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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

Key Developments in CCPA Litigation for Q1 2021As we move deeper into the second year of CCPA litigation, the substantive issues continue to develop and we remain focused on the patterns and implications of recent filings and rulings.  In this post, we highlight notable developments in three cases that occurred in the first quarter of 2021.  These cases raise significant issues

On April 1, 2021, in a unanimous decision, the Supreme Court ruled that the definition of an automatic telephone dialing system (“ATDS”) under the TCPA is limited by the plain grammar of the statute itself.  The Court, in a decision authored by Justice Sotomayor, held that a device must have the capacity to use a

Private consumer litigation in 2020 was significantly impacted by the California Consumer Privacy Act (CCPA) which took effect on January 1, 2020.  Whether asserted as a standalone CCPA violation claim or as a predicate act for other causes of action, including under California’s Unfair Competition Law (“UCL”), the volume of CCPA litigation has not abated. 

New York may become the latest state to allow consumers to sue companies for improperly collecting, retaining or using certain biometric data.  Earlier this week, a bipartisan slate of state legislators (17 Democrats, 7 Republicans) introduced Assembly Bill 27, which seeks to amend New York’s General Business Law to add a new article known

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

January 1, 2020 was the effective date for the California Consumer Privacy Act (CCPA).  As we reported and summarized in our Q1 2020 CCPA Litigation Round-Up, private litigants wasted no time in filing consumer-related causes of action under the new law.

Here, we provide an update on material developments in that first wave of claims and report on additional private lawsuits commenced in the first half of the year.  We have further categorized the recently-filed cases based on those stemming from a data breach versus not.  In the latter category, the cases are further split based on the underlying alleged violations – last quarter, non-breach based claims related to the disclosures and opt-out mechanisms required by the CCPA as well as the scope of “personal information” covered by the CCPA.

1. Update on Cases Reported in Q1 2020

Continue Reading CCPA Litigation Round-Up: Q2 2020