Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 1 of 20 Page ID #:461
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`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`MARY YOON, individually and on
`behalf of all others similarly situated,
`Plaintiff,
`
`v.
`LULULEMON USA, INC. and
`QUANTUM METRIC, INC.,
`Defendants.
`
`Case No. 5:20-cv-02439-JWH-SHKx
`
`ORDER GRANTING-IN-PART
`AND DENYING-IN-PART
`DEFENDANTS’ MOTION TO
`DISMISS [ECF No. 23]
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 2 of 20 Page ID #:462
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`Before the Court is the motion of Defendants Lululemon USA, Inc. and
`Quantum Metric, Inc. to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules
`of Civil Procedure.1 The Court finds this matter appropriate for resolution
`without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the
`papers filed in support and in opposition,2 the Court orders that the Motion is
`GRANTED IN PART and DENIED IN PART, as set forth herein.
`I. BACKGROUND
`Yoon alleges the following facts in her Amended Complaint, which the
`Court assumes to be true for the purposes of the instant Motion. See, e.g., Cahill
`v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996) (on motion to dismiss
`for failure to state a claim, “[a] allegations of material fact are taken as true and
`construed in the light most favorable to the nonmoving party”).
`Yoon is a resident of Corona, California.3 Lululemon is a Nevada
`corporation that does business in California, including through a website;
`Quantum Metric is a Delaware corporation.4 Yoon visited and made a purchase
`from Lululemon’s website in April 2020.5
`Lululemon uses Quantum Metric software called “Session Replay” to
`captures a customer’s interactions with Lululemon’s webpage, including mouse
`movements, clicks, keystrokes, scrolls, and pageviews.6 Quantum Metric
`markets this software as allowing a company “‘to pull up any user who had
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`1
`Defs.’ Joint Mot. to Dismiss (the “Motion”) [ECF No. 23]; Req. for
`Judicial Notice (the “RJN”) [ECF No. 24].
`2
`The Court considered the following papers: (1) Pl.’s First Am. Compl.
`(the “Amended Complaint”) [ECF No. 20]; (2) the Motion; (3) Pl.’s Opp’n to
`the Motion (the “Opposition”) [ECF No. 25]; and (4) Defs.’ Reply in Support
`of the Motion (the “Reply”) [ECF No. 28].
`3
`Amended Complaint ¶ 4.
`Id. ¶¶ 5-8.
`Id. ¶ 4.
`Id. ¶¶ 10 & 18.
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 3 of 20 Page ID #:463
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`visited [a] website and watch their journey as if [the company] was standing over
`their shoulder’” and “‘[s]ee actual customer interactions.’” Quantum Metric
`has obtained patent protection for its Session Replay technology, which
`Quantum Metric touts as giving companies “‘real-time visibility into all
`behavioral, technical, and segment data.’”7 The monitoring that Quantum
`Metric’s technology provides extends beyond the computer “cookies” with
`which ordinary consumers are familiar.8 One 2017 study found that products
`similar to Session Replay collected users’ passwords and credit card numbers.9
`Lululemon is aware of this monitoring.10
`
`When Yoon visited Lululemon’s website, Session Replay captured her
`keystrokes and clicks; pages viewed; shipping and billing information; date,
`time, and duration of visit; IP address and physical location; and browser type
`and operating system.11 Quantum Metric then supplies that information back to
`Lululemon.12 The home page and checkout page of Lululemon’s website
`contain links to a Privacy Policy in size 7.5 non-contrasting font.13 Lululemon
`did not ask Yoon to agree to the Privacy Policy; rather, Lululemon instructed
`Yoon that she could “learn more” about the Privacy Policy when she placed her
`order.14
`
`Yoon seeks to represent a class of similarly situated consumers;
`certification of that class is not currently before the Court.15 The Amended
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`7
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`Id. ¶¶ 18, 28, & 20.
`Id. ¶ 35.
`Id. ¶¶ 35 & 36.
`Id. ¶¶ 41 & 42.
`Id. ¶ 46.
`Id. ¶ 26.
`Id. ¶¶ 55 & 56.
`Id. ¶¶ 56 & 57.
`Id. ¶¶ 63-71.
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 4 of 20 Page ID #:464
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`Complaint asserts the following four claims for relief against both Defendants:
`(1) violation of Cal. Penal Code § 631; (2) violation of Cal. Penal Code § 635;
`(3) invasion of privacy under California’s Constitution; and (4) violation of 18
`U.S.C. § 2512.16 Defendants’ Motion now stands submitted.
`II. LEGAL STANDARD
`Under Rule 12(b)(6), a party may make a motion to dismiss for failure to
`
`state a claim upon which relief can be granted. Rule 12(b)(6) must be read in
`conjunction with Rule 8(a), which requires a “short and plain statement of the
`claim showing that a pleader is entitled to relief,” in order to give the defendant
`“fair notice of what the claim is and the grounds upon which it rests.” Bell
`Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Horosny v. Burlington
`Coat Factory, Inc., 2015 WL 12532178, at *3 (C.D. Cal. Oct. 26, 2015). When
`evaluating a Rule 12(b)(6) motion, a court must accept all material allegations in
`the complaint—as well as any reasonable inferences to be drawn from them—as
`true and must construe them in the light most favorable to the non-moving
`party. See, e.g., Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005).
`“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
`detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of
`his ‘entitlement to relief’ requires more than labels and conclusions, and a
`formulaic recitation of the elements of a cause of action will not do.” Twombly,
`550 U.S. at 555 (citations omitted). Rather, the allegations in the complaint
`“must be enough to raise a right to relief above the speculative level.” Id.
`
`Although the scope of review on a Rule 12(b)(6) motion to dismiss is
`limited to the contents of the complaint, the Court may consider certain
`materials, such as documents attached to the complaint, documents
`incorporated by reference in the complaint, or matters of judicial notice. United
`
`16
`
`
`See generally Amended Complaint.
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 5 of 20 Page ID #:465
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`A.
`
`States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003). Under the incorporation
`by reference doctrine, the Court may consider documents not attached to the
`pleading if: (1) those documents are referenced extensively in the complaint or
`form the basis of the plaintiff's claim; and (2) no party questions their
`authenticity. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
`Generally, “a district court should grant leave to amend even if no request
`to amend the pleading was made, unless it determines that the pleading could
`not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d
`1122, 1127 (9th Cir. 2000) (en banc) (internal quotations omitted).
`III. DISCUSSION
`Request for Judicial Notice
`“A court shall take judicial notice if requested by a party and supplied
`with the necessary information.” Fed. R. Evid. 201(d). An adjudicative fact
`may be judicially noticed if it is “not subject to reasonable dispute in that it is
`either (1) generally known within the territorial jurisdiction of the trial court, or
`(2) capable of accurate and ready determination by resort to sources whose
`accuracy cannot reasonably be questioned.” Id.
`Defendants request that the Court take notice of the following
`documents:
`
`U.S. Patent No. 10,656,984 (the “Session Replay Patent I”) [ECF
`No. 24, Ex. A];
`Screenshots of the “Frequently Asked Questions” and “Data Privacy and
`Security” sections of Quantum Metric’s website, captured on
`October 30, 2020, by the Wayback Machine (“QM Website
`Screenshots”) [ECF No. 24, Ex. B];
`U.S. Patent No. 10,146,752 (the “Session Replay Patent II”) [ECF
`No. 24, Ex. C];
`
`
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 6 of 20 Page ID #:466
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`
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`
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`
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`Screenshot of Lululemon’s website’s Privacy Policy captured on April 19,
`2020, by the Wayback Machine (the “Lululemon Privacy Policy”) [ECF
`No. 24, Ex. D];
`Screenshot of the Lululemon website captured on February 8, 2021 (the
`“Lululemon Website Screenshot”) [ECF No. 24, Ex. E]; and
`Screenshot of an October 18, 2018, blog post on Quantum Metric’s
`website captured on March 24, 2021 (the “Blog Post”) [ECF No. 24,
`Ex. F].
`Yoon opposes the RJN in its entirety.17 The Court considers each individual
`request below.
`
`Yoon opposes judicial notice of the Session Replay Patents I and II,
`arguing that they are “irrelevant.”18 This seems unlikely, as Yoon quoted from
`the Patents in her Amended Complaint. The Court may therefore take judicial
`notice of the Patents either (1) under the incorporation-by-reference doctrine; or
`(2) because they are relevant and capable of accurate determination. The Court
`GRANTS the RJN with respect to the Session Replay Patents.
`
`Defendants request judicial notice of the QM Website Screenshots
`because their contents are alleged in the Amended Complaint.19 Yoon opposes
`judicial notice, arguing that the contents of the QM Website were not included
`in the Amended Complaint.20 Defendants are correct: the Amended Complaint
`references Quantum Metric’s website.21 Indeed, the Amended Complaint does
`not merely mention the website; it extensively discusses the ways in which
`
`
`17
`Opposition at 33:5-35:18.
`18
`Id. at 34:25.
`19
`RJN at 3:26-4:10.
`20
`Opposition at 34:27-35:4.
`21
`Amended Complaint ¶ 20 (citing ECF No. 19 at 34 (screenshots of
`Quantum Metric’s website, attached to Defs.’ Req. for Judicial Notice [ECF
`No. 19] attached to prior moot Mot. to Dismiss [ECF No. 18; see ECF No. 22]).)
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 7 of 20 Page ID #:467
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`Quantum Metric advertises Session Replay.22 In this section of the Amended
`Complaint, Yoon relies upon Quantum Metric’s alleged advertisements to
`explain how Session Reply works. The Court therefore GRANTS the RJN with
`respect to the QM Website Screenshots. The Court additionally GRANTS the
`RJN with respect to the Lululemon Privacy Policy and the Lululemon Website
`Screenshot because the Amended Complaint also discusses those documents
`extensively.23 Because the Court does not consider the Blog Post, it DENIES
`the RJN with respect to that document.
`B. Motion to Dismiss
`1.
`First Claim for Relief: Violation of California Invasion of
`Privacy Act § 631
`California Invasion of Privacy Act (“CIPA”), Cal. Penal Code § 631,
`
`reads as follows:
`(a) Any person who, by means of any machine, instrument, or
`contrivance, or in any other manner,
`[i] 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, or
`[ii] who willfully and without the consent of all parties to the
`communication, or in any unauthorized manner, reads, or attempts
`to read, or to learn the contents or meaning of any message, report,
`
`
`22
`Amended Complaint ¶¶ 18-26.
`23
`Yoon’s cited case, Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988 (9th
`Cir. 2018), is inapposite. See Opposition at 33:11-33:19 (citing Khoja). That case
`discussed when “documents not mentioned in the complaint” can be
`incorporated by reference “in SEC fraud matters, where there is already a
`heightened pleading standard, and the defendants possess materials to which the
`plaintiffs do not yet have access.” Khoja, 899 F.3d at 1003, 998.
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 8 of 20 Page ID #:468
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`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; or
`[iii] who uses, or attempts to use, in any manner, or for any purpose,
`or to communicate in any way, any information so obtained, or
`[iv] who 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,
`is punishable by a fine . . . .
`Cal. Penal Code § 631(a) (line breaks and subdivisions added for ease of
`reference). Courts agree, and the parties do not contest, that CIPA § 631(a)
`applies to communications conducted over the internet. See Matera v. Google
`Inc., 2016 WL 8200619, at *21 (N.D. Cal. Aug. 12, 2016) (collecting cases).
`Yoon alleges that Quantum Metric violated § 631(a)[i] and [ii] and that
`Lululemon violated § 631(a)[iv].24
`
`Before the Court analyzes the components of § 631(a)[i] and § 631(a)[ii]
`individually, it must address the so-called “participant exception.” Courts
`agree that § 631(a)[i] and [ii] apply only to third parties and not to participants.
`Powell v. Union Pac. R. Co., 864 F. Supp. 2d 949, 955 (E.D. Cal. 2012) (collecting
`cases). Separating participants from third parties, however, is not as
`straightforward as one might hope. Quantum Metric contends that Yoon agreed
`to its presence in the conversation because it was “conspicuously disclosed in
`numerous parts of Lululemon’s Privacy Policy.”25 Furthermore, Quantum
`Metric maintains that even absent Yoon’s consent, Quantum Metric was a
`participant in the conversation because “Lululemon voluntarily and
`
`
`24
`Amended Complaint ¶¶ 77, 78, & 80.
`25 Motion at 9:5-9.
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 9 of 20 Page ID #:469
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`intentionally embedded Quantum’s script” in its website, and, so, Quantum
`Metric acted “on Lululemon’s behalf.”26 Therefore, the argument goes,
`Quantum Metric was a participant, not a third party.
`The disclosure in Lululemon’s Privacy Policy of Quantum Metric’s
`presence does not constitute consent on Yoon’s part. The Lululemon Privacy
`Policy reads, in part:
`We share personal data with unaffiliated companies or individuals
`we hire or work with that perform services on our behalf, including
`. . . information technology . . . . We only share with service
`providers the personal data that they need to perform services for us
`. . . . We may allow others to provide analytics services and serve
`advertisements on our behalf across the web and in mobile
`applications. These entities may use cookies, web beacons, device
`identifiers, and other
`tracking
`technologies which collect
`information about your use of the Services and other websites and
`applications. This information may be used by lululemon27 and
`others to, among other things, analyze and track data, determine the
`popularity of certain content, deliver advertising and content
`targeted to your interest on our Services and other websites, and
`better understand your online activity.28
`The Ninth Circuit has held, however, that such privacy policies do not bind
`users: “where a website makes its terms of use available via a conspicuous
`hyperlink on every page of the website but otherwise provides no notice to users
`nor prompts them to take any affirmative action to demonstrate assent, even
`
`26 Motion at 8:3-11.
`27
`“Lululemon” is stylized “lululemon”—e e cummings-like—in the
`Privacy Policy.
`28
`Lululemon Privacy Policy at 3, 5.
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 10 of 20 Page ID #:470
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`close proximity of the hyperlink to relevant buttons users must click on—
`without more—is insufficient to give rise to constructive notice.” Nguyen v.
`Barnes & Noble Inc., 763 F.3d 1171, 1178–79 (9th Cir. 2014). For the purposes of
`Rule 12(b)(6), then, Yoon has sufficiently alleged that she did not consent to
`Quantum Metric’s participation in the conversation.
`
`Quantum Metric additionally contends, however, that it was a participant
`even without Yoon’s consent, because it stood in the shoes of Lululemon. At
`least one federal district court in California has disagreed with Quantum
`Metric’s argument: “[I]t cannot be that anyone who receives a direct signal
`escapes liability by becoming a party to the communication. Someone who
`presses up against a door to listen to a conversation is no less an eavesdropper
`just because the sound waves from the next room reach his ears directly.”
`Revitch v. New Moosejaw, LLC, 2019 WL 5485330, at *2 (N.D. Cal. Oct. 23,
`2019). However, in a case nearly identical to the instant case, a different
`Northern District of California court found that a defendant that provided
`tracking services was a participant in the conversation for the purposes of
`§ 631(a) because that defendant merely stored, but did not otherwise use or
`resell, the user’s data, unlike the Moosejaw defendant. See Graham v. Noom, Inc.,
`2021 WL 1312765, at *6 (N.D. Cal. Apr. 8, 2021). The Graham court reasoned
`that the tracking defendant provided a tool, much like a tape recorder, and
`therefore was a participant in the conversation, not an eavesdropper. Id. at *5.
`
`The question thus becomes, in analogue terms: is Quantum Metric a tape
`recorder held by Lululemon, or is it an eavesdropper standing outside the door?
`This is a question of fact for a jury, best answered after discovery into the
`storage mechanics of Session Replay. For the purposes of the instant Motion,
`Yoon’s first claim for relief survives Quantum Metric’s participant exception
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 11 of 20 Page ID #:471
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`challenge because she alleges that QM captures, stores, and interprets her real-
`time data—which extends beyond the ordinary function of a tape recorder.29
`
`Quantum Metric does not otherwise challenge Yoon’s § 631(a)[i] claim.
`However, it contends that her § 631(a)[ii] claim should be dismissed because
`Session Replay does not collect the “contents” of Yoon’s communications and
`because Session Replay does not collect communications “in transit.”30
`
`Section 631(a)[ii] penalizes a person who “reads, or attempts to read, or
`to learn the contents or meaning of any message, report, or communication
`. . . .” (emphasis added). The Ninth Circuit has held that the “contents” of an
`online communication under federal wiretap law “refers to the intended
`message conveyed by the communication, and does not include record
`information regarding the characteristics of the message that is generated in the
`course of the communication.” In re Zynga Priv. Litig., 750 F.3d 1098, 1106 (9th
`Cir. 2014) (contents transmitted by Facebook.com did not include a user’s
`Facebook ID and browsing history when automatically gathered, but it could
`include messages that stated that information).31
`
`
`29
`Quantum Metric briefly suggests that it should be considered an extension
`of Lululemon under the California Consumer Privacy Act of 2018,
`Cal. Civ. Code § 1798.140, but it offers no authority to suggest that the
`Consumer Privacy Act rewrote CIPA in that way. Motion at 8:12-9:4.
`30 Motion at 11:1-13:5, 13:6-15:12.
`31
`Yoon argues that the Ninth Circuit recently enlarged the definition of
`“contents” in In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589 (9th Cir.
`2020), cert. denied sub nom. Facebook, Inc. v. Davis, No. 20-727, 2021 WL
`1072289 (U.S. Mar. 22, 2021). Not so: the Ninth Circuit explicitly stated that it
`analyzed only the participant exception to CIPA, not the other elements of the
`statute. Id. at 608. That court did determine that “a full-string detailed URL,
`which contains the name of a website, folder and sub-folders on the web-server,
`and the name of the precise file requested” carries the same expectation of
`privacy as a message for standing purposes, but it did not clarify whether that
`holding enlarges the definition of “contents” in wiretapping statutes. Id. at 605.
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 12 of 20 Page ID #:472
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`The parties do not dispute that this definition of “content” applies to
`
`CIPA § 631(a)[ii] claims.32 Numerous federal courts have applied this definition
`in this context. See, e.g., Brodsky v. Apple Inc., 445 F. Supp. 3d 110, 127
`(N.D. Cal. 2020) (text messages are content, but “user names, passwords, and
`geographic location information are not”); In re Vizio, Inc., Consumer Priv. Litig.,
`2017 WL 11420284, at *6 (C.D. Cal. July 25, 2017) (“‘samples’ of the actual
`content displayed on a consumer’s screen” are message content because
`“[w]hen watching a program through a connected device or streaming service,
`the ‘intended message conveyed by the communication’ is the program that the
`consumer is watching”) (citing Zynga, 750 F.3d at 1106); In re Carrier IQ, Inc.,
`78 F. Supp. 3d 1051, 1083 (N.D. Cal. 2015) (intercepted text messages and
`URLs containing search terms constitute content, but user names and
`passwords do not, even when transmitted together to allow another to gain
`access); In re Yahoo Mail Litig., 7 F. Supp. 3d 1016, 1034 (N.D. Cal. 2014)
`(“email content” is content for wiretapping statutes, but “name, address, email
`address or phone number” are not); In re Nickelodeon Consumer Priv. Litig., 2014
`WL 3012873, at *15 (D.N.J. July 2, 2014) (“IP addresses and URLs” are not
`content); McCoy v. Alphabet, Inc., 2021 WL 405816, at *14 (N.D. Cal. Feb. 2,
`2021) (“data on when and how often an Android Smartphone user opens and
`runs non-Google apps and the amount of time spent on the apps” is not
`content). Taken together, this body of caselaw suggests that CIPA § 631(a)[ii]
`protects only the internal, user-generated material of a message, not routine
`identifiers, whether automatically generated or not.
`
`Yoon alleges that Quantum Metric recorded her “keystrokes, mouse
`clicks, pages viewed, and shipping and billing information . . . [and] the date and
`time of the visit, the duration of the visit, Plaintiff’s IP address, her location at
`
`
`32
`“The analysis for a violation of CIPA is the same as that under the federal
`Wiretap Act.” Brodsky v. Apple Inc., 445 F. Supp. 3d 110, 127 (N.D. Cal. 2020).
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 13 of 20 Page ID #:473
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`the time of the visit, her browser type, and the operating system on her
`device.”33 None of these pieces of data constitutes message content in the same
`way that the words of a text message or an email do. Thus, because she has not
`alleged that Quantum Metric intercepted “content,” Yoon’s Amended
`Complaint as currently pleaded does not state a claim for violation of CIPA
`§ 631(a)[ii].
`The final portion of Yoon’s CIPA § 631(a) claim to consider is her
`allegation that Lululemon violated § 631(a)[iv] by abetting Quantum Metric’s
`alleged wiretapping. Courts disagree over whether conversation participants can
`be liable under § 631(a)[iv] for aiding in wiretapping if they allow a third party to
`access the communication. Compare Moosejaw, 2019 WL 5485330, at *2
`(conversation participants may be liable for conspiracy because § 631 “was
`designed to protect a person placing or receiving a call from a situation where
`the person on the other end of the line permits an outsider to tap his telephone
`or listen in on the call”) (citing Ribas v. Clark, 38 Cal. 3d 355, 363 (1985)) with
`Powell v. Union Pac. R. Co., 864 F. Supp. 2d 949, 955 (E.D. Cal. 2012)
`(conversation participants may not be liable for conspiracy to eavesdrop because
`a party may record its own conversation) (collecting cases). This Court agrees
`with the court’s reasoning in Moosejaw: a conversationalist is betrayed equally by
`a wiretapper and by the willing conversation participant who surreptitiously
`allows that third party to wiretap. Yoon has therefore stated a claim against
`Lululemon for violation of § 631(a)[iv].
`The Court GRANTS-IN-PART the Motion as summarized above,
`
`DISMISSES the portion of Yoon’s Amended Complaint that alleges that
`Quantum Metric “willfully and without the consent of all parties to the
`communication, or in any unauthorized manner, read[], or attempt[ed] to read[],
`
`33
`
`Amended Complaint ¶ 46.
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 14 of 20 Page ID #:474
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`or to learn the contents or meaning of any message, report, or
`communication,”34 and otherwise DENIES the Motion with respect to Yoon’s
`first claim for relief.35
`2.
`Second and Fourth Claims for Relief: Violations of CIPA § 635
`and Federal Wiretap Act, 18 U.S.C. § 2512
`In her second and fourth claims for relief, Yoon alleges that both
`
`Defendants violated CIPA § 635 and the Federal Wiretap Act, 18 U.S.C. § 2512,
`respectively.36 Defendants contend that there is no private right of action for
`violations of either statute.37 Because those two statutes are analogous, the
`Court considers them together. For clarity, the Court discusses the federal
`statute first.
`
`a.
`Federal Statute
`Section 2512(1) of the Federal Wiretap Act provides for a fine or
`
`imprisonment of “any person who intentionally . . . (b) manufactures,
`assembles, possesses, or sells any electronic, mechanical, or other device,
`
`
`34
`Amended Complaint ¶¶ 74 & 78.
`35
`Defendants contend that Yoon’s “§ 631 claim rests on the allegation that
`Defendants[] surreptitiously recorded her interactions with Lululemon’s
`website.” Motion at 15:13-21:10 (emphasis in original). However, in making
`that argument, Defendants cite only to her fourth claim for relief for violation of
`the Federal Wiretap Act. Id. (citing Amended Complaint ¶¶ 105 & 108). The
`Court therefore understands Defendants’ contention to be connected to the
`fourth claim for relief, not the first. Because the Court grants the Motion with
`respect to the fourth claim for relief on other grounds, it need not engage in this
`question here. Defendants later contend that because there is “nothing
`surreptitious about their actions,” Yoon has no § 631 claim. Motion at 19:4-5.
`The word “surreptitious” appears in the federal statute but not in CIPA § 631.
`The standard for CIPA § 631 is not whether a wiretapper’s actions were
`“surreptitious.” Rather, as discussed above, the inquiry focuses upon consent.
`And, under controlling Ninth Circuit law, Yoon did not consent to the Privacy
`Policy on the first page of Lululemon’s website. The Court therefore DENIES
`Defendants’ Motion without prejudice with respect to their arguments
`pertaining to the Privacy Policy.
`36
`Amended Complaint ¶¶ 85-92, 102-111.
`37 Motion at 22:7-23:20. The Court need not reach Defendants’ other
`arguments concerning the Second and Fourth claims for relief.
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 15 of 20 Page ID #:475
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`knowing or having reason to know that the design of such device renders it
`primarily useful for the purpose of the surreptitious interception of wire, oral, or
`electronic communications . . . .” 18 U.S.C. § 2512(1). If Session Replay is a
`device that surreptitiously intercepted Yoon’s communications, then Yoon
`adequately alleges facts to support a claim that Quantum Metric “manufactures,
`assembles, possesses, or sells” devices used to intercept her communications
`with Lululemon. However, there are no facts in the Amended Complaint to
`support a claim that Lululemon manufactured, assembled, possessed, or sold
`Session Replay; rather, the gravamen of Yoon’s lawsuit is that Quantum Metric
`possessed Session Replay and thereby possessed Yoon’s data.
`However, Yoon’s 18 U.S.C. § 2512(1) claim against Quantum Metric
`does not necessarily stand. By its plain terms, § 2512(1) of the Wiretap Act does
`not provide for a private right of action. That procedural vehicle is found in
`§ 2520(a) of the Wiretap Act: “any person whose wire, oral, or electronic
`communication is intercepted, disclosed, or intentionally used in violation of this
`chapter may in a civil action recover from the person or entity . . . which engaged
`in that violation . . . .” 18 U.S.C. § 2520(a). Defendants argue that § 2512(1) of
`the Wiretap Act criminalizes the manufacturing, assembly, sale, or
`advertisement of wiretap technology, while § 2520(a) is a civil vehicle available
`only to people injured by the interception, disclosure, or use of wiretapped
`communications; § 2520(a) does not provide a private right of action for
`violations of § 2512(1).
`The Ninth Circuit has not considered whether § 2520(a) of the Wiretap
`Act provides a private right of action for § 2512(1). However, the three circuit
`courts that have considered the question have all concluded that Ҥ 2520
`provides a cause of action against only those defendants whose violation of the
`Wiretap Act consists of an intercept, disclosure, or intentional use of a
`communication.” Luis v. Zang, 833 F.3d 619, 636 (6th Cir. 2016) (emphasis
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 16 of 20 Page ID #:476
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`added) (citing DirecTV, Inc. v. Treworgy, 373 F.3d 1124, 1127 (11th Cir. 2004);
`DIRECTV Inc. v. Robson, 420 F.3d 532, 539 & n.31 (5th Cir. 2005)). Thus, a
`private citizen such as Yoon cannot sue Quantum Metric merely for its
`manufacture, assembly, sale, or advertising of Session Replay. Quantum Metric
`contends that Yoon’s fourth claim for relief ends here.
`The Sixth Circuit in Luis, however, found that § 2520(a) of the Wiretap
`
`Act may support a § 2512(1) claim against a defendant “when that defendant
`also plays an active role in the use of the relevant device to intercept, disclose, or
`intentionally use a plaintiff’s electronic communications.” Luis, 833 F.3d at
`637. Javier Luis, the plaintiff in that case, alleged that his female friend’s
`husband installed a software program called WebWatcher on her computer that
`intercepted Mr. Luis’s communications to his female friend. WebWatcher then
`forwarded copies of Mr. Luis’s emails to a server run by the defendant, the
`technology company that had manufactured WebWatcher. Id. at 623-24. The
`Sixth Circuit held that because the defendant had continuously operated the
`device that intercepted Mr. Luis’s communications, Mr. Luis could assert a
`§ 2512(1) claim through § 2520(a) of the Wiretap Act.
`
`Yoon urges us to apply the same logic in the instant case. That analysis,
`however, strains the language of § 2520(a) and § 2512(1) too far.
`Section 2512(1) provides for fines or imprisonment; it is therefore a criminal
`statute. Section 2520(a) provides a civil right of action for persons whose
`communications are “intercepted, disclosed, or intentionally used in violation of
`this chapter.” But the “manufacturing, assembly, possession, or sale” activities
`that are criminalized in § 2512(1) are distinct from “interception, disclosure, or
`use” activities. Moreover, § 2520(a) allows recovery “from the person or entity
`. . . which engaged in that violation . . .”—“that violation” referring to
`“interception, disclosure, or use.” The two provisions speak past each other;
`one criminalizes the manufacturing of wiretap technology, while the other allows
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`Case 5:20-cv-02439-JWH-SHK Document 31 Filed 07/15/21 Page 17 of 20 Page ID #:477
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`for private civil lawsuits stemming from the use o