Data Privacy Litigation: Managing Civil Liability and Regulatory Risk

One of the most active triggers for modern litigation is the unauthorized collection of sensitive information, particularly in the realm of biometrics. If a platform utilizes facial recognition, voice prints, or iris scans without meeting the strict notice and consent requirements of state and federal law, it creates an immediate path to statutory claims. Courts view biometric data as permanent and irreplaceable, meaning any violation is seen as a terminal loss of privacy that cannot be undone.

Litigation often arises from the invisible movement of data between entities. When a company utilizes third party tracking pixels, software development kits (SDKs), or data scrapers without clear and granular disclosure, they risk claims of unlawful disclosure.

• The Sensitive Data Nexus: 
• Using tracking tools on websites that handle health information, financial records, or child related data has become a primary target for class action lawsuits.
• Data Brokerage Exposure: 
• The automated sale of consumer profiles to brokers without explicit opt-in consent often triggers deceptive trade practice claims under consumer protection frameworks.

In federal court, the first major hurdle is often standing. The defendant will typically move to dismiss the case by arguing that the plaintiff has not suffered a concrete injury in fact.

• The Concreteness Requirement: 
• Under recent judicial precedents, the mere violation of a statute is often not enough to stay in federal court. A plaintiff must prove a real world harm, such as identity theft or a high risk of future fraudulent activity.
• Intangible Harm as Injury: 
• Conversely, plaintiffs are increasingly successful in arguing that the loss of control over their private data is, in itself, a concrete harm that mirrors traditional common law torts like intrusion upon seclusion.

Many modern privacy laws include provisions for statutory damages, which allow a plaintiff to seek a fixed amount of money per violation without proving specific financial loss. The multiplication effect is staggering: laws like the CCPA or BIPA allow for penalties ranging from 1,000 to 5,000 dollars per person. When applied to a class of one million users, the potential liability reaches billions of dollars instantly. This creates immense pressure on defendants to settle before the case reaches the certification phase.

Data privacy litigation is almost synonymous with the class action. Because individual damages are often small, the only way to seek a remedy is through a collective lawsuit.

• Commonality and Predominance: 

The court must decide if the privacy violation happened the same way to everyone in the group and if those common issues outweigh individual differences.

• Superiority: 

The court evaluates if the class action is a better way to handle the dispute than thousands of individual trials. Winning or losing the motion for class certification is the most critical point in the litigation lifecycle. If the class is certified, the exposure of the defendant becomes massive, making a settlement much more likely.

Strategic defense focuses on terminating the litigation as early as possible. Rule 12(b)(6) motions are used to challenge the legal sufficiency of the complaint. If the plaintiff fails to allege a specific duty of care or a clear violation of a statute, the case may be dismissed before discovery begins. Later, the defendant may move for summary judgment, arguing that even with all the evidence, the plaintiff cannot win as a matter of law.

In a data privacy case, discovery is not just about looking at files: it is about managing terabytes of digital data.

• Technical Audits: 

The plaintiff lawyers will demand access to the databases and security logs of the company. Defensive strategy involves narrowing the scope of these requests to protect proprietary information and unrelated user data.

• Privilege Protection: 

Ensuring that internal forensic investigations and security audits are conducted under attorney-client privilege is essential. Without this shield, your own internal report could become the primary evidence against you.

Every data privacy case is a battle of experts. The court must rely on specialists in cybersecurity, data architecture, and forensic accounting. SJKP LLP utilizes aggressive motions to challenge the reliability of the experts of the plaintiff. If their methodology for calculating damages or proving a breach is flawed, we seek to have their testimony excluded from the trial entirely.

Financial payouts remain the primary focus of the bar of the plaintiff. This includes compensatory damages for actual losses and the aforementioned statutory damages. However, strategic defense focuses on engineering damage caps and leveraging insurance coverage to protect the core capital of the company.

A court may order a company to change its behavior, which can be more expensive than a cash payment.

• Compliance Orders: 

The court may mandate that the company rebuild its IT infrastructure, implement specific encryption standards, or appoint a court-supervised monitor.

• Data Deletion Mandates: 

In cases of unlawful collection, the court can order the destruction of the data and any AI models that were trained using that data. This algorithmic disgorgement can be a terminal blow to tech companies that rely on those models for their competitive advantage.

To perform a surgical review of your litigation exposure, please prepare the following for our initial audit:

• The Incident Forensic Report: A detailed account of how the privacy failure or breach occurred under legal privilege.
• Consent Architecture Audit: Documentation showing exactly how and when user consent was obtained for data collection.
• Third Party Data Map: A list of all entities that received user data and the legal agreements governing those transfers.
• Regulatory Correspondence Log: Any notices or inquiries received from government agencies regarding your data practices.
• Insurance Policy Inventory: A review of your cyber and D&O policies for consent to settle and defense cost provisions.