Mike Daly Discusses Consumer Protection and Privacy Litigation Trends With Law360

In “Consumer Protection Policy and Cases To Watch In 2023” and “Privacy Litigation To Watch In 2023,” Law360 turned to business litigation partner Mike Daly for his commentary on issues and trends to watch for in the consumer protection and privacy litigation spaces this year.

Law360 reported that state legislatures are expected to add more automatic renewal laws. “That is obviously bad news for retailers and other merchants, as there is no longer a one-size-fits-all or even one-size-fits-most approach to compliance,” Daly said. “But it is also bad news for many consumers, as automatic renewals create efficiency and predictability that benefit buyers just as much as sellers.”

With regard to privacy litigation, Daly explained that “2022 saw an explosion of class actions claiming that session-replay technology on websites violates state wiretap laws…. Businesses should review their practices and disclosures now if they haven’t already, as this trend will continue into 2023 and perhaps beyond.”

On the topic of robocalls, Law360 reported on the longstanding fight over the constitutionality of the potentially astronomical aggregate damages that are available under the Telephone Consumer Protection Act (TCPA). Daly noted that practitioners on both sides of the TCPA bar will be closely tracking what happens in one case that was recently remanded by the Ninth Circuit. “[The TCPA’s] legislative history — which shows that Congress expected claims to be pursued individually in small claims court, not collectively in class actions — makes it a perfect vehicle for challenging damages on due process grounds and challenging certification on superiority grounds,” he shared.

Law360 also reported that some plaintiffs have been shifting away from the TCPA in favor state telemarketing laws. “Though colloquially called ‘mini’ TCPAs, the laws in some states are actually broader in scope — so much broader, in fact, that their constitutionality is questionable at best,” said Daly. “In the absence of a Congressional response to the Supreme Court’s Facebook decision — which held that the TCPA’s autodialer restrictions only apply to equipment that generates telephone numbers randomly or sequentially — this shift toward state-law claims will undoubtedly continue in 2023.”