It wasn’t that long ago that privacy and privacy claims were not major factors in the US legal landscape. In this country, privacy seemed to be a somewhat strange preoccupation of the EU, perhaps because of the experience with totalitarian regimes in Germany and the Soviet bloc. The EU ultimately promulgated GDPR. To most in the US, its requirements seemed to be pointless burdens.
The attitude in the US has since changed radically, as any current review of court dockets will demonstrate. More and more companies are using data to monitor their customers, employees, and traffic on their websites. The US public has slowly awakened to the fact that when they are online, they are generating data, which is then collected, stored, analyzed and used for commercial purposes. A sentiment of fear and distrust—Big Tech as Big Brother—has developed in the American psyche.
A very organized and sophisticated plaintiffs’ bar has tapped into this. Every month scores of privacy cases are being filed; many are being settled (few have been tried) for large amounts of money. US companies that have collected and used data for years are now playing catch up, trying to determine what data they collect, where it is stored, and how it is used. Anecdotal evidence indicates that the legal specialty in demand in US legal departments is privacy law.
Efforts to enact federal privacy legislation (which would have embodied a grand bargain between consumer and business groups—preempting state privacy regulation but establishing a private right of action) have failed thus far. So what we have in the US now is a patchwork of different laws, which vary considerably from state to state. The plaintiffs’ bar has developed aggressive strategies to take advantage of, or repurpose, state and federal laws regulating various aspects of privacy or privacy-adjacent subjects. Many of these cases are getting past the pleading stage and involve the data of millions of people, translating into billion-dollar damage claims.
My colleagues at Quinn Emanuel discuss some of these novel theories in a recent article published by Law 360.
