Speaker Pelosi Expresses Concerns With Federal Privacy Bill’s Preemption Provision

On Thursday, House Speaker Nancy Pelosi expressed concerns with certain features of the American Data Privacy and Protection Act (“ADPPA”) and its broad preemption provision, which as currently drafted would override the California Consumer Privacy Act (“CCPA”) and its subsequent voter- approved amendments.  The ADPPA was favorably reported by the House Committee on Energy and Commerce in July by a vote of 53-2.  The bill has not yet been scheduled for a vote on the House floor. Speaker Pelosi “commended” the Energy and Commerce Committee for its efforts, while also praising California Democrats for having “won the right for consumers for the first time to be able to seek damages in court for violations of their privacy rights.”  Speaker Pelosi noted that California leads the nation in protecting consumer privacy and it was “imperative that California continues offering and enforcing the nation’s strongest privacy rights.”

Speaker Pelosi stated that she and others would be working with Chairman Frank Pallone (D-NJ) to address concerns related to preserving  California privacy laws.  Although Speaker Pelosi’s comments cast doubt on the future of the ADPPA, we continue to believe that it will clear the House. We anticipate only modest tweaks to the preemption provision, which must be acceptable to the Republican leadership of the committee for the bill to move forward. As Speaker Pelosi noted, the bill contains a private right of action for consumers—the single most important provision to Republicans in return for strong preemption language. After more than a decade of effort, the Democratic leadership of the House will be hard pressed to let the perfect be the enemy of the really good.

© Copyright 2022 Squire Patton Boggs (US) LLP

Legal News Reach Episode 4: The Perfect Storm: Law Firm Marketing & Business Development Budgeting with Beth Cuzzone, Global Practice Leader of Intapp

Welcome to Season 2, Episode 4 of Legal News Reach! National Law Review Managing Director Jennifer Schaller is joined by Beth Cuzzone, Global Practice Leader of Intapp. Together, they discuss the best budgeting strategies for legal marketing departments as firms emerge from the pandemic with a new set of priorities and perspectives.

We’ve included a transcript of the conversation below, transcribed by artificial intelligence. The transcript has been lightly edited for clarity and readability.

Jennifer Schaller

This is Jennifer Schaller, and I’m the Managing Director of the National Law Review. We’ll be speaking with Beth Cuzzone, who’s the Global Practice Leader of Intapp. Beth, can you tell us a little bit about your background and what you do at Intapp?

Beth Cuzzone

Thank you for asking, Jennifer. I think it’s an important table-setting question. So I recently joined Intapp in 2022. It’s a global technology firm, and it partners with investors and advisors to help them run their businesses. And it basically follows those companies through the lifecycle of their companies, whether it’s intake or relationship management, or deal management, or billing or marketing or risk, and so many other operational functions. But my role Intapp sits in the marketing and business development corner of those companies. So as a Global Practice Leader, I’m responsible for working with a team of subject matter experts who help clients align their strategic priorities with our solutions. It’s been an interesting and challenging shift, because I spent more than 30 years of my career in the very types of companies that Intapp now helps. So it’s been an interesting and exciting and challenging change all at once. And I think it also gives me a unique lens into what we’re going to be diving into today.

Jennifer Schaller

Okay, wow, it sounds like a spot-on match here we have today. So let’s dig into it. We’re talking about law firm budgets. So for this upcoming budget cycle, for firms who are either almost done with it, or in the process, or close to wrapping it up. What’s different this year than in previous years in law firm marketing and business development departments?

Beth Cuzzone

In one word, everything. If we take a step back and look at the easy formula that law firms have used traditionally when creating their budgets, there hasn’t been a lot of secret sauce. In its simplest form, and I am oversimplifying it for illustrative purposes, but in its simplest form, law firms for years and years and years, and year over year, would take into consideration their former budget number and give it an increase that aligned with the firm’s increase in their revenue for that year. And then the real work would begin on saying, Okay, we’re going to give ourselves a 2 or 3% increase, because we increased our revenue by 8%. So we’re going to take some slice of that, and we’re going to increase what we did last year, and then they would reallocate that number. And so if it was my budget was $1,000 last year, and you know, now I’m going to increase it by 3%, it’s going to be $1,300. And now let me just play around with the line items and see where we want to spend a little more, where we want to spend a little less. Given the years that we’ve had coming up to the 2023 budget season, we had 2020, when the pandemic hit, we had 2021, where we were still experiencing the effects of that. And then in 2022 as people tried to move back into some normalcy of spend market, you know, marketing, outreach, awareness, credibility, relationships, going back into the office, that sort of thing, the budgets are a little bit all over the place. So to answer your question, why is this coming year’s budget different? It’s because you don’t have last year’s budget that you get to just reset.

The interesting thing is that I think it actually is going to provide opportunities to relook at the way you think of your budget and think a little bit about very specific line items. You know, I do think one of the places that people are going to spend a lot of time thinking about is digital marketing. And, you know, a question I had for you is, have you seen an uptick in the digital marketing spend from law firms, where we were pre-pandemic, to pandemic to where people are moving towards?

Jennifer Schaller

That’s kind of a multi-layered question. I mean, over the last five years, there’s obviously been a switch to more digital. There’s a couple of different things going on in the larger digital advertising industry. Advertising rates right now as a whole are pretty suppressed digitally. So that’s impacting us a little bit, just because the baseline is down. But if you’re in a specific niche, like the National Law Review, where you know, we very much have the traffic and the audience, there’s always going to be a demand for it. What’s going to be super interesting to see is when cookies go away. People keep talking about that, because that’s going to make the content on the website far more relevant, as opposed to having retargeting ads and things like that. But the date keeps changing on that. So, you know, we’ll let you know when we know. And related to publishing end of it, there’s been a bit of a sea change on that. There always was sort of a pushback or a stigma somewhat attached to pay-for-play publishing. But a little bit of a difference with that is, over time, most marketing professionals, especially in legal, understand that there’s costs involved in running a quality publication, if you want to have analytics, if you want to have a responsive staff who’s around to make edits, that you have to pay for that, and that, you know, if you don’t have money coming in from subscriptions, if you’re a no login website, that there’s going to be cost. So there’s been a bit of a change there. There’s more receptiveness to it. And I think maybe because law firms themselves understand what it takes to publish, they’re a little more forgiving, and understanding that we have costs too, if that makes any sense.

Beth Cuzzone

It makes complete sense. It makes complete sense. And again, there’s no direct answer to some of these complicated questions that we’re asking each other today about where people are spending and where it’s going versus where it’s been when we’ve had this pause on so many levels. And like you said, I also just think that the lens of the marketing and business development departments and law firms are really starting to appreciate that looking at digital assets as a way to create awareness and credibility is going to be a leader in their budget.

Jennifer Schaller

Well, yes, especially since events have changed and gone away. And a lot of sponsorships have changed. And given that pandemic ripple effect of live events versus sponsoring tables at events, which used to be a part of legal marketing department spends, what’s becoming more the standard for law firm, legal marketing department and business development spend, is it changed? Is it reallocating? How is that working?

Beth Cuzzone

That’s a great question. So typically–I heard somebody say once, law firms are like snowflakes, everyone is different. And I know that when I look at industry statistics that talks about the swing of spend, that has to do with you know, the percentage of revenue of law firms, that it goes anywhere from 2 or 3% to 18, 19, 20%. And the reason that they have that swing is because in some marketing and business development department budgets, they include personnel when others don’t, okay, or in some marketing and business development, department budgets, it’s all marketing, whether it’s for the HR department, or legal recruiting, or the firm, and others. Those are each very separate departments and separate budgets. So there is this huge spread across the industry. But I think for most firms, we’re going to find that there’s that 3.5 or 4% to 8% budget target of revenue. And that’s kind of where people settle in. There are outliers on both sides. And interestingly, there’s often some surprises. I find that sometimes some of the smaller, mid-sized firms have larger percentage budgets. But I think that’s because they can’t enjoy the scales of economy that larger firms can. If you’re looking at your budget, and we can talk about this in a little bit, you know, in 2020 when the pandemic started, all discretionary budget items were removed from law firms, whether it was in marketing and business development or not. So it was like, “Unless we’re contractually obligated to pay something, we’re taking it off the table.” And so now firms are getting that opportunity to rebuild it. And again, that approach and that budgeting exercise is a real opportunity for these firms to say, “What haven’t we been asking ourselves?” Or, “What haven’t we done that we’ve wanted to? What’s not in our budget? What should be or what are the opportunities out there in terms of places or people or technology or intersections that we’ve never tried before?” So I think there’s some of those questions that are happening, too.

Jennifer Schaller

Yeah, I think if anything, this is just helpful to know, to have legal marketers or even law firm administrators, or management know how to ask questions about legal marketing budgets, that there is such a wide range, but the wide range prompts people to ask the question, “What’s in that figure and what’s not?”  I’ve never really had it broken down that well before. So thank you for taking the time to spell that out. Because it’s not spelled out a lot of different places. Many people will appreciate that.

When you’re talking about law firm marketing budgets, what’s the difference between acquisition marketing and retention marketing and preparing budgets? Should law firms dedicate more resources to one or the other? Or is it some sort of blend?

Beth Cuzzone

That is a very forward-thinking question that you’re laying out there. Because I think that law firms basically had two types of buckets, if you will: they thought of it as awareness and credibility building, or relationship building, it was one of the two. And so they had some things around awareness and credibility, we talked a little bit about it earlier, you know, it’s that one to many, the website, you know, the content, the newsletters, the big events, that sort of thing. And then the relationships are kind of those one-on-ones. It’s the spending time going out and sitting down with a prospective client to learn something, or having an entertainment budget or doing some small roundtables with thought leadership, or sitting down with different decision makers at a particular client site so that you’re staying close to them. And it was a little bit all over the place. And the shift that I’m starting to see happen is that law firms are starting to break down their budgets into exactly what you said: acquisition marketing, which is, “How are we getting new clients?” versus retention marketing, which is, “how are we keeping and growing the clients that we have, or the brands that we have, or the relationships that we have?” And by doing that, they’re also starting to do account-based marketing. And they’re able to put their budgets together and say, “We’re going to spend 70, or 60, or 80% of our budget on our existing relationships, because we know that it costs six to eight time more money, resources, people budgets to get a new client than it does to keep and grow an existing one. So when you look at the scale of acquisition versus retention, retention is going to get that bigger budget. And then the acquisition is going to have a smaller wallet share of the overall budget. But within that big budget, you’re going to start that retention budget, you’re going to start to see that being broken down a little bit by account-based marketing as therefore account based budgeting. Again, this is a little bit around the corner. And this is I think what firms are going to be dealing with over the next five years of exactly being able to measure their return on objectives or their return on investments and where their money is really being spent. Because they’re going to be tying it down to very specific objectives and very specific strategies, if you will.

Jennifer Schaller

Okay, so what would be some of the areas that there would be an overlap, like between acquisition and retention marketing, would that fall in the digital area? Or where would that be?

Beth Cuzzone

That’s a perfect example, please look at what we’re talking about like a Venn diagram, right, you’ve got your acquisition, you’ve got your retention and then there’s the place where they overlay. Digital assets are a perfect example that fall into both. It’s helping you in the marketplace. And it’s helping you find your next big relationships and clients and referral sources. And those are the same assets that you can use to add value and stay close to some of your existing relationships, places where they start to separate a little bit, again, is really by account or by client, client-based marketing versus account-based marketing. And so you might have a firm where you say, we’re going to spend a lot of our travel and entertainment budget on going to each one of their offices and doing junior executive training. So that we’re aligning ourselves with the next generation of decision makers, and that’s how we want to spend our money and our time and our budget and our resources and our people on that particular client this year, sort of thing. So it all depends, again, on the strategy. And it also depends a little bit on the firm.

Jennifer Schaller

Yeah, would it vary by practice group, or just like, if you had a firm that was, you know, just intellectual property law based, would there be differences in the ratio or the mix or network?

Beth Cuzzone

That’s a great question. So there are some firms and also practice areas where there’s annuity streams, if you will, right. There’s just an ongoing, “We represent this particular finance institution on all of these sorts of loans. And, you know, we do 5, 10, 15 a year for them.” Think about if you were actually a litigator, and you were representing financial institutions where you didn’t know how many you were going to have in a year or whether you were not going to have any for two years and how they think of you and they call us when it’s about the company or they don’t call us when it’s about the company so you have to again, look at the firm, its strategy, the cadence of those open matters, the cadence of when they’re being asked to help clients and then try to align your budget and the activities in your budget around those very objectives. Does that make sense?

Jennifer Schaller

Yeah, it does. A lot of what you’re breaking down is really helpful because people throw numbers out there, but they don’t go into the details of what moves the numbers up or down, like your example of depending on if the law firm is including the expenses for HR, or including the salaries of the marketing department in there, that should make a big difference. And nobody really spells that out. So that was very helpful.

Beth Cuzzone

What kinds of trends are you seeing…there’s this nuance that’s happening now Jennifer, where there was a period of time “back in the day” where all law firms took out one-page ads in some of the biggest business-to-business publications and journals, or like yours, very, very niche, industry-specific news-related channels. And it was “we want to be top of mind” with whoever the reader is, whether it’s our peers, whether it’s our competition, whether it’s a referral source, whether it’s a potential client, whether it’s somebody on the other side of the table, and over time, that awareness campaign started to move into that content campaign. And I’d really be interested to see how are law firms maintaining that mindshare in the marketplace? What are you seeing?

Jennifer Schaller

Some big change from print, and what’s really changed–COVID was sort of terrible for the world, but in a lot of ways good for law firms and legal publishing. Because there were so many rapid developments of a legal or administrative or regulatory nature going on, there was just a lot of content to be written on and a lot of people looking for that content. So there was inherently a lot of traffic just being driven by COVID and all the related changes to it. Now that that’s leveled out a little bit, what we’re seeing from law firms is when they do their informative writing, meeting, talking about cases that happened and why that’s important to a particular industry, or new regulations that are on the horizon, what’s a little bit different is they’re starting to impose–not impose, but impart–their personality a little bit more. We’re seeing more content come in where it talks about people’s journey in the legal profession, how they balance working from home or transitioning out of working from home in a little bit more with the content. So before there was very little of that. I mean, there was some. It’s pretty prevalent now where we’ll see many law firms just have entire blogs and podcasts and a whole kind of vertical dedicated to life balance, people’s career paths, and things like that, which is a bit different than what we’ve seen before. I think it provides a good opportunity for law firms to tease out their competitive differences just by letting people know who they are, because ultimately, with law firms, they’re buying the person and their knowledge and their background. And this is kind of a more forward way of doing it than what’s been done in the past.

Beth Cuzzone

You know, it’s so interesting to hear you say that. I don’t think I really put such a fine point on it until you just mentioned it. All law firms do the same thing. For the most part, a general practice firm does the same thing as the next general practice, you know, an IP boutique does the same thing as the next IP. But how you do it, who you do it with and the culture is what your differentiator is. And you’re right, as I’m thinking a little bit about the sorts of information that I’m seeing, either the types of information or the personality in which people are writing, it really is giving firms a way to showcase their culture and who they are and their differentiator as opposed to all sounding like really smart law firms.

Jennifer Schaller

It’s that and I think it’s a little bit recruiting as well. I mean, the whole world has experienced quite a bit of turnover. Law firms have always had more turnover than other industries. So we’d have some stuff coming in where folks are interviewing their summer associates. And they’re doing that on a couple different levels. I think it plays to people who may be interested to know how a person got a summer associate position at an Am law firm, but also, you know, it’s a big hug to that person, and it shows in a recruiting sense that that law firm really cares about folks at all levels of the organization. We wouldn’t have seen that 10 years ago, so that’s just really different.

Okay, so let’s get into the fun part: budgeting tips! You’ve been doing budgets for years, you work with an organization that helps law firms kind of balance competing things for their attention and help tease out what’s probably the best bet for the firm. Do you have a few tips to share with our readers, or our readers and our listeners today, concerning law firm budgets, what to include what to not get pushed back on?

Beth Cuzzone

Yes, I think that there are a few best practices out there that law firm marketing and business development departments want to be thinking about as they’re either negotiating their budgets with firm management, or if they’re actually putting it together. We talked a little bit about the fact that historically firms have used the previous year and that budget number is a benchmark. Ironically, in 2022 law firm marketing and business development budgets increased by more than 100%. And again, it’s because in 2020, and 2021, they were decimated, it was the place where there was the most discretion in the budget, there were things like they weren’t going to be doing sponsorships, they weren’t going to be holding webinars, they weren’t going to be traveling to see clients or things–like take it all out. So then when we started to move towards this normalcy of, “let’s get back to business in 2022”, with a kinder, gentler, more softer approach, they had to increase their budgets by more than 100%. So the first thing I would say is, do not prepare your 2023 budget based on your 2022 budget, because you’re going to show that there’s already been 100% increase, and there will probably be very little wiggle room. I would also scrap 2020 and 2021. So I think one of my tips or best practices is, use 2019 as your benchmark, not 2021 or 22. For the reasons we’ve just talked about.

The other thing, you just mentioned this in the way you asked the question, is that there is a very complex ecosystem in law firms, and the marketing and business development budget is one of many competing priorities. And I think understanding that budgeting is a long-term game, not one you win every year. And so what I’m trying to say is, take a panoramic view of where the firm is, what they’re trying to accomplish, what some of their major goals are for the next year or two, look left and look right at what other operating department budgets are going to be impacted by that, and prepare your budget within the context of what’s happening. So don’t ask for the greatest budget increase among every operations department, every year. There becomes a fatigue, where it’s like, “Nope, just give them the 2%, we’re not going to listen to why they deserve more every year, year over year than every other department.” So I think walking in and being able to communicate, “We understand that lateral growth is one of our top strategic priorities, and that you’re going to be spending a lot of our budget on legal recruiting. So this year, I’ve put in some particular items and activities that will support legal recruiting, and I’ve moved my budget request from a 6% increase to a 2% increase.” And again, you can negotiate two or three years in advance, then say, “I just ask that when we’re looking at my budget in two years, or in three years that we appreciate that I’m asking for a smaller increase this year, given where we are, what we’re doing.” You know, it also goes a long way when there’s been a down year.

So, so far we’ve said, use 2019 as your benchmark, don’t ask for the greatest budget increase among every operations department every year, try to negotiate for two or three years in advance at your firm, but also negotiate two or three years in advance with your partners or vendors, depending on what you call them. You know, to be able to say, “Listen, we want to do this. And we can’t be all-in this year because our budget isn’t going to allow us, but can we negotiate an 18-month relationship with you and spread it over a 24-month period?” Negotiate a little bit! These are companies that want to partner with you. I also think it never hurts to ask and get comfortable with, again, just partnering with your vendors. That’s why I always call them partners and not vendors. Be comfortable with partnering with them and saying, “Look here are two or three things I’m trying to accomplish. And I only see one of those things in the proposal that you sent to me. Are there some things that you can put in here that are revenue neutral? Or are there ways that you can reallocate our spend and help me hit these other budget objectives?” They’ll work with you. So negotiate with management and then partner with your vendors.

I’ve been talking with a lot of firms. And another thing that I’m seeing firms really start to do is ask themselves, “Where is the lowest risk and the highest return?” and vice versa, and making sure that your budget is representing that like, “Boy, this is the lowest risk and a really good return. So we’re going to do more of this. And this is a really high risk, very questionable return. We’re going to do less of this.” And by the way, having those conversations with your management committee or your manageing partners or your executive committee about the ways that you’re looking at risk versus return, or contextually where you are in the firm’s operational churn, if you will, those sorts of things will help you in the long run.

Jennifer Schaller

It’s really great that you point out the need to let your vendors know what your goals are. It’s very challenging sometimes when people are like, “What’s the price? You know, what, what, what is your best price?” What is important to you? It’s not really a negotiating technique, we want to know where to focus to best meet your needs. And if we have no concept of what your goals are, or what you’re trying to highlight, it makes it infinitely more challenging.

This year, or any historically, are there budget items that you would suggest CMOs pay more attention to this year than in previous years or anything that’s unique about this year that they might want to highlight other than the points that you made about using 2019 as a base point versus the previous two years? Which were just weird. Is there anything else different?

Beth Cuzzone

You know, I think this is the time everybody is peeking over the horizon wondering, “Is there a downturn? Is there a recession? Is there a down year coming? What do we do?” You know, you’ve got, you’re asking yourself all of those questions. I think this is also a year, when you’re looking at your budget, to look at things that are driving efficiencies, scalability, revenue generation, right? There’s a difference between cost and investment. Make sure that your budget has a nice healthy mix of, “These are things where we want to spend money to get more money. And then these are places where we want to spend money so that we can meet an objective,” and I call them return on objectives, and return on investments. “We want to be known in this new market. We want to open up an office in Texas. And so we’re going to be spending a lot of time and money and energy and budget on really getting the word out creating some top of mind awareness in Texas.” That’s an objective, right? If it is that we really want to get a little closer to the bottom quartile of our clients in terms of revenue and say, “How can we help them with more problems than we do now? How do we take them and really try to grow the wallet share that they spend on outside counsel?” That’s a return on investment. So you know, have that healthy mix on return on investment, and return on objective.

Jennifer Schaller

Fair enough. So briefly, your firm Intapp? How do they help law firms with their budgeting process? Are there specific things that they’re set up to do to help?

Beth Cuzzone

Thank you for asking me that and for being so gracious. Because yes, I think the answer is yes. So Intapp can help law firms create insights to find revenue, find where there’s work that’s more profitable, find where, you know, there’s whitespace, and opportunities, or be able to basically measure things, and have this one source of truth in your law firm, where you’ve got all of these technologies that help all of these different operating departments that all connect, that’s why it’s called Intapp, there’s an integration to this, and they all integrate and talk to each other. And those kinds of insights can inform law firms about the kind of money that they’re spending and the kind of return that they’re getting. And it can be as simple as looking at your marketing campaign open rate for your last email, all the way to looking at some very strategic insights of “here are some spaces or places in our firm where we could be working closer with clients, or an industry where we haven’t saturated as much as we could.” So it can go from tactical to strategic, and that’s what Intapp does. That’s why it’s such an amazing company.

Jennifer Schaller

So is Intapp more process or technology based or kind of marrying the both of them when they work with law firms?

Beth Cuzzone

That’s another great question. So it’s a technology company. And I think the thing I’ve been most surprised with is the brainpower that sits in Intapp and all of the people that are there to help clients successfully deploy, or change management professionals that help you get more engagement at your firm, or help you with use cases of smarter ways to use the technology.

So Intapp sells technology that has professionals that help you with the people in the process as well. It’s a little competitive secret.

Jennifer Schaller

Sounds like a good match. As always, we appreciate Beth’s time sharing her thoughts with us and her experience and kind of the trends that she’s seeing and marrying it with the experience that she’s had over the years. Thank you very much.

Beth Cuzzone

It was so great to see you, Jennifer. So great to see you. Thank you for inviting me and be well. True North.

Conclusion

Thank you for listening to the National Law Review’s Legal News Reach podcast. Be sure to follow us on Apple Podcasts, Spotify, or wherever you get your podcasts for more episodes. For the latest legal news, or if you’re interested in publishing and advertising with us, visit www.natlawreview.com. We’ll be back soon with our next episode.

Copyright ©2022 National Law Forum, LLC

Acronis Reports Ransomware Damages Will Exceed $30B by 2023

In its Mid-Year Cyberthreat Report published on August 24, 2022, cybersecurity firm Acronis reports that ransomware continues to plague businesses and governmental agencies, primarily through phishing campaigns.

According to the report over 600 malicious email campaigns were launched in the first half of 2022, with the goal of stealing credentials to launch ransomware attacks. Other attack vectors included vulnerabilities to cloud-based networks, targeting unpatched or software vulnerabilities, and cryptocurrency and decentralized finance systems.

According to Acronis, “ransomware is worsening, even more so than we predicted.” It estimates that global damages related to ransomware attacks will top $30 billion by 2023.

Copyright © 2022 Robinson & Cole LLP. All rights reserved.

All Federal Research Agencies to Update Public Access Policies

On 25 August 2022, the Office of Science and Technology Policy (OSTP) released a guidance memorandum instructing federal agencies with research and development expenditures to update their public access policies. Notably, OSTP is retracting prior guidance that gave discretion to agencies to allow a 12-month embargo on the free and public release of peer-reviewed publications, so that federal funded research results will be timely and equitably available at no cost. The memo also directs affected agencies to develop policies that:

  1. Ensure public access to scientific data, even if not associated with peer-reviewed publications;
  2. Ensure scientific and research integrity in the agency’s public access by requiring publication of the metadata, including the unique digital persistent identifier; and
  3. Coordinate with OSTP to ensure equitable delivery of federally funded research results and data.

KEY COMPONENTS OF GUIDANCE:

Updating Public Access Policies

Federal agencies will need to develop new, or update existing, public access plans, and submit them to OSTP and the Office of Management and Budget (OMB). Deadlines for submission are within 180 days for federal agencies with more than US$100 million in annual research and development expenditures, and within 360 days for those with less than US$100 million in expenditures.

Agencies will need to ensure that any peer-reviewed scholarly publication is free and available by default in agency-designated repositories without any embargo or delay following publication. Similarly, OSTP expects the access polices to address publication of any other federally funded scientific data, even if not associated with peer-reviewed scholarly publications. As a concession, federal agencies are being asked to allow researchers to include the “reasonable publication costs and costs associated with submission, curation, management of data, and special handling instructions as allowable expenses in all research budgets.1

Ensuring Scientific Integrity

To strengthen trust in governmentally funded research, the new or updated policies must transparently communicate information designed to promote OSTP’s research integrity goals. Accordingly, agencies are instructed to collect and make appropriate metadata available in their public access repositories, including (i) all author and co-author names, affiliations, and source of funding, referencing their digital persistent identifiers, as appropriate; (ii) date of publication; and (iii) a unique digital persistent identifier for research output. Agencies should submit to OSTP and OMB (by 31 December 2024) a second update to their policies specifying the approaches taken to implement this transparency, and publish such policy updates by 31 December 2026, with an effective date no later than one year after publication of the updated plan.

IMPLICATIONS FOR THE NATIONAL INSTITUTES OF HEALTH (NIH), OTHER FEDERAL AGENCIES, AND THEIR GRANTEES

The NIH is expected to update its Public Access Policy, potentially along with its Data Management and Sharing Policy to conform with the new OSTP guidance. Universities, academic medical centers, research institutes, and federally funded investigators should monitor agency publications of draft and revised policies in order to update their processes to ensure continued compliance.

In doing so, affected stakeholders may want to consider and comment to relevant federal agencies on the following issues in their respective public access policy development:

  • Federal agency security practices to prevent foreign misappropriation of research data;
  • Implications for research misconduct investigations and research integrity;
  • Any intellectual property considerations without a 12-month embargo, especially to the extent this captures scientific data not yet published in a peer-review journal; and
  • Costs allowable research budgets to support these data management and submission expectations.

1 Office of Science and Technology Policy, Memorandum for the Heads of Executive Departments and Agencies: Ensuring Free, Immediate, and Equitable Access to Federally Funded Research at p. 5 (25 August 2022) available at https://www.whitehouse.gov/wp-content/uploads/2022/08/08-2022-OSTP-Public-Access-Memo.pdf

Copyright 2022 K & L Gates

Children’s Advertising Rules Apply in the Metaverse Too, CARU Says

CARU, the Children’s Advertising Review Unit of BBB National programs, issued a compliance warning last week reminding industry that the self-regulating body on children’s advertising and privacy intends to enforce its advertising guidelines in the metaverse, just like in the real world.

CARU’s August 23 compliance warning puts companies on notice of what perhaps should have been obvious: its guidelines for advertising to children apply in the metaverse, too. The warning heavily analogizes the metaverse, augmented reality (AR) and virtual reality (VR) worlds to other digital spaces like smartphone apps and online videos. CARU emphasizes the need to:

  • avoid blurring the lines between advertising and non-advertising content;
  • clearly disclose the use of brand-sponsored avatar influencers;
  • avoid manipulative tactics that induce children to view or interact with ads or to make in-game purchases; and
  • use clear, understandable, easily noticeable and prominent disclosures, repeated if necessary to ensure children notice and understand them.

The metaverse is a new area of focus for CARU and BBB National Programs: two recent posts, Know the Rules: How to Be Age Appropriate in the Metaverse and Advertising And Privacy: The Rules Of The Road For The Metaverse, emphasize the need to make sure advertising is truthful, non-deceptive and clearly identifiable as advertising, especially in brand-sponsored worlds. CARU recommends that advertisers and operators anticipate and stay aware of how their child audiences interact with the metaverse experience, including how, when and where ads will be shown to them and how influencers will engage in the space.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.

What’s in the American Data Privacy and Protection Act?

Congress is considering omnibus privacy legislation, and it reportedly has bipartisan support. If passed, this would be a massive shake-up for American consumer privacy, which has been left to the states up to this point. So, how does the American Data Privacy and Protection Act (ADPPA) stack up against existing privacy legislation such as the California Consumer Privacy Act and the Virginia Consumer Data Protection Act?

The ADPPA includes a much broader definition of sensitive data than we’ve seen in state-level laws. Some notable inclusions are income level, voicemails and text messages, calendar information, data relating to a known child under the age of 17, and depictions of an individual’s “undergarment-clad” private area. These enumerated categories go much further than recent state laws, which tend to focus on health and demographic information. One asterisk though – unlike other state laws, the ADPPA only considers sexual orientation information to be sensitive when it is “inconsistent with the individual’s reasonable expectation” of disclosure. It’s unclear at this point, for example, if a member of the LGBTQ+ community who is out to friends would have a “reasonable expectation” not to be outed to their employer.

Like the European Union’s General Data Protection Regulation, the ADPPA includes a duty of data minimization on covered entities (the ADPPA borrows the term “covered entity” from HIPAA). There is a laundry list of exceptions to this rule, including one for using data collected prior to passage “to conduct internal research.” Companies used to kitchen-sink analytics practices may appreciate this savings clause as they adjust to making do with less access to consumer data.

Another innovation is a tiered applicability, in which all commercial entities are “covered entities,” but “large data holders” – those making over $250,000,000 gross revenue and that process either 5,000,000 individuals’ data or 200,000 individuals’ sensitive data – are subject to additional requirements and limitations, while “small businesses” enjoy additional exemptions. Until now, state consumer privacy laws have made applicability an all-or-nothing proposition. All covered entities, though, would be required to comply with browser opt-out signals, following a trend started by the California Privacy Protection Agency’s recent draft regulations. Additionally, individuals have a private right of action against covered entities to seek monetary and injunctive relief.

Finally, and controversially, the ADPPA explicitly preempts all state privacy laws. It makes sense – the globalized nature of the internet means that any less-stringent state law would become the exception that kills the rule. Still, companies that only recently finalized CCPA- and CPRA-compliance programs won’t appreciate being sent back to the drawing board.

Read the bill for yourself here.

Copyright © 2022 Robinson & Cole LLP. All rights reserved.

THE NEXT TCPA MEGA-TRIAL APPEARS TO BE SET: Coldwell Banker and Realogy Appear to Be Headed to the Jury On $225MM TCPA Claim

As I reported a couple months back, a Court in California certified a TCPA class action against brokerage giant Realogy related to calls made by Coldwell Banker agents, amongst others.

The classes have enough members to put at least $225MM at stake in the case (and it could be a lot more.)

Well just last Thursday the Court just denied Reaolgy’s request to seek reconsideration of the certification ruling. So Realogy appears to be stuck in a certified class action, which is barreling toward trial.

In fact, the Court just issued an order setting a pretrial conference for November 10, 2022, and trial is set for November 28, 2022!

In the meantime, the Court also just denied motions challenging the Plaintiff’s expert Anya Verkhovskaya, meaning that she’ll get to testify at trial.

TCPAWorld hasn’t seen a true mega trial–i.e. a trial of a certified class action with nine (or ten) figure exposure in some time. Will be extremely interesting to see where this goes.

And while Realogy has added new counsel recently, I don’t see any true Czar-level “monster trial lawyer” types on their side just yet. (Maybe I’m missing it.)

Definitely don’t want to walk into this unless you’re loaded for bear folks.

Anyway, I’ll keep an eye on this one. I suspect it will settle for some ridiculous number. But if not I may send Kiera down to take notes on the trial. We’ll see.

© 2022 Troutman Firm

5 Ways Legal Billing Software Increases Law Firm Revenue

In any business, keeping an eye on the bottom line is essential. For law firms, this can be a challenge, as there are many ways that money can be lost throughout a case. From inefficient time-tracking to inaccurate billing, there are many potential pitfalls. However, there is one solution that can help to increase law firm revenue: legal billing software. Choosing the right legal billing software is essential for maximizing its benefits. Consider time-tracking, billing accuracy, and customer service when evaluating different packages. Take a look at solutions built specifically for the legal industry to get the most out of your investment.

3 Common Ways Law Firms Lose Money

Time Tracking Issues

Many lawyers still rely on manual methods of tracking time by using spreadsheets or notepads. This antiquated approach to timekeeping is fraught with problems, including the potential for lost billable time and revenue, vulnerability to billing disputes, and high administrative costs.

With spreadsheet or notepad timekeeping, it is easy for lawyers to forget to record their time or lose track of their records, leading to lost billable hours and ultimately lost revenue for the firm. Manual timekeeping doubles the work since someone must manually enter all data into the system.

Manually keeping track of time leaves attorneys vulnerable to billing disputes. If a client questions a lawyer’s billing records, it can be difficult for the attorney to prove that the charges are accurate without detailed and meticulous records.

Invoicing Frequency

When it comes to law firm revenue, timely billing is everything. The longer you wait to send a bill, the longer you wait to get paid. Clients can’t pay a bill they haven’t received.

Not billing promptly sends the message to your client that prompt payment is not that important to you. Sending your invoices at the end of each month helps to avoid confusion or miscommunication and ensures that you and your clients are on the same page.

Billing Bottlenecks

Getting paid by clients is a significant problem for 61% of small law firms, according to 2019 research conducted by Thomson Reuters Legal Executive Institute. Law firms that don’t provide clients with various payment options, like online payments and accepting credit card payments, are more vulnerable to decreased law firm revenue due to not getting paid on time.

What is Legal Billing Software?

Legal billing software is downloadable or cloud-based that helps lawyers accurately track their time and invoice their clients. A robust software, like Bill4Time, will have the capability to track time, LEDES billing format, create custom invoices, accept online payments, and meet state bar regulations for billing. Law firms use dedicated legal billing software to improve their bottom line by improving invoicing processes and reducing inaccurate time management and billing bottlenecks.

What Billing Software do Law Firms Use?

Lawyers are always looking for ways to be more efficient and maximize their billable hours, so they prioritize cloud-based software solutions that have integrated time tracking, easy invoice options, and a client portal for online payments.

Law firms need industry-specific features like trust & IOLTA accounting which allows lawyers to reconcile trust accounts without a secondary application. They also look for software that provides LEDES billing, the most widely used e-billing standard for law firms invoicing corporate clients.

Why Does My Law Firm Need Legal Billing Software?

As a law firm, you know that time is money. Every minute spent on administrative tasks is a minute that could be spent on billable hours.

Automate the billing process

You, and your team, enter matter information as time-tracked once, and the software will take care of the rest, generating invoices and sending them out to clients on your behalf.

Manage your cash flow

You will always have a clear record of what has been billed and remains outstanding. You can responsibly allocate your resources to maximize your profits.

Track payments and expenses

Having this information organized and readily available can save you a great deal of time and hassle when it comes time to file taxes or apply for loans or lines of credit.

Billing automation will save you and your team considerable time each month, which can be spent growing your business.

How to Identify the Best Legal Billing Software

When choosing legal billing software, there are a few key factors to keep in mind.

Choosing a program compatible with your firm’s existing tech stack, including your law practice management software, is critical to success. Consider the cost, ease of use, and customer support options. Mobile access is also crucial for lawyers who can access their files on any device — iPhone, iPad, or Android.

And finally, security is always a top priority when it comes to sensitive legal information. Look for software that has industry-standard security protocols in place to protect your data.

By keeping these factors in mind, you’ll choose the best legal billing software for your needs.

Best Practices for Implementing a Legal Billing Software

There are many different types of legal billing software on the market, and it can be challenging to decide which one is right for your law firm.

When choosing new software for your law firm, there are a few important factors to remember:

  • You must ensure that the software is compatible with your existing legal practice management software.

  • Be sure to clearly understand your law firm’s billing policies before setting up the software to ensure everything is billed correctly.

  • The software should be easy to use, but you still need to take time to train your staff on how to use the new software.

  • You want a responsive and helpful company when you run into problems. If you run into issues, you can contact the support team.

A little upfront investment will pay off in the long run by preventing billing mistakes and increasing efficiency. Following these simple tips, you can set your law firm up for success with legal billing software.

Increase Law Firm Revenue with Legal Billing Software

Ultimately, you can improve your firm’s bottom line and the client experience by investing in legal billing software. Here are five ways a legal billing software can help you achieve success:

1 ) Accurate Time Tracking

Time entry and expense tracking are crucial for any organization looking to boost productivity and improve profitability. Yet many organizations struggle with manually tracking time and expenses, leading to inaccuracies and lost data. The software makes tracking time and expenses by the user, client, or project easy.

Move beyond the notepad, and start tracking your time with a cloud-based software solution.

Whether on the go or at the office, easy time entry makes it simple to run timers simultaneously, record multiple time entries on one screen, and automatically convert appointments into time entries. You’ll always know your organization’s productivity and financial status with daily and weekly time summaries.

2 ) Automated Billing

Automated billing and online payments can make it easier for clients to pay their invoices, resulting in quicker payment turnaround times. Clients tend to delay payment if they don’t understand the invoice. Prevent this from happening by providing detailed and informative invoices.

With legal billing software, you can set up invoice templates with custom settings such as your billing policy and payment links to pay online —  you can even perform batch invoice creation to save administrative time.

You can even extend your brand while increasing workflow efficiencies by personalizing and creating branded invoices with your logo.

3 ) Online Payments

Online payments are becoming increasingly popular, and customers expect businesses to offer this option. You may even miss out on potential customers if you don’t offer online payments.

Online payments allow firms to quickly and easily receive payments from clients. This can be done via credit card, debit card, or even PayPal. In addition, online payments are more secure than traditional methods, such as mailing a check.

4 ) Custom Reporting

Real-time data is essential for any growing business and managing cash flow. You’ll want a solution with comprehensive reporting to manage your firm’s financial performance better and identify trends to ensure success—review payment history, balance due, collections, expenses, productivity, and summary reports.

Legal billing software should be able to run user activity reports, so you can get detailed insights into how your team works, including efficiency, expense, schedule, and internal tracked time.  This data can help you identify areas of improvement so your team can work smarter, not harder.

5 ) Enhanced Client Experience

Client portals are a great way to provide your clients with more information and control over their billing. Empower your clients to log in, view their account balances, make payments, and see a detailed fee history.

Grow Your Law Firm Revenue with Legal Billing Software

The legal industry is one of the most competitive and rapidly-changing fields. To succeed, law firms must be cutting edge in all aspects of their business – including billing. With so much at stake, it’s no wonder that more and more law firms are turning to legal billing software to help them stay ahead of the competition.

This article was authored by Dan Bowman of Bill4Time.

For more business of law legal news, click here to visit the National Law Review.

©2006-2022, BILL4TIME. ALL RIGHTS RESERVED.

Biden Administration Seeks to Clarify Patient Privacy Protections Post-Dobbs, Though Questions Remain

On July 8, two weeks following the Supreme Court’s ruling in Dobbs v. Jackson that invalidated the constitutional right to abortion, President Biden signed Executive Order 14076 (E.O.). The E.O. directed federal agencies to take various actions to protect access to reproductive health care services,[1] including directing the Secretary of the U.S. Department of Health and Human Services (HHS) to “consider actions” to strengthen the protection of sensitive healthcare information, including data on reproductive healthcare services like abortion, by issuing new guidance under the Health Insurance and Accountability Act of 1996 (HIPAA).[2]

The directive bolstered efforts already underway by the Biden Administration. A week before the E.O. was signed, HHS Secretary Xavier Becerra directed the HHS Office for Civil Rights (OCR) to take steps to ensure privacy protections for patients who receive, and providers who furnish, reproductive health care services, including abortions.[3] The following day, OCR issued two guidance documents to carry out this order, which are described below.

Although the guidance issued by OCR clarifies the privacy protections as they exist under current law post-Dobbs, it does not offer patients or providers new or strengthened privacy rights. Indeed, the guidance illustrates the limitations of HIPAA regarding protection of health information of individuals related to abortion services.

A.  HHS Actions to Safeguard PHI Post-Dobbs

Following Secretary Becerra’s press announcement, OCR issued two new guidance documents outlining (1) when the HIPAA Privacy Rule may prevent the unconsented disclosure of reproductive health-related information; and (2) best practices for consumers to protect sensitive health information collected by personal cell phones, tablets, and apps.

(1) HIPAA Privacy Rule and Disclosures of Information Relating to Reproductive Health Care

In the “Guidance to Protect Patient Privacy in Wake of Supreme Court Decision on Roe,”[4] OCR addresses three existing exceptions in the HIPAA Privacy Rule to the disclosure of PHI without an individual’s authorization and provides examples of how those exceptions may be applied post-Dobbs.

The three exceptions discussed in the OCR guidance are the exceptions for disclosures required by law,[5]  for purposes of law enforcement,[6] or to avert a serious threat to health or safety.[7]

While the OCR guidance reiterates that the Privacy Rule permits, “but does not require” disclosure of PHI in each of these exceptions,[8] this offers limited protection that relies on the choice of providers whether to disclose or not disclose the information. Although these exceptions are highlighted as “protections,” they expressly permit the disclosure of protected health information. Further, while true that the HIPAA Privacy Rule itself may not compel disclosure (but merely permits disclosure), the guidance fails to mention that in many situations in which these exceptions apply, the provider will have other legal authority (such as state law) mandating the disclosure and thus, a refusal to disclose the PHI may be unlawful based on a law other than HIPAA.

Two of the exceptions discussed in the guidance – the required by law exception and the law enforcement exception – both only apply in the first place when valid legal authority is requiring disclosure. In these situations, the fact that HIPAA does not compel disclosure is of no relevance. Certainly, when there is not valid legal authority requiring disclosure of PHI, then HIPAA prohibits disclosure, as noted as in the OCR guidance.  However, in states with restrictive abortion laws, the state legal authorities are likely to be designed to require disclosure – which HIPAA does not prevent.

For instance, if a health care provider receives a valid subpoena from a Texas court that is ordering the disclosure of PHI as part of a case against an individual suspected of aiding and abetting an abortion, in violation of Texas’ S.B. 8, then that provider could be held in contempt of court for failing to comply with the subpoena, despite the fact that HIPAA does not compel disclosure.[9] For more examples on when a covered entity may be required to disclose PHI, please see EBG’s prior blog: The Pendulum Swings Both Ways: State Responses to Protect Reproductive Health Data, Post-Roe.[10]

Notably, the OCR guidance does provide a new interpretation of the application of the exception for disclosures to avert a serious threat to health or safety. Under this exception, covered entities may disclose PHI, consistent with applicable law and standards of ethical conduct, if the covered entity, in good faith, believes the use or disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public. OCR states that it would be inconsistent with professional standards of ethical conduct to make such a disclosure of PHI to law enforcement or others regarding an individual’s interest, intent, or prior experience with reproductive health care. Thus, in the guidance, OCR takes the position that if a patient in a state where abortion is prohibited informs a health care provider of the patient’s intent to seek an abortion that would be legal in another state, this would not fall into the exception for disclosures to avert a serious threat to health or safety.  Covered entities should be aware of OCR’s position and understand that presumably OCR would view any such disclosure as a HIPAA violation.

(2) Protecting the Privacy and Security of Individuals’ Health Information When Using Personal Cell Phones or Tablets

OCR also issued guidance on how individuals can best protect their PHI on their own personal devices. HIPAA does not generally protect the privacy or security of health information when it is accessed through or stored on personal cell phones or tablets. Rather, HIPAA only applies when PHI is created, received, maintained, or transmitted by covered entities and business associates. As a result, it is not unlawful under HIPAA for information collected by devices or apps – including data pertaining to reproductive healthcare – to be disclosed without consumer’s knowledge.[11]

In an effort to clarify HIPAA’s limitation to protect such information, OCR issued guidance to protect consumer sensitive information stored in personal devices and apps.[12] This includes step-by-step guidance on how to control data collection on their location, and how to securely dispose old devices.[13]

Further, some states have taken steps to fill the legal gaps to varying degrees of success. For example, California’s Confidentiality of Medical Information Act (“CMIA”) extends to “any business that offers software or hardware to consumers, including a mobile application or other related device that is designed to maintain medical information.”[14] As applied, a direct-to-consumer period tracker app provided by a technology company, for example, would fall under the CMIA’s data privacy protections, but not under HIPAA. Regardless, gaps remain as the CMIA does not protect against a Texas prosecutor subpoenaing information from the direct-to-consumer app. Conversely, Connecticut’s new reproductive health privacy law,[15] does prevent a Connecticut covered entity from disclosing reproductive health information based on a subpoena, but Connecticut’s law does not apply to non-covered entities, such as a period tracker app. Therefore, even the U.S.’s most protective state privacy laws do not fill in all of the privacy gaps.

Alongside OCR’s guidance, the Federal Trade Commission (FTC) published a blog post warning companies with access to confidential consumer information to consider FTC’s enforcement powers under Section 5 of the FTC Act, as well as the Safeguards Rule, the Health Breach Notification Rule, and the Children’s Online Privacy Protection Rule.[16] Consistent with OCR’s guidance, the FTC’s blog post reiterates the Biden Administration’s goal of protecting reproductive health data post-Dobbs, but does not go so far as to create new privacy protections relative to current law.

B.  Despite the Biden Administration’s Guidance, Questions Remain Regarding the Future of Reproductive Health Privacy Protections Post-Dobbs

Through E.O. 14076, Secretary Becerra’s press conference, OCR’s guidance, and the FTC’s blog, the Biden Administration is signaling that it intends to use the full force of its authorities – including those vested by HIPAA – to protect patient privacy in the wake of Roe.

However, it remains unclear how this messaging will translate to affirmative executive actions, and how successful such executive actions would be. How far is the executive branch willing to push reproductive rights? Would more aggressive executive actions be upheld by a Supreme Court that just struck down decades of precedent permitting access to abortion? Will the Biden Administration’s executive actions persist if the administration changes in the next Presidential election?

Attorneys at Epstein Becker & Green are well-positioned to assist covered entities, business associates, and other companies holding sensitive reproductive health data understand how to navigate HIPAA’s exemptions and interactions with emerging guidance, regulations, and statutes at both the state and Federal levels.

Ada Peters, a 2022 Summer Associate (not admitted to the practice of law) in the firm’s Washington, DC office and Jack Ferdman, a 2022 Summer Associate (not admitted to the practice of law) in the firm’s Boston office, contributed to the preparation of this post. 



[1] 87 Fed. Reg. 42053 (Jul. 8, 2022), https://bit.ly/3b4N4rp.

[2] Id.

[3] HHS, Remarks by Secretary Xavier Becerra at the Press Conference in Response to President Biden’s Directive following Overturning of Roe v. Wade (June 28, 2022), https://bit.ly/3zzGYsf.

[4] HHS, Guidance to Protect Patient Privacy in Wake of Supreme Court Decision on Roe (June 29, 2022),  https://bit.ly/3PE2rWK.

[5] 45 CFR 164.512(a)(1)

[6] 45 CFR 164.512(f)(1)

[7] 45 CFR 164.512(j)

[8] Id.

[9] See Texas S.B. 8; e.g., Fed. R. Civ. Pro. R.37 (outlining available sanctions associated with the failure to make disclosures or to cooperate in discovery in Federal courts), https://bit.ly/3BjX4I2.

[10] EBG Health Law Advisor, The Pendulum Swings Both Ways: State Responses to Protect Reproductive Health Data, Post-Roe (June 17, 2022), https://bit.ly/3oPDegl.

[11] A 2019 Kaiser Family Foundation survey concluded that almost one third of female respondents used a smartphone app to monitor their menstrual cycles and other reproductive health data. Kaiser Family Foundation, Health Apps and Information Survey (Sept. 2019), https://bit.ly/3PC9Gyt.

[12] HHS, Protecting the Privacy and Security of Your Health Information When Using Your Personal Cell Phone1 or Tablet (last visited Jul. 26, 2022), https://bit.ly/3S2MNWs.

[13] Id.

[14] Cal. Civ. Code § 56.10, Effective Jan. 1, 2022, https://bit.ly/3J5iDxM.

[15] 2022 Conn. Legis. Serv. P.A. 22-19 § 2 (S.B. 5414), Effective July 1, 2022, https://bit.ly/3zwn95c.

[16] FTC, Location, Health, and Other Sensitive Information: FTC Committed To Fully Enforcing the Law Against Illegal Use and Sharing of Highly Sensitive Data (July 11, 2022), https://bit.ly/3BjrzNV.

©2022 Epstein Becker & Green, P.C. All rights reserved.

Judge Approves $92 Million TikTok Settlement

On July 28, 2022, a federal judge approved TikTok’s $92 million class action settlement of various privacy claims made under state and federal law. The agreement will resolve litigation that began in 2019 and involved claims that TikTok, owned by the Chinese company ByteDance, violated the Illinois Biometric Information Privacy Act (“BIPA”) and the federal Video Privacy Protection Act (“VPPA”) by improperly harvesting users’ personal data. U.S. District Court Judge John Lee of the Northern District of Illinois also awarded approximately $29 million in fees to class counsel.

The class action claimants alleged that TikTok violated BIPA by collecting users’ faceprints without their consent and violated the VPPA by disclosing personally identifiable information about the videos people watched. The settlement agreement also provides for several forms of injunctive relief, including:

  • Refraining from collecting and storing biometric information, collecting geolocation data and collecting information from users’ clipboards, unless this is expressly disclosed in TikTok’s privacy policy and done in accordance with all applicable laws;
  • Not transmitting or storing U.S. user data outside of the U.S., unless this is expressly disclosed in TikTok’s privacy policy and done in accordance with all applicable laws;
  • No longer pre-uploading U.S. user generated content, unless this is expressly disclosed in TikTok’s privacy policy and done in accordance with all applicable laws;
  • Deleting all pre-uploaded user generated content from users who did not save or post the content; and
  • Training all employees and contractors on compliance with data privacy laws and company procedures.
Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.