5
and take web camera pictures using a com-
puter’s camera. Although the plaintiffs did not
allege the retailer itself used the software, the
plaintiffs did allege the retailer encouraged
and assisted its franchisees in using the soft-
ware.
The plaintiffs originally filed suit against the
retailer, one of its franchisees and the com-
pany that produced the software. The plain-
tiffs claimed that the use of the spyware
violated two sections of the Electronic Com-
munications Privacy Act (ECPA) and violated
the Computer Fraud and Abuse Act (CFAA).
Early in the case, the Alston & Bird team
argued that all claims should be dismissed.
The court accepted these arguments, dis-
missed the entire complaint and concluded
as a matter of law that the plaintiffs’ CFAA
claim and one of the ECPA claims could not
be refiled. The court, however, allowed the
plaintiffs to conduct discovery to see if they
could amend their complaint to plausibly
state their other ECPA claim. Ultimately, the
plaintiffs filed an amended complaint alleging
a claim under the ECPA and adding state law
causes of action for intrusion upon seclusion,
conspiracy and aiding and abetting.
The Alston & Bird team again moved to dis-
miss the complaint. The plaintiffs then moved
to file an amended complaint that was sub-
stantively the same, but named an additional
50 franchisees as defendants. The court
allowed the plaintiffs to file an amended com-
plaint, and we again moved to dismiss the
complaint. At the same time, the court also
set a schedule for class certification briefing.
That briefing was completed before the court
issued an order on the pending motion to dis-
miss.
Both the motion to dismiss and the plaintiffs’
class certification motion were addressed in
the report and recommendations issued by
the magistrate judge only a few days apart.
The magistrate judge accepted our argument
that the proposed class was not ascertainable,
and, on that ground alone, recommended
denying class certification. In particular, the
magistrate judge found, purported members
of the class could not be identified without
individual inquiry and the class was overbroad
because it was defined in such a way that
many people included in the class could not
have suffered harm. In a separate report and
recommendation addressing the motion to
dismiss, the magistrate judge recommended
dismissing all of the plaintiffs’ state law claims,
but recommended allowing the ECPA claim—
for both direct and secondary liability—to go
forward.
The district court judge adopted the magis-
trate judge’s recommendation to deny class
certification. The district court also largely
upheld the report and recommendation
addressing the motion to dismiss. The district
court, however, went further than the mag-
istrate and accepted our argument that the
plaintiffs could not bring claims for second-
ary liability under the ECPA, which resulted
in the district court dismissing the plaintiffs’
claim that our client conspired with its co-
defendants to violate the ECPA. In sum, the
result of these rulings was that the plaintiffs
only have an individual ECPA claim for direct
liability under that statute.
Obtained $70.1 Million Verdict for
Textile Manufacturer
An Alston & Bird team represented a textile
manufacturer against a component supplier
alleging breach of warranty and breach of
contract resulting from the defendant’s sale
of defective component goods used in our
Noteworthy Litigation
