Hi CIPAWorld! The Baroness here and I’ve got some big news today.

Remember when I blogged about Jornaya and DDR’s great win during HOT CIPA SUMMER?

For those of you that don’t remember, back in August 2023, Jornaya and DDR obtained a dismissal of Plaintiff’s Section 631 claim. The infamous words from the court were, it:

“can think of no sense in which Jornaya has read, attempted to read, or learned the contents or meaning of the communication at issue here. Jornaya has merely recorded the communication for retrieval by a party to the same communication. Thus, the Court finds that Jornaya is more akin to a tape recorder vendor than an eavesdropper.”

And it got it right.

Well after the dismissal, Plaintiff Loretta Williams of course amended her complaint for a second time hoping to take another shot to get passed the pleadings stage.

The second amended complaint (SAC) contained new allegations based on marketing information from Jornaya’s parent website about TCPA Guardian and attached a Guardian TCPA Report. Williams also alleged:

“Additionally, Jornaya admits on its website that it stores consumers’ interactions internally. That is, one of Jornaya’s customers, such as DDR Media, doesn’t receive automatic access to visual playbacks and related data. Rather, if a Jornaya customer such as DDR wishes to receive the playback, it has to affirmatively request it from Jornaya via Jornaya’s portal. Such requests may take a day or more for Jornaya to fulfill. But the customer cannot simply retrieve it—it must request it, and then Jornaya goes back through its retained data and fulfills the request. https://marketing.verisk.com/docs/getting-startedwith-tcpa-guardian. (Last visited September 20, 2023).”

And

“All of this is to say that Jornaya doesn’t merely ‘record the communication for retrieval by a party to the same communication.’ First of all, again, the ‘retrieval’ must be requested from Jornaya and can take Jornaya at least a day or more to fulfill while it retrieves the data it has read and learned and creates the playback. But more broadly, Jornaya actively reads or learns (or attempts to read or learn) the contents or meaning of the communications at issue. It also analyzes the communications at issue. Jornaya’s TCPA Guardian cannot work any other way. It must read and learn the content of the communications (or at least attempt to do so) in order to function. In order to ‘route leads based on consent,’ as its diagram discusses, it must read and/or learn (or at least attempt to read or learn) the contents of the communication. In order to retrieve stored data and create a visual playback, it must read and learn the contents of the communication. In order to, as Jornaya puts it, ‘track[ ] the origin and history of a lead event and the consumer actions that occurred at that event” it must naturally read or learn the contents of the communication. It could not track the history of an event without learning that history.’”

Based on the above, Williams alleged that Jornaya “must read and learn the content of the communications (or at least attempt to do so) in order to function.”

Jornaya argued that those allegations, however, directly refute the allegations that Jornaya reads or learns the contents of the communications at issue. Jornaya stated it was similar to a that of a bank safety deposit box—where the bank stores the safety deposit boxes, but the contents of those boxes are only read by the customers. Clever.

But while the Court found the defendants arguments “persuasive,” it stated it needs a “fuller factual record” to resolve the request of whether Jornaya wiretapped. More specifically, it stated it “cannot conclude, as a matter of fact and law that Jornaya did not read or attempt to read the contents of Williams’ communications on DDR Media’s website. It is the Court’s view that targeted discovery and an early summary judgment motion could resolve this question…”

Wow.

And just like that the case moves into discovery.

Loretta Wiliams, v. DDR MEDIA, LLC, et al., No. 22-CV-03789-SI, 2024 WL 347904, at *1 (N.D. Cal. Jan. 30, 2024).