Case 5:20-cv-02439 Document 1 Filed 11/19/20 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
` jsmith@bursor.com
`Attorneys for Plaintiff
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`MARY YOON, individually and on behalf
`of all others similarly situated,
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`Case No.
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`5:20-cv-2439
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`Plaintiff,
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`v.
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`CLASS ACTION COMPLAINT
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`LULULEMON USA INC. and QUANTUM
`METRIC, INC.,
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`JURY TRIAL DEMANDED
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`Defendants.
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`Case 5:20-cv-02439 Document 1 Filed 11/19/20 Page 2 of 17 Page ID #:2
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`Plaintiff Mary Yoon (“Plaintiff”), individually and on behalf of all others
`similarly situated, by and through her attorneys, makes the following allegations
`pursuant to the investigation of her counsel and based upon information and belief,
`except as to allegations specifically pertaining to herself and her counsel, which are
`based on personal knowledge.
`NATURE OF THE ACTION
`1.
`This is a class action suit brought against Defendants Lululemon USA,
`Inc. (“Lululemon”) and Quantum Metric, Inc. (“QM”) (collectively, “Defendants”)
`for wiretapping the electronic communications of visitors to Defendant Lululemon’s
`website, Lululemon.com (the “Website”). 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,1 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 or about April 2020, Ms. Yoon 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 herself and a class of all persons
`whose electronic communications were intercepted through the use of Defendants’
`wiretap on the Website.
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`THE PARTIES
`4.
`Plaintiff Mary Yoon is a resident of Corona, California and has an intent
`to remain there, and is therefore a domiciliary of California. In or about April 2020,
`prior to the filing of this lawsuit, Ms. Yoon visited the Website and made a purchase.
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`1 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 5:20-cv-02439 Document 1 Filed 11/19/20 Page 3 of 17 Page ID #:3
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`Ms. Yoon was in Corona when she visited the website. During the visit, Ms. Yoon’s
`keystrokes, mouse clicks, and other electronic communications—including the entry
`of her payment card information—were intercepted in real time and were disclosed to
`Defendants Lululemon and QM through the wiretap. Ms. Yoon was unaware at the
`time that her keystrokes, mouse clicks, and other electronic communications,
`including the information described above, were being intercepted in real-time and
`would be disclosed to QM, nor did Ms. Yoon consent to the same.
`5.
`Defendant Lululemon, USA Inc. is a company incorporated under the
`laws of Nevada with its principal place of business at 1818 Cornwall Avenue,
`Vancouver, British Columbia, Canada V6J 1C7.
`6.
`Lululemon does business throughout California and the entire United
`States.
`7.
`Lululemon USA, Inc. owns and operates the Website.
`8.
`Defendant Quantum Metric, Inc. is a Delaware corporation with its
`principal place of business at 10807 New Allegiance Drive, Suite 155, Colorado
`Springs, Colorado 80921.
`9.
`QM is a marketing software-as-a-service (“SaaS”) company.
`10. QM provides a feature called “Session Replay,” which is at issue here
`and described more fully below. At all relevant times here, Lululemon has used
`QM’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 5:20-cv-02439 Document 1 Filed 11/19/20 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 QM develops a software of the same name that provides
`marketing analytics.
`15. One of QM’s features is called “Session Replay,” which purports to help
`businesses improve their website design and customer experience.
`16. Session replays are “millisecond-level chunks of data – for example,
`representing the coordinates of a user’s mouse and associated click/tap actions –
`being streamed and interpreted as visuals.” QM says that Session Replay allows
`companies to “to pull up any user who had visited [a] website and watch their journey
`as if [the company] was standing over their shoulder.” A company can “see every
`click, every tap and exactly what the website responded with – an error, a success
`message, or nothing.”
`17. QM says its Session Replay feature “capture[s] all the metadata behind
`the replay— like user platform, API calls, and network details—as well as dozens of
`out of the box events and errors, plus the custom ones you’ll configure in our UI.”
`18. The below screenshot shows how the Session Replay interface works,
`and shows such electronic communications as what a user clicked on, when a user
`reloaded a page, and where a user’s mouse pointer is located:
`//
`//
`//
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`Case 5:20-cv-02439 Document 1 Filed 11/19/20 Page 5 of 17 Page ID #:5
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`19. QM notes that “[o]nce data is captured, it’s sent encrypted via a forward
`secrecy SSL connection, to the Quantum Metric cloud service, hosted in a secured
`Google Compute cloud.”
`20. QM’s website includes a marketing video that discusses the Session
`Replay feature. The video touts that companies can “[s]ee actual customer
`interactions.” The marketing presentation then shows a mock mobile user interacting
`with a website. The video shows what items the user viewed and added to their cart:
`//
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`Case 5:20-cv-02439 Document 1 Filed 11/19/20 Page 6 of 17 Page ID #:6
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`21. The marketing presentation then proceeds to show where exactly the
`mock user clicked on the website:
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`22. Technology like QM’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
`bug, but rather insecure practices. Thus, session recording technologies such as
`QM’s can leave users vulnerable to data leaks and the harm resulting therefrom.
`23. QM’s business model involves entering into voluntary partnerships with
`various companies and providing their software to their partners.
`24. One of QM’s partners is Defendant Lululemon.
`25. Lululemon utilizes QM’s software on the Website.
`26. Lululemon knows that QM’s software captures the keystrokes, mouse
`clicks and other communications of visitors to its website, and pays QM to supply
`that information.
`27.
`In fact, Lululemon admits that it spies on users accessing the Website
`using QM’s software. For instance, after a user views a product on the Website,
`Lululemon will send a user an email such as the following, which says that
`Lululemon “see[s] you [the user] looking”:
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`28. Pursuant to an agreement with QM, Lululemon enabled QM’s software
`by voluntarily embedding QM’s software code on the Website.
`29. As currently deployed, QM’s software, as employed by Lululemon,
`functions as a wiretap.
`II. Defendants Wiretapped Plaintiff’s Electronic Communications
`30.
`In or about April 2020, Ms. Yoon visited Lululemon.com and made a
`purchase.
`31. During that visit, and upon information and belief, the Session Replay
`feature in QM’s software created a video capturing each of Plaintiff’s keystrokes and
`mouse clicks on the website. The QM wiretap also captured the date and time of the
`visit, the duration of the visit, Plaintiff’s IP address, her location at the time of the
`visit, her browser type, and the operating system on her device.
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`32. QM’s recording of keystrokes, mouse clicks, data entry, and other
`electronic communications begins the moment a user accesses or interacts with the
`Website.
`33. When users access the Website and make a purchase, they enter their
`PII. QM’s software captures these electronic communications throughout each step
`of the process.
`34. QM’s software captures, among other things:
`(a) The user’s mouse clicks;
`(b) The user’s keystrokes;
`(c) The user’s email address;
`(d) The user’s shipping and billing address;
`(e) The user’s payment card information, including card number,
`expiration date, and CVV code;
`(f) The user’s IP address;
`(g) The user’s their location at the time of the visit; and
`(h) The user’s browser type and the operating system on their devices
`35. Crucially, Defendant Lululemon does not ask users, including Plaintiff,
`whether they consent to being wiretapped by QM. Users are never actively told that
`their electronic communications are being wiretapped by QM, nor does Lululemon’s
`Privacy Policy disclose as much (not that users had notice of the Privacy Policy
`anyway).
`36. 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.
`37. Neither Plaintiff nor any Class member consented to being wiretapped
`on the Website, nor to have their communications recorded and shared with QM.
`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
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`Case 5:20-cv-02439 Document 1 Filed 11/19/20 Page 10 of 17 Page ID #:10
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`Privacy Policy did not disclose the wiretapping or QM; and (iii) the hyperlink to the
`Privacy Policy is inconspicuous and therefore insufficient to provide notice.
`CLASS ACTION ALLEGATIONS
`38. Plaintiff seeks to represent a class of all California residents who visited
`the Website, and whose electronic communications were intercepted or recorded by
`QM. Plaintiff reserves the right to modify the class definition as appropriate based on
`further investigation and discovery obtained in the case.
`39. 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.
`40. 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.
`41. 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
`her electronic communications intercepted and disclosed to QM through the use of
`QM’s wiretaps.
`42. Plaintiff is an adequate representative of the Class because her interests
`do not conflict with the interests of the Class members she seeks to represent, she has
`retained competent counsel experienced in prosecuting class actions, and she intends
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`to prosecute this action vigorously. The interests of Class members will be fairly and
`adequately protected by Plaintiff and her counsel.
`43. 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.
`44. 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
`45. Plaintiff repeats the allegations contained in the foregoing paragraphs as
`if fully set forth herein.
`46. Plaintiff brings this claim individually and on behalf of the members of
`the proposed Class against Defendants.
`47. 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,
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`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.
`48. 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
`CIPA and common law privacy claims based on Facebook’s collection of consumers’
`Internet browsing history).
`49. QM’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.
`50. At all relevant times, by using QM’s technology, Defendants
`intentionally tapped, electrically or otherwise, the lines of internet communication
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`between Plaintiff and Class Members on the one hand, and Lululemon’s Website on
`the other hand.
`51. At all relevant times, by using QM’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.
`52. Defendants aided, agreed with, and conspired with each other to
`implement QM’s technology and to accomplish the wrongful conduct at issue here.
`In addition, Lululemon employed QM to accomplish the wrongful conduct at issue
`here.
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`53. Plaintiff and Class Members did not consent to any of Defendants’
`actions in implementing QM’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.
`54. The violation of section 631(a) constitutes an invasion of privacy
`sufficient to confer Article III standing.
`55. Unless enjoined, Defendants will continue to commit the illegal acts
`alleged here. Plaintiff continue to be at risk because she frequently uses the internet,
`including for the purpose of shopping, and she continues to desire to use the internet
`for that purpose. Defendant QM 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, she has no practical
`way to know if her website communications will be monitored or recorded by QM.
`56. 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
`57. Plaintiff repeats the allegations contained in the foregoing paragraphs as
`if fully set forth herein.
`58. Plaintiff brings this claim individually and on behalf of the members of
`the proposed Class against Defendants.
`59. 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.
`60. At all relevant times, by implementing QM’s wiretaps, each Defendant
`intentionally manufactured, assembled, sold, offered for sale, advertised 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.
`61. QM’s code is a “device” that is “primarily or exclusively designed” for
`eavesdropping. That is, the QM’s code is designed to gather PII, including
`keystrokes, mouse clicks, and other electronic communications.
`62. Plaintiff and Class Members did not consent to any of Defendants’
`actions in implementing QM’s wiretaps.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Plaintiff and Class Members seek all relief available under Cal. Penal
`63.
`Code § 637.2, including injunctive relief and statutory damages of $5,000 per
`violation.
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`COUNT III
`Invasion Of Privacy Under California’s Constitution
`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. 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.
`67. At all relevant times, by implementing QM’s wiretaps on Lululemon’s
`Website, each Defendant intentionally invaded Plaintiff’s and Class Members’
`privacy rights under the California Constitution, and procured the other Defendant to
`do so.
`68. 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.
`69. Plaintiff and Class Members did not consent to any of Defendants’
`actions in implementing QM’s wiretaps on the Website.
`70.
`This invasion of privacy is serious in nature, scope and impact.
`71.
`This invasion of privacy alleged here constitutes an egregious breach of
`the social norms underlying the privacy right.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 5:20-cv-02439 Document 1 Filed 11/19/20 Page 16 of 17 Page ID #:16
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`72. 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
`(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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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 5:20-cv-02439 Document 1 Filed 11/19/20 Page 17 of 17 Page ID #:17
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`Dated: November 19, 2020
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`Respectfully submitted,
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`BURSOR & FISHER, P.A.
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`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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