Law360 Quotes Akin Gump Lawyers on Privacy Litigation

For its article “Privacy Litigation To Watch In 2023,” Law360 quoted litigation partner Seamus Duffy and counsel Marshall Baker. The article looks at this year’s trends in privacy litigation.

On the topic of putative class actions filed in recent months regarding businesses’ alleged violation of the Video Privacy Protection Act (VPPA) by disclosing private information regarding users’ video-watching to Meta through the Meta Pixel tool embedded in websites, Baker said that the lawsuits are being driven by “a confluence of factors, including the plaintiffs bar's continued search for a federal privacy statute or common law vehicle to attack the ubiquitous use of cookies and other website tracking technologies that provide consumers with all of the hallmark features of the modern website.”

He added that, in the wake of court decisions that have refused to deny plaintiffs’ claims, “a noticeable portion of the plaintiffs bar has gone all-in on these case,” noting that there is no slowdown visible on the horizon.

On the topic of courts dealing with unresolved issues raised by plaintiffs under the VPPA, he said these issues include “which entities can properly be said to fall within the VPPA's ambit; what, exactly, constitutes 'personally identifiable information' under the statute; and how will courts construe the VPPA's requirement that disclosures of that information be 'knowingly' made.”

Duffy noted that these disputes may not do well at either the summary judgment or class certification stage. This is, he said, because, in many cases, “the actual facts adduced in the discovery process will show either that the website owner isn't engaged in the kind of business activity the statute was meant to regulate or that the underlying activity doesn't actually involve the disclosure of users' video content selections in the way the VPPA was intended to prohibit.”

He added that this is important, from the industry perspective, because the cases “challenge so much of what it means to offer a modern, aesthetically pleasing and functional website that interacts with consumers and across the web in all of the appropriate ways we are all accustomed to and expect.”