Presenting a live 90 ‐ minute webinar with interactive Q&A Emerging Class Action Threat: Consumer g g Personal Identification Data Violations Strategies to Minimize Litigation Risks and Maximize Insurance Coverage THURS DAY, MAY 26, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Donna L. Wilson, Partner, Buckley Sandler , S anta Monica, Calif. Patrick N. Keegan, Member, Keegan Baker , Carlsbad, Calif. Linda D. Kornfeld, Partner, Jenner & Block , Los Angeles The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Emerging Class Action Threat: Consumer Personal Identification Data Violations: Strategies to Minimize Litigation Legal Counsel to the Risks and Maximize Financial Services Industry Financial Services Industry Insurance Coverage D Donna L. Wilson L Wil May 26, 2010 May 26, 2010
THE PRESENTERS Donna L Wilson of BuckleySandler LLP Donna L. Wilson of BuckleySandler LLP with the defense perspective dwilson@buckleysandler com dwilson@buckleysandler.com (424) 203-1010 Patrick N. Keegan of Keegan & Baker, LLP with the plaintiff perspective ith th l i tiff ti pkeegan@keeganbaker.com (858) 558 9400 (858) 558-9400 6
ABOUT DONNA L. WILSON Donna L. Wilson is a partner in the Los Angeles office of BuckleySandler LLP, where she leads the Firm’s West Coast litigation practice. Ms. Wilson represents all forms of traditional and non-traditional financial services providers, including banks, mortgage companies, national retailers, franchisors, telecommunications and media companies, in a variety of privacy and information security, fair credit and state unfair and deceptive trade practice matters. In addition, Ms. Wilson assists corporate and individual policyholders in obtaining coverage in disputes ranging from individual directors/officers f for defense costs, claims for coverage for alleged privacy and data breaches, as well as f f f defense and liability costs for mass torts such as lead pigment and asbestos. Regardless of the context, Ms. Wilson’s unique experience litigating on behalf of plaintiffs -- including class action and corporate plaintiffs – leads to a non-linear litigation approach that offers efficiency and creativity. Ms. Wilson writes and lectures extensively on class action litigation, privacy and data breach issues, and insurance coverage. Prior to joining BuckleySandler, Ms. Wilson was the co-chair of the Consumer Financial P i t j i i B kl S dl M Wil th h i f th C Fi i l Services group at Kelley Drye & Warren LLP, and a litigator in its Privacy and Data Security Group. She also was a founding partner of that firm’s Insurance Recovery Group. 7
ABOUT PATRICK N. KEEGAN Patrick Keegan, the co-founder and managing partner of Keegan & Baker, LLP, has worked on numerous class actions in which he acted as lead or co-lead counsel on behalf of a plaintiff class resulting in significant p g g recoveries. He has specialized in complex commercial litigation, including securities, antitrust and consumer fraud litigation, and has successfully handled numerous complex commercial litigation matters. For example, Mr. Keegan was retained as post-trial defense counsel several days after a jury verdict was rendered against our client in the amount of approximately $24 million dollars (an $18 million dollar jury award and an attorneys fees motion for approximately $6 million dollars which we were successfully able to avoid) and an attorneys fees motion for approximately $6 million dollars, which we were successfully able to avoid). The award in that matter, entitled FF Orthotics Corp, Inc., et al. v. Good Feet, et al., Case No. GIC 791494, California Superior Court, San Diego County, (Judge Fredric Link) was grounded in antitrust violations, franchise law violations and unfair business practices violations. By virtue of the post trial work and the subsequent settlement negotiations (which included 11 plaintiffs), we were able to reduce the judgment to $4.25 million, paid over time, which allowed the individual defendants/shareholders to retain ownership of the defendant corporations and ultimately remove the defendant corporations from receivership. The defendant p y p p entities are currently again selling franchises nationwide and are in the process of expanding globally. Mr. Keegan has also acted as co-class counsel and co-trial counsel, in a class action entitled Jason A. Park v. Cytodyne Technologies, Inc. , Case No. GIC 768364, California Superior Court, San Diego County, (Judge Ronald L. Styn), asserting false advertising claims under the Unfair Competition Laws (Ca Business and Professions Code Sections 17200 and 17500) and the Consumer Legal Remedies Act (Ca Code Civil Section Professions Code Sections 17200 and 17500) and the Consumer Legal Remedies Act (Ca. Code Civil Section 1750), brought a successful motion for class certification and obtained a judgment of $12,536,820.00 in restitution and additional prohibitive injunctive relief on behalf of the certified class after a 7 week trial in 2003. Mr. Keegan has also represented numerous parties in arbitrations before the National Association of Securities Dealers and American Arbitration Association. 8
THE SONG-BEVERLY CREDIT CARD ACT CARD ACT Cal Civ Code § 1747 08: Cal. Civ. Code § 1747.08: – What is the purpose? – What does it forbid? What does it forbid? – What is “personal identification information”? – Civil penalties up to $1 000 per violation: No – Civil penalties up to $1,000 per violation: No aggregate cap – Exceptions p Bona fide error Others 9
EVOLUTION OF SONG-BEVERLY Enacted in 1971 Enacted in 1971 Prior to 1991: only prohibited requiring cardholder to provide personal identification cardholder to provide personal identification information as a condition to accepting a credit card credit card – Did not forbid requesting personal information from a credit card user, and the user voluntarily providing the information 10
EVOLUTION OF SONG-BEVERLY (cont ) (cont.) 1991 amendment: added language 1991 amendment: added language prohibiting requesting consumer personal information “as a condition to” accepting the p g credit card as payment for goods or services – Amendment designed to “clean up” and “clarify” the g p y statute, not exponentially expand its reach – Purpose was to clarify that persons “may neither require nor request as a condition to accepting the require nor request, as a condition to accepting the credit card, the taking or recording of personal identification information from the cardholder” 11
EVOLUTION OF SONG-BEVERLY (cont ) (cont.) Threshold issue: Does Song-Beverly apply to mere g y pp y requests for information, even where the consumer is told that the information is not required? – The misplaced comma: The “misplaced” comma: Plaintiffs contend that the 1991 amendment expanded scope of liability by prohibiting the requiring of information “as a condition to accepting the credit card” AND any and all condition to accepting the credit card AND any and all requests for personal identification information from cardholders – Florez v. Linens n’ Things , 108 Cal. App. 4th 447 (2003) – But see the Florez court’s note that nothing prevents a retailer from soliciting a customer’s address and telephone number for a store’s mailing list, if that information is provided voluntarily 12
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