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New D.C. Circuit Ruling Finds Substantial Risk of Harm Inherent to Data Breach

Last week, the D.C. Circuit joined an increasing number of federal courts applying a broad interpretation of the degree of harm required to satisfy Article III standing and expanding the holding of last summer’s Spokeo, Inc. v. Robbins, 136 S. Ct. 1540 (2016).

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Target Class Action Settlement Temporarily Upended

Last week, the Eighth Circuit Court of Appeals rejected the district court’s approval of the class action settlement in the Target data breach litigation. See In re Target Corp. Customer Data Sec. Breach Litig., 2017 U.S. App. Lexis 1767 (8th Cir. Feb. 1 2017). 

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Another Shot at Ascertainability in Class Certification

Last week, the Ninth Circuit deepened the divide among the Circuits regarding ascertainability in class certification. In Briseno v. ConAgra Foods, Inc., 2017 U.S. App. Lexis 20 (9th Cir. Jan. 3, 2017), the Ninth Circuit rejected the Third Circuit’s line of authority (see Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) and Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015)) which requires plaintiffs’ counsel to show ascertainability by demonstrating an administratively feasible and reliable method to determine class membership at the class certification stage.

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CyberSecurity News: Spokeo, Galaria and Braitberg

Two Courts of Appeals have issued decisions during the past week related to cybersecurity and data retention which anyone who maintains electronic data and personal information should read.

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Legal Alert: NLRB Holds Employees May Use Employer Email Systems for Non-Work-Related Communications

In a reversal of precedent, a divided National Labor Relations Board (“NLRB”) held yesterday that employees have a right to use their employers’ email systems for non-business purposes, including statutorily protected communications regarding the terms and conditions of their employment and regarding union organizing efforts. See Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014).  The NLRB’s ruling stemmed from a case brought by the Communications Workers of America union after it unsuccessfully attempted to organize employees of Purple Communications, Inc., a company that provides interpreting services for the deaf and hearing-impaired.  The union argued that prohibiting the company’s workers from using the company’s email system for non-business purposes and on behalf of organizations not associated with the company interfered with the CWA’s organizing efforts. 

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Watching Halliburton

While most ERISA litigators are anxiously awaiting the Supreme Court’s decision in Fifth Third Bancorp v. Dudenhoeffer, (Sup. Ct. Dkt. 12-741), they should also be paying close attention to the Supreme Court’s upcoming decision in Halliburton v. Erica P. John Fund, Inc. (Sup. Dkt. 13-317). 

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The Search for the Goldilocks firm

Searching for the right team to help in a litigation matter often means looking for the Goldilocks firm.  As companies and in-house counsel are under increasing pressure to find quality representation at lower costs, there are lots of paper proposals and tough decisions to make.  Big Law has high overhead that comes with multiple offices and mergers/expansion, which translates to higher billing rates (with multiple firms now having partners billing at over $1,000/hr) and more bodies on matters.

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The American Express Decision: Arbitration and Class Action Waivers

Yesterday, the Supreme Court issued its long awaited decision in American Express v. Italian Colors Restaurant.  The decision is a must read for every business. 

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The Supreme Court and CAFA - Take 2

The Supreme Court has granted a certiorari petition in Mississippi v. Au Optronics Corp., S. Ct. Case No. 12-2036, and agreed to decide an issue that will impact the growing number of attorney general civil lawsuits around the country: "[w]hether a state's parens patriae action is removable as a 'mass action' under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common-law authority to assert all claims in the complaint."

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New Standard for Section 11 Liability in the Sixth Circuit

Last week, the Sixth Circuit issued a ruling which defined the standard in the Sixth Circuit for liability under Section 11 of the Securities Act of 1933, created a circuit split, and likely garnered the attention of the Supreme Court. 

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