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On December 12, 2017, the Federal Trade Commission (FTC) held a workshop to examine consumer injury in the context of privacy and data security. The motivation for the workshop, according to Acting FTC Chairman Maureen Ohlhausen, was to help the FTC better understand consumer informational injury, weigh effectively the benefits of intervention against its inevitable costs, and to help guide the future application of the substantial injury prong of the FTC’s unfairness standard. A variety of panelists from a wide range of backgrounds, including business, academia, and consumer advocacy, addressed questions such as how to best characterize these injuries, how to accurately measure such injuries and their prevalence, and what factors businesses and consumers consider when evaluating the trade-offs between providing information and potentially increasing their exposure to injuries.
Continue Reading FTC Holds Workshop on Informational Injury

In November 2017, Judge Edward J. Davila dismissed a major multidistrict litigation accusing Facebook of unlawfully tracking users’ browsing activity across websites while they were signed out of their accounts.1 The plaintiffs originally asserted several common law, tort, and statutory claims. Judge Davila dismissed most of those claims pursuant to earlier motions, leaving only the plaintiffs’ breach of contract claims intact.
Continue Reading Judge Dismisses Facebook Web-Tracking MDL

Nearly a year ago, in February 2017, the IRS issued a warning regarding phishing attacks targeting a broad range of companies. The scam involves a hacker impersonating an employee of a company, usually the CEO, and sending an email asking for a list of employees and their W-2 forms. The hacker would then make fraudulent tax filings using the W-2 forms. The scam is similar to the traditional Business Email Compromise (BEC), which involves spoofing an employee account in order to direct wire transfers to fraudulent accounts.
Continue Reading Cybersecurity for This Tax Season

The Federal Trade Commission (FTC) is seeking public comment on a petition by Sears Holding Management requesting that the FTC reopen and modify a 2009 FTC order settling charges that Sears failed to disclose adequately…
Continue Reading Sears Petitions FTC to Reopen and Modify 2009 Order Concerning Online Browsing Tracking

On September 5, 2017, the Federal Trade Commission (FTC) announced that it and 32 state attorneys general had settled charges with Lenovo, Inc., regarding the company’s practice of pre-loading advertising software on its laptops that compromised consumers’ cybersecurity and privacy.1 In many respects, the case was reasonably straightforward: the facts as alleged were clear, and the terms of the settlement were not unusual. But what makes this case interesting are the dueling concurrences issued by Acting Chairman Ohlhausen and Commissioner McSweeny regarding the FTC’s authority to challenge omissions. These concurrences continue a debate that has been stirring on and off at the FTC for more than 30 years, and they raise important questions about the agency’s future enforcement priorities.
Continue Reading To Disclose or Not To Disclose: The FTC’s Dueling Concurrences over Deceptive Omissions in Lenovo

The biggest question looming over every class-action case filed in response to a data breach is: Will the plaintiffs have standing? The answer has divided courts in recent cases across the country.

Last year, the U.S. Supreme Court held in Spokeo, Inc. v. Robins that Congress could not confer standing to plaintiffs based on a violation of a statute alone.1 Instead, the Court held that, even if a statute has been violated, plaintiffs must prove they have an injury-in-fact and that the injury is both concrete and particularized. Spokeo added a new layer of complexity in pleading standing in data breach cases. Previously, the Supreme Court held in Clapper v. Amnesty International USA that “conjectural” or “hypothetical” injuries were insufficient to confer standing and that harm must be “certainly impending.”2 What Spokeo and Clapper mean in practice for data-breach cases is far from settled.Continue Reading Class Action Standing and Data Breaches: When Is There an Injury-in-Fact?