Duane Morris Privacy Class Action Review – 2024

Without a clear theory and supporting facts, the court concluded that the plaintiff ’ s claim was insufficient and granted the defendant ’ s motion to dismiss. In Mollaei, et al. v. Otonomo Inc., 2023 U.S. Dist. LEXIS 141719 (N.D. Cal. Jan. 18, 2023), the plaintiff, a California citizen and driver of a 2020 BMW X3, filed a class action alleging a single claim under § 637.7 of the California Penal Code. The plaintiff asserted that the defendant, a Delaware corporation with its principal place of business in Israel, was a data broker that partnered with car manufacturers, including BMW, to collect GPS location data from electronic devices in their cars, thereby tracking drivers’ locations in real-time. The case was subsequently removed to federal court based on diversity jurisdiction. The defendant filed a motion to dismiss pursuant to Rule 12(b)(6), and the court granted the motion. The defendant argued that the plaintiff failed to allege that the telematics control unit (TCU), the component in question, was an “electronic tracking device” “attached to a vehicle” as required by § 637.7. Id. at *6-7. The court found persuasive the argument that § 637.7 applied to separate devices physically attached to vehicles by wrongdoers and not built-in components. The court found that the TCU is integral to the vehicle and is not removable by the plaintiff, so it is not considered an “electronic tracking device” as defined in the statute. Id. at *8-9. The defendant also contended that the plaintiff failed to allege that it tracked the location of a person, but only the location of vehicles. The court noted that the statute explicitly prohibits tracking the location of a person, not a vehicle. Accordingly, the court opined that since the plaintiff failed to allege that defendant associated location information with the identity of a person, he failed to plausibly plead a violation of § 637.7. Finally, the defendant argued that the plaintiff failed to allege that he did not consent to the tracking because the plaintiff ’ s complaint did not explicitly state that he did not provide consent for tracking by BMW. The court agreed that lack of consent is an element of the statute, and that the plaintiff needed to allege that he did not consent to being tracked by both the defendant and BMW. For these reasons, the court granted the defendant ’ s motion to dismiss. In Gray, et al. v. Amazon.com, Inc., 2023 U.S. Dist. LEXIS 76484 (W.D. Wash. May 2, 2023), the plaintiffs filed a class action against the defendant asserting various claims arising from the alleged use of voice data collected through its Alexa digital assistant software that runs on various devices sold by Amazon and Amazon partners. The plaintiffs asserted claims for: (i) breach of the implied covenant of good faith and fair dealing; (ii) violation of Washington ’ s Consumer Protection Act; (iii) intrusion upon seclusion; and (iv) infringement of personality rights in violation of Washington ’ s Personality Rights Act (PRA). The court found that Amazon ’ s disclosures adequately informed customers that their information would be collected and may be used to provide interest-based advertisements. For these reasons, the court dismissed the complaint. The plaintiffs thereafter sought to amend the complaint to add the disclosures that were in effect at the time they bought their devices, which they alleged did not sufficiently identify Amazon ’ s practices. Id. at *3. The plaintiffs asserted that Amazon ’ s omissions regarding its use of the voice recordings, and the information contained in or derived from the voice recordings, caused them injury because they overpaid for the products they purchased. Id. The court denied the motion to amend. The court ruled that the plaintiffs merely repeated the same arguments previously advanced and which it already rejected. The court determined that the plaintiffs failed to point to any material differences between the language of the older terms and the terms interpreted in the court ’ s first decision. The court ruled that the amended complaint failed to allege that the plaintiffs viewed, heard, or were aware of alleged deceptive public statements at the time they purchased their devices. For these reasons, the court denied the plaintiffs’ motion to amend. In Straubmuller, et al. v. Jetblue Airways Corp., 2023 U.S. Dist. LEXIS 155704 (D. Md. Sept. 1, 2023), the plaintiff filed a class action alleging that the defendant ’ s website violated users’ privacy rights under the Maryland Website and Electronic Surveillance Act (MWESA). Finding that the named plaintiff lacked Article III standing to bring the lawsuit, the court relied upon the lack of any allegations in the complaint that any of the plaintiff ’ s personal information was captured by the alleged use of a session replay code. As a result, the court concluded that the plaintiff ’ s complaint lacked any allegation of a concrete harm necessary to bestow standing by virtue of suffering an injury-in-fact. The plaintiff specifically asserted that the defendant ’ s website used a “session replay code,” which allowed the defendant to track users’ electronic

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