For this Cyber Monday, we are looking at one of the hot topics in data-privacy and cybersecurity litigation: the Video Privacy Protection Act. Recent years have seen an uptick in lawsuits asserting violations of the VPPA by companies that host video content on websites or mobile apps and then share information about the individuals who watched those videos with other businesses. While the companies have experienced some success in getting VPPA claims dismissed, the Second Circuit recently reinstated a putative class action asserting VPPA violations against the NBA that may breathe new life into VPPA claims. Salazar v. National Basketball Association, No. 23-1147 (2d Cir. Oct. 15, 2024). But is the worry about VPPA class actions overblown?

Continue Reading Video Privacy Protection Act Claims – Maybe Not a Slam Dunk After All

State Seeks to Derail NCAA NIL Settlement

The State of South Dakota has unleashed a two-pronged attack attempting to undo, or at least modify, the NCAA’s settlement of antitrust claims regarding its name, image, and likeness rules. In September, shortly after the $2.78 billion settlement was announced, South Dakota sued the NCAA on behalf of the University of South Dakota and South Dakota State University in a separate case, complaining that the settlement would result in non-power-conference schools losing approximately $960 million in NCAA distributions to help pay for the deal. 

Then, two weeks ago, just after the federal judge hearing the main antitrust case granted preliminary approval of the settlement, the state filed a motion in that case arguing that the set­tle­ment notice provided to the various state Attorneys General did not satisfy the requirements of the Class Action Fairness Act. This is an unusual challenge to a class-action settlement, so we thought we would take a further look at what South Dakota is arguing.

Continue Reading South Dakota a Giant (Settlement) Killer?

With the rise in remote work, not to mention better technology, many employers have begun using apps and other services to monitor employees’ activities to track, assess, and evaluate workers. The Consumer Financial Protection Bureau (CFPB) recently issued a Circular stating that employers’ use of the reports generated by those apps and services may be subject to the Fair Credit Reporting Action (FCRA) just like a traditional employee background check.

Continue Reading Whatcha Watching? The CFPB’s Recent Guidance on Employer Monitoring

By now, you have probably heard about the Federal Trade Commission’s new “click to cancel” rule, which requires sellers to provide a simple mechanism to cancel a negative-option feature (essentially any recurring or automatically renewing subscription). If you haven’t, you can check out our previous post here. But “click to cancel” is just one facet of the FTC’s broader “Rule Concerning Subscriptions and Other Negative Options.” There are three other aspects to the new negative-option rule. 

Continue Reading Beyond “Click to Cancel:” What Else Is Included in the FTC’s New Negative-Option Rule

On Oct. 16, the Federal Trade Commission announced its final “click to cancel” rule. The rule is part of the FTC’s broader “Rule Concerning Subscriptions and Other Negative Options.” Notably, the click-to-cancel provision is not as straightforward as its moniker suggests. Here are four questions delving deeper into that portion of the rule. We will follow up with a separate post that looks at other aspects of the new rule.

Continue Reading Not as Simple as Clicking Your Mouse: A Look at the FTC’s “Click to Cancel” Rule

Sixth Circuit Affirms: AAA Rules Require Disputes Over Arbitrability Be Decided in Arbitration

Parties that have agreed to arbitrate certain disputes often disagree about whether a particular claim falls within their agreement to arbitrate, and also about who should make that threshold determination: a court or an arbitrator. The well-established rule is that a court should decide such gateway questions of whether a claim falls within an agreement to arbitrate, absent “clear and unmistakable evidence” that the parties agreed that an arbitrator should do so. E.g., Coinbase, Inc. v. Suski, 602 U.S. 143, 149 (2024). Given that demanding standard, one could be forgiven for assuming that such questions would typically be resolved in court. But that is frequently not the case, as illustrated by the Sixth Circuit’s recent decision in New Heights Farm I, LLC v. Great Am. Ins. Co., No. 24-1087, — F.4th —- (6th Cir. Oct. 15, 2024).

Continue Reading Don’t Put the Cart Before the Horse

In August, Disney found itself in a public-relations firestorm. Facing a wrongful-death lawsuit after a customer suffered an allergic reaction at a Disney World restaurant, the company had attempted to use the arbitration clause in the Disney+ terms of service to force the suit out of court and into arbitration, and the public reacted negatively. Disney ultimately withdrew its request for arbitration. 

Last week, Uber found itself in the news when a New Jersey appellate court held that the rideshare company’s arbitration clause was enforceable against a couple who were injured in an automobile accident when their Uber driver ran a red light. We often file motions to compel arbitration in consumer suits, so we thought we would provide three thoughts on this latest suit.

Continue Reading Not the Same “Small World”: Three Thoughts on the Disney and Uber Arbitration Cases

Sixth Circuit Affirms Dismissal of Claims Against Bob Baffert and Churchill Downs

Two weeks ago, Mystik Dan won the Kentucky Derby by a nose over Sierra Leone and Forever Young. If you didn’t watch the race and haven’t seen the finishing photo, you should check it out here and here. 

The 2021 Kentucky Derby also had a notable finish, albeit for less auspicious reasons. That year, Medina Spirit was the first horse to cross the finish line at the Kentucky Derby. Nine months later, however, the Kentucky Horse Racing Commission disqualified Medina Spirt because the horse tested positive for betamethasone in a post-race drug test. As a result, Maundaloun was declared the winner. Nineteen individual plaintiffs who would have won their wagers on the new order of finish brought a putative class action against Bob Baffert and Bob Baffert Racing, Inc. (who trained Medina Spirit) and Churchill Downs, Inc. (which owns the racetrack where the Derby is run). Just in time for Triple Crown season, the Sixth Circuit affirmed the dismissal of the plaintiffs’ claims for reasons that provide insight beyond horse racing. Mattera v. Baffert, No. 23-5750 (6th Cir. May 2, 2024).

Continue Reading And They’re Not Off . . .

On this Cyber-Monday, we would like to address one of the hottest technology topics of the past year: artificial intelligence. Some have speculated that AI may help boost low response rates to settlement notices. But there are also concerns that AI could make it easier to file fake class-action suits. 

Continue Reading How Will AI Affect Class Actions?

For Halloween, rather than discuss any of the various litigation over candy (e.g., the litigation over Skittles or “slack fill” in packages), we are going to travel back to 1984 to look at what a mishap with a sheep costume says about how consumer expectations can affect liability from Ferlito v. Johnson & Johnson, 983 F.2d 1066 (6th Cir. 1992) (Table). 

Continue Reading Little Bo Peep’s Fiery Sheep