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States Step Up Data Privacy and Security Regulation

States Step Up Data Privacy and Security Regulation

State legislatures from California and New York have taken action to respond to rising privacy concerns by enacting legislation to protect consumers and their personal information, and the New Jersey legislature is actively working to pass similar legislation to enhance the privacy and security obligations applicable to personal information obtained from New Jersey consumers. This legislation typically requires businesses to inform residents of certain rights regarding the collection or sale of their personal information and to provide notice to residents if a security incident at the company involves their personal information. As deadlines quickly approach for the enforcement of these laws, it is important for businesses to take action now and revisit privacy, security, and storage practices, as well as the associated policies for maintaining appropriate data privacy and security throughout the organization. The California Consumer Privacy Act (CCPA), which takes effect January 1, 2020, accords significant new privacy rights to consumers and imposes corresponding new requirements on businesses. In general, the CCPA mandates businesses to implement procedures to provide notice to consumers at or before the collection of personal information, to respond to consumers’ requests for the production or deletion of their collected information or to opt-out from its...

Third Circuit Offers Reminder that Pansy Does Not Govern Sealing of Documents

Third Circuit Offers Reminder that Pansy Does Not Govern Sealing of Documents

The Third Circuit has clarified the standard for sealing documents filed with a court, emphasizing in In re Avandia that litigants who wish to prevent public access to such documents face a more exacting standard than litigants pursuing a protective order under Fed. R. Civ. P. 26. In connection with its motion for summary judgment as to consumer protection claims filed by two health plans, GlaxoSmithKline (GSK) filed certain documents under seal and sought to maintain the confidentiality of those documents after the plans appealed the District Court’s order granting summary judgment to GSK. The District Court granted GSK’s sealing motions in significant part, and the plans appealed. The Third Circuit held that, in ordering the documents to remain sealed, the District Court incorrectly applied the standard, articulated in Pansy v. Stroudsburg, for preserving the confidentiality of discovery materials under Rule 26. In so doing, the Third Circuit opined, the District Court failed to recognize the “strong presumption” of public access that applies to documents filed on the court’s public docket. The Third Circuit held that the District Court should have applied the more exacting common-law right-of-access standard to the motions for continued confidentiality. That standard “begins with a thumb...

Supreme Court Limits American Pipe Tolling, Holds Tolling Does Not Apply to Successive Class Actions

Supreme Court Limits American Pipe Tolling, Holds Tolling Does Not Apply to Successive Class Actions

The Supreme Court has acted to ensure that the class action device cannot be used to indefinitely extend the statute of limitations, holding in China Agritech, Inc. v. Resh that American Pipe tolling does not apply to successive class actions. American Pipe tolling dates to 1974, when the Supreme Court held that the filing of a class action tolls the statute of limitations for absent class members who seek to intervene after the court has denied class certification. Nine years later, in Crown, Cork & Seal, the Supreme Court extended the rule to toll the statute of limitations for absent class members who choose to file their own individual actions. Resolving a split amongst the Circuits, the Supreme Court held that American Pipe tolling does not apply where class certification is denied and a class member subsequently seeks to bring a new class action after the expiration of the statute of limitations. The Court opined that the “efficiency and economy of litigation” that underpin the American Pipe rule do not support tolling for successive class actions. Rather, the Court determined, barring tolling in such situations will promote efficiency by requiring all litigants who wish to act as class representatives to come...

Second Circuit Clarifies Burden of Rebutting the Basic Presumption Under Halliburton II

Second Circuit Clarifies Burden of Rebutting the Basic Presumption Under Halliburton II

In In re Goldman Sachs Group, Inc. Sec. Litig., the Second Circuit confirmed that, at the class-certification stage in a securities-fraud class action, the defendant bears the burden of persuasion to rebut the presumption of reliance under Basic v. Levinson by a preponderance of the evidence. The decision follows on the heels of a separate Second Circuit panel’s similar decision in Waggoner v. Barclays PLC and clarifies that a defendant need not provide “conclusive evidence” to rebut the presumption. Goldman Sachs is one of several federal court decisions interpreting Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II), which declined to dispense with the Basic presumption of reliance – which is premised on the “fraud-on-the-market” theory – but held that the presumption can be rebutted by “any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price.” Since Halliburton II was handed down, courts have wrestled with the proof a defendant must offer to rebut the presumption. In Waggoner v. Barclays PLC, issued in November 2017, the Second Circuit resolved the question by holding that a defendant bears the burden of...

Supreme Court Rules That Statute of Repose Trumps Class Action Tolling

Supreme Court Rules That Statute of Repose Trumps Class Action Tolling

The Supreme Court has given a boost to companies defending against securities claims, ruling in California Public Employees’ Retirement System v. ANZ Securities that a statute of repose cannot be extended by the doctrine that the filing of a class action tolls the statute of limitations for the claims of absent class members. The case emanated from a prior class action that had alleged, in connection with certain offerings by Lehman Brothers Holdings Inc., violations of Section 11 of the Securities Act of 1933, which relates to misrepresentations and omissions made in a securities registration statement. Section 13 of the Act provides that any such claim must be brought within “three years after the security was bona fide offered to the public.” CalPERS, which was an absent class member in the original class action, filed its own class action complaint more than three years after the transactions at issue and then opted out of the original class action. Affirming the decisions of the Southern District of New York and the Second Circuit, the Supreme Court held that the three-year limit in Section 13 is a statute of repose, and that such a limit cannot be extended by any court-made tolling doctrine....

Third Circuit Holds That Absent Class Members Need Not Show Standing and Reiterates Comcast’s Reiteration of Basic Rule 23 Principles 0

Third Circuit Holds That Absent Class Members Need Not Show Standing and Reiterates Comcast’s Reiteration of Basic Rule 23 Principles

In a precedential opinion in Neale v. Volvo Cars of North America, the U.S. Court of Appeals for the Third Circuit held that putative class members need not establish Article III standing, and emphasized that the Supreme Court’s decision in Comcast v. Behrend, 133 S. Ct. 1426 (2013) “was not breaking any new ground” because “the predominance analysis was specific to the antitrust claim at issue.”

Federal Law Preempts NJ Fair Credit Report Act and TCCWNA Claims, New Jersey Court Says 0

Federal Law Preempts NJ Fair Credit Report Act and TCCWNA Claims, New Jersey Court Says

Claims based on a retailer’s improper inclusion of too many credit card digits or a credit card expiration date on a sales receipt may not be brought under either the New Jersey Fair Credit Report Act (“NJFCRA”) or New Jersey’s Truth-in-Consumer Contract, Warranty, and Notice Act (“TCCWNA”), according to a recent ruling by the New Jersey Law Division.

New Jersey Appellate Division Says Ascertainability Not Required for Class Certification 0

New Jersey Appellate Division Says Ascertainability Not Required for Class Certification

As recently reported by this blog, the U.S. Court of Appeals for the Third Circuit upheld and clarified the implied requirement of Rule 23 that a class be ascertainable in order to be certified. But a New Jersey appellate court recently ruled that there is no such requirement under the New Jersey Court Rules, at least where each class member holds a low-value claim.

Halliburton Gives Defense Bar New Tool to Defeat Class Certification 0

Halliburton Gives Defense Bar New Tool to Defeat Class Certification

The Supreme Court has raised the class certification stakes yet again, holding in Halliburton v. Erica P. John Fund that defendants in securities class actions may rebut the fraud-on-the-market presumption of reliance at the class certification stage. Over the objections of Justices Thomas, Scalia, and Alito, the Court declined to toss out the presumption altogether.

Class Action Defendants Seeking to Eliminate Removal Uncertainty Get Assistance from Seventh Circuit Decision 0

Class Action Defendants Seeking to Eliminate Removal Uncertainty Get Assistance from Seventh Circuit Decision

In an opinion beneficial to class action defendants, the Seventh Circuit has taken some of the guesswork out of removal by holding that the 30-day period for removing a case to federal court only begins once the defendant has received a pleading or other litigation paper that includes a specific, unequivocal statement that the damages sought meet the jurisdictional amount.