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2 New E-Comm Lawsuits Going Around

2 New E-Comm Lawsuits Going Around

Everything you need to know

Jordan West
August 23, 2024

Being friends with a lawyer wasn’t ever something I dreamed of as a child…

But as I’m nearing 40 I realize it’s good to have friends who can help me when I’m need (and I’ve been in need lately haha)

My buddy Harrison (A California Lawyer who handles ADA issues) sent me this and I thought it would be helpful for you guys!

Here you go! (I hope this helps avoid a frivolous suit!)

I just wanted to flag for you two recent developments in the email marketing space which we have seen. These are relevant for any brand in your group which sends emails, which I assume is most (if not all) of them.

The first concerns the use of deliverability metrics (read rate, click rate, user IP, location, etc.) from email service providers like Klaviyo, Iterable, Braze, Attentive, etc. The plaintiffs are calling these “spy pixels” and say they are illegal to use without first getting the user’s consent. Mostly these claims are popping up under Arizona’s Communication Service Records Act, and they are asking for $1,000 per email, on a class wide basis. We have seen a few under California’s Invasion of Privacy Act, too. I wrote about this trend, here: https://www.blankrome.com/publications/navigating-new-theories-liability-arizonas-communication-service-records-act.

The second is an even newer theory. They argue that the very act of requesting an email address during an online checkout is illegal, which entitles them to damages, and the “harm” is subsequently sending email marketing that they do not want. The penalty is $25 per transaction, but obviously it can add up quickly if you aggregate this for every transaction a brand makes. The plaintiffs can also seek their legal fees. I contributed a piece about this to Total Retail: https://www.mytotalretail.com/article/checkout-challenged-navigating-the-new-wave-of-email-address-lawsuits-in-massachusetts/.

I hope this is helpful for your group. If you want to discuss, let me know.

Thanks,

--Harrison

[email protected]

That’s all for today!

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