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Banking & Financial Services E-Note - April 2015

In This Issue: - Insuring Against Data Breaches - Plaintiff in Foreclosure Action Snared by Evidence of Damages, Attorneys' Fees & Costs - Dodd-Frank Act Update April 2015 Edition - Bond Financing:...more

First Circuit Decision Strengthens Preemption Defense in Name-Brand Pharmaceutical Litigation

On February 20, 2015, the U.S. Court of Appeals for the First Circuit affirmed the dismissal of plaintiffs’ state-law consumer protection claims against a name-brand pharmaceutical manufacturer, concluding they were impliedly...more

Health Plan Lawsuits and Data Breach Claims: Recent Developments and Implications

Five class action lawsuits have been filed against Premera Blue Cross in federal court in Seattle, Washington following the recent report of a data breach that affected approximately 11 million individuals. The lawsuits make...more

Target’s Consumer Class Action Settlement: A New Way to Resolve Big Data Breach Cases?

Many will recall the 2013 holiday shopping season when Target announced that cyber thieves had accessed and stolen as many as 70 million customer credit and debit card numbers and extracted personal information for another 40...more

PF Chang’s continues its success in thwarting data breach class action lawsuits

We have been closely watching the class action suits against PF Chang’s (and other retailers) relating to the bistro’s data breach last year. In December, a federal district court in Illinois dismissed a proposed class action...more

LabMD files Motion to Exclude Exhibits as it gears up for May 5th hearing with FTC

The litigation between LabMD and the FTC is not mellowing. Last week, LabMD filed a Motion to Exclude the FTC’s admission of all Tiversa documents during the FTC administrative hearing scheduled for May 5th....more

Multiple class action lawsuits filed against Premera Blue Cross for data breach

Days following Premera Blue Cross’s public announcement that it had experienced a data breach affecting approximately 11 million, it has been sued five times (as of the time of this writing) in proposed class action lawsuits...more

Target Reaches Preliminary Settlement in Consumer Data Breach Class Action

Last week, a Minnesota federal district court granted a motion for preliminary approval of a settlement of putative consumer class action claims against Target in the wake of a data breach at the retailer over the 2013...more

Threat of Identity Theft is Not Enough: Another Data Breach Class Action Dismissed for Lack of Standing

Hewing to prior Third Circuit precedent in Reilly v. Ceridian and the Supreme Court’s precedent in Clapper v. Amnesty International, the Middle District of Pennsylvania recently joined the majority of federal district courts...more

The $10 Million Target Settlement

In the past two years, there have been a number of lawsuits filed against major corporations as a result of data breaches, including the class action filed against Target following the data breach it suffered in late 2013. ...more

When is Data Security “Unfair”?

Data security is big news. And so is the Federal Trade Commission (“FTC”). Put the two together in a crucible of litigation, and it is sure to be a blockbuster. That is what the closely-watched case FTC v. Wyndham, now...more

Financial Institutions File Class Action Suit In Response to Data Breach

On March 13, a federal credit union filed a class action suit against a national retailer and parent company, alleging their actions during a September 2014 data breach injured credit unions, banks, and other financial...more

Frontiers Of Data Breach Litigation: Standing Issues Presented To Seventh Circuit In Lewart v. P.F. Chang’s China Bistro, Inc.

In a brief made public on March 10, P.F. Chang’s China Bistro, Inc. urged the U.S. Court of Appeals for the Seventh Circuit to affirm a lower court’s decision to toss out two consolidated complaints filed against the company...more

Food for Thought: Mirabella v. Vital Pharmaceuticals, Inc.

In Mirabella v. Vital Pharmaceuticals, Inc., consumers sued the manufacturer of Redline Xtreme Energy Drink, alleging that the manufacturer concealed the dangerous side effects of the energy drink. Plaintiffs requested relief...more

ISO’s Cloud Privacy Standard: A Guide for Lawyers’ “Reasonable Efforts” to Protect Client Information

Rule 1.1 of the Model Rules of Professional Conduct requires that all lawyers provide “competent representation to a client.” In August 2012, the ABA added new language to Model Rule 1.1, comment 8: To maintain the...more

Lenovo’s Unsecure Adware On Consumer PCs Prompts Class Action Lawsuits

Security experts recently discovered that about 50 different consumer PC models sold by Lenovo since September 2014 were shipped with adware known as Superfish Visual Discovery that could be exploited by hackers to spoof...more

FTC May Have Authority to Regulate Companies’ Data Security Practices

Between 2008 and 2010, hackers stole credit card information from the computer network of Wyndham Hotels & Resorts LLC (“Wyndham”), which affected hundreds of thousands of Wyndham’s customers in the process. The Federal Trade...more

No Standing for Data Breach Plaintiffs in Southern District of Texas Class Action

Earlier this month, a Texas federal judge rejected a data breach plaintiff’s claim of a relaxed standard for Article III standing based on the “heightened risks” posed by potential identity theft and security fraud. ...more

UPDATE: German Government Proposes New Law Entitling Consumer Protection Organizations to Enforce Data Protection Law

As a general rule, court actions on data protection breaches are an exemption. As reported in our Newsflashes in March 2014 and August 2014 the German government is planning to encourage court actions against breaches of data...more

Caribbean Cruise Line Obtains Dismissal of Putative TCPA Class Action

On March 25, 2014, Brian Jackson received a text message on his cellular phone, allegedly making an offer for cruise ticks on behalf of Caribbean Cruise Line (“CCL”). Jackson filed suit against AdSource Marketing Ltd....more

Courts Continue To Find That Unique Device Identifiers Are Not Personally Identifiable Information (PII) Under The Video Privacy...

Two recent federal district court rulings regarding the Video Privacy Protection Act (VPPA) follow the emerging trend of decisions indicating that courts are reluctant to find violations of the VPPA for sharing anonymous...more

Citizen Petitions Aimed at Delaying Generic Competition Remain a Concern

Despite Congress enacting legislation in 2007 to curb misuse, citizen petitions submitted by pharmaceutical companies to the Food and Drug Administration (FDA) may still provide a mechanism for competitors to delay the...more

In re Nexium: The heartburn drug case that may cause heartburn

In a November 30, 2013 post, we wrote about the District of Massachusetts' class certification decision in the antitrust case, In re Nexium. There, the district court certified a class of consumers and other payors who...more

Northern District of California Adopts Flexible Approach To Analyzing Pre-Certification Standing Issues

The United States District Court for the Northern District of California partially granted and partially denied a motion to dismiss based on the standing of 18 named plaintiffs from 13 different states seeking class...more

First Circuit Upholds Class Certification in Nexium Indirect Purchaser Case

In a split decision, the U.S. Court of Appeals for the First Circuit affirmed the certification of a class of indirect purchasers who allege that they paid inflated prices for the heartburn drug Nexium. In re Nexium Antitrust...more

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