Lululemon & Quantum Metric’s Motion to Dismiss Wiretapping Suit Granted in Part

The Central District of California issued an order granting in part and denying in part a motion to dismiss filed by defendants Lululemon USA, Inc. and Quantum Metric, Inc. (QM) on Thursday in the wiretapping suit. This order is another step in an ongoing case filed by Mary Yoon on behalf of the putative class, where she alleged that QM illegally recorded her information on Lululemon’s website, asking for relief on four counts.

The defendants requested judicial notice for certain patents on QM’s Session Replay technology, and screenshots from both company’s websites pertaining to their privacy policies and FAQs. The plaintiff opposed this motion, but the court noted that she cited some of these items in her complaint and therefore granted the motion because “Yoon relies upon Quantum Metric’s alleged advertisements to explain how Session Reply works” and that the complaint “discusses those documents extensively.”

The court then moved on to the motion to dismiss alleged violations of the California Invasion of Privacy Act (CIPA) and California Penal Code Section 631. The court decided that “the disclosure in Lululemon’s Privacy Policy of Quantum Metric’s presence does not constitute consent on Yoon’s part.” Yoon’s first claim for relief was affirmed since she sufficiently contended that “QM captures, stores, and interprets her real-time data.” Yoon successfully claimed that Lululemon abetted QM in alleged wiretapping for a violation of Penal Code Section 631. However, the information that QM intercepted does not constitute “content,” thus not stating a claim for a CIPA violation, according to the order. Therefore, the court granted in part and dismissed in part the defendants’ motion to dismiss Yoon’s first claim for relief.

Next, the Central District of California jointly considered whether to dismiss Yoon’s claims of violations of CIPA and the Federal Wiretap Act, since “those two statutes are analogous.” According to the court, because the Federal Wiretap Act provides a cause of action if the defendant’s action “consists of an intercept, disclosure, or intentional use of a communication,” Yoon has no ground to sue QM “merely for its manufacture, assembly, sale, or advertising of Session Replay” and therefore dismisses the fourth claim for relief. Also, the CIPA claim was dismissed by the court because plaintiff Yoon did not have a “private right to action to enforce CIPA against Quantum Metric” for the same reasoning.  

For the final claim for relief for invasion of privacy, Yoon did not “allege facts to suggest that Defendants track her data outside of the Lululemon website,” according to the court. The court noted that “autonomy privacy protects bodily autonomy; courts have not extended the concept to data autonomy.” Therefore, the court found that Yoon did not allege a privacy interest that was sufficient to state a constitutional claim of privacy invasion.

The court partially dismissed the plaintiff’s first claim for relief, and wholly dismissed the second, third and fourth claims.

The plaintiff is represented by Bursor & Fisher P.A. Lululemon is represented by DLA Piper, and Quantum Metrics by Morrison & Foerster.