Duane Morris Privacy Class Action Review – 2024

For efficiency, the court required plaintiffs to identify five priority claims and their preferred state law. The five priority claims included strict products liability design defect and failure to warn claims under New York law, product-based negligent design defect and failure to warn claims under Georgia law, and a negligence per se claim under Oregon law. The defendants filed two motions to dismiss, the first focusing on the legal sufficiency of the priority claims, and the second focusing on immunity and protections under § 230 of the Communications Decency Act and the First Amendment. The court conducted a detailed analysis of the functionality defects alleged in the complaint and rejected the defendants’ “all or nothing” approach to dismissal. Id. at *43. The court found that § 230 and the First Amendment did not bar some of the negligence per se claims, including that the defendants failed to provide effective parental controls, options for limiting screen time, made it overly challenging for users to choose to delete their account, failed to engage in age verification, made it challenging for users to report predator accounts and content to the platform, offered appearance-altering filters, failed to label filtered content, and used notifications to facilitate addictive use. Id. at *44. The court opined that those claims were not equivalent to speaking or publishing, and could be fixed by defendants without altering the publishing of third-party content, and thus were not barred by § 230. The court, however, found that § 230 barred some of the plaintiffs’ claims, such as allegations that the platforms provided endless content feeds and timed notifications to boost engagement. The court determined that those claims targeted the defendants’ role as the publishers of content, not the design defect of the defendants’ products. For these reasons, the court granted in part and denied in part the defendants’ motions to dismiss. In Markels, et al. v. AARP , Case No. 22-CV-5499 (N.D. Cal. Dec. 18, 2023), the plaintiffs, a group of consumers, filed a class action alleging that the defendant, a non-profit organization, engaged in illegal data mining and breached the Video Privacy Protection Act (VPPA) by sharing their identities and video viewing activities with Meta Platforms, the parent company of Facebook and Instagram. The court had initially dismissed the suit in August of 2023, finding that the plaintiffs failed to plead that providing video content to consumers was the defendant’s substantial or significant purpose. The plaintiffs filed an amended complaint, and the defendant again moved to dismiss. On that second motion, the court denied it. The court opined that the amended complaint demonstrated the role video content played in the defendant’s operations, with thousands of videos on various topics, including daily news recaps, fitness and exercise videos, informational videos about Social Security and Medicare, videos about recognizing serious medical conditions, and multi-episode TV series. Id . at 3. The court noted that the defendant offered member-only videos or videos discounted for members, which it highlighted in its marketing and communications materials with members. The court determined that due to the streaming of these videos, the defendant derived substantial revenues by selling advertising space to companies for its members-only videos. The court thereby found that the plaintiffs plausibly alleged that the defendant’s work was focused on delivering video content, meeting the "consumer" requirement under the VPPA. Id . at 5. Accordingly, the court denied the defendant’s motion to dismiss. Finally, in another example coming out of a California in Licea, et al. v. Old Navy, LLC, 2023 U.S. Dist. LEXIS 68724 (C.D. Cal. Apr. 19, 2023), the plaintiff filed a class action alleging that the defendant, a corporation that operates department stores, violated the California Invasion of Privacy Act (CIPA). The defendant offered a customer chat feature on its website, which the plaintiff alleged violated the CIPA by: (i) allowing the defendant to record and create transcripts of customer conversations conducted in the chat; and (ii) permitting third-party companies to intercept and retain transcripts of customer chats. Id. at *1-2. The plaintiff claimed violations of § 631 for intentional wiretapping and § 632.7, regarding intercepting and recording communications without consent when at least one party is using a cellular or cordless telephone. Id. at *2. The defendant filed a motion to dismiss, arguing that the plaintiff ’ s claims failed to state a claim upon which relief could be granted under Rule 12(b)(6). Id. The court granted in part and denied in part the motion. Id.

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