A team at Cooley secured a runners-up spot this week with an important win for Costco in a privacy class action in Florida federal court over its use of so-called “session replay” software. The software tracks things like mouse movements, clicks, keystrokes, search terms, and information users input and view during website visits to allow retailers to improve site performance and user experience. But plaintiffs in a series of lawsuits have alleged it runs afoul of state wiretapping laws. U.S. District Judge Rodolfo Ruiz in Ft. Lauderdale last week granted Costco’s motion to dismiss, concluding the plaintiff was asking him to “rewrite Florida’s wiretapping law in the face of changing technology.” The judge further found the session replay tracking was “the cyber analog to record information defendant could have obtained through a security camera at a brick-and-mortar store.” The Cooley team representing Costco includes Michael Rhodes, Kyle Wong, Aarti Reddy, Jessie Simpson LaGoy and Charlie Wood.
Adam Offenhartz and Tyler Amass of Gibson, Dunn & Crutcher also get runners-up honors for scoring a win at the Delaware Court of Chancery for the special litigation committee of the board of directors of El Pollo Loco. Chancellor Kathaleen McCormick last week granted their motion to dismiss with prejudice in a shareholder derivative suit alleging that the controlling investor of the fast-casual chicken restaurant chain garnered more than $118 million from insider trading. The Gibson Dunn team filed their motion to dismiss after conducting a 16-month investigation on behalf of the committee and issuing a 377-page report concluding it was not in the company’s best interests to pursue the derivative claims. McCormick, in what appears to be her first decision on a special litigation committee’s motion to dismiss, noted that the El Pollo Loco committee conducted a “reasonable, good-faith investigation” and had good reason for its conclusion that pursuing the derivative claims was “not worth the expense of protracted and uncertain litigation.”
