December 28, 2012

The Firm recently won a significant victory on behalf of client CenturyLink, the third largest telecommunications company in the country, when the Tenth Circuit affirmed a summary judgment in its favor. In 2010, customers filed a class action lawsuit (Kirch v. Embarq) in Kansas federal court, alleging that CenturyLink violated the federal Electronic Communications Privacy Act when it allowed now defunct internet advertising company NebuAd to access customers’ Web communications.  The potential statutory damages topped $200 million. In 2011, the trial court in Kansas granted CenturyLink’s motion for summary judgment, ruling that allowing NebuAd to track its subscribers’ internet use and target particular users for online advertising did not constitute “interception” as defined by the ECPA. Associate Matthew E. Price argued the appeal in September, and the court unanimously affirmed the lower court’s decision on December 28.  In its ruling, the three-judge panel agreed with the lower court that CenturyLink had not “intercepted” the plaintiffs’ communications and could not be held liable as an “aider and abettor” as the statute creates no aiding-and-abetting civil liability. In addition to Mr. Price, the Firm team included Partners David A. Handzo and Matthew S. Hellman and Associate Mark P. Gaber. A similar suit in California, brought by the same plaintiffs, was dismissed for lack of personal jurisdiction in 2009. The Tenth Circuit decision was reported in Law360 and The National Law Journal (link unavailable).