Lululemon, Quantum Metric Seek to Dismiss “Wiretapping” Suit

On Monday in the Central District of California, Lululemon and Quantum Metric filed a motion to dismiss a consumer’s class-action complaint alleging that the companies illegally recorded online shoppers’ keystrokes, clicks, and other identifying information. In response, the defendants asserted that the plaintiff’s claims brought under the California Invasion of Privacy Act (CIPA) and invasion of privacy under the California Constitution should be dismissed.

The defendants asserted that this lawsuit is “one of twenty-four almost identical lawsuits filed by Plaintiff’s counsel (Bursor & Fisher) seeking to criminalize the use of ubiquitous web analytics tools. All of these cases (including one against Nike and FullStory) assert the same statutory and common law claims for invasion of privacy, based on the novel theory that the routine use of these tools constitutes an illegal ‘wiretap.’”

The defendants noted that Lululemon “uses the web analytics tool at issue (a script embedded in its website) to understand and improve its website’s functionality.” For example, the defendants said Lululemon uses Quantum’s Session Play technology, thus allowing it to “reconstruct( ) certain aspects of a visitor’s time on Lululemon’s website to allow Lululemon, for example, to diagnose and correct any errors the visitor encounters.” Moreover, the defendants argue that any personally identifying information captured via the technology “is pseudonymized and encrypted field by field before leaving the user’s device…so there is no way for Quantum to tie a particular ‘session’ to a particular visitor by reviewing the collected data.”

The defendants proffered that the plaintiff’s CIPA claims should be dismissed because the plaintiff failed to state a claim, arguing that they “fit within the well-established party exception to CIPA” because both of the defendants “were parties to the alleged ‘communication.’” Additionally, the defendants asserted that the plaintiff failed to plausibly allege that “the ‘contents’ of her ‘communication’ were intercepted at all, let alone intercepted ‘in transit.’”

Lululemon contended that in its Privacy Policy it discloses that it uses services like Quantum and that it “collects certain aspects of a customer’s visit to its website.” As a result, the defendants averred the plaintiff agreed to the capture and collection of this information. The defendants also claim that there is no private right of action and that if the plaintiff could bring forth a claim, she lacks Article III standing. Finally, the defendants note that Quantum’s platform and technology is used for “marketing analytics,” so it “does not constitute a ‘device’ primarily or exclusively designed for eavesdropping.”

The defendants averred that the plaintiff’s invasion of privacy claim fails because the plaintiff failed to plausibly allege that Lululemon’s use of Quantum’s technology “meets the ‘high bar’ required to state a claim for invasion of privacy under the California Constitution.” In particular, the defendants argued that the plaintiff was notified that the defendants were collecting this information, “which she voluntarily provided when she decided to make a purchase on Lululemon’s website.” According to the defendants, the plaintiff does not have a legally protected privacy interest in the suit and the plaintiff does not demonstrate a reasonable expectation of privacy.

Quantum Metric is represented by Morrison & Foerster. Lululemon is represented by DLA Piper.