Scott Ferrell, the partner at the Pacific Trial Attorneys, who has filed numerous class action lawsuits under provision of California’s Invasion of Privacy Act (CIPA), added Lacoste to his list of defendants on behalf of plaintiff Annette Cody and all others similarly situated last month in the California’s Central District U.S. Court.
The suit, which mirrors similar complaints against Crocs, Adidas and Foot Locker, accuses Lacoste of violating the California anti-wiretapping law passed in 1967, which has since been upheld as applicable to the internet by the Ninth Circuit Court of Appeals.
In the complaint filed Feb. 7, Cody sought customer service support from Lacoste and was directed to a chat communication. The information obtained from this communication, plaintiffs argue, was shared with a third party to “intercept and eavesdrop,” presumably for the purpose of data collection, and all without the plaintiff’s knowledge or consent.
“By definition, Defendant’s chat communications from its website are transmitted to website visitors by telephony subject to the mandates of CIPA,” the complaint reads, citing the Encyclopedia Britannica definition of the internet as working “through a series of networks that connect devices around the world through telephone lines.”
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The suit seeks at least $25 million in damages with a plaintiff list to include, “All persons within California who visited Defendant’s website, and whose electronic communications were recorded, stored, and/or shared by Defendant without prior express consent within the statute of limitations period.” Typically, the standard amount claimed in such a class action is $5 million, but Ferrell argues the figure should be considerably higher because of the high probability of plaintiffs in other states being “similarly situated.”
Lacoste, however, fired back, filing a motion to dismiss on March 7.
Lynn Fiorentino, attorney for the defendant, asked the Hon. Sunshine S. Sykes to dismiss the case, writing “Lacoste cannot ‘intercept’ messages as a party to the communication, Plaintiff has not plausibly alleged that any interception actually occurred that would implicate Section 631 [wiretapping prohibition] when she purportedly used the chat feature on Lacoste’s website, and Section 632.7 [consent requirement] is facially inapplicable to communications.”
Ferrell did not respond to a request for comment on Lacoste’s motion to dismiss, but on Feb. 6 emailed Sourcing Journal court documents dated Feb. 3 indicating the denial of Goodyear Tire & Rubber’s motion to dismiss another of his standard class actions.
As grounds for dismissal, attorneys for Goodyear argued the chat communication information storage met the consent standard under CIPA because users click a pop-up banner to “allow cookies,” and the use of the data is explained on the website’s “Terms of Use.”
Goodyear also argued that CIPA language can only apply to “landline telephones,” and not cell phones using “data.”
But Sykes, the same judge in the Lacoste case, was not convinced of the defendants’ argument, concluding, “As smartphones are cellular phones with web capabilities, [Plaintiff Arisha] Byars’ smartphone falls within the cellular phone category. Moreover, courts have applied § 632.7 to internet-based communications and written communications… Because Byars’ [sic] contends that users of Goodyear’s website ‘share highly sensitive personal data’ via Goodyear’s chat feature, Byars has sufficiently alleged that website users had a reasonable expectation of privacy and therefore the communications fall within the scope of § 632.7.”
According to the motion to dismiss in the Lacoste case, Sykes is slated to rule on or before April 7.