Another federal district court has dismissed a putative class action complaint asserting that an online retailer’s chat feature violated the users’ privacy under the California Invasion of Privacy Act (“CIPA”), Cal. Penal Code §§ 630 et seq.  See Garcia v. Build.com, Inc., Case No. 22-cv-1985-DMS-KSC (S.D. Cal. Mar. 29, 2024), ECF 37. 

The plaintiff allegedly visited the website of Build.com, “an online home improvement retailer,” using a smartphone and had a chat conversation through the website’s chat feature, in which she claims to have disclosed personally identifiable information.  According to the plaintiff, Build.com allowed third-party service providers to embed a “chat technology code” and “secretly intercept in real time, eavesdrop upon, and store transcripts of consumers’ chat communications.”  After the initial complaint was dismissed for failing to state claim, the plaintiff filed an amended complaint reasserting her sole surviving claim that Build.com “secretly allow[ed], aid[ed], and abet[ted]” third-party service providers to intercept and eavesdrop on the plaintiff’s chat conversation, in violation of CIPA, § 631.

The court dismissed the amended complaint for two reasons.  First, despite now definitively naming the third-party service providers that allegedly eavesdropped on the plaintiff’s chats, the amended allegations remained conclusory and failed to plausibly allege the existence of a third-party eavesdropper.  Second, the amended complaint failed to plausibly allege that the third-party committed any predicate violation that Build.com aided and abetted.  For instance, following the reasoning in Valenzuela v. Keurig Green Mountain, Inc. et al., __ F. Supp. 3d __, No. 22-CV-9042-JSC, 2023 WL 3707181, at *2 (N.D. Cal. May 24, 2023), a case this blog has covered previously, the Court concluded that CIPA did not apply to the online chats at issue here.  Further, the Court found that the plaintiff failed to plausibly allege that the third-party service provider had the “capability” to use the chat data for its own benefit.

Tags: Data Privacy, Litigation, privacy, technology
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Ellen Choi Ellen Choi

Ellen Choi is a member of the firm’s Litigation and Investigations Practice Group. She represents clients in complex commercial disputes involving a range of issues such as business torts, consumer protection, and insurance recovery. Ellen also has experience in a range of internal…

Ellen Choi is a member of the firm’s Litigation and Investigations Practice Group. She represents clients in complex commercial disputes involving a range of issues such as business torts, consumer protection, and insurance recovery. Ellen also has experience in a range of internal investigations, including workplace culture investigations. Ellen maintains an active pro bono practice.

Ellen is fluent in Korean and has experience advising Korean companies in litigation and investigation matters.

Prior to joining Covington, Ellen clerked for Judge Philip S. Gutierrez, U.S. District Court, Central District of California. Ellen was a management consultant in the pharmaceutical and biotech space before practicing law.

Read more about Ellen ChoiEmail
Show more Show less