A Nov. 19-filed class action complaint alleges that defendants Lululemon USA, Inc. and Quantum Metric, Inc. (QM) illegally record Lululemon online shoppers’ electronic movements including their keystrokes, mouse clicks, and personally identifiable information. According to the filing, and similar to a complaint filed against another retailer last month, Lululemon utilizes QM’s software to spy on and “wiretap” visitors to the apparel company’s website in violation of the California Invasion of Privacy Act (CIPA) and the California Constitution.
The Central District of California complaint explains that QM is a marketing software-as-a-service (SaaS) company. One of its products is called Session Replay, which the plaintiff says allows retailers to “to pull up any user who ha[s] visited a website and watch their journey as if the company was standing over their shoulder.” The aforementioned similar suit, filed against Nike, Inc., and FullStory, Inc. also takes issue with similar software.
The instant complaint states that Lululemon enabled QM’s software by voluntarily embedding its code within the Lululemon website. In turn, the plaintiff contends that when she visited Lululemon’s online shop earlier his year, Session Replay “created a video capturing each of Plaintiff’s keystrokes and mouse clicks on the website.” It also reportedly captured the date, time, and length of her visit, her IP address and physical location, browser type, and the operating system on her device.
Further, the recording was non-consensual, the complaint alleges, because the plaintiff was never asked nor voluntarily agreed to have her online movements tracked by the defendants. The plaintiff contends that this is true for all putative class members and seeks to certify a class of “all persons whose electronic communications were intercepted through the use of Defendants’ wiretap on the Website.”
The plaintiff’s two CIPA claims seek “all relief available under Cal. Penal Code § 637.2, including injunctive relief and statutory damages of $5,000 per violation.” The plaintiff also brings an invasion of privacy claim under the California Constitution, and seeks compensatory and punitive damages, restitution, and the litigation fees and costs, among other requests.
The plaintiff’s counsel, Bursor & Fisher, P.A., also represents the litigant in the suit filed against Nike and FullStory.