BPS Seeks to Consolidate Fraud Cases Before Same Kansas City Judge

Consolidating two similar e-commerce fraud actions by the same plaintiff will “preserve judicial resources” and promote “efficient resolution,” said defendant BPS Direct’s Tuesday motion (docket 6:22-cv-3285) to consolidate cases filed in U.S. District Court for Western Missouri in Springfield. The two actions brought by plaintiff Arlie Tucker of St. Clair, Missouri, have common parties, identical claims and will present the same factual and legal issues, with Tucker alleging both companies’ use of session replay software constitutes “wiretapping” and violates state and federal law, said the motion. In December, attorneys for Cabela’s notified the court of the related action before U.S. District Court Judge Stephen Bough (see 2212280025) and asked that Tucker’s case against BPS be transferred to Bough’s court in Kansas City. Plaintiff’s counsel didn’t object to the transfer, it said. The complaint against Cabela’s -- alleging the third-party vendors create and deploy session replay codes at the defendant's request to recreate visitors' entire visit to the e-commerce site -- makes “substantially similar allegations” to those against BPS Direct, said the notice. Defendants’ directive to the session replay providers "to secretly deploy" the session replay code "results in the electronic equivalent of looking over the shoulder” of each visitor to the e-commerce site for the "entire duration of their website interaction," the plaintiff asserted. The complaints against both retailers allege their e-commerce conduct violates several federal and state laws, including the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, and the Missouri Wiretap Act.