Privacy Class Action Spotlight: Latest Wave of Wiretap Class Actions Continues Despite Dismissals as Plaintiffs Try New Approaches

By neub9
2 Min Read

Over a hundred cases are now pending from the wave of privacy class actions that began last year. These cases allege violations of state wiretap statutes due to the use of website session replay, chatbot, and pixel technologies. Despite an increasing number of dismissals, plaintiffs’ firms are continuing to file new cases, focusing on email marketing tech and identity graphing, as well as chatbot and pixel tech.

The plaintiffs’ bar has been emboldened by two circuit court decisions from 2022 that rejected consent and “party to the communication” defenses asserted by defendants. Some courts have dismissed cases based on website session replay, chatbot, and pixel tech, citing grounds such as the “party exception” and findings that the information shared is not considered “content,” “in transit,” or “intercepted.”

Despite many dismissals, new cases continue to be filed almost daily under the California Invasion of Privacy Act, focusing on chatbots and pixel technologies. Some plaintiffs’ firms are taking an assembly-line approach to filing these cases, reducing the effort in customizing complaints to no more than changing the name of the defendant and the website URL.

New technologies such as email marketing tracking and identity resolution are also being targeted in these cases, potentially leading to a fresh round of wiretap complaints. Organizations are urged to review their technologies and vendor agreements to mitigate the risk of being caught up in these lawsuits.

If your organization needs assistance assessing its risk posture or understanding potential mitigation steps, please reach out to our Privacy & Cybersecurity Practice Group. You can also contact litigation partners for defense strategy in class action lawsuits.

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