Fenwick & West litigation partner Tyler Newby, co-chair of the firm's privacy and information security practice, was profiled by Law360 as among four national 2014 Privacy MVPs. The publication focused on several dismissals Newby obtained in privacy consumer class actions this year.
One such case alleged that Fenwick client Pandora Media Inc., the music streaming and recommendation service, improperly shared its listeners' personal data with advertisers. After winning dismissal of the original suit in 2013, Newby convinced a U.S. district court to significantly narrow the remaining claims, ultimately resulting in a favorable resolution.
In another lawsuit, Newby obtained a dismissal of the majority of the data theft claims against Path Inc., developer of a photo sharing and messaging app. Path was among several mobile app developers charged in a consolidated consumer class action of illegally harvesting user data obtained via iPhones, iPads and iPod Touches. (Apple, Inc., was also a plaintiff.)
And in a third case, Newby secured a dismissal with prejudice of charges of a putative class action against firm client Symantec Corp.
“We have had success in getting several privacy and data security cases either dismissed entirely or significantly narrowed at the pleading stage through the challenges to the plaintiff’s ability to allege loss causation,” Newby explained.
Standing and loss causation are "proving to be companies' strongest early defenses in privacy cases," he noted, adding, "I’m happy that we have been able to bolster the case law for those defenses."
The profile also gave Newby an opportunity to discuss his ongoing work representing Carrier IQ Inc. in multidistrict litigation involving the company's cellphone tracking software. In that matter, the plaintiffs claim that Carrier developed, and other defendants installed, technology that improperly collected phone data.
“The case touches on so many areas of law – federal and state wiretap laws, the Stored Communications Act, state consumer protection laws and state contract law – that it never gets dull,” Newby said.
Looking ahead to 2015, he told Law360 he anticipates that the implementation in 2016 of California Bill 1177 will become a contentious issue.
The bill – which makes it illegal for educational technology companies providing interactive online services and apps for use by K-12 students to provide their users' information to third parties – "poses some real challenges to the business models of educational technology companies, and companies will need to assess their compliance risk during the year,” he indicated.
Newby also noted that there will likely be a continued need for data breach response and added, “State regulators have been talking tough on privacy enforcement for several years, but the number of enforcement actions brought has been fairly small. That may change in 2015.”
The full profile is available here.