The burgeoning field of privacy law presents a tempting target for class action lawyers. Alleged privacy law violations appeal to class action practitioners for several reasons:
- Consumers are increasingly sensitive to privacy violations. This heightened public concern makes it easier to find good representative plaintiffs that aren't solely interested in the money, but are actually motivated to right a perceived wrong. Moreover, although few class actions are actually tried, both plaintiff and defense counsel must account for jury reaction to privacy violations, which raises settlement values.
- Privacy violation fact patterns can greatly ease plaintiffs' counsels' burden in certifying the class. In many forms of class action litigation, demonstrating the required elements for certification, such as commonality and typicality, can present a significant challenge. But, a mass privacy claim often provides a large, easily-defined group that has been injured by the same allegedly wrongful conduct in the same way.
- There are a number of federal and state statutes that provide for liquidated, per-violation or per-plaintiff damages, thus obviating much of the ultimate burden of proving damages.
It is, then, little wonder that plaintiffs aggressively pursue those avenues that have proven successful, and continue to creatively seek new theories for heretofore "class action resistant" privacy violations.