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Daniel S. Guenther interviewed for Law360 article on Massachusetts SJC wiretap ruling

Daniel S. Guenther, associate in the firm’s Litigation Department was interviewed for a Law360 article published on October 28th, 2024, “Mass. Court’s Wiretap Ruling May Be Bad Omen For Plaintiffs.” The article discusses a Supreme Judicial Court of Massachusetts ruling in Vita v. New England Baptist Hospital et al., where the court issued a split decision regarding the Wiretap Act.

From the article:

Daniel Guenther, a litigation attorney at Sherin & Lodgen LLP, noted the decision does leave the door open for plaintiffs looking to pursue other claims for similar conduct, including negligence, breach of contract or, in Massachusetts, claims under the state’s consumer protection statute, Chapter 93A.

But the bar is higher for plaintiffs seeking wins on those grounds when compared to the state’s wiretap law, since the latter only requires proving the defendant ran afoul of the law and not necessarily that anyone was harmed by that violation.

“I think a lot of people were watching this decision because of the strength of the wiretap statute, but the decision alludes to the fact that there are a lot of other remedies available for this type of web-tracking,” Guenther said. “But the wiretap statute has, in addition to the civil element, potential criminal applications, and under the wiretap statute, there is no need to prove an injury.”

Guenther said the ruling could renew legislative efforts, particularly in states like California, Virginia and Connecticut where the issue has come up. But he noted all sides agree the harm is mitigated if users are put on notice that their data is being tracked and may be sold to a third party.

“We are likely going to see more disclosures, more pop-ups when you visit a site that say, ‘This is how we are tracking and using your data, and this is who we are giving it to,'” he said. “It’s only a violation when it is surreptitious and undisclosed.”

Read the full article from Law360 (subscriber content only).