Nicholas Sweeney

This week, the Supreme Court of the United States agreed to hear an appeal concerning the definition of “consumer” under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710; long one of the most frequently litigated privacy laws. If the Court affirms the lower court’s decision, it will defeat yet another attempt by the plaintiff’s bar to penalize companies who host audio visual content on their websites.

Last month, the United States Court of Appeals for the Third Circuit, in an unpublished decision, undercut the latest attempt of the plaintiffs' bar to penalize the common business practice of using tracking pixels on websites. These pixels are pieces of code created by third-party advertisers and analytics companies that can collect information about website visits such as a visitor's IP address, when the visit occurred, and what links were clicked on within the site.

Mass arbitrations—where a plaintiffs' firm brings dozens, hundreds, or thousands of identical claims against a business—is a mechanism increasingly relied upon by the plaintiffs' bar in the past few years. This is because mass arbitrations enable a plaintiffs' firm to create settlement pressure by leveraging unavoidable arbitration fees borne by a business regardless of the merits of the claims filed.