Long a dynamic practice area, the field of privacy law may be hotter than ever. The industry grabbed headlines last year as major breaches hit a slew of high-profile targets, from the IRS to the notorious adultery website Ashley Madison. In jurisdictions across the country, statutes and judicial decisions impacting data privacy and security are mounting, putting conflicting pressures on businesses and their attorneys. Meanwhile, practitioners are advising clients on litigation over data privacy and security breaches, evolving best practices, regulatory developments, and the increasingly robust insurance market.
California Lawyer moderated a conversation on these and related issues among Ian Ballon of Greenberg Traurig, Michael Hornak of Rutan Tucker, Rosemarie Ring of Munger Tolles Olson, Erik Syverson of Raines Feldman, and Dave Watts of NetFusion. The roundtable was reported by Laurie Schmidt of Barkley Court Reporters.
MODERATOR: What privacy trends do you think will emerge in 2016?
IAN BALLON: A year from now, the landscape is going to look very different. The question is, in what respect. In the privacy area, the U.S. Supreme Court’s decision later this year in Spokeo v. Robins is going to be very important, because the Court may decide that Article III standing is an independent constitutional requirement, which would eliminate a whole range of privacy cases.
In the security breach field, there is almost a circuit-split in the way courts are looking at standing. At some point that will be resolved, but I don’t think it will be within the next year. In the meantime, this split means that where you sue or are sued can be outcome determinative.
In TCPA cases, we will continue to see fallout from the FCC’s 2015 regulations. The regulations are perceived to be very consumer-friendly, but they also potentially make it more difficult for plaintiffs to certify class actions in certain cases. I defeated a motion for class certification in one putative class action, in part, because the new regulations required individualized inquiries of whether consent had been given and, if given, revoked through any reasonable means (within the meaning of the regulations). In the coming year, we may find other courts concluding that the new regulations make certification of class action suits more difficult for plaintiffs.
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