The online shopper who filed the putative class action against Lululemon USA Inc. and Quantum Metric Inc. (QM) last November is now opposing the defendants’ motion to dismiss the suit for failure to state a claim. The April 22 brief reiterated the complaint’s core argument: Lululemon enabled QM’s wrongdoing by using its software, and both companies are culpable for illegally recording the plaintiff’s “entire private shopping experience.”
As previously reported, Lululemon and QM’s dismissal motion asserts that the plaintiff’s counsel filed this as one of two dozen lawsuits seeking to penalize the defendants for their use of ubiquitous web analytics tools. The defendants seek dismissal of the plaintiff’s state and federal wiretap, California Invasion of Privacy Act (CIPA), and invasion of privacy under the California Constitution claims with prejudice.
The plaintiff’s 45-page opposition brief walked through the challenged elements of each claim, beginning by tackling the defendants’ allegation that Lululemon and QM both were party to the communications and therefore exempt from CIPA under the party-to-the-communication exception.
The plaintiff disputed this contention, arguing that “(t)he notion that a company can hire third parties to secretly monitor communications between the company and its customers” is contrary to law and legal precedent. Likewise, the plaintiff claimed that Lululemon voluntarily embedded QM’s software code in its website and was thus complicit in the illegal monitoring and recording.
The opposition also combated arguments that the court should dismiss one of the CIPA claims because QM’s software did not access the “contents” of the plaintiff’s communication. The plaintiff responded, “That is wrong,” because two Ninth Circuit cases have recently held that when a company intentionally, rather than incidentally, records information, the conduct rises to an actionable level under CIPA.
The opposition also dedicated several pages to shutting down the argument that Lululemon’s privacy policy supports dismissal. The plaintiff contended that the privacy policy neither applies to her claims nor discloses the website’s use of QM’s invasive software.
The defendants leveled several other arguments in support of dismissal, including that the plaintiff’s CIPA Section 635 claim does not provide a private right of action and only can be enforced by the state. The plaintiff averred otherwise, citing Ninth Circuit case law wherein the district court denied the defendants’ motion to dismiss the same claim.
The hearing is scheduled for May 28 before Judge John W. Holcomb in Riverside, California.
The plaintiff is represented by Bursor & Fisher P.A., Lululemon by DLA Piper, and Quantum Metrics by Morrison & Foerster.
