Duane Morris Privacy Class Action Review – 2024

that the VPPA defines a consumer as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” Id. at *14. The court examined the plaintiffs’ claims and determined that they did not plausibly allege themselves as subscribers to the video content offered by the defendant. The plaintiffs claimed that they created accounts on the defendant ’ s website, but the court found that merely creating an account was insufficient to qualify as a subscriber because they did not pay, make any commitment, or exchange anything of value for the creation of the account. Further the court determined that the plaintiffs did not sufficiently demonstrate that their account creation or newsletter subscriptions were directly connected to their ability to access video content on the website because their accounts did not enhance or affect their viewing experience, and there were no requirements to have an account to access videos. Finally, the court opined that the plaintiffs did not provide detailed allegations about how their accounts or newsletter subscriptions related to video content or if their subscriptions were essential to watching videos on the website. Accordingly, the court concluded that the plaintiffs were not subscribers Another fiercely litigated issue in privacy class actions involves jurisdictional disputes. Defendants across the country were able to defeat many class actions without having to argue the merits of the underlying privacy statute. Instead, these entities defeated privacy claims by arguing that the courts lacked jurisdiction over them. For instance, in Alves, et al. v. Goodyear Tire & Rubber Co., 2023 U.S. Dist. LEXIS 127323 (D. Mass. July 24, 2023), the plaintiff filed a class action alleging that the defendant ’ s use of Session Replay Code technology on its website, www.goodyear.com, violated Massachusetts privacy laws. The defendant filed a motion to dismiss for lack of personal jurisdiction, arguing that the plaintiff failed to demonstrate that his claims were sufficiently related to Massachusetts, and that the defendant did not purposefully avail itself of conducting activities in the state. The court granted the defendant ’ s motion to dismiss for lack of personal jurisdiction. The plaintiff argued that the tortious injury occurred in Massachusetts, but the court found that the proper question was whether the defendant ’ s conduct connected it to the forum in a meaningful way, not just where the plaintiff experienced the alleged injury. The court also reasoned that the defendant ’ s intentional activities related to the dispute, including the operation of the website, the licensing of Session Replay Code technology, and gathering user data, all of which took place outside of Massachusetts. The court ruled that the plaintiff ’ s access of the website from the forum stated was not sufficient to establish personal jurisdiction. Accordingly, the court granted the defendant ’ s motion to dismiss. under the VPPA, and granted the defendant ’ s motion to dismiss. 7. Jurisdictional Issues In Privacy Class Action Rulings In Byars, et al. v. Hot Topic, Inc., 2023 U.S. Dist. LEXIS 24985 (C.D. Cal. Feb. 14, 2023), the plaintiff, a customer, filed a class action alleging that the defendant violated the California Invasion of Privacy Act (CIPA), pursuant to California Penal Code, by storing conversations recorded from its online chat feature without users’ consent and allowed a third-party vendor, SalesForce, to intercept the chat transcripts for data analytics. The court raised the issue of subject-matter jurisdiction sua sponte and found that the plaintiff failed to meet her burden to establish it. Further, turning to the merits of the claims, the court determined that the plaintiff failed to state a claim for either cause of action. The court noted that the plaintiff and her counsel had filed over 50 similar class actions, and that the complaint itself is a cookie- cutter recitation of many of the other lawsuits. The court next explained that the plaintiff failed to establish subject-matter jurisdiction under the CAFA because she did not disclose the number of class members, and only provided a vague and conclusory number of “thousands, if not more.” Id. at *13. The court further explained that the plaintiff made virtually no attempt to adhere to plausibility pleading standards and thus failed to meet her burden to allege subject-matter jurisdiction in good faith. The court ruled that if a plaintiff could simply make a broad, conclusory allegation that, upon information and belief there were over 1,000 class members because California is a large state, then virtually any proposed class of Californian citizens would always meet the amount-in-controversy requirement. Id. at *15. The court found that the plaintiff failed to meet her burden to establish subject-matter jurisdiction.

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