David Bertoni

Our approach involves the following elements:

• Triaging Risk.   All websites involve communications with third party servers, and each such communication is a potential basis for a wiretapping (or VPPA) claim. However, some third parties and third party services present higher risks than others.  We help online retailers to identify higher risk relationships that are more likely to trigger litigation (or arbitration, as discussed below), and work with them both on cost/benefit analyses potential ameliorative measures to reduce their risks.  Our ability to assist clients in assessing and managing these risks is enhanced by Brann & Isaacson’s sixty years of work with catalog and, later, internet marketers large and small, which gives us deep knowledge of direct marketing and the third-party relationships on which it depends.  Our ongoing experience in handling high stakes wiretapping and VPPA cases, going back a decade, keeps our fingers on the pulse of the latest trends.

• To Arbitrate or Not To Arbitrate. We counsel clients on the potential use of online arbitration agreements to blunt the threat of class action lawsuits.  We have developed a comprehensive understanding of the benefits and risks of such agreements and designed bespoke terms to suit individual client needs which have evolved (and which will continue to evolve) in step with the growing jurisprudence in this area. One downside of online arbitration agreements is their potential to trigger mass arbitrations – which can be potentially more costly and disruptive than a class action lawsuit. A carefully crafted online arbitration agreement can reduce the chances of facing a mass arbitration and offer unique defenses that may blunt to the power of mass arbitrations to coerce large settlements. Such an agreement can also help level the playing field for individual consumer arbitrations, which by their nature obligate the online retailer to pay thousands of dollars in arbitration fees and costs in contrast to the nominal filing fees imposed on consumers.  Ultimately, the better choice for some online retailers may be not to adopt an online arbitration agreement at all, and we help clients develop a clear understanding of the pros and cons that can factor into such a decision.

• Obtaining Agreement to Online Terms.  Even if an online retailer decides to include an arbitration agreement, a consumer does not need to be a customer to assert an online wiretapping or VPPA claim. We work with clients to develop strategies for extending online terms to non-customers based on a synthesis of court holdings from across the country.

• Online Disclosures and Consent.  We work closely with clients and our team of experienced privacy law attorneys to develop measures that websites can take to strengthen consent defenses and to ensure adequate consumer disclosures that can render a website an unappealing target for plaintiffs’ lawyers.  These measures range from crafting additional disclosures in so-called “cookie banners” to the crafting of online terms and privacy policies to modifications to online purchases, registrations, subscriptions, and form submissions.