Consumer’s Wiretapping Suit Against Nike and FullStory Partly Dismissed

Judge Fernando L. Aenlle-Rocha issued a 29-page opinion on Monday in the invasion of privacy and wiretapping suit stemming from FullStory’s Inc.’s alleged recording of the plaintiff’s online shopping experience at The court permitted one of three claims for relief to proceed as to defendant Nike Inc. for aiding FullStory’s alleged wiretapping under the California Penal Code Section 631(a).

The court’s motion to dismiss ruling first focused on whether the plaintiff adequately pleaded facts conferring personal jurisdiction over Nike, an Oregon-headquartered, Delaware-incorporated company and FullStory, a Georgia-headquartered, Delaware-incorporated company. Judge Aenlle-Rocha concluded that the complaint “failed to allege facts showing FullStory expressly aimed its conduct toward California,” and thus constrained its analysis of the defendants’ motion to whether plaintiff stated claims against Nike.

As to the plaintiff’s wiretapping allegations, the court found that he sufficiently alleged that the defendants recorded the “contents” of his communication. In the opinion, Judge Aenlle-Rocha diverged from the reasoning in a recent Southern District of Florida ruling also interpreting the “session replay” software at issue in this case. The Los Angeles, California court disagreed with that opinion to the extent it “held the tracking and recording of website interactions did not amount to ‘contents’ of communications under the Wiretap Act,” and declined to grant the defendants’ motion on that basis.

The court then addressed Nike’s potential liability for aiding or enabling FullStory’s alleged wiretapping. The opinion noted that despite the personal jurisdiction ruling, the plaintiff sufficiently alleged the elements of a California Penal Code wiretapping claim.

In particular, the court ruled that FullStory was a third-party to the Nike-plaintiff communication because of its role as a “software-as-a-service” provider by which the company “‘records the website user’s interactions locally in the user’s browser in real time, and then transmits that information to FullStory’s recording servers every few seconds,’ which FullStory then makes available to its clients.” The court noted additional allegations buoying the conclusion that Nike facilitated FullStory’s actions, like the apparel retailer’s voluntary embedding of FullStory’s software code on its website.

As to the invasion of privacy claim, Judge Aenlle-Rocha found that FullStory’s collection of the plaintiff’s information, including his keystrokes, mouse clicks, IP address, and location at the time of his online visit, “insufficient to demonstrate that Defendants’ conduct constituted a serious invasion of a protected privacy interest.”

The court permitted the plaintiff to file an amended complaint within two weeks of its ruling. The consumer and putative class are represented by Bursor & Fisher P.A., and Nike and FullStory by Covington & Burling LLP.