Duane Morris Privacy Class Action Review – 2024

The court also opined that the plaintiff alleged eavesdropping, but did not plead anywhere “near the specificity of the (deficient) showing in Williams” and “appears to know nothing about the role that the third- party vendor plays, because she does not even know what it is, let alone how it works.” Id. at *30. The court also dismissed the plaintiffs’ § 632.7 claim without leave to amend, finding that the claim only applying to eavesdropping with two telephones, which was not one of the allegations in the complaint. For these reasons, the court reasoned that the claim was foreclosed by the plain language of the statute itself, and subject to dismissal. In Cook, et al. v. GameStop, Inc ., 2023 U.S. Dist. LEXIS 150953 (W.D. Penn. Aug. 28, 2023), the plaintiff filed a class action alleging that the defendant used Session Replay Code to record her online interactions on their website, including mouse movements, clicks, keystrokes, and other data, in violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act and constituted a common law intrusion upon seclusion. The defendant moved to dismiss the complaint for lack of standing and failure to state a claim. The court granted the motion. The court found that the plaintiff lacked Article III standing because she had not suffered a concrete harm. The court rejected the plaintiff ’ s argument that the mere act of recording her online activity constituted an invasion of privacy, on the grounds that the U.S. Supreme Court has clarified that a statutory violation alone does not confer standing. Additionally, the court determined that even if the plaintiff had standing, she failed to plead sufficient facts to support her claims under the Wiretap Act or for a viable claim for intrusion upon seclusion. The court concluded that the plaintiff ’ s allegations lacked necessary details, and the information intercepted did not constitute the content of communications. Therefore, the court granted the defendant ’ s motion to dismiss. In Schnur, et al. v. Papa John’s International, Inc., 2023 U.S. Dist. LEXIS 150947 (W.D. Penn. Aug. 28, 2023), the plaintiff filed a class action lawsuit against Papa John ’ s, alleging violations of the Pennsylvania Wiretap Act and intrusion upon seclusion under common law. The plaintiff alleged that Papa John ’ s used third-party software called Session Replay Code on its website to record users’ interactions with the site, including mouse movements, clicks, keystrokes, and text input. The plaintiff asserted that his privacy rights were violated when his interactions with the Papa John ’ s website were recorded without his consent. Papa John ’ s moved to dismiss the lawsuit on two grounds, including lack of personal jurisdiction and failure to state a claim under the Pennsylvania Wiretap Act and intrusion upon seclusion. The court found that it lacked personal jurisdiction over Papa John ’ s and granted the motion to dismiss on that basis. The court explained that personal jurisdiction depends on the defendant ’ s contacts with the forum state and whether the plaintiff ’ s claims arose from those contacts. The court ruled that the plaintiff failed to establish that Papa John ’ s had sufficient minimum contacts with Pennsylvania to justify personal jurisdiction. Specifically, the court ruled that Papa John ’ s did not expressly aim its website at Pennsylvania and that the mere presence of brick-and-mortar stores in the state was not relevant to establishing personal jurisdiction in a case related to digital eavesdropping. The court also concluded that personal jurisdiction could not be established because the plaintiff ’ s claims did not relate to Papa John ’ s contacts with Pennsylvania but instead focused on the use of Session Replay Code on the website. The court thereby dismissed the complaint for lack of personal jurisdiction. Dinerstein, et al. v. Google, LLC, 73 F.4th 502 (7th Cir. 2023), is another privacy class action ruling that addresses significant procedural issues that came with privacy-related litigation. Dinerstein arose out of a collaboration between Google and the University of Chicago that aims to harness the power of artificial intelligence to develop software capable of anticipating patients’ future healthcare needs. As part of that collaboration, the University of Chicago delivered several years of anonymized patient medical records to Google, which included the plaintiff ’ s medical records. The collaboration agreement forbade Google from attempting to identify any individual patient whose records were disclosed. The plaintiff filed a class action alleging that the disclosure of records was a breach of either an express or an implied contract, a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, and that Google tortuously interfered with the patients’ contracts with the University of Chicago. He also asserted a claim for unjust enrichment. The district court granted the defendant ’ s motion to dismiss.

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