Case 5:22-cv-01562 Document 1 Filed 09/06/22 Page 1 of 8 Page ID #:1
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`PACIFIC TRIAL ATTORNEYS
`A Professional Corporation
`Scott J. Ferrell, Bar No. 202091
`sferrell@pacifictrialattorneys.com
`4100 Newport Place Drive, Ste. 800
`Newport Beach, CA 92660
`Tel: (949) 706-6464
`Fax: (949) 706-6469
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`Attorneys for Plaintiff
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`Case No. 5:22-cv-01562
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`CLASS ACTION COMPLAINT FOR
`VIOLATION OF PENAL CODE § 631
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`CLASS ACTION COMPLAINT
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`MIGUEL A. LICEA, individually and on
`behalf of all others similarly situated,
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`Plaintiff,
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`v.
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`GAMESTOP, INC., a Minnesota
`corporation, and DOES 1 through 25,
`inclusive,
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`Defendants.
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`Case 5:22-cv-01562 Document 1 Filed 09/06/22 Page 2 of 8 Page ID #:2
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`INTRODUCTION
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`Defendant (1) covertly wiretaps the communications of all visitors who
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`utilize the chat feature at www.gamestop.com; and (2) shares the secret transcripts
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`of those wiretaps with a third party that boasts of its ability to harvest personal
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`data from the transcripts for marketing and other purposes. Defendant neither
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`informs visitors nor obtains their prior, express consent to these intrusions. As a
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`result, Defendant has violated the California Invasion of Privacy Act (“CIPA”),
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`California Penal Code § 631.
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`JURISDICTION AND VENUE
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`1.
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`This Court has subject matter jurisdiction of this action pursuant to 28
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`U.S.C. Section 1332 of the Class Action Fairness Act of 2005 because: (i) there are 100
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`or more class members, (ii) there is an aggregate amount in controversy exceeding
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`$5,000,000, exclusive of interest and costs, and (iii) there is at least minimal diversity
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`because at least one Plaintiff and Defendant are citizens of different states.
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`2.
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`Pursuant to 28 U.S.C. Section 1391, this Court is the proper venue for this
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`action because a substantial part of the events, omissions, and acts giving rise to the
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`claims herein occurred in this District: Plaintiff is a citizen of California who resides in
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`this District and Defendant conducted a substantial portion of the unlawful activity in
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`this District.
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`3.
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`Defendant is subject to personal jurisdiction in California based upon
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`sufficient minimum contacts which exist between Defendant and California. Defendant
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`also does business with California residents.
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`PARTIES
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`4.
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`Plaintiff is a citizen of California residing within the Central District of
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`California.
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`5.
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`Defendant is a Minnesota corporation that owns, operates, and/or controls
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`the above-referenced website.
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`COMPLAINT
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`Case 5:22-cv-01562 Document 1 Filed 09/06/22 Page 3 of 8 Page ID #:3
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`6.
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`The above-named Defendant, along with its affiliates and agents, are
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`collectively referred to as “Defendants.” The true names and capacities of the
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`Defendants sued herein as DOE DEFENDANTS 1 through 25, inclusive, are currently
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`unknown to Plaintiff, who therefore sues such Defendants by fictitious names. Each of
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`the Defendants designated herein as a DOE is legally responsible for the unlawful acts
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`alleged herein. Plaintiff will seek leave of Court to amend the Complaint to reflect the
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`true names and capacities of the DOE Defendants when such identities become known.
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`7.
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`Plaintiff is informed and believes that at all relevant times, every
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`Defendant was acting as an agent and/or employee of each of the other Defendants and
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`was acting within the course and scope of said agency and/or employment with the full
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`knowledge and consent of each of the other Defendants.
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`8.
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`Plaintiff is informed and believe that each of the acts and/or omissions
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`complained of herein was made known to, and ratified by, each of the other Defendants.
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` FACTUAL ALLEGATIONS
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`9.
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`Under the California Invasion of Privacy Act, website operators cannot
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`create transcripts of visitors’ conversations (or provide such transcripts to third parties)
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`without obtaining prior, express consent from all parties to the conversation.
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`Compliance with CIPA is easy, and the vast majority of companies comply with the law
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`by simply notifying website visitors if their conversations are being recorded.
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`10. Unlike most companies, Defendant has chosen not to comply with CIPA.
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`Rather, without warning visitors or obtaining their consent, Defendant has secretly
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`deployed wiretapping software on its Website. Using that software, Defendant covertly
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`monitors, records, and creates secret transcripts of all communication through the chat
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`feature on its website.
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`11. Going from bad to worse, Defendant shares the secret transcripts with
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`Zendesk, a third party that publicly boasts about its ability to harvest highly personal
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`data from chat transcripts for sales and marketing purposes. Rather than merely
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`CLASS ACTION COMPLAINT
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`Case 5:22-cv-01562 Document 1 Filed 09/06/22 Page 4 of 8 Page ID #:4
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`providing a software service, Defendant allows Zendesk to intercept and use the secret
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`transcripts.
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`12. Given the nature of Defendant’s business, website visitors typically share
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`highly personal and sensitive data with Defendant when using the website chat feature.
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`Consumers would be shocked and appalled to know that Defendant secretly creates
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`transcripts of those conversations and shares them with a third party.
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`13. Defendant’s conduct is both illegal and offensive: indeed, a recent study
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`conducted by the Electronic Privacy Information Center, a respected thought leader
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`regarding digital privacy, found that: (1) nearly 9 in 10 adults are “very concerned”
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`about data privacy, and (2) 75% of adults are unaware of the extent to which companies
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`gather,
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`store,
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`and
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`exploit
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`their
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`personal
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`data.
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`See
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`https://archive.epic.org/privacy/survey/ (last downloaded September 2022).
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`14. Within the statute of limitations period, Plaintiff visited Defendant’s
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`Website and communicated with an employee of Defendant through the website chat
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`feature. Unbeknownst to website visitors, Defendant creates exact transcripts of all
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`such communications and shares the transcripts with at least one third party using
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`secretly embedded wiretapping technology.
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`15. Simplified to common parlance, Defendant: (1) encourages website
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`visitors to share personal information through the website chat feature; (2)
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`secretly creates a transcript of all such conversations without warning website
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`visitors or obtaining their consent; and (3) shares the secret transcripts with a
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`third party that boasts of its ability to harvest personal data from the transcripts
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`for sales and marketing purposes.
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`16. Defendant did not inform Plaintiff, or any of the Class Members, that
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`Defendant was secretly monitoring, recording, and sharing their communications.
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`17. Defendant did not obtain Plaintiff’s or the Class Members’ consent to
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`intercepting, monitoring, recording, and sharing the electronic communications with the
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`Website.
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`CLASS ACTION COMPLAINT
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`Case 5:22-cv-01562 Document 1 Filed 09/06/22 Page 5 of 8 Page ID #:5
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`18. Plaintiff and Class Members did not know at
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`the
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`time of
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`the
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`communications that Defendant was secretly intercepting, monitoring, recording, and
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`sharing the electronic communications.
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`CLASS ALLEGATIONS
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`19. Plaintiff brings this action individually and on behalf of all others similarly
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`situated (the “Class”) defined as follows:
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`All persons within California who: (1) visited Defendant’s
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`website, and
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`(2) whose electronic communications were
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`recorded, stored, and/or shared by Defendant without prior
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`express consent within the statute of limitations period.
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`20. NUMEROSITY: Plaintiff does not know the number of Class Members
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`but believes the number to be in the tens of thousands, if not more. The exact identities
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`of Class Members may be ascertained by the records maintained by Defendant.
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`21. COMMONALITY: Common questions of fact and law exist as to all Class
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`Members, and predominate over any questions affecting only individual members of the
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`Class. Such common legal and factual questions, which do not vary between Class
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`members, and which may be determined without reference to the individual
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`circumstances of any Class Member, include but are not limited to the following:
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`a. Whether Defendant caused Plaintiff’s and
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`the Class’s electronic
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`communications with the Website to be recorded, intercepted and/or monitored;
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`b. Whether Defendant violated CIPA based thereon;
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`c. Whether Plaintiff and Class Members are entitled to statutory damages
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`pursuant to Cal. Penal Code § 631(a);
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`d. Whether Plaintiff and Class Members are entitled to punitive damages
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`pursuant to Cal. Civil Code § 3294; and
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`e. Whether Plaintiff and Class Members are entitled to injunctive relief.
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`CLASS ACTION COMPLAINT
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`Case 5:22-cv-01562 Document 1 Filed 09/06/22 Page 6 of 8 Page ID #:6
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`22. TYPICALITY: As a person who visited Defendant’s Website and had her
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`electronic communications recorded, intercepted and monitored, Plaintiff is asserting
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`claims that are typical to the Class.
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`23. ADEQUACY: Plaintiff will fairly and adequately protect the interests of
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`the members of The Class. Plaintiff has retained attorneys experienced in the class
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`action litigation. All individuals with interests that are actually or potentially adverse to
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`or in conflict with the class or whose inclusion would otherwise be improper are
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`excluded.
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`24. SUPERIORITY: A class action is superior to other available methods of
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`adjudication because individual litigation of the claims of all Class Members is
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`impracticable and inefficient. Even if every Class Member could afford individual
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`litigation, the court system could not. It would be unduly burdensome to the courts in
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`which individual litigation of numerous cases would proceed.
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`CAUSE OF ACTION
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`Violations of the California Invasion of Privacy Act
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`Cal. Penal Code § 631
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`25. Section 631(a) of California’s Penal Code prohibits and imposes liability
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`upon any entity that “by means of any machine, instrument, contrivance, or in any other
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`manner,” (1) “intentionally taps, or makes any unauthorized connection, whether
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`physically, electrically, acoustically, inductively, or otherwise, with any telegraph or
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`telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument
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`of any internal telephonic communication system,” or (2) “willfully and without the
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`consent of all parties to the communication, or in any unauthorized manner, reads, or
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`attempts to read, or to learn the contents or meaning of any message, report, or
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`communication while the same is in transit or passing over any wire, line, or cable, or is
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`being sent from, or received at any place within this state” or (3) “uses, or attempts to
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`use, in any manner, or for any purpose, or to communicate in any way, any information
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`so obtained, or who aids, agrees with, employs, or conspires with any person or persons
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`CLASS ACTION COMPLAINT
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`Case 5:22-cv-01562 Document 1 Filed 09/06/22 Page 7 of 8 Page ID #:7
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`to unlawfully do, or permit, or cause to be done any of the acts or things mentioned
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`above in this section”.
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`26. Section 631 of
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`the California Penal Code applies
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`to
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`internet
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`communications and
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`thus applies
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`to Plaintiff’s and
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`the Class’s electronic
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`communications with Defendant’s Website. (“Though written in terms of wiretapping,
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`Section 631(a) applies to Internet communications. It makes liable anyone who ‘reads,
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`or attempts to read, or to learn the contents’ of a communication ‘without the consent of
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`all parties to the communication.’ Cal. Penal Code § 631(a).” Javier v. Assurance IQ,
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`LLC, 21-16351, 2022 WL 1744107, at *1 (9th Cir. May 31, 2022).
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`27. The software employed by Defendant on its Website to record Plaintiff’s
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`and the Class’s electronic communications qualifies as a “machine, instrument,
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`contrivance, or … other manner” used to engage in the prohibited conduct alleged
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`herein.
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`28. At all relevant times, Defendant intentionally caused the internet
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`communication between Plaintiff and Class Members with Defendant’s website to be
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`intercepted, recorded, stored, and transmitted to a third party.
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`29. At all relevant times, Defendant willfully, and without the consent of all
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`parties to the communication, allowed the contents of electronic communications of
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`visitors to its website to be accessed by third parties.
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`30. Plaintiff and Class Members did not consent to any of Defendant’s actions
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`in implementing wiretaps on its Website, nor did Plaintiff or Class Members consent to
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`Defendant’s intentional access, interception, recording, monitoring, reading, learning
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`and collection of Plaintiff and Class Members’ electronic communications with the
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`Website.
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`31. Defendant’s conduct constitutes numerous independent and discreet
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`violations of Cal. Penal Code § 631(a), entitling Plaintiff and Class Members to
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`injunctive relief and statutory damages of at least $2,500.00 per violation.
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`CLASS ACTION COMPLAINT
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`Case 5:22-cv-01562 Document 1 Filed 09/06/22 Page 8 of 8 Page ID #:8
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff prays for the following relief against Defendant:
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`1.
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`An order certifying the Class, naming Plaintiff as the representative of the
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`2.
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`Class and Plaintiff’s attorneys as Class counsel;
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`An order declaring Defendant’s conduct violates CIPA;
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`An order of judgment in favor of Plaintiff and the Class and against
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`Defendant on the cause of action asserted herein;
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`4.
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`An order enjoining Defendant’s conduct as alleged herein and any other
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`injunctive relief that the Court finds proper;
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`5.
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`Statutory damages to Plaintiff and the Class pursuant to Cal. Penal Code §
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`631(a);
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`6.
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`Punitive damages to Plaintiff and the Class pursuant to Cal. Civil Code §
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`7.
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`8.
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`9.
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`3294;
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`Prejudgment interest;
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`Reasonable attorneys’ fees and costs; and
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`All other relief that would be just and proper as a matter of law or equity,
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`as determined by the Court.
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`Dated: September 6, 2022
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`PACIFIC TRIAL ATTORNEYS, APC
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`By:
`Scott. J. Ferrell
`Attorneys for Plaintiff
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`CLASS ACTION COMPLAINT
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