Emily Johnson Henn

Class Actions

Palo Alto

Emily Henn has spent the last 15 of her 25 years as a lawyer specializing in class action litigation.

"Part of what drew me to class action defense was my move to California in 2010," she said. "California is at the forefront of nearly every development and trend in class actions, and it attracts the best of the best of the class action plaintiffs' bar. I have enjoyed working opposite those lawyers on cases for clients who are innovating and navigating uncertain waters in the realms of privacy and consumer protection regulation."

A member of Covington's three-person executive Committee and eight-person management committee Henn has successfully represented FullStory and several retail websites, including Delta, Macy's, Bloomingdale's and Papa John's, in cases across California, Pennsylvania, Massachusetts, and Maryland.

"We have been pleased to win dismissal at the pleadings stage in seven cases to date, with one of the cases already affirmed on appeal to the First Circuit," Henn said. "We have also seen a prominent plaintiffs' firm voluntarily dismiss two cases after we filed motions to dismiss -- which our team takes as the highest compliment. These decisions have represented significant victories in the ongoing wave of wiretapping cases related to the use of website analytics tools. Our work has helped to shape and develop the law of personal jurisdiction over claims arising out of the operation of websites or the processing of data, as well as the contours of these state wiretapping laws as applied to today's website technologies."

In the separate Campos v. Big Fish Games case, Henn represented Big Fish and Product Madness.

She tackled a class action that challenged the advertising of digital tokens in social casino-style games, leveraging an obscure California statute traditionally used in physical retail.

"We achieved significant early victories through dismissal of Big Fish Games' parent Aristocrat, transfer to the Western District of Washington and a rare victory on a preemptive early motion to deny class certification," Henn said. "It is typically plaintiffs who move first on class certification issues, but here we saw the preemptive motion as an opportunity to limit and rationalize a case in which the plaintiff sought to plead a facially overbroad class."

She explained that in any technology class action, what she seeks to do early on is to understand how the service works, including how data flows and is used to provide value to consumers.

A thorough initial investigation can help shape and target legal arguments and early preservation efforts to the core issues, avoiding protracted and wasteful disputes, Henn said.

When asked about trends, she said unfortunately, she's continuing to see more and more clients targeted with wiretapping claims based on normal operations of retail websites.

"With California's new legislation banning hidden fees, we could see a similar new wave of advertising class actions this year if companies do not take steps to mitigate their risk in this area," Henn said.