Hunton Retail Law Resource

On May 9, 2024, the First Circuit became the first federal appellate court to address whether national retail websites’ use of session replay code creates specific personal jurisdiction for wiretapping claims allowing website users to hale retailers into court in any state where they visited these websites. The First Circuit concluded that it does not. It held that a website user failed to demonstrate that Ohio-based Bloomingdales.com intentionally targeted its website and its accompanying use of session replay software at users in Massachusetts and, therefore, failed to establish specific personal jurisdiction over Bloomingdales.com for alleged violations of the Massachusetts Wiretapping Act and Massachusetts Invasion of Privacy Statute. Rosenthal v. Bloomingdales.com, LLC, No. 23-1683, 2024 WL 2074685 (1st Cir. May 9, 2024). 

In recent years, consumers filed a spate of class actions claiming that retailers misrepresented the retail price on discounted goods to mislead consumers into thinking they were obtaining a bargain. Many of those cases settled or were dismissed for lack of injury because plaintiffs failed to allege that the purchased item was deficient in an objectively identifiable way.

Earlier this month, a Pennsylvania federal judge held that users of Bass Pro Shops’ and Cabela’s websites lacked Article III standing to sue the retailers for use of “session replay” software, where the users failed to allege that the software captured their personal information, such as financial data or medical diagnosis information.  In Re: BPS Direct, LLC, and Cabela's, LLC, Wiretapping, No. 2:23-md-03074 (E.D. Pa. Dec. 5, 2023).  

A year ago, the United States Supreme Court held in Spokeo, Inc. v. Robins that a plaintiff must do more than plead a mere statutory procedural violation to establish standing; to plead an injury in fact, a plaintiff also must allege a harm that is both “concrete” and “particularized.” Two recent decisions by the U.S. Court of Appeals for the Eleventh Circuit—one involving a rare written dissent from the denial of a petition for rehearing en banc—demonstrate the continuing difficulties courts are facing in determining what constitutes a concrete injury under Spokeo. They suggest that the Eleventh Circuit is most likely to find standing for violations of statutes that are intended to protect personal privacy or create a right to information, although judges do not always agree as to which statutes fall within these categories.