- “Prices may vary” disclaimer said too small: “A Couple Is Suing Taco Bell for Overcharging Them $2.18 for Chalupas” [Jelisa Castrodale, Vice] “Bronx man sues NBC Universal over ‘unlimited’ soda refills at theme park” [Emily Saul and Natalie O’Neill, New York Post]
- An old Florida law bans the use in alcoholic beverages of grains of paradise, a spice widely available online, resulting in a class action lawsuit against makers of a well-known British gin [Baylen Linnekin]
- Post-decision Federalist Society podcast on Frank v. Gaos (Supreme Court remands on standing issue without resolving issue of cy pres adequacy) with the eponymous Ted Frank;
- “FTC’s comprehensive study finds median consumer class action claims rate is 9%” [Alison Frankel, Reuters]
- A recent Ted Frank win: “U.S. appeals court voids Google ‘cookie’ privacy settlement that paid users nothing” [Jonathan Stempel, Reuters] “Zappos data breach settlement: users get 10% store discount, lawyers get $1.6m” [Catalin Cimpanu, ZDNet] “Worse, 10% code doesn’t stack w/ existing discounts.” [@tedfrank on Twitter]
- California privacy law fuels class actions over smart speakers such as Amazon’s Alexa, Google Home and Apple’s Siri [Alicia A. Baiardo & Christine M. Mastromonaco, Class Action Countermeasures]
- Philadelphia Common Pleas Court, long a forum-shopping destination, draws lawyers to sue over cladding after London’s Grenfell Tower fire [David Murrell, Philadelphia magazine]
- Georgia lawprof Elizabeth Chamblee Burch argues in new book that lawyers are enriching themselves at the expense of their clients in mass tort multidistrict litigation [her site; Katheryn Tucker, Fulton County Daily Report; Leigh Beeson, UGA Today, more]
- “Court cases reveal secret litigation networks for trucking accidents” [Aaron Huff, Commercial Carrier Journal]
- U.S. Chamber report on private rights of action and privacy claims by Mark Brennan, Adam Cooke, and Alicia Paller of Hogan Lovells;
- “Is PFAS the next asbestos? Probably not, lawyers say, but it may come close” [Daniel Fisher, Legal NewsLine]
- Uh-oh: “Progressive advocates have recently begun working with legislators in a handful of states to provide a qui tam mechanism for enforcing state statutory rights.” [Myriam Gilles and Gary Friedman, SSRN]
Judge William Alsup of the federal court in San Francisco has refused a motion to certify a privacy class action in which the named plaintiff would be a man who has “filed 10 other California Invasion of Privacy Act actions, none of which ever reached the class certification stage” but instead concluded with private settlements [Mario Marroquin, Legal NewsLine; Alison Frankel, Reuters]
“Wuest’s litigation history is more than unusual,” Alsup wrote. “This order finds that it shows a pattern of using the threat of class action to extract an undeserved premium on an individual claim. This pattern is further evidenced by the fact that in several of the bases, both Wuest and his counsel received settlement amounts disproportionate to maximum recovery allowed under the statute.
“The pattern is quite clear. The premium was something rightfully due to the ‘class’ but no absent putative class member ever got anything. Wuest and his counsel got it all.”
- “We got nailed once because someone barehanded a bag of lettuce without a glove.” Kitchen-eye tales of NYC’s restaurant inspection regime [Saxon Baird, NY Eater]
- Positive reviews for new HUD regs on housing discrimination, affordability, and supply [National Review: Roger Clegg; Salim Furth]
- Sony isn’t making its robot companion dog available in Illinois because its facial recognition features fall under the state’s onerous Biometric Information Privacy Act; an earlier in-state casualty was Google’s “which museum portrait is your selfie like?” service [Megan Wollerton, CNet, earlier here and here] Is there any hope of slowing down the rush of class action suits filed under the law? [Chris Burt, Biometric Update]
- Victory on a-peel: “3rd Circuit rules maker of banana costume is entitled to ‘fruits of its intellectual labor'” [ABA Journal, earlier here, etc.]
- D.C. Circuit “Rips ‘Legal Artifice’ in Kasowitz Firm’s Megabillions Whistleblower Case” [Dan Packel, The American Lawyer; Cory Andrews, WLF]
- Congress passes a law framed as pro-veteran, doesn’t take the time to spell out quite how it works, years later we meet the (presumably unintended) losers in the form of nonprofits that employ blind and deaf workers [Julie Havlak, Carolina Journal, quotes me]
Cato event featuring David R. Burton, Richard Hay, Karen Kerrigan, & Diego Zuluaga:
Policymakers on both sides of the aisle have proposed new regimes for small-business beneficial ownership reporting. The aim of such legislation is to eliminate opportunities for money laundering and financial crime. However, the proposals before Congress would place heavy new compliance costs on millions of America’s small businesses while continuing to provide opportunities for bad actors to engage in illicit financial activities. Beneficial ownership reporting would add to an already onerous anti-money-laundering/know-your-customer (AML/ KYC) regulatory burden, cited by community banks as the single most costly financial regulation. Furthermore, international experience with beneficial ownership reporting requirements suggests that it will be difficult to make such requirements work in the United States.
The California Consumer Privacy Act, drawn up hastily to avert a threatened ballot initiative, purports to create six new categories of data-related consumer rights, “including the right to know; the right of data portability; the right to deletion; the right to opt-out of data sales; the right to not be discriminated against as a user; and a private right of action for data breaches.” Although sometimes compared to the European GDPR, the two laws are different and compliance with the one enactment (which has been immensely expensive already) does not accomplish compliance with the other. Expect uncertainty, fines, the California specialty of entrepreneurial class-action litigation, and more tilting of compliance cost structures to the benefit of tech companies and advertising intermediaries big enough to afford to spread the high expense over large revenue streams [Alec Stapp, Truth on the Market; more: Al Saikali, Washington Legal Foundation; Petrina McDaniel, Elliot Golding and Keshia Lipscomb, Squire Patton Boggs]
The European Union’s General Data Protection Regulation (GDPR), which went into effect just over a year ago, has resulted in a broad array of consequences that are expensive, unintended, or both. Alec Stapp reports at Truth on the Market, with more discussion at Marginal Revolution:
GDPR can be thought of as a privacy “bill of rights.” Many of these new rights have come with unintended consequences. If your account gets hacked, the hacker can use the right of access to get all of your data. The right to be forgotten is in conflict with the public’s right to know a bad actor’s history (and many of them are using the right to memory hole their misdeeds). The right to data portability creates another attack vector for hackers to exploit.
Meanwhile, Stapp writes, compliance costs for larger U.S.-based firms alone are headed toward an estimated $150 billion, “Microsoft had 1,600 engineers working on GDPR compliance,” and an estimated 500,000 European organizations have seen fit to register data officers, while the largest advertising intermediaries, such as Google, appear to have improved their relative competitive position compared with smaller outfits. Venture capital investment in Euro start-ups has sagged, some large firms in sectors like gaming and retailing have pulled out of the European market, and as of March more than 1,000 U.S.-based news sites were inaccessible to European readers.
The plain language of the GDPR is so plainly at odds with the business model of surveillance advertising that contorting the real-time ad brokerages into something resembling compliance has required acrobatics that have left essentially everybody unhappy.
The leading ad networks in the European Union have chosen to respond to the GDPR by stitching together a sort of Frankenstein’s monster of consent,a mechanism whereby a user wishing to visit, say, a weather forecast is first prompted to agree to share data with a consortium of 119 entities, including the aptly named “A Million Ads” network. The user can scroll through this list of intermediaries one by one, or give or withhold consent en bloc, but either way she must wait a further two minutes for the consent collection process to terminate before she is allowed to find out whether or it is going to rain.
This majestically baroque consent mechanism also hinders Europeans from using the privacy preserving features built into their web browsers, or from turning off invasive tracking technologies like third-party cookies,since the mechanism depends on their being present.
For the average EU citizen, therefore, the immediate effect of the GDPR has been to add friction to their internet browsing experience along the lines of the infamous 2011 EU Privacy Directive (“EU cookie law”) that added consent dialogs to nearly every site on the internet.
Police officers in Wisconsin “drew Gerald Mitchell’s blood while he was unconscious—to test his blood alcohol content after a drunk-driving arrest. The state has attempted to excuse the officers by citing an implied-consent statute, which provides that simply driving on state roads constitutes consent to such searches.” Although the right to privacy are not absolute, there are problems with that approach, made worse by a strange Wisconsin Supreme Court opinion extending to highway searches a Fourth Amendment search exception for “pervasively regulated businesses.” [Ilya Shapiro and Patrick Moran on Cato cert amicus brief urging the Supreme Court to review Mitchell v. Wisconsin]
The EU’s General Data Protection Regulation (GDPR), along with similarly heavy-handed regimes such as California’s Consumer Privacy Act, entrenches established platforms that have the resources to meet their onerous compliance requirements. Since the GDPR’s implementation in May, the rank and market share of small- and medium-sized ad tech companies has declined by 18 to 32 percent in the EU, while these measures have increased for Google, Facebook, and Amazon.
Via Alex Stamos thread on Twitter (“Anybody wonder why the big tech companies didn’t really fight that hard against GDPR? It isn’t due to a newfound love of regulation”) by way of James Pethokoukis; more, Antonio García Martínez.
Another valued little piece of financial privacy being lost: in the name of enforcing money laundering and know your customer regulations, the Treasury Department’s Financial Crimes Enforcement Network has expanded a program the effect of which is to require disclosure of your identity if you buy a home in some parts of country [Kathleen Pender, San Francisco Chronicle]
Related: British financial regulators adopt new approach of “shifting the burden of proof onto foreign investors; they must now prove their wealth is legitimate.” [Jeffrey Miron, Cato]