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The replay for our April 28, 2022 Consumer Privacy Litigation Update webinar is available here.

The increasing number of states enacting privacy laws means more privacy litigation. On this webinar, partners Lauri Mazzuchetti and Becca Wahlquist highlighted emerging trends across the docket of privacy litigation cases, provided an update on key cases involving consumer

The August issue of Kelley Drye’s TCPA Tracker newsletter is here:

TCPA (Telephone Consumer Protection Act) Tracker Newsletter is a cross-practice effort produced to help you stay current on TCPA (and related) matters, case developments and provide an updated comprehensive summary of TCPA petitions pending before the FCC.

Recent News

FCC Opens Proceeding

Over the last few months, a wave of consumers have filed putative class action complaints against a long list of consumer-facing website owners/operators and their software providers alleging invasion of privacy rights under statutes focused on wiretapping and eavesdropping.

Our team has represented both website and software defendants in these cases.  However, this post is not intended to reflect on any specific claim, website, or software.  Rather, our goal is to provide an introduction to the general nature of the consumer claims and current landscape of these litigations.

This post summarizes (1) the “session replay” technology at issue in these claims; (2) arguments presented by the Complaints; (3) an overview of common defenses; and (4) where things stand.  With that context, we then provide our list of practical considerations for the use of session replay software.      

What is “Session Replay” Software? 

A significant branch of the Software-as-a-Service (Saas) industry has arisen to support website owners/operators in effectively maintaining and leveraging their consumer-facing websites.  These software products are generally scripts placed in the JavaScript of a given website to capture specific information related to a consumer’s interactions with a given page.  The software can capture consumer’s keystrokes and mouse movements to provide information on everything from broken links or error messages to support IT teams, create heat maps showing website usage, and/or capture consumer information for validating consent to be contacted or agreement to receive products and services.

Despite how these products are often described, the software does not actually record the consumer’s session in the way that a security camera in a brick-and-mortar store would capture a consumer’s movements. Rather it captures the consumer’s interactions with the website at regular intervals and allows those movements and data points to be laid over an existing image of the website so that owners/operators can review a recreation (or dramatization) of an individual consumer’s experience.          
Continue Reading Privacy Litigation Trend: The Latest on Session Replay Lawsuits, and Practical Considerations for Risk Mitigation

For the second time this year, the TCPA came before the Supreme Court via teleconference oral argument in Facebook, Inc. v. Duguid, et al, Case No. 19-511 (2020). The Supreme Court’s disposition of Facebook’s petition is expected to resolve a widening Circuit split over what qualifies as an automatic telephone dialing system (“ATDS”) under

It has been more than two years since the D.C. Circuit found the Federal Communications Commission’s (the “FCC”) discussion of predictive dialers and other equipment alleged to be an automatic telephone dialing system (“ATDS,” or “autodialer”) to “offer no meaningful guidance” on the question. In the absence of an FCC ruling on the remand, multiple

On July 9, 2020, the Supreme Court granted Facebook’s petition for certiorari in a case with potentially broad implications for both class action litigation and business communications with their current and potential customers.  The Supreme Court’s disposition of Facebook’s petition may settle the complex question of what qualifies as an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).

The TCPA prohibits telemarketing calls to be placed using an ATDS without the requisite level of prior consent.  Thus, the definition of what technology qualifies as an ATDS is often a fundamental, threshold question upon which TCPA litigation turns.  Prior to 2015, the FCC had offered various, sometimes vague, interpretations of the term.  In 2015, the FCC offered an expansive definition, which was set aside in March 2018 in the ACA International decision.  While the issue has been before the FCC on remand for over two years now, courts nevertheless engaged in their own analysis of the statute, resulting in a broadening Circuit split on how the law is interpreted and applied and divergent outcomes based on the court in which the case is filed.  Now the Supreme Court is poised (potentially) to resolve that dispute.
Continue Reading Supreme Court to Weigh-in on the Definition of an Autodialer Under TCPA

On the same day that the FCC set a call blocking declaratory ruling for vote at its July 2020 Open Meeting, the FCC’s Consumer and Governmental Affairs Bureau issued rulings in two long-pending petitions for clarification of the requirements of the Telephone Consumer Protection Act (“TCPA”). Although these clarifications do not address the

The Virginia Governor recently signed into law amendments to the Virginia Telephone Privacy Protection Act that significantly increase the exposure of businesses that place marketing calls or text messages to Virginia residents.

The amendments take effect July 1, 2020, and address four topics: (1) the definition of a “telephone solicitation call,” (2) caller identification, (3)