Federal Wiretap Class Actions: Privacy Policies as Predicate Torts After Rack Room Shoes

Kathleen F. McConnell, Partner | Seyfarth Shaw LLP

Kathleen F. McConnell is a partner in Seyfarth Shaw LLP’s Privacy & Cybersecurity practice, where her work sits at the intersection of data and the law — privacy, data science, electronic discovery, and information governance. She counsels companies on data protection, information security, analytics, and AI, and defends clients against California Invasion of Privacy Act (CIPA) claims and website-disclosure disputes of the kind at the center of today’s wiretap litigation.

• Education & Credentials

McConnell earned her J.D. from the University of California College of the Law, San Francisco, and her B.A. from the University of California, Santa Barbara. She is admitted in California and before the Ninth Circuit and the U.S. District Courts for the Central and Northern Districts of California. She holds the International Association of Privacy Professionals’ Certified Information Privacy Professional credentials for both the United States (CIPP/US) and Europe (CIPP/E).

• Recognition & Leadership

The Legal 500 has recognized her as a recommended attorney for e-discovery dispute resolution (2019–2020 and 2022–2024). She leads Seyfarth’s data science group and serves on the firm’s AI Task Force and Global Privacy & Security Team. The Justice and Diversity Center of the Bar Association of San Francisco honored her pro bono service with its Outstanding Volunteer in Public Service Award in 2010 and 2013.

• Professional Involvement

She belongs to the San Francisco chapter of Women in eDiscovery and is a frequent author and speaker on privacy, AI, and eDiscovery. Her writing includes a co-authored analysis of whether tracking users’ web-browsing activity constitutes illegal wiretapping under Massachusetts law, along with recurring contributions on California consumer privacy rights.

• Experience

McConnell has counseled clients on CCPA/CPRA compliance, cross-border privacy, and information governance, and has defended CIPA and website-tracking claims of the kind at issue in this program. Her data-science work has helped secure favorable settlements and undercut class-certification arguments, and her eDiscovery practice spans matters from a handful of custodians to complex, multi-database environments.

Vince Smolczynski, Attorney | Seyfarth Shaw LLP

Vince Smolczynski is an attorney at Seyfarth Shaw LLP whose practice centers on intellectual property and trade secret litigation, scaled to fit clients ranging from early-stage startups to Fortune 500 companies. He handles complex civil litigation, patent litigation, and a range of intellectual property matters, along with patent and trademark prosecution.

• Education & Credentials

Smolczynski earned his J.D. from Chicago-Kent College of Law at the Illinois Institute of Technology, where he was a member of the Chicago-Kent Law Review and the Moot Court Honor Society, and his B.A. from the University of Delaware. He is admitted in Illinois and is registered to practice before the U.S. Patent and Trademark Office.

• Professional Involvement

Before joining Seyfarth as an associate, he served as a law clerk in the firm’s intellectual property group and as a judicial extern for the Honorable Warren D. Wolfson of the Illinois Appellate Court, First District.

• Experience

His technical experience spans pharmaceutical, chemical, biomedical device, electronic device, and business-method subject matter, and he tailors litigation and counseling strategy to each client’s stage of growth.

Jay Barnes, Founder | Barnes Law, LLC

Jay Barnes is the founder of Barnes Law, LLC in Jefferson City, Missouri, a firm he opened in 2026 to focus on consumer class actions, personal injury, and public-interest litigation. Across more than two decades in private practice and public service, he has become an early and leading voice in privacy class-action litigation, representing consumers against some of the largest companies in the world.

• Education & Credentials

He is admitted to the Missouri bar (2006) and the California bar (2025), and before the Second, Third, Seventh, Eighth, and Ninth Circuit Courts of Appeals.

• Recognition & Leadership

Missouri Lawyers Weekly named him a Missouri Influential Lawyer in 2019 and 2024. He has received Legislator of the Year honors from both the Missouri Bar and the Missouri Association of Trial Attorneys, the Myrtle Smith Oden Award from the Missouri NAACP, and the Rory Ellinger Public Service Award from Legal Services of Eastern Missouri.

• Professional Involvement

Barnes served in the Missouri House of Representatives from 2010 to 2018, chairing the House Oversight Committee for five years. He sits on the board of the Missouri Association of Trial Attorneys and previously served on the board of Catholic Charities of Mid-Missouri.

• Experience

He filed his first privacy class action in 2011 and later spent nearly eight years leading consumer class-action litigation at one of the country’s largest plaintiffs’ firms’ before founding his own. His representative privacy matters include In re Facebook Internet Tracking Litigation, 956 F.3d 589 (9th Cir. 2020); In re Meta Healthcare Privacy Litigation; Doe v. Google; In re Google RTB; and Rignanian v. LiveRamp.

Daniel E. Riley, Attorney | Seyfarth Shaw LLP

Daniel E. Riley is an attorney at Seyfarth Shaw LLP whose practice spans the core pillars of data law — privacy, information governance, eDiscovery, cybersecurity, and AI governance. He advises clients across industries on compliance with U.S. and global data protection frameworks, translating complex regulatory requirements into practical, scalable compliance programs, with a growing focus on AI governance and automated decision-making.

• Professional Involvement

Riley is an active author and presenter on data protection. He co-authored “AI Governance In (and Beyond) Privacy” for the Legal 500 Data Protection & Cybersecurity Country Comparative Guide (May 2026), contributed to Seyfarth’s 2025 and 2026 Commercial Litigation Outlooks, and co-wrote “Tracking Users’ Web Browsing Activity Does Not Constitute Illegal Wiretapping under Massachusetts Law” for the firm’s Carpe Datum Law blog — the same wiretap analysis co-authored with Kathleen McConnell. He also co-presented Seyfarth’s November 2025 webinar on changes to the California Consumer Privacy Act.

• Experience

His counseling centers on product and operational privacy risk arising from digital product features, workforce data practices, online marketing and tracking technologies, and vendor relationships — the tracking-technology and vendor-alignment issues at the center of this program. He helps clients evaluate regulatory obligations and build compliance programs across both internal operations and customer-facing services.

SESSION 1 – Defending Federal Wiretap Class Actions and Closing Privacy Policy Exposure | 1:00pm – 2:00pm

This session equips defense-side attorneys with the tools to defeat or limit federal Wiretap Act class actions built on privacy policy misrepresentations, covering motion-to-dismiss strategies, the evolving crime-tort exception split, and concrete remediation steps to close exposure before litigation begins. Attorneys will learn how courts have applied the party-consent defense, the primary-motivation test, and Article III standing challenges to dispose of ECPA claims at the pleading stage. Attendees leave with a practical framework for auditing tracking technology deployments, layering consent architecture, and structuring vendor agreements to eliminate the factual gaps plaintiff’s exploit.

BREAK | 2:00pm – 2:10pm

SESSION 2 – Do You Have a Wiretap Claim? A Lawyer’s Guide to the Electronic Communications Act in the Age of Digital Surveillance | 2:10pm – 3:10pm

Congress passed the Electronic Communications Privacy Act in 1986 to ensure that Americans had the same privacy protections for electronic communications as oral and wire communications. Is it working? This program will help lawyers understand how to build a case under the ECPA, how to defend against one, and how to avoid one. The program will cover the history of the Act, the elements, and the technology underlying these claims. Attendees will learn how these claims are constructed and challenged at the pleading stage and how they proceed through discovery to trial.