December 01, 2020
Simon Walsh, special counsel in Cadwalader’s Global Litigation Group, featured on a panel discussing class actions for breaches of data protection rights as part of the “Global Class Actions Symposium 2020.” The event, held virtually this year, brought together leading practitioners and academics in the area of collective redress from across the globe.
Walsh, based in Cadwalader’s London office, was joined on the panel by Katrina Carroll, a partner at Carlson Lynch, and Kenny Henderson, a partner at CMS Cameron McKenna Nabarro Olswang LLP. The chair was John Yanchunis of Morgan & Morgan in the U.S.
The panelists commented on a quickly developing landscape in relation to data claims, with claims regarding data breaches and for the misuse of personal data growing rapidly. Some of those cases were being pursued before regulatory findings had been made, in contrast to the approach generally seen in respect to competition claims, when private claims followed fines from regulators.
The panelists discussed how courts in the U.S. and England were grappling with the hurdles of certifying group claims in respect to data protection claims and how the calculation of damages for such cases remained a key issue on both sides of the Atlantic.
Walsh highlighted how presently in England, outside of the regime for competition claims, the only opportunity for “opt-out” claims was the “representative action” under CPR 19.6, which required the claimants to demonstrate that they all held the “same interest” in the claim. In terms of data protection claims, this has meant disavowing class members’ individual circumstances such that each class member can be said to have lost an identical valuable right – namely, the ability to control the use of their data, thereby claiming damages on a uniform per-capita basis. However, the basis for such claims is being appealed to the Supreme Court in England. As Walsh pointed out, the conduct of data protection claims in England was at a “threshold moment.” He added, “Both our procedural mechanism for claims and our damages position are unknown until such time as the Lloyd v. Google decision is approved, or otherwise, in the Supreme Court.” An answer is expected in the second half of 2021.