Philadelphia Partner Sara Anderson Frey and San Diego Partners Miles Scully and Timothy Branson recently obtained federal and state court dismissals of a class action invasion of privacy lawsuit on behalf of a nationwide retailer. The lawsuit was one of several dozen filed across the country against numerous retailers.
The plaintiff first filed the class action suit in the United States District Court for the Eastern District of Pennsylvania alleging that the retailer’s use of spy pixels to record when consumers open and read promotional emails violated an Arizona telecommunications statute. The GRSM team filed a motion to dismiss in the federal action, arguing that the plaintiff lacked Article III standing because she had not alleged a concrete injury or, alternatively, that the complaint failed to state a claim under the Arizona statute.
In the first decided case asserting violations of the Arizona statute, the federal court dismissed the case, finding that the plaintiff lacked standing. The court held that digital records reflecting the dates and times the plaintiff opened promotional emails she signed up to receive and the length of time spent reading them were not sufficiently personal to support a concrete injury.
The plaintiff thereafter refiled her class action lawsuit in Pennsylvania state court, in the Philadelphia Court of Common Pleas. The GRSM team moved to dismiss the nearly identical state court complaint, again on grounds the plaintiff lacked standing under Pennsylvania law and that the Arizona statute did not apply to spy pixels. The state court dismissed the complaint, noting its agreement “with Defendant’s well-reasoned arguments” that the plaintiff did not assert the requisite concrete, particularized, and actual or imminent injury to confer standing in Pennsylvania’s court. The state court further agreed that the Arizona statute in question did not encompass the alleged activity.
This result underscores the capabilities of GRSM's multi-state Cyber, Privacy & Data Security team, which effectively represents clients navigating the complexities of privacy matters.