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And Now There are Three: Nevada Joins California and Delaware in Privacy Policy Requirements for Website Operators

The latest development with respect to privacy policies involves amendments to existing legislation governing state statutes governing the security of personal information for website operators and online service providers. (See June 30, 2017 Alert – FTC Issues Updated Guidance for Compliance with COPPA).  This may be the next wave of statutory amendments in the ongoing … Continue Reading

New Jersey Bill Limiting Identity Card Scanning Signed Into Law

On July 21, 2017, New Jersey Governor Chris Christie signed into law a bill that places new restrictions on retailers’ collection and use of information collected when a customer’s identification (ID) card is scanned. The Personal Information and Privacy Protection Act (the Act) (we previously analyzed this bill, here) takes effect on October 1, 2017, and permits … Continue Reading

New Jersey Senate Passes Bill Limiting Identity-Card Scanning by Retailers for Limited Purposes

On June 22, 2017, the New Jersey Senate passed the Personal Information and Privacy Protection Act (“the Act”), now awaiting Governor Christie’s handling. The Act permits retailers to scan a person’s identity card (“I.D. card”) for specified purposes and limits the type of information that may be collected to the name, address, date of birth, … Continue Reading

Two New Developments in Website Accessibility Cases: Nation’s First Website Accessibility Trial Verdict Is Far From a Winn for Retailers, and Hobby Lobby Is Dealt a Blow in California Decision

As numerous retailers know firsthand, website accessibility has become a hotbed for litigation in recent years. Despite plaintiffs filing scores of website accessibility claims against retailers each year, very few of these cases make it past pleadings, and there has been little to no guidance from the courts. This changed on June 13, 2017, in … Continue Reading

FTC Report Highlights Privacy Concerns and Best Practices for Cross-Device Tracking

On January 23, 2017, the FTC released a Staff Report (the Report) on cross-device tracking, a commonly used practice that allows companies to associate multiple internet-based devices with the same consumer in order to track behavior across devices. The Report follows the FTC’s Workshop on cross-device tracking, and alerts companies engaged in cross-device tracking of certain best … Continue Reading

Justices Eye Credit Card Surcharge Law And Free Speech

On September 29, 2016, the U.S. Supreme Court agreed to decide whether state bans on credit card surcharges violate retailers’ First Amendment rights, granting certiorari in Expressions Hair Design v. Schneiderman, No. 15-1391, —- S.Ct. —-, 2016 WL 2855230, at *1 (U.S. Sept. 29, 2016). Read more here.… Continue Reading

Sovereign Immunity Shields Native America Tribes from Fair Credit Reporting Act Liability

In 2014, Jeremy Meyers used his credit card to make purchases at the Green Bay Oneida Travel Center and Oneida One Stop retail locations, owned and operated by the federally‐recognized Oneida Indian tribe. He received electronically printed receipts that included more than the last five digits of his credit card and the card’s expiration date. … Continue Reading

MICROS POS Systems Exposed By Malware Attack Which Targets Retail Merchants

MICROS, a point-of-sale (POS) payment systems vendor owned by Oracle, has suffered a malware attack according to security news site KrebsOnSecurity reported August 8, 2016.  MICROS is one of the three largest POS systems used globally by many companies in the retail and hospitality industry. It appears that Carbanak (aka Anunak), a Russian cybercriminal gang known … Continue Reading

U.S. Supreme Court Ruling in Spokeo: How Will It Impact Data Breach Litigation?

The decision of the U.S. Supreme Court on May 16 to remand a case addressing whether a violation of a statutory right is sufficient to satisfy the “injury-in-fact” requirement for standing in federal actions has resulted in an interesting range of discussions as to whether it makes assertion of class actions based on statutory violations … Continue Reading

No Storefront? No Problem: Deceptive Pricing Moves Online

More than three-dozen deceptive pricing cases have been filed in the last two years alone, with more suits being filed every week. These suits generally claim that the retailer deceives customers into making purchases by listing an inflated and illusory reference price (for example, an “original” price, a manufacturer suggested retail price or a “compare … Continue Reading

Sponsored Social Media Posts Riskier than Ever

Five months after the Federal Trade Commission (FTC) issued updated guidance regarding paid endorsements, it is clearer than ever that it plans to take increasing action against retailers for soliciting reviews on social media. The FTC’s plans were reinforced on October 15, 2015, when FTC Commissioner Julie Brill, in a keynote address at the Better … Continue Reading

Online Retailers Increasingly at Risk of Website Accessibility Lawsuits

Given the lack of formal guidance on website accessibility under the Americans with Disabilities Act (ADA), “www” might as well stand for the “Wild, Wild, West.” Twenty-five years after ADA first passed, there are still unclear guidelines in place for how companies should make their websites accessible to disabled visitors. Plaintiffs have taken advantage of … Continue Reading

In-Store Monitoring: How to Enjoy the Benefits of Tracking While Minimizing Potential Privacy Issues

In the latest example of the conflict between technological innovation and privacy concerns, the Federal Trade Commission (FTC) reached a settlement agreement last month with Nomi Technologies, Inc. Nomi is a startup whose technology allows retail merchants to analyze aggregate data about consumer traffic in the merchants’ stores. Although different companies track this data in … Continue Reading

California’s Song-Beverly “Consumer Perception Test” in Jeopardy — Will Retailers in California Be Barred from Requesting Any Personal Information from Consumers at the Point-of-Sale?

On May 5, 2015, the Ninth Circuit certified for the California Supreme Court the issue of whether the Song-Beverly Credit Card Act (“the Act”) prohibits retailers from requesting a customer’s personal information at the point-of-sale (POS) after the customer has already paid, even if a reasonable consumer would not interpret the request as a condition for paying by credit … Continue Reading
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