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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

The Problems with Bringing a Privacy Class Action

Posted in Admin, Discovery

First of all, let me apologize for missing Tuesday’s post: a combination of travel, jet lag, and one or two minor crises at home were just distracting enough that nothing went up. Since I’m still feeling the effects of each, today’s post will be pretty light. Normal service should resume next week.

(And while I don’t usually get into personal details on this blog, I will also note that I have a baby due sometime in the next month, so we’ll see just how long that "normal service" will last.)

So, with that said, let me point you to a working paper that went up in the last few weeks on SSRN. Authored by Santa Clara Law Professor Eric Goldman, it’s called "The Irony of Privacy Class Action Litigation."

Goldman’s central argument is a simple one:

Most privacy advocates prefer business practices that require consumers to “opt-in” rather than “opt-out,” i.e., consumers must affirmatively grant permission to a business’ collection or use of their data rather than take action to prevent such collection or use. From the perspective of privacy advocates, opt-outs misinterpret consumers’ silence as consent, and they make consumers act to preserve the status quo—which, due to consumer acquiescence to default settings, means that consumer opt-out rates are low.

Yet, class action lawsuits are typically opt-out, not opt-in, with those same downsides. Typically, if the class is certified, class members are automatically bound by the lawsuit’s outcome unless they opt-out. Thus, just like opt-outs in the commercial setting, consumers must affirmatively act if they do not agree with the lawsuit; and like commercial opt-outs, the class action mechanism treats silence as consent.

(Internal footnotes omitted, emphasis added.)

As a paper, it’s a little slight (though as a blog post, it would be fantastic). For an article, it probably just needs a little more development of the privacy class action, and probably a discussion of the tensions between classwide discovery and privacy litigation.  (After all, do you want your data being turned over to plaintiffs’ lawyers?)  In fact, I’m a little surprised that Goldman didn’t reference Jeff Kosseff’s great student note on this topic.

Depth aside, Goldman’s produced an excellent quick look at one of the central tensions facing plaintiffs’ lawyers who bring privacy class actions. Anyone defending a privacy class action would be well-advised to check it out.