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Over a hundred cases are pending from the wave of privacy class actions that commenced last year alleging violations of state wiretap statutes based on use of website session replay, chatbot and pixel technologies.
- Plaintiffs' firms are continuing to file new cases based on chatbot and pixel tech despite an increasing number of dismissals while also trying new approaches focused on email marketing tech and identity graphing.
There are now over a hundred cases pending from the wave of privacy class actions that commenced last year alleging violations of state wiretap statutes based on use of website session replay, chatbot and pixel technologies. The plaintiffs' bar was emboldened to take another run at these privacy "gotcha" lawsuits focusing on common website tools after two circuit court decisions from 2022 - Javier v. Assurance IQ, LLC from the Ninth Circuit and Popa v.
Dismissals of Website Technology CIPA Cases
Although the Ninth Circuit made clear that consent obtained after a user has already begun interacting with a website will not hold water as prior consent under CIPA,
Despite the failure of many of these cases on 12(b)(6) motions, we are continuing to see new cases being filed on an almost daily basis under CIPA focused on chatbots and pixel technologies, as several plaintiffs' firms have been taking an assembly-line approach to filing these cases, reducing in some cases their effort in customizing each complaint to no more than changing the name of the defendant and the website URL.
These wiretap cases follow the common playbook of plaintiffs' counsel with privacy class actions - testing to see whether they can dust off pre-digital age laws and persuade courts that these laws should apply to modern technologies never contemplated when the laws were enacted. Fortunately for the companies targeted in these cases, despite the Ninth and Third Circuit decisions, many of the cases that have reached the 12(b)(6) decision stage are failing, and an increasing number of plaintiffs are choosing to abandon cases even after being granted leave to amend. But not to be deterred, plaintiffs' firms are continuing to file new cases almost daily based on chatbots and pixel tracking while also trying out new approaches based on email marketing tech and identity graphing, undoubtedly hoping this shift will better position them to parry the defenses being raised.
Hedging Their Bets: New Theories Emerge
With so many of these website tech wiretap cases dying on the vine, new theories are emerging that could lead to a possibly more troublesome branch of these complaints. In mid-September, a plaintiffs' firm filed a complaint against
This focus on email marketing tracking appears to be picking up steam as two new cases, Mills v.
In addition to shifting the focus to email marketing tracking, the effort by plaintiff's lawyers to keep the wiretap case train chugging along now also includes another tech angle. In mid-November, a complaint was filed against
Although the plaintiffs' bar's latest case theories targeting email marketing analytics and identity resolution technologies should be subject to existing defenses, they are nonetheless developments to keep in mind and proactively prepare against. We recommend organizations conduct a review of these technologies used by their teams and the vendor agreements for that tech. In addition to ensuring that vendors are not permitted to use user data for their own purposes, there are a variety of approaches organizations can consider to mitigate the risk of being caught up in what could prove to be a fresh round of wiretap complaints, many of which are dependent upon the types of technologies in play and the compliance tools and processes an organization is currently deploying.
If your organization needs assistance assessing its risk posture with respect to this new case theory and potential mitigation steps, please reach out to our
Privacy Class Action Spotlight: Latest Wave Of Wiretap Class Actions Continues Despite Dismissals As Plaintiffs Try New Approaches
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