Plaintiffs’ lawyers have continued to bring privacy claims targeting businesses that use vendors to help provide beneficial chat features on their website, as we last reported here.  Late last year, a Southern District of California judge dismissed another set of privacy claims challenging the routine use of these vendor services by Tonal, a popular smart home gym company named as the sole defendant in the lawsuit.  Jones v. Tonal Systems, Inc., 751 F. Supp. 3d 1025 (S.D. Cal. 2024).

Plaintiff Julie Jones, a California resident, claimed that she had visited Tonal’s website and used its chat feature to communicate with a Tonal customer service representative.  This chat feature allegedly incorporated an API run by another company to create and store transcripts of website visitors’ chats with Tonal’s customer service representatives.  According to the complaint, this alleged conduct constituted wiretapping, which Tonal purportedly aided and abetted in violation of Sections 631 and 632.7 of the California Invasion of Privacy Act (“CIPA”).  Plaintiff also asserted other privacy claims based on the same alleged conduct, including the California Unfair Competition Law (“UCL”) and the California Constitution’s right to privacy provision.

The Court granted Tonal’s motion to dismiss each of plaintiff’s claims on multiple grounds.

  • California Invasion of Privacy (CIPA) Claims.  The Court held that the party exemption barred liability under CIPA Section 631, because plaintiff “alleges no facts in support of ‘aiding and abetting’ other than the existence of a third-party vendor.”  In this context, a plaintiff must allege that the vendor “has the capability of using the chat data for its own purposes and benefits,” and the Court concluded that plaintiff’s complaint “only supports the inference that [the vendor] receives and stores communications for the benefit of its client, Tonal.”  As to CIPA section 632.7(a), the Court joined “the overwhelming majority of California district courts, which have held that CIPA section 632.7 does not encompass web-based messages sent from the internet browser of a smartphone.”
  • Unfair Competition Law (UCL) Claim.  The Court dismissed the UCL claim because the plaintiff failed to plead a “loss of money or property” required to confer statutory standing.  Plaintiff claimed that she was economically injured because her “chat feature conversation transcripts and information” could be used “for Defendant’s and third parties’ financial benefit.”  However, in the Ninth Circuit, the Court reasoned, courts “have not extrapolated from the fact that a user’s data has economic value to someone that its collection constitutes an economic loss to the user.”
  • Constitutional Invasion of Privacy Claim.  The Court dismissed the invasion of privacy claim because the plaintiff’s conclusory “allegations lack[ed] the requisite specificity to indicate the existence of a legally protected privacy interest or a sufficiently serious breach thereof.”  It was not sufficient for the plaintiff to “only allude[] to the possibility that chat feature conversations could be ‘private and deeply personal,’” or to cite a study that did not address the content of the chat feature conversations at issue in the case. Ultimately, “[t]here [was] no supporting allegation that Plaintiff’s engagement with the Drift chat feature conversations produced or transferred content likely to be embarrassing,” and the plaintiff’s “allegations fail to allege an egregious breach of social norms.”
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Photo of Erin Moore Erin Moore

Erin Moore is an associate in the firm’s Los Angeles office. Her practice focuses on commercial litigation with an emphasis on the media and entertainment industries. She additionally maintains an active pro bono practice, involving matters ranging from adoptions to trademark counseling for…

Erin Moore is an associate in the firm’s Los Angeles office. Her practice focuses on commercial litigation with an emphasis on the media and entertainment industries. She additionally maintains an active pro bono practice, involving matters ranging from adoptions to trademark counseling for small businesses.

Prior to attending law school, Erin worked in arts administration and management at leading non-profit performing arts organizations across the United States and internationally. She brings this depth of experience in advocating for arts and media organizations to her work for her clients.

Photo of Matthew Verdin Matthew Verdin

Matthew Verdin focuses on defending clients in the technology and financial services sectors. He has a strong record of delivering wins on behalf of clients in class actions and complex litigation, particularly in privacy and consumer protection lawsuits. Matthew is particularly successful in…

Matthew Verdin focuses on defending clients in the technology and financial services sectors. He has a strong record of delivering wins on behalf of clients in class actions and complex litigation, particularly in privacy and consumer protection lawsuits. Matthew is particularly successful in securing dismissals at the pleadings stage. For example, he won dismissal at the pleadings stage of over a dozen wiretapping class actions involving the alleged use of website analytics tools to collect data about users’ website visits. He also advises companies on managing litigation risk under federal and state wiretapping laws.

Matthew is also dedicated to pro bono legal services. Recently, he helped a domestic violence survivor win a case in the California Court of Appeal. Matthew’s oral argument led to the court ordering renewal of his client’s restraining order just one day later.