In the past, I have blogged about de-identification. Simply put, de-identification is the process of rendering personally identifiable data unidentifiable and thus enabling the use of the information for various purposes free from regulation. A recent court case made me think to write again not just on the value of anonymizing data prior to sale or release, but also of the need for older privacy laws to be revisited in view of the Internet and expansive databases filled with personally identifiable Information.
In Ellis v. Cartoon Network(1:14-cv-00484, U.S. District Court for the Northern District of Georgia) the plaintiffs asserted a class action suit against the Turner cable TV channel, Cartoon Network. Lead plaintiff Mark Ellis alleged that when he downloaded the Cartoon Network app (“App”) on his Android device, he never agreed to the disclosure of his personally identifiable information and that each time he viewed a Cartoon Network clip using the App, that information was sent directly to a third party company called Bango that allegedly used the information for direct marketing purposes. The information being sent to Bango comprised, amongst other things, the identification numbers for App user’s devices, specifically the Android ID number. Bango would allegedly take the data from the App, build a larger consumer profile using outside data in its possession and linked via the Android ID and then sell the enhanced, identifiable consumer information for targeted marketing purposes.
Following a very successful year in the wake of Frozen and other blockbuster hits, multiple Hollywood Studios have been named in several antitrust class actions. As I discussed in my blog entry of September 30, Plaintiff Robert Nitsch filed an antitrust class action against The Walt Disney Company, Walt Disney Animation Studios, DreamWorks Animation SKG, Inc., Pixar, Lucasfilm Ltd., LLC, Digital Domain 3.0, Inc., ImageMovers, LLC, ImageMovers Digital, Sony Pictures Animation, Inc. and Sony Pictures Imageworks, Inc. Plaintiff Nitsch accused the Defendants of participating in a conspiracy in which the companies agreed that they would not raid the other companies’ employees. See Nitsch v. DreamWorks Animation SKG Inc., et al., Case No. 14-cv-04062-LHK, U.S. District Court for the Northern District of California.
Since the Nitsch matter was filed, two additional antitrust class actions have been filed recently in the same federal district court against the same group of defendants, involving substantially similar allegations. See Wentworth v. Lucasfilm LTD. LLC et al., Case No. 14-cv-04422-JCS, and Cano v. Pixar, et al., Case No. 14-cv-4203. The complaints in these two cases also allege that there were non-solicitation agreements among the defendants, and that the Defendants intended to suppress wages for animators, digital artists, software engineers, and other technical and creative workers.
These three antitrust class actions are another reminder of the importance of companies’ involving legal counsel in any agreements among competitors and pricing decisions, so that legal counsel may evaluate compliance with antitrust laws and unfair competition laws. Not only might a prudent company reduce the likelihood of a lawsuit, but a company might reduce the likelihood of several lawsuits.
In the latest chapter of what has been a landmark year in sports law, several current and former minor league baseball players have filed a class action and collective action lawsuit against Major League Baseball (“MLB”) and all 30 individual teams for failing to pay salaries that met or exceeded the minimum wage on a per-hour basis, in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the wage and hour laws in five states. The suit, Senne v. Office of the Commissioner of Major League Baseball (3:14-cv-608-JCS, N.D. Cal. 2014), brings to the forefront the disparity in salaries earned by professional baseball players, puts MLB’s antitrust exemption under renewed scrutiny, and threatens to alter the business of organized baseball, which earned more than $8 billion in revenue in 2013. While the annual minimum salary for an MLB player is $500,000, and the average salary more than $3 million, the Plaintiff class claims that below the “AAA” level–the level right below the major leagues–the median salary is no more than $1500 per month. Second Amended Class Action Complaint (“Complaint”), ¶ 16. This disparity has been termed by baseball economist Andrew Zimbalist as the “struggling apprentice predicament,” in which minor leaguers, like other aspirants in highly competitive entertainment fields such as art and music, often work long hours for low wages in the hopes of achieving wealth and success. Andrew Zimbalist, Baseball and Billions: A Probing Look Inside the Big Business of Our National Pastime, BasicBooks (1994), p. 119. The players claim that, between games, practice, and training, they work more than 50 hours per week during the five month season, and sometimes 70 hours, while receiving no overtime pay. Id. ¶ 9. Thus, assuming an average workweek of 50 hours per week, the hourly wage would be below the federal minimum wage at every level of minor league baseball below AAA. The Plaintiff class also claims that MLB and its teams have been on notice since at least 1995 and 1998, when the Cincinnati Reds had two FLSA cases decided against them, that they are not exempt from federal minimum wage laws. (Id. ¶ 14, citing Bridewell v. The Cincinnati Reds, 68 F.3d 136, 139 (6th Cir. 1995), cert. denied, 516 U.S. 1172 (1996); Bridewell v. The Cincinnati Reds, 155 F.3d 828, 829 (6th Cir. 1998).
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