Zillow and Microsoft Sued for Use of Session Replay

On Tuesday, Natalie Perkins and Kenneth Hasson (collectively, Plaintiffs) filed a putative class action against Zillow Group, Inc. and Microsoft Corporation (collectively, Defendants) in the Western District of Washington. Plaintiffs allege that Defendants violated the Washington Wiretapping Statute and Washington Common Law through the use of Session Replay Code on Zillow’s website. This technology allegedly allows Microsoft and other unidentified “Session Replay Providers” to “… create a video replay of the user’s behavior on the website and provide it to Zillow for analysis.”

The complaint notes that both Zillow and Microsoft are Washington corporations with their principle place of business in the state. Plaintiffs are allegedly citizens of South Carolina (Perkins) and Pennsylvania (Hasson).

Plaintiffs proposed class is comprised of “All natural persons in the United States and its territories whose Website Communications were captured through the use of Session Replay Code embedded in Zillow’s website.”

Under the Choice of Law section in the Complaint, Plaintiffs succinctly summarize the alleged wrongful conduct and the nexus of that conduct to the State of Washington: “The key wrongdoing at issue in this litigation (Zillow’s procurement of Microsoft and other Session Replay Providers to intercept Zillow’s website visitors’ Website Communications; Zillow’s intentional disclosure of the intercepted Website Communications of its website users; Zillow’s acquisition of the contents of its website users’ Website Communications without their consent; and Zillow’s and Microsoft’s violation of the Washington Wiretap Statute) emanated from Defendant’s respective headquarters located in Washington.”

Plaintiffs allege two causes of action: “Violation of the Washington Wiretapping Statute” and a Washington common law tort, “Invasion of Privacy – Intrusion Upon Seclusion.” Under the statute as quoted in the Complaint, “A person so injured [by a statutory violation] shall be entitled to actual damages, including mental pain and suffering … or liquidated damages computed at the rate of one hundred dollars a day for each day of violation, not to exceed one thousand dollars, and a reasonable attorney’s fee and other costs of litigation.” Under the common law theory, Plaintiffs allege that Defendants violated their “objective, reasonable expectation of privacy in their Website Communications.”

Plaintiffs seek declaratory and injunctive relief and “statutory, actual, compensatory, consequential, punitive and nominal damages,” as well as restitution and disgorgement of profits unlawfully obtained…” along with pre- and post-judgment interest and attorneys’ fees, costs and expenses.

The complaint lists four firms as Plaintiffs’ counsel: Tousley Brain Stephens PLLC, Scott+Scott Attorneys At Law LLP, Wood Law Firm, LLC, and Lynch Carpenter, LLP