, the TCPA chills important communications from legitimate businesses. ... Without commonsense rules to curb [the] misuse of the TCPA, litigation will continue to plague compliance-minded companies that try in good faith to communicate with their customers, and will reward serial plaintiffs who seek to profit from manufactured claims.  This does not make for good law or public policy, and all of this results in increased costs and decreased convenience for the very consumers that the TCPA was designed to protect.

Our team’s comments to the FCC on behalf of the Retail Industry Leaders Association (RILA), CG Docket Nos. 18-152, 02-278

The privacy landscape is dynamic. Class action litigation increasingly centers on consumer privacy issues. Our team of skilled litigators represents businesses in privacy-based class actions and government enforcement proceedings, including cases that implicate cutting edge technology and novel theories regarding consumer communications and the capture, use, protection, and disclosure of personal data. We work closely with our clients to help them see around the corner to anticipate the next waves of privacy litigation. We are at the forefront of advising businesses on potential privacy traps for practices being devised and implemented in connection with the COVID-19 pandemic. 

Our team has extensive experience where privacy intersects with consumer protection litigation and enforcement. We have an outstanding record of success shutting down threatened or filed claims early, navigating and limiting discovery, prevailing on the merits, and opposing class certification. Our deep knowledge of the nuances of federal and state privacy laws and our extensive experience strategically defending these actions in jurisdictions across the country have made our team the “go to” lawyers for leading companies in privacy actions — particularly in the California state and federal courts.  

We work hand-in-hand with our clients to devise and implement compliance measures related to the California Consumer Privacy Act (CCPA), which became effective on January 1, 2020. We work with the firm's nationally preeminent State AG Practice Group and the firm's government relations firm Cozen O'Connor Public Strategies to ensure our clients are getting up-to-date guidance in this ever-changing area.  

In the privacy arena, consumer-facing disclosures are increasingly important. We have significant experience crafting and revising terms and conditions, arbitration agreements and class action waivers, retail signage, website and mobile app disclosures, and privacy policies — and then invoking and enforcing them in court proceedings. 

Our team advocates on behalf of leading industry groups before the courts and the government on privacy-related issues. We also work closely with business associations to address reform of privacy laws, curtail class actions abuse and support consumer arbitration programs.

 

PRIVACY LITIGATION AND ENFORCEMENT: WHEN THE STAKES ARE HIGH

We are thoughtful and effective litigators who know the playbook of the plaintiffs' class action bar in the privacy space. We are called upon when the stakes are high and claims touch upon practices integral to our clients’ businesses and their use of modern technology. We have deep experience addressing — and  defeating — claims asserted under state and federal privacy laws, including:

  • Telephone Consumer Protection Act (TCPA)
  • Video Privacy Protection Act (VPPA)
  • California Invasion of Privacy Act (CIPA)
  • Cable Communications Policy Act (Cable Act)
  • Children’s Online Privacy Protection Act (COPPA)
  • Biometric Information Privacy Act (BIPA)
  • Fair Credit Reporting Act (FCRA)
  • Fair and Accurate Credit Reporting Act (FACTA)
  • Song-Beverly Credit Card Act
  • Shine the Light Law
  • CAN-SPAM Act
  • Wiretap Act
  • California Online Privacy Protection Act (CalOPPA)
  • Computer Fraud and Abuse Act (CFAA)
  • State Consumer Protection Laws
  • Driver’s Privacy Protection Act

Compliance: Meaningful Partnerships With Our Clients

Our approach to compliance is practical and accessible. We work closely to identify and address issues while minimizing disruption to the business. Our clients consistently compliment the way we tailor our compliance advice and differentiate our approach. 

We draft, review and modify our clients’ terms, consumer disclosures, corporate policies and practices, employee training materials, vendor contracts, and indemnification provisions. We advise on an array of areas that implicate privacy issues including:

  • Online data collection
  • Cookies
  • Text messaging
  • Telephone call campaigns
  • Faxing
  • E-mail campaigns
  • Digital marketing
  • Lead generation
  • Behavioral advertising
  • Data collection, retention and dissemination
  • Data sharing and analytics
  • Data security
  • Visual search and product recognition
  • Asset protection
  • Social media
  • E-commerce
  • Customer loyalty programs
  • Tracking technology
  • Temperature and health monitoring and tracing
  • Biometrics (facial recognition, fingerprinting, eye scans)
  • Artificial intelligence
  • Augmented and virtual reality

As the U.S. privacy landscape continues to take shape, our cross-practice team is out front engaging with regulators, advising businesses, collaborating with technology vendors, and speaking to industry leaders. Our lawyers are sought after to write articles and authoritative white papers and to present at leading conferences on privacy litigation and compliance. We are frequently called upon to help develop robust privacy programs, collaborate with internal stakeholders, and assess existing measures. 

Data Breach: Collaboration Across Groups

We work closely with our Technology, Privacy & Data Security group to ensure that emergency preparedness plans are thorough and up-to-date, advise on risk mitigation, investigate and address incidents if they occur, and defend against related data breach class actions and multi-district litigation. 

 

In The News

What's At Stake As Calif. Privacy Law Revamp Goes To Voters

October 28, 2020

Michael McTigue and Meredith Slawe, co-chairs of the Class Actions Group at Cozen O’Connor, were quoted in a Law360 article which discusses voters and their influence on the California Privacy Rights Act.

Class Action Litigators Bring Team to Cozen O'Connor: Michael W. McTigue Jr. and Meredith C. Slawe Spearhead National Class Actions Practice; Recognized White Collar Defense Attorney and Trial Lawyer Mira Baylson Joins

May 27, 2020

Continuing the firm’s strategic expansion of complex litigation and investigations practices and the premier Technology, Privacy and Data Security Team

Contacts

Michael W. McTigue Jr.

Co-Chair, Class Actions

mmctigue@cozen.com

(215) 665-2093

Meredith C. Slawe

Co-Chair, Class Actions

mslawe@cozen.com

(215) 665-4175

Andrew Baer

Chair, Technology, Privacy & Data Security

abaer@cozen.com

(215) 665-2185

Frank Pugliese

Member

fpugliese@cozen.com

(212) 883-2234

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