Hi CIPAWorld! The Baroness here 🙂 And it continues to be a HOT CIPA SUMMER.

This is a really great ruling that I cannot wait to share. So let’s get to it.

DDR Media, LLC owns a website called scrapptrent2own.com.

Jornaya offers a product called TCPA Guardian which websites use to document users’ consent to receive telemarketing calls.

TCPA Guardian is installed on scrapptrent2own.com.

On or around December 10, 2021, Loretta Williams visited DDR Media’s website. The Complaint alleged that during her visit, her entire interaction with the website was recorded “in real time” by DDR Media and Jornaya via TCPA Guardian. This recording captured information including the plaintiff’s IP address, geographic location, name, address, and phone number. DDR Media did not inform Williams of such recording or seek consent.

Based on these alleged violations, Williams sued DDR Media and Jornaya for violations of (1) CIPA, Section 631, (2) Invasion of Privacy under the California Constitution, and (3) California’s Unfair Competition Law.

Of course, DDR Media filed a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and Jornaya filed a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim.

CIPA, Section 631(a)

Williams alleged that Jornaya wiretapped her and so is liable for violating Section 631(a) and DDR Media is liable under an aiding and abetting theory.

Both defendants argue that Jornaya was not a third-party eavesdropper because its software “acted as an extension of” DDR Media’s website rather than intercepting and using the data for Jornaya’s own purposes.

It is well settled law that Section 631 does not prohibit parties from recording their own conversations.

The Court was to determine whether Jornaya’s TCPA Guardian was more akin to a tape recorder (no violation) or a third-party eavesdropper (violation).

The Court acknowledged that the district courts are split on the issue. Graham v. Noom held FullStory was NOT a third-party eavesdropper. Moreover, Williams v. What If Holding held the software vendor was a recorder and NOT an eavesdropper. By contrast, in Javier v. Assurance IQ, LLC, the Court held if the software vendor has the capability to use its record of the interaction for any other purpose, it is a third-party eavesdropper.

Here, the Court took to the language of Section 631 highlighting that a violator must have “read, attempted to read, or learned” the contents of any communication. Most significantly, the Court stated, 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.”

That is right folks – Jornaya does not read, attempt to read, or learn the content of a communication. It merely records and recording is not a violation of Section 631.

What a great ruling.

Invasion of Privacy Under the California Constitution

To state a claim of invasion of privacy under the California Constitution, plaintiff must show (1) she possesses a legally protected privacy interest, (2) she maintains a reasonable expectation of privacy, and (3) the defendant’s conduct amounts to a serious invasion of privacy. And the intrusion must be highly offensive to a reasonable person.

Defendants argued Williams failed to show the intrusion was highly offensive.

Williams, on the other hand, argued that such an issue could not be resolved at the pleadings stage. But the Court was not persuaded. The Court stated, “Plaintiff voluntarily provided information to DDR Media; to the extent information was provided to a third party, plaintiff alleges no use by the third party other than storing that information DDR Media to refer back to. Defendants’ use of the information here was benign.”

Therefore, the Court found a minimal intrusion that was NOT highly offensive.

California’s Unfair Competition Law

Lastly, DDR Media argued that Williams failed to state a claim under California’s UCL because Williams did not allege an injury in fact that involves loss of money or property. Williams conceded that she didn’t lose money or property. Therefore, the Court granted the defendants’ motion to dismiss the UCL claim without leave to amend.

As such, the Court GRANTED Jornaya and DDR Media’s motions to dismiss and dismissed the UCL claim with prejudice. The Court granted leave to amend, so it will be interesting to see what new allegations Williams adds if she so chooses.

Jornaya and DDR Media definitely struck out here!

Loretta Williams v. DDR Media LLC, et al., No. 3:22-cv-03789-SI, ECF No. 64