Case 2:20-cv-09581 Document 1 Filed 10/19/20 Page 1 of 17 Page ID #:1
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`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`Joel D. Smith (State Bar No. 244902)
`1990 North California Boulevard, Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-Mail: ltfisher@bursor.com
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` jsmith@bursor.com
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`Attorneys for Plaintiff
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`BURHAAN SALEH, individually and on
`behalf of all others similarly situated,
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`Case No.
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`2:20-cv-9581
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`Plaintiff,
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`CLASS ACTION COMPLAINT
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`v.
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`NIKE, INC. and FULLSTORY, INC.,
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`Defendants.
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`JURY TRIAL DEMANDED
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`Case 2:20-cv-09581 Document 1 Filed 10/19/20 Page 2 of 17 Page ID #:2
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`Plaintiff Burhaan Saleh (“Plaintiff”), individually and on behalf of all others
`similarly situated, by and through his attorneys, makes the following allegations
`pursuant to the investigation of his counsel and based upon information and belief,
`except as to allegations specifically pertaining to himself and his counsel, which are
`based on personal knowledge.
`NATURE OF THE ACTION
`1.
`This is a class action suit brought against Defendants Nike, Inc.’s
`(“Nike”) and FullStory, Inc. (“FullStory”) (collectively, “Defendants”) for
`wiretapping the electronic communications of visitors to Defendant Nike’s website,
`Nike.com (the “Website”).1 The wiretaps, which are embedded in the computer code
`on the Website, are used by Defendants to secretly observe and record website
`visitors’ keystrokes, mouse clicks,2 and other electronic communications, including
`the entry of Personally Identifiable Information (“PII”), in real time. By doing so,
`Defendants have violated the California Invasion of Privacy Act (“CIPA”), Cal. Penal
`Code §§ 631 and 635, and invaded Plaintiff’s and Class Members’ privacy rights in
`violation of the California Constitution.
`2.
`In May 2020, Mr. Saleh visited the Website. During the visit,
`Defendants recorded Plaintiff’s electronic communications in real time, including
`Plaintiff’s mouse clicks, keystrokes, and payment card information.
`3.
`Plaintiff brings this action on behalf of himself and a class of all persons
`whose electronic communications were intercepted through the use of Defendants’
`wiretap on the Website.
`
`THE PARTIES
`4.
`Plaintiff Burhaan Saleh is a California resident who lives in Glendale,
`California. Mr. Saleh resides in Glendale and has an intent to remain there, and is
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`1 NIKE, https://www.nike.com/.
`2 As used herein, the term “mouse clicks” also refers to “touch gestures” such as the
`“tap,” “swipe,” and similar gestures used on touchscreen devices.
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`Case 2:20-cv-09581 Document 1 Filed 10/19/20 Page 3 of 17 Page ID #:3
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`therefore a domiciliary of California. In May 2020, prior to the filing of this lawsuit,
`Mr. Saleh visited the Website and purchased shoes from the Website. Mr. Saleh was
`in Glendale when he visited the website. During the visit, Mr. Saleh’s keystrokes,
`mouse clicks, and other electronic communications—including the entry of his
`payment card information—were intercepted in real time and were disclosed to
`Defendants Nike and FullStory through the wiretap. Mr. Saleh was unaware at the
`time that his keystrokes, mouse clicks, and other electronic communications,
`including the information described above, were being intercepted in real-time and
`would be disclosed to FullStory, nor did Mr. Saleh consent to the same.
`5.
`Defendant Nike, Inc. is a company incorporated under the laws of
`Oregon with its principal place of business at One Bowerman Drive, Beaverton,
`Oregon 97005.
`6.
`Nike does business throughout California and the entire United States.
`7.
`Nike owns and operates the Website.
`8.
`Defendant FullStory is a Delaware corporation with its principal place of
`business at 1745 Peachtree Street Northwest, Suite G, Atlanta, Georgia 30309.
`9.
`FullStory is a marketing software-as-a-service (“SaaS”) company.
`10. FullStory provides a feature called “Session Replay,” which is at issue
`here and described more fully below. At all relevant times here, Nike has used
`FullStory’s “Session Replay” product on the Website.
`JURISDICTION AND VENUE
`11. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §
`1332(d)(2)(A) because this case is a class action where the aggregate claims of all
`members of the proposed class are in excess of $5,000,000.00, exclusive of interest
`and costs, and at least one member of the proposed class is citizen of state different
`from at least one Defendant.
`12. This Court has personal jurisdiction over Defendants because each of the
`Defendants have purposefully availed themselves of the laws and benefits of doing
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`Case 2:20-cv-09581 Document 1 Filed 10/19/20 Page 4 of 17 Page ID #:4
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`I.
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`business in this State, and Plaintiff’s claims arise out of each of the Defendants’
`forum-related activities. Furthermore, a substantial portion of the events giving rise
`to Plaintiff’s claims occurred in this District.
`13. Pursuant to 28 U.S.C. § 1391, this Court is the proper venue for this
`action because a substantial part of the events, omissions, and acts giving rise to the
`claims herein occurred in this District.
`STATEMENT OF FACTS
`Overview Of The Wiretaps
`14. Defendant FullStory develops a software of the same name that provides
`marketing analytics.
`15. One of FullStory’s features is called “Session Replay,” which purports to
`help businesses improve their website design and customer experience.
`16. Session Replay provides a real-time recording of a user’s interactions on
`a website. FullStory says that “Session replay tools capture things like mouse
`movements, clicks, typing, scrolling, swiping, tapping, etc.”
`17. FullStory touts that Session Replay relies on real video of a user’s
`interactions with a website, or, in another words, a “recorded session.”3
`18. To demonstrate how Session Replay works, FullStory displays the
`“recorded session of a fictional user interacting with th[e] [Session Replay] Guide”:
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`3 https://www.fullstory.com/resources/the-definitive-guide-to-session-replay/.
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`Case 2:20-cv-09581 Document 1 Filed 10/19/20 Page 5 of 17 Page ID #:5
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`19. FullStory describes the above video as follows:
`Here you can watch a FullStory session replay of a user—
`Daniel Falko—flipping through The Definitive Guide to
`Session Replay. Notice how you can see interactions, mouse
`movements, clicks, interactions with overlays, and more—
`and everything is listed in order in a stream at the right side
`of the replay. This is what a session replay looks like in the
`FullStory app.4
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`20. FullStory’s promotional video shows the behind-the-scenes features of
`the software. First, FullStory lets you view a list of users who visited the website, as
`well as the time they spent on the website:
`//
`//
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`4 https://www.FullStory.com/resources/the-definitive-guide-to-session-
`replay/#finding-the-right-session-replay-tool (emphasis added).
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`Case 2:20-cv-09581 Document 1 Filed 10/19/20 Page 6 of 17 Page ID #:6
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`21. Upon clicking one of these “sessions,” FullStory lets a company view
`the video of a user’s interaction with a website, including mouse movements, clicks,
`interactions with overlays, keystrokes, geographic location, IP address, and more “to
`see the real customer experience behind the data”:
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`Case 2:20-cv-09581 Document 1 Filed 10/19/20 Page 7 of 17 Page ID #:7
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`22. FullStory instructs prospective partners that “[t]he first step toward
`recording all in-browser interactions and making them available for pixel-perfect
`playback is deploying FullStory’s recording JavaScript snippet. Simply paste the
`snippet into the <head> element via your Content Management System (CMS), via
`your online store platform, or via your application’s code.”
`23. This snippet of code allows Defendants to record the keystrokes, mouse
`clicks, data entry, and other electronic communications of visitors to websites where
`the code is installed. It also allows Defendants to track the amount of time spent on
`the website, geographic location of the visitor, and other information described
`above.
`24. FullStory records website users’ interactions locally in the user’s
`browser and transmits that information to FullStory’s recording servers. FullStory
`then makes the information available to its clients.
`25. FullStory not only records users’ electronic communications, but also
`can monitor them live. “For sessions that are actively recording and we are still
`receiving events from a user (meaning the last page in their session is still open),
`you'll see a ‘Go Live’ button at the end of the playback bar. Once you click on the
`button, you'll essentially be riding along in near real time with the user with no need
`to refresh the playback.”
`26. FullStory’s recording is not limited to desktop website, but also mobile
`websites and mobile applications.5
`27. Technology like FullStory’s Session Replay feature is not only highly
`intrusive, but dangerous. A 2017 study by Princeton University found that session
`recording technologies were collecting sensitive user information such as passwords
`and credit card numbers. The research notes that this wasn’t simply the result of a
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`5 https://www.fullstory.com/mobile-apps/.
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`Case 2:20-cv-09581 Document 1 Filed 10/19/20 Page 8 of 17 Page ID #:8
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`bug, but rather insecure practices. Thus, session recording technologies such as
`FullStory’s can leave users vulnerable to data leaks and the harm resulting therefrom.
`28. FullStory’s business model involves entering into voluntary partnerships
`with various companies and providing their software to their partners.
`29. One of FullStory’s partners is Defendant Nike.
`30. Nike utilizes FullStory’s software on the Website.
`31. Nike knows that FullStory’s software captures the keystrokes, mouse
`clicks and other communications of visitors to its website, and pays FullStory to
`supply that information.
`32. Pursuant to an agreement with FullStory, Nike enabled FullStory’s
`software by voluntarily embedding FullStory’s software code on the Website.
`33. As currently deployed, FullStory’s software, as employed by Nike,
`functions as a wiretap.
`II. Defendants Wiretapped Plaintiff’s Electronic Communications
`34.
`In May 2020, Mr. Saleh visited Nike.com and made a purchase.
`35. During that visit, and upon information and belief, the Session Replay
`feature in FullStory’s software created a video capturing each of Plaintiff’s
`keystrokes and mouse clicks on the website. The FullStory wiretap also captured the
`date and time of the visit, the duration of the visit, Plaintiff’s IP address, his location
`at the time of the visit, his browser type, and the operating system on his device.
`36. FullStory’s recording of keystrokes, mouse clicks, data entry, and other
`electronic communications begins the moment a user accesses or interacts with the
`Website.
`37. When users access the Website and make a purchase, they enter their
`PII. FullStory’s software captures these electronic communications throughout each
`step of the process.
`38. FullStory’s software captures, among other things:
`(a) The user’s mouse clicks;
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`Case 2:20-cv-09581 Document 1 Filed 10/19/20 Page 9 of 17 Page ID #:9
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`(b) The user’s keystrokes;
`(c) The user’s payment card information, including card number,
`expiration date, and CVV code;
`(d) The user’s IP address;
`(e) The user’s their location at the time of the visit; and
`(f) The user’s browser type and the operating system on their devices
`39. Crucially, Defendant Nike does not ask users, including Plaintiff,
`whether they consent to being wiretapped by FullStory. Users are never actively told
`that their electronic communications are being wiretapped by FullStory.
`40. Further, Privacy Policy is located at the very bottom of the Website’s
`home page with no notice directing users to the Privacy Policy, i.e. the hyperlink to
`the Privacy Policy functions as browsewrap. And even though users are presented
`with a hyperlink to Nike’s Privacy Policy until the checkout process, Nike began
`recording users long before this moment, i.e., any purported disclosure was made
`after the wiretap had already begun.
`41. Moreover, users are not on notice of the hyperlink to the Privacy Policy
`when they click the “Place Order” button.
`42. Therefore, users like Plaintiff never agree or are never given the option
`to agree to the Privacy Policy when using the Website, nor are they on notice of the
`Privacy Policy.
`43. Even if users do agree to the Privacy Policy by using the Website or
`otherwise—and they do not for the reasons stated above—Nike does not mention any
`aspect of FullStory or its Session Replay feature (such as that users will have their
`mouse clicks, keystrokes, and payment card information recorded in real time) in the
`Website’s Privacy Policy. As such, users do not agree to be wiretapped even if they
`agree to the Privacy Policy.
`44. Neither Plaintiff nor any Class member consented to being wiretapped
`on the Website, nor to have their communications recorded and shared with
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`Case 2:20-cv-09581 Document 1 Filed 10/19/20 Page 10 of 17 Page ID #:10
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`FullStory. Any purported consent that was obtained was ineffective because (i) the
`wiretapping began from the moment Plaintiff and Class members accessed the
`Website; (ii) the Privacy Policy did not disclose the wiretapping or FullStory; and
`(iii) the hyperlink to the Privacy Policy is inconspicuous and therefore insufficient to
`provide notice.
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`CLASS ACTION ALLEGATIONS
`45. Plaintiff seeks to represent a class of all California residents who visited
`the Website, and whose electronic communications were intercepted or recorded by
`FullStory. Plaintiff reserves the right to modify the class definition as appropriate
`based on further investigation and discovery obtained in the case.
`46. Members of the Class are so numerous that their individual joinder
`herein is impracticable. On information and belief, members of the Class number in
`the thousands. The precise number of Class members and their identities are
`unknown to Plaintiff at this time but may be determined through discovery. Class
`members may be notified of the pendency of this action by mail and/or publication
`through the distribution records of Defendants.
`47. Common questions of law and fact exist as to all Class members and
`predominate over questions affecting only individual Class members. Common legal
`and factual questions include, but are not limited to, whether Defendants have
`violated the California Invasion of Privacy Act (“CIPA”), Cal. Penal Code § 631 and
`invaded Plaintiff’s privacy rights in violation of the California Constitution; and
`whether class members are entitled to actual and/or statutory damages for the
`aforementioned violations.
`48. The claims of the named Plaintiff are typical of the claims of the Class
`because the named Plaintiff, like all other class members, visited the Website and had
`his electronic communications intercepted and disclosed to FullStory through the use
`of FullStory’s wiretaps.
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`49. Plaintiff is an adequate representative of the Class because his interests
`do not conflict with the interests of the Class members he seeks to represent, he has
`retained competent counsel experienced in prosecuting class actions, and he intends
`to prosecute this action vigorously. The interests of Class members will be fairly and
`adequately protected by Plaintiff and his counsel.
`50. The class mechanism is superior to other available means for the fair and
`efficient adjudication of the claims of Class members. Each individual Class member
`may lack the resources to undergo the burden and expense of individual prosecution
`of the complex and extensive litigation necessary to establish Defendants’ liability.
`Individualized litigation increases the delay and expense to all parties and multiplies
`the burden on the judicial system presented by the complex legal and factual issues of
`this case. Individualized litigation also presents a potential for inconsistent or
`contradictory judgments. In contrast, the class action device presents far fewer
`management difficulties and provides the benefits of single adjudication, economy of
`scale, and comprehensive supervision by a single court on the issue of Defendants’
`liability. Class treatment of the liability issues will ensure that all claims and
`claimants are before this Court for consistent adjudication of the liability issues.
`51. Plaintiff brings all claims in this action individually and on behalf of
`members of the Class against Defendants.
`COUNT I
`Violation Of The California Invasion Of Privacy Act,
`Cal. Penal Code § 631
`52. Plaintiff repeats the allegations contained in the foregoing paragraphs as
`if fully set forth herein.
`53. Plaintiff brings this claim individually and on behalf of the members of
`the proposed Class against Defendants.
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`Case 2:20-cv-09581 Document 1 Filed 10/19/20 Page 12 of 17 Page ID #:12
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`54. To establish liability under section 631(a), Plaintiff need only establish
`that Defendants, “by means of any machine, instrument, contrivance, or in any other
`manner,” did any of the following:
`Intentionally taps, or makes any unauthorized connection,
`whether physically, electrically, acoustically, inductively or
`otherwise, with any telegraph or telephone wire, line, cable,
`or instrument, including the wire, line, cable, or instrument
`of any internal telephonic communication system,
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`Or
`Willfully and without the consent of all parties to the
`communication, or in any unauthorized manner, reads or
`attempts to read or learn the contents or meaning of any
`message, report, or communication while the same is in
`transit or passing over any wire, line or cable or is being
`sent from or received at any place within this state,
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`Or
`Uses, or attempts to use, in any manner, or for any purpose,
`or to communicate in any way, any information so
`obtained,
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`Or
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`Aids, agrees with, employs, or conspires with any person or
`persons to unlawfully do, or permit, or cause to be done any
`of the acts or things mentioned above in this section.
`55. Section 631(a) is not limited to phone lines, but also applies to “new
`technologies” such as computers, the Internet, and email. See Matera v. Google Inc.,
`2016 WL 8200619, at *21 (N.D. Cal. Aug. 12, 2016) (CIPA applies to “new
`technologies” and must be construed broadly to effectuate its remedial purpose of
`protecting privacy); Bradley v. Google, Inc., 2006 WL 3798134, at *5-6 (N.D. Cal.
`Dec. 22, 2006) (CIPA governs “electronic communications”); In re Facebook, Inc.
`Internet Tracking Litigation, 956 F.3d 589 (9th Cir. 2020) (reversing dismissal of
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`CIPA and common law privacy claims based on Facebook’s collection of consumers’
`Internet browsing history).
`56. FullStory’s software, including its Session Replay feature, is a “machine,
`instrument, contrivance, or … other manner” used to engage in the prohibited
`conduct at issue here.
`57. At all relevant times, by using FullStory’s technology, Defendants
`intentionally tapped, electrically or otherwise, the lines of internet communication
`between Plaintiff and Class Members on the one hand, and Nike’s Website on the
`other hand.
`58. At all relevant times, by using FullStory’s technology, Defendants
`willfully and without the consent of all parties to the communication, or in any
`unauthorized manner, read or attempted to read or learn the contents or meaning of
`electronic communications of Plaintiff and putative Class Members, while the
`electronic communications were in transit or passing over any wire, line or cable or
`were being sent from or received at any place within California.
`59. Defendants aided, agreed with, and conspired with each other to
`implement FullStory’s technology and to accomplish the wrongful conduct at issue
`here. In addition, Nike employed FullStory to accomplish the wrongful conduct at
`issue here.
`60. Plaintiff and Class Members did not consent to any of Defendants’
`actions in implementing FullStory’s wiretaps on the Website. Nor have Plaintiff nor
`Class Members consented to Defendants’ intentional access, interception, reading,
`learning, recording, and collection of Plaintiff and Class Members’ electronic
`communications.
`61. The violation of section 631(a) constitutes an invasion of privacy
`sufficient to confer Article III standing.
`62. Unless enjoined, Defendants will continue to commit the illegal acts
`alleged here. Plaintiff continue to be at risk because he frequently uses the internet
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`for shopping. He continues to desire to use the internet for that purpose, including for
`the purpose of shopping for clothing. Defendant FullStory provides its software,
`including the Session Replay feature, to many other website operators who offer a
`wide array of services. For many websites that Plaintiff may or is likely to visit in the
`future, he has no practical way to know if his website communications will be
`monitored or recorded by FullStory.
`63. Plaintiff and Class Members seek all relief available under Cal. Penal
`Code § 637.2, including injunctive relief and statutory damages of $5,000 per
`violation.
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`COUNT II
`Violation Of The California Invasion Of Privacy Act,
`Cal. Penal Code § 635
`64. Plaintiff repeats the allegations contained in the foregoing paragraphs as
`if fully set forth herein.
`65. Plaintiff brings this claim individually and on behalf of the members of
`the proposed Class against Defendants.
`66. California Penal Code § 635 provides, in pertinent part:
`
`Every person who manufactures, assembles, sells, offers for
`sale, advertises for sale, possesses, transports, imports, or
`furnishes to another any device which is primarily or
`exclusively designed or intended for eavesdropping upon the
`communication of another, or any device which is primarily
`or exclusively designed or intended for the unauthorized
`interception or reception of communications between
`cellular radio telephones or between a cellular radio
`telephone and a landline telephone in violation of Section
`632.5, or communications between cordless telephones or
`between a cordless telephone and a landline telephone in
`violation of Section 632.6 , shall be punished by a fine not
`exceeding two thousand five hundred dollars.
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`67. At all relevant times, by implementing FullStory’s wiretaps, each
`Defendant intentionally manufactured, assembled, sold, offered for sale, advertised
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`for sale, possessed, transported, imported, and/or furnished a wiretap device that is
`primarily or exclusively designed or intended for eavesdropping upon the
`communication of another.
`68. FullStory’s code is a “device” that is “primarily or exclusively designed”
`for eavesdropping. That is, the FullStory’s code is designed to gather PII, including
`keystrokes, mouse clicks, and other electronic communications.
`69. Plaintiff and Class Members did not consent to any of Defendants’
`actions in implementing FullStory’s wiretaps.
`70. Plaintiff and Class Members seek all relief available under Cal. Penal
`Code § 637.2, including injunctive relief and statutory damages of $5,000 per
`violation.
`
`COUNT III
`Invasion Of Privacy Under California’s Constitution
`71. Plaintiff repeats the allegations contained in the foregoing paragraphs as
`if fully set forth herein.
`72. Plaintiff brings this claim individually and on behalf of the members of
`the proposed Class against Defendants.
`73. Plaintiff and Class Members have an interest in: (1) precluding the
`dissemination and/or misuse of their sensitive, confidential PII; and (2) making
`personal decisions and/or conducting personal activities without observation,
`intrusion or interference, including, but not limited to, the right to visit and interact
`with various Internet sites without being subjected to wiretaps without Plaintiff’s and
`Class Members’ knowledge or consent.
`74. At all relevant times, by implementing FullStory’s wiretaps on Nike’s
`Websites, each Defendant intentionally invaded Plaintiff’s and Class Members’
`privacy rights under the California Constitution, and procured the other Defendant to
`do so.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`75. Plaintiff and Class Members had a reasonable expectation that their PII
`and other data would remain confidential and that Defendants would not install
`wiretaps on the Website.
`76. Plaintiff and Class Members did not consent to any of Defendants’
`actions in implementing FullStory’s wiretaps on the Website.
`77. This invasion of privacy is serious in nature, scope and impact.
`78. This invasion of privacy alleged here constitutes an egregious breach of
`the social norms underlying the privacy right.
`79. Plaintiff and Class Members seek all relief available for invasion of
`privacy claims under California’s Constitution.
`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff, individually and on behalf of all others similarly
`situated, seeks judgment against Defendants, as follows:
`(a) For an order certifying the Class under Rule 23 and naming
`Plaintiff as the representative of the Class and Plaintiff’s
`attorneys as Class Counsel to represent the Class;
`(b) For an order declaring that the Defendants’ conduct violates the
`statutes referenced herein;
`(c) For an order finding in favor of Plaintiff and the Class on all
`counts asserted herein;
`(d) For compensatory, punitive, and statutory damages in amounts
`to be determined by the Court and/or jury;
`(e) For prejudgment interest on all amounts awarded;
`(f) For an order of restitution and all other forms of equitable
`monetary relief;
`(g) For injunctive relief as pleaded or as the Court may deem
`proper; and
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 2:20-cv-09581 Document 1 Filed 10/19/20 Page 17 of 17 Page ID #:17
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`(h) For an order awarding Plaintiff and the Class their reasonable
`attorneys’ fees and expenses and costs of suit.
`DEMAND FOR TRIAL BY JURY
`Pursuant to Federal Rules of Civil Procedure 38(b), Plaintiff demands a trial by
`jury of all issues so triable.
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`Dated: October 19, 2020
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`Respectfully submitted,
`
`BURSOR & FISHER, P.A.
`
`By: /s/ Joel D. Smith
` Joel D. Smith
`
`
`L. Timothy Fisher (State Bar No. 191626)
`Joel D. Smith (State Bar No. 244902)
`1990 North California Boulevard, Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-Mail: ltfisher@bursor.com
` jsmith@bursor.com
`
`Attorneys for Plaintiff
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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