Seyfarth Synopsis: Both Portland and New York City have followed the example set by Illinois’ Biometric Information Privacy Act (“BIPA”), a statute that has spawned thousands of cookie-cutter class action suits regarding the alleged collection of biometric information. Like BIPA, these new ordinances create a private right of action for individuals that could subject local businesses to potentially millions of dollars in liability. Businesses in these cities should carefully review these new ordinances as well as any technology they be using that has the potential to collect biometric information.

Continue Reading Portland, OR and New York City Follow Illinois’ Lead on Private Rights of Action in Biometric Privacy Legislation

Cross-posted from Seyfarth’s Workplace Class Action Blog.

Seyfarth Synopsis: Following in the footsteps of New York, Maryland recently introduced a standalone biometric information privacy bill, House Bill 218, that mirrors Illinois’ highly litigious Biometric Information Privacy Act (740 ILCS § 14/1 et seq., “BIPA”) in many respects. Most notably, as presently drafted, Maryland’s proposed bill, like Illinois’ BIPA, provides for a private right of action, statutory penalties, and plaintiffs’ attorneys’ fees – which has spawned thousands of class actions in the Land of Lincoln. If enacted, the Maryland bill would become only the second biometric privacy act in the United States to provide a private right of action and plaintiffs’ attorneys’ fees for successful litigants. This represents a significant development for companies and employers operating in Maryland in light of the explosion of class action litigation that has arisen from Illinois’ BIPA in recent years. Moreover, the recent introduction of such bills in Maryland and New York signal that states are increasingly modeling proposed biometric privacy litigation on Illinois’ BIPA. Employers must take notice and monitor such developments to avoid being subject to a class action lawsuit – particularly as the purposes for utilizing such technology continue to expand. Continue Reading Maryland Joins Growing Number Of States Introducing Biometric Information Privacy Bills With Potential To Spur Class Action Litigation

Cross-posted from Seyfarth’s Workplace Class Action Blog.

Seyfarth Synopsis: The New York state legislature recently introduced a standalone biometric information privacy bill, AB 27, that mirrors Illinois’ Biometric Information Privacy Act (740 ILCS § 14/1 et seq., “BIPA”), which has spawned thousands of class actions in the Land of Lincoln. If enacted, The New York bill would become only the second biometric privacy act in the United States to provide a private right of action and plaintiffs’ attorneys’ fees for successful litigants. This represents a significant development for companies and employers operating in New York in light of the explosion of class action litigation over workplace privacy issues. Continue Reading Employers Take Note – New York Introduces A Biometric Information Privacy Bill Identical To The Illinois BIPA

California has once again decided it needed to pass privacy legislation to protect the residents of the great state from the nefarious actions of Big Tech.  However, this time they did it with a ballot initiative and not via the thoughtful (mostly) mechanism of the legislative process.  The proponents of the California Privacy Rights Act of 2020 (“CPRA”) touted this as an improvement over the CCPA – but is it really?  To listen to the proponents of the CPRA, it aims to strengthen California consumer privacy rights, while for the most part, avoiding the imposition of overly-burdensome requirements on a business, particularly those businesses that are already CCPA compliant.  So, what’s changed, really? Continue Reading California Prop 24 – Is the New Privacy Law Really New (Or Is the Sky Falling)

Today, the Court of Justice of the EU has handed down its judgment in the highly-anticipated Facebook Ireland case (aka Schrems II) and invalidated the Privacy Shield Decision. For those of you who have followed this case, the CJEU took a “left turn at Albuquerque” in its decision since the primary contention of Mr. Schrems was that the Commission Decision around Standard Contractual Clauses (“SCCs”) was invalid.

While the Court did opine on the SCC issue, it didn’t stop there. The Court actually took up a broader scope and addressed the validity of the Privacy Shield decision. In a mentally acrobatic exercise, we ended up with a judgment that preserved the SCCs decision (kind of), but invalidated the Privacy Shield Decision – even after there had been multiple renewals of the adequacy finding of Privacy Shield in the past. Additionally, along with the logical gymnastics around Privacy Shield, the SCCs aren’t quite out of the woods yet. Continue Reading CJEU Invalidates EU-US Privacy Shield Framework

From court closures and the way judges conduct appearances and trials to the expected wave of lawsuits across a multitude of areas and industries, the COVID-19 outbreak is having a notable impact in the litigation space—and is expected to for quite some time.

To help navigate the litigation landscape, we are kicking off a webinar series that will take a look at what’s happening now and what to expect in terms of litigation practice and litigation trends in the months to come. The initial webinars detailed below will be supplemented by topic-specific programs that will take a deeper dive into the respective topics. Feel free to attend one or all, and please invite your colleagues.

Court Is “In Session”: The Post-Pandemic Courthouse

In the first installment of our Post-Pandemic Litigation Webinar Series, Seyfarth litigators from a variety of legal disciplines will examine the virtual courthouse in a post-pandemic world. Specifically, our presenters will address:

  • What is going on in courts across the country, and how/when are they rescheduling
  • How will state, federal, and bankruptcy courts run post-pandemic
  • Will we be able to have jury trials
  • How long this “new normal” is expected to last
  • Necessary tools needed to adapt and keep your cases moving forward
Moderator:

Scott Carlson, Partner, Seyfarth Shaw

Speakers:

Suzanna Bonham, Partner, Seyfarth Shaw
Gina Ferrari, Partner, Seyfarth Shaw
William Hanlon, Partner, Seyfarth Shaw
Scott Humphrey, Partner, Seyfarth Shaw

Tuesday, July 14, 2020

1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

If you have any questions, please contact Colleen Vest at cvest@seyfarth.com and reference this event.

New Era, New Litigation: Lawsuits You Can Expect in the Post-Pandemic Environment

During the second installment of our Post-Pandemic Litigation Webinar Series, our panel will provide high-level insights on what companies of all sizes can expect in terms of litigation as a result of COVID-19. Specifically, our presenters will address the high-level trends we are observing in the following areas:

  • Bankruptcy and Financial Services
  • Class Actions and TCPA
  • Commercial Litigation
  • Construction and Real Estate Litigation
  • Health Care, Life Sciences, and Pharmaceutical
  • Securities Litigation
  • Trade Secrets and Cybersecurity/Privacy
Moderator:

James McGrath, Partner, Seyfarth Shaw

Speakers:

Kristine Argentine, Partner, Seyfarth Shaw
Jesse Coleman, Partner, Seyfarth Shaw
Tonya Esposito, Partner, Seyfarth Shaw
Richard Lutkus, Partner, Seyfarth Shaw
Kate Schumacher, Partner, Seyfarth Shaw
Rebecca Woods, Partner, Seyfarth Shaw

Wednesday, July 22, 2020

1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

If you have any questions, please contact Danielle Freeman at dfreeman@seyfarth.com and reference this event.

Monday, California Attorney General Xavier Becerra submitted of the Final Regulations under the California Consumer Privacy Act (CCPA) to the California Office of Administrative Law (OAL).  Under the California Administrative Procedure Act (APA), the OAL has 30 business days plus 60 calendar days (due to a COVID-related executive order) to determine whether the regulations meet the requirements of the APA.  This final submission comes after various public forums, hearings, commentary, and revisions to the regulations. Continue Reading The CCPA Regulations Are Finally Here

At the beginning of 2020, a Federal privacy law, similar to that of GDPR or PIPEDA, was a faint and distant reality. However, in light of some mobile device and other monitoring being considered because of the COVID-19 pandemic, US Senators Roger Wicker (R-Miss.), chairman of the Senate Committee on Commerce, Science, and Transportation; John Thune (R-S.D.), chairman of the Subcommittee on Communications, Technology, Innovation, and the Internet; Jerry Moran (R-Kan.), chairman of the Subcommittee on Consumer Protection, Product Safety, Insurance and Data Security; and Marsha Blackburn (R-Tenn.) announced on Friday, May 1, a bill proposing the enactment of the “COVID-19 Consumer Data Protection Act,” which would apply to American health, geolocation, and proximity information.

This comes as various tech giants rush to develop an opt-in functionality or application that would allow users to trace their whereabouts to determine potential exposure to the deadly virus. The proposed Act aims to heighten protection for Americans’ data by imposing requirements on businesses similar to those seen in the CCPA and GDPR, such as providing notice to consumers at the point of collection regarding how data will be handled, how long it will be maintained, and to whom it may be transferred. Businesses would also need to allow consumers to opt out of the collection, processing, or transfer of applicable data under the Act. Further, businesses regulated by the FTC would be required to obtain affirmative consent from individuals to collect, process, or transfer their personal health, geolocation, or proximity information for purposes of tracking the spread of COVID-19. We also see the concepts of data de-identification, data minimization, data security requirements, which all similarly sound very familiar.

While this proposed legislation applies only to health, proximity, and geolocation data, the burning question becomes whether, if enacted, this Act will pave the path toward Federal US Privacy Legislation.

While a lot of ink has been spilled on the California Consumer Privacy Act (“CCPA”) over the last 18 months, one of the things which has become quite apparent to those of us who view privacy through a lens which considers both EU and US perspectives is that the CCPA is actually not an EU-style law. Except for the right to delete data, all the consumer rights in the CCPA actually existed (albeit in a much less aggressive form) for many categories of information under prior California law. When one considers the number of carve-outs to the deletion right, the CCPA actually looks a lot like what is the more traditional approach to privacy that is prevalent under US jurisprudence. Continue Reading Europe’s Privacy Law is Coming – Just Not Via California

While the United States largely hit the brakes as of March in the wake of the COVID-19 crisis, California Attorney General Xavier Becerra made clear his intentions to begin enforcement of the Act on July 1, 2020, as originally planned.  This announcement came despite many organizations’ pleas to defer enforcement in order to relieve the additional stress imposed on organizations as they respond to the COVID-19 crisis, and continue to work towards ensuring their compliance with the CCPA.  While Becerra has not yet published his final regulations on the Act, there are aspects of the regulations that we expect to be largely intact in their current form once the final regulations are out as a result of reviewing the three drafts General Becerra has already produced. Continue Reading What We Can Expect from the CCPA Regulations