Litigation Insights for Inside Counsel

Cooley attorneys author six-part series on topics in privacy, class action, and Internet law for Inside Counsel magazine.

Statutory immunity against claims arising from third-party content online

The reach and limitations of the Communications Decency Act of 1996, Section 230

By Matthew D. Brown, Christopher Durbin, Candace Jackman

The Communications Decency Act of 1996 (CDA) was enacted to regulate online speech, and in particular, to protect minors from "patently offensive," "obscene," and "indecent" content on the Internet. In the 1997 case Reno v. ACLU, however, the Supreme Court struck down many of the CDA's content-related proscriptions, concluding that they violated the First Amendment by "suppress[ing] a large amount of speech that adults have a constitutional right to receive and to address to one another."

Among the CDA provisions spared by the Court's ruling was Section 230, a provision designed to "promote the continued development of the Internet" and "to preserve the vibrant and competitive free market… for the Internet and other interactive computer services, unfettered by Federal or State regulation."

Practical and legal considerations for online privacy policies

Using an online privacy policy to generate customer goodwill while providing full disclosure in compliance with state and federal law

By Matthew D. Brown, Christopher Durbin, Darcie Tilly

Most companies with an online presence post a "privacy policy" on their websites that describes how the company obtains, manages, uses and discloses information regarding their customers (or users of the website), as well as describing any rights that customers have with respect to the company's use of that information. When drafting privacy policies, companies typically seek to provide complete and detailed disclosures while rendering those disclosures in concise language to avoid the risk of customer confusion.

Article III standing for plaintiffs in privacy litigation

Some plaintiffs asserting consumer privacy claims face significant challenges attempting to demonstrate the "injury in fact" necessary for standing in federal court

By Matthew D. Brown, Christopher Durbin, Abby Pringle

Article III of the U.S. Constitution grants federal courts the power to adjudicate certain "cases" or "controversies." This constitutional case-or-controversy clause provides the foundation for the doctrine of standing, a threshold inquiry plaintiffs must satisfy before a federal court may exercise subject-matter jurisdiction over a claim. Among other requirements, a plaintiff must show that he has suffered an "injury in fact" that is concrete and particularized as well as actual or imminent, not conjectural or hypothetical.

Cy pres distributions in class-action settlements

In the right circumstances, the cy pres doctrine can provide a useful means of distributing class-action settlement proceeds

By Matthew D. Brown, Christopher Durbin, Darcie Tilly

The term "cy pres" comes from the old French phrase "cy pres comme possible," meaning "as near as possible." The legal doctrine of cy pres originated in the charitable trusts context. If a charitable trust's funds could not be distributed according to the precise terms of the trust because the trust's objective had become impossible or illegal to carry out, the cy pres doctrine allowed a court to modify the trust so that the money was distributed in a manner that came "as near as possible" to the testator's original intent.

The cy pres doctrine later emerged in the class-action settlement context.   

Are plaintiffs required to submit admissible evidence in support of class certification?

In Comcast Corp. v. Behrend, the Supreme Court could raise the evidentiary bar for plaintiffs attempting to demonstrate "commonality"

By Matthew D. Brown, Christopher Durbin, Abby Pringle

Last year, the Supreme Court issued its landmark decision in Wal-Mart Stores, Inc. v. Dukes, ruling that an "expansive" class of plaintiffs could not pursue their employment discrimination claims collectively against Wal-Mart. In so holding, the court explained that in a class action, "a party seeking class certification must affirmatively demonstrate his compliance with [Federal Rule of Civil Procedure 23]," including being able "to prove that there are in fact… common questions of law or fact" capable of class-wide resolution.

In a pair of cases this term, the court continues to focus on the contours of Rule 23's class-certification requirements. One of those cases, Comcast Corp. v. Behrend, takes up an important question left open by Dukes.

Considerations for due-process challenges to classwide statutory damages awards

Many courts have recognized that classwide awards of statutory damages may run afoul of the due-process clause

By Matthew D. Brown, Christopher Durbin, Candace Jackman

After sending emails to more than 50 million subscribers, a website faced $25 billion in potential liability under Washington's Commercial Electronic Mail Act, which imposes statutory damages of up to $500 per violation. Similarly, an entertainment company was sued for more than $100 million for allegedly disclosing subscribers' personal information in violation of the Cable Communications Policy Act, which provides minimum damages of up to $1,000 per plaintiff. As these examples illustrate, the combination of statutory damages and the class action device can transform even technical statutory violations into high-stakes—and even "potentially annihilating"—litigation.

As numerous courts have now recognized, classwide awards of statutory damages may run afoul of the due-process clause. 

Related Contacts
Matthew D. Brown  Partner San Francisco
Christopher B. Durbin  Of Counsel Seattle