In 2015 expect the law surrounding data breach class actions to develop, growth in statutory privacy claims and an increase risk in privacy claims relating to merger and acquisition activity, according to Cynthia Larose and Kevin McGinty of Mintz Levin Cohn Ferris Glovsky and Popeo, in this recent blog post. They’re looking into their crystal balls and making predictions, and they say, “privacy-related claims are likely to be the source of a substantial amount of litigation in 2015.” Here are some of the top things they say to watch out for in the new year:
- Consumer standing to sue in data breach cases: Another day, another data breach, it seems and Larose and McGinty note that, “absent a wholesale revamp of payment card technology in the United States, retailers here will continue to offer a tempting target to hackers.” But what may change, is the ability of consumers to sue companies. A recent case in the U.S. District Court for the Northern District of California “supports the position that there is standing to assert data breach claims where…a plaintiff’s claims arise from hackers’ targeted theft of the plaintiff’s personal data.”
- Statutory privacy claims: The Telephone Consumer Protection Act, prosecuted under state consumer protection statues, has “proven to be a lucrative and bottomless trove of litigation for class action plaintiffs’ counsel,” say Larose and McGinty. Expect this to continue, with cases alleging the collection of zip code information with credit card payments violates other state laws.
- Merger and acquisition privacy: “Dealmakers are (and those that are not, should be) paying increasingly close attention to data security and privacy issues in the due diligence process,” say the authors. They note extra caution should be paid to representation and warranty clauses to protect buyers from potential privacy liability and these issues could manifest in litigation post data breach.
Attorney Marlisse Silver Sweeney is a freelance writer based in Vancouver. Twitter:@MarlisseSS.
