Lululemon and Quantum Metric Move to Dismiss Wiretapping Suit Once Again

The parties defending the class action brought by an online shopper have asked the court to dismiss the second amended complaint with prejudice. Last week’s motion to dismiss argues that the latest filing fails to state a claim for violation of the California Invasion of Privacy Act (CIPA) and common law invasion of privacy.

In mid-July, the Central District of California court presiding over the case partly granted Lululemon USA Inc. and Quantum Metric Inc.’s (QM) dismissal motion, thereby rejecting all but one of the shopper’s four counts. The court permitted the claim that Lululemon violated CIPA by abetting QM’s wiretapping to proceed on the grounds that disclosure of the use of QM’s software in Lululemon’s privacy policy was insufficient to render the plaintiff a consenting party.

In this week’s motion, the defendants argue that the plaintiff’s CIPA subsection claims fail because “a participant to a conversation cannot ‘eavesdrop’ on the conversation and therefore cannot violate CIPA § 631(a).” In the defendants’ estimation, QM simply recorded the plaintiff’s online shopping movements and existed as a mere extension of the retailer who hired it.

The motion also argues that Lululemon authorized QM to embed its session replay software on Lululemon’s website, therefore QM did not underhandedly tap or connect to any  “‘telegraph or telephone’ wires, lines, cables, or instruments,” as required by the wiretapping law. The plaintiff’s claim under CIPA § 631(a)(ii) fails, the defendants assert, because the revised pleading is no different from the first amended version the court previously found deficient.

Instead, the plaintiff only reiterates that QM’s platform captured various aspects of her shopping experience on Lululemon’s website, the filing says. Specifically, the motion recounts the allegations that QM recorded the plaintiff clicking on items of interest, clicking to obtain more information about certain items, and the checkout process, including user profile information. In support of this contention, the defendants point to the court’s July order and other decisions in similar cases finding that such information is not the “contents” of a communication for purposes of CIPA.

Finally, the filing alleges that the shopper’s common law claim fails, partly for failure to allege a privacy interest that was sufficient to state a constitutional claim, as the court previously identified. The defendants add that the plaintiff still has not pleaded a reasonable expectation of privacy in the information allegedly captured by QM’s platform.

The motion to dismiss hearing is scheduled for Oct. 29 before Judge John W. Holcomb.

The consumer is represented by Bursor & Fisher P.A. Lululemon is represented by DLA Piper and Quantum Metrics by Morrison & Foerster.