Our readers may recall our prior pieces in which we discussed a New Jersey State privacy law, colloquially known as Daniel's Law. As our readers know, many of the defendants in these Daniel's Law lawsuits challenged the statute's constitutionality, and the United States Court of Appeals for the Third Circuit ("Third Circuit") is expected to weigh in shortly after hearing oral argument on July 9, 2025. Below, we: (1) summarize what transpired at oral argument; (2) discuss the questions and concerns the judges on the panel had; and (3) detail the implications for future Daniel's Law lawsuits.
Third Circuit Considering Constitutionality Challenge in Consolidated Daniel's Law Lawsuit
Readers of this blog are aware that Daniel's Law is a New Jersey State privacy law designed to protect the disclosure of home addresses and unpublished home telephone numbers of "covered persons," as defined under the law. Recipients of non-disclosure requests must cease disclosing home addresses and unpublished home telephone numbers within 10 days of receipt ("Nondisclosure Requests").
Less than a year ago, the district court denied Defendants' Motion to Dismiss challenging the constitutionality of Daniel's Law. After the Third Circuit granted Defendants' petition for appeal in Atlas Data Privacy Corporation v. We Inform, LLC, the parties briefed the issues for appeal. At oral argument, Defendants argued, among other things, that Daniel's Law is unconstitutional because it: (1) prohibits the disclosure of home addresses and unpublished home telephone numbers for any reason, without exception; (2) punishes the disclosure of this information even if the government itself makes it available; and (3) allows for assignment of claims, lacks any standard of fault, and mandates damages for any violation of the law. The Third Circuit expressed skepticism about whether home addresses and unpublished home telephone numbers of persons covered under Daniel's Law are a matter of public concern that would warrant applying strict scrutiny in evaluating Daniel's Law. After setting aside whether the protected information was a matter of public concern, the Third Circuit then analyzed the fact that there is no mental state requirement included in Daniel's Law. In other words, the disclosure of home addresses or unpublished home telephone numbers violates Daniel's Law, regardless of the mental state of the disclosing party. On this point, Defendants argued that strict liability required a finding that Daniel's Law is unconstitutional. While the Third Circuit did not tip its hand, it had fewer questions on this argument, which may be a sign that the Third Circuit agreed with Defendants.
When questioning Plaintiff's counsel on the strict liability issue, the Third Circuit appeared to favor Defendants' argument – that the imposition of liability, regardless of mental state, required striking down Daniel's Law as unconstitutional. One of the judges on the Third Circuit panel posed the following hypothetical: "what if someone is on vacation and doesn't receive the notice, and . . . they receive the notice on the 11th day, the information is still posted on the internet. Now aren't they still liable under the statute?"
Compliance with Daniel's Law and Other State Privacy Laws
The Third Circuit's foregoing hypothetical presents an issue that merits concern. Atlas Data Privacy Corporation ("Atlas"), the primary driver of Daniel's Law lawsuits, has filed over 150 lawsuits against various companies on behalf of over 19,000 covered persons. Given this volume, processing Nondisclosure Requests and complying with Daniel's Law is virtually impossible within the prescribed 10-day timeframe.
Whether the Third Circuit strikes down Daniel's Law on constitutional grounds remains to be seen. In the meantime, Atlas continues filing lawsuits against companies for alleged Daniel's Law violations. As such, companies should comply with Nondisclosure Requests in a timely fashion, as failing to do so may result in costly future lawsuits. Remember, Daniel's Law permits litigants to recover: (1) actual damages or up to $1,000 per violation; (2) attorneys' fees and costs; and (3) punitive damages. In the face of such potential liability, it is imperative that companies have procedures in place to comply with the law.
The attorneys at Klein Moynihan Turco ("KMT") have been at the forefront in considering Daniel's Law claims which target companies in the consumer data marketing space. KMT regularly advises clients on compliance with Daniel's Law and various other state and federal privacy laws.
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