After removing a lawsuit brought against it in Pennsylvania state court under the Wiretapping and Electronic Surveillance Control Act (“WESCA”) to the United States District Court for the Eastern District of Pennsylvania, Prime Hydration LLC argued in its motion to dismiss that the plaintiff lacked Article III standing.  Judge Nitza I. Quiñones Alejandro agreed and remanded the case to state court.  Heaven v. Prime Hydration LLC, 2025 WL 42964, at *7 (E.D. Pa. Jan. 7, 2025).

Plaintiff Shantay Heaven filed a putative class action in the Philadelphia Court of Common Pleas asserting that Prime Hydration allowed third parties to track the activity of visitors to Prime Hydration’s website.  Id. at *1.  Plaintiff asserted that Prime Hydration integrated the third-party pixels into its website.  Id. at *2.  Those two pieces of code, Plaintiff alleged, allowed Prime Hydration to capture “her searches for drink flavors, . . . and that this information was transmitted to” the third-party servers.  Id. at *6.

This case provides two important insights.  First, in holding that Plaintiff lacked Article III standing, Judge Quiñones Alejandro reasoned that “the information allegedly collected by the Defendant . . . is not the type of private information that, when disclosed, creates a harm sufficient to establish standing.”  Id. at *7.  Second, after concluding that Plaintiff lacked standing, Judge Quiñones Alejandro remanded the case to state court and denied Prime Hydration’s motion to dismiss as moot.

Lack of Article III Standing.  Judge Quiñones Alejandro held that Plaintiff’s alleged injury was not sufficiently concrete to confer standing.  The court relied principally upon Cook v. GameStop, Inc., 689 F. Supp. 3d 58 (W.D. Pa. 2023) and In re BPS Direct, LLC, 705 F. Supp. 3d 333 (E.D. Pa. 2023).  In Cook, Judge Quiñones Alejandro explained, “the plaintiff brought claims under the WESCA . . . premised on the defendant’s alleged tracking of her interactions, such as her mouse movements, clicks, keystrokes, and the URLs of the webpages she visited.”  Prime Hydration, 2025 WL 42964, at *5.  The Cook court held that the plaintiff lacked standing because the type of information tracked “was not the kind of information historically protected.”  Id. (citing Cook, 689 F. Supp. 3d at 65).  Similarly, in BPS Direct, the court held that website users who “‘did not disclose highly sensitive personal information such as medical diagnosis information or financial data from banks or credit cards cannot establish concrete harm.’”  Prime Hydration, 2025 WL 42964, at *5 (quoting BPS Direct, 705 F. Supp. 3d at 355).

Applying Cook and BPS Direct, Judge Quiñones Alejandro explained that “Plaintiff’s drink flavor searches more closely resemble a shopper entering a brick-and-mortar store and walking through the drink aisle—information that would not create a harm if disclosed.”  Prime Hydration, 2025 WL 42964, at *6.

Remand to State Court.  After deciding that Plaintiff lacked Article III standing, Judge Quiñones Alejandro decided that remand, rather than dismissal, was the appropriate remedy.  Judge Quiñones Alejandro cited first to 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”).  Second, Judge Quiñones Alejandro cited to Collier v. SP Plus Corporation, where the Seventh Circuit rejected the argument that once a defendant removes an action, “the slate is wiped clean and the defendant can challenge jurisdiction.”  889 F.3d 894, 896 (7th Cir. 2018).  The Cook and BPS Direct decisions are pending on appeal in the Third Circuit, which may provide additional insight into the types of alleged privacy harms sufficient to confer standing.  See Cook v. Gamestop, Inc., 23-2574 (3d Cir. 2023); see also In re: BPS Direct LLC, et al, 23-3235 (3d Cir. 2023).