Paul Gluckman

A new class action in San Diego is seeking to thwart Spirit Airlines from “wiretapping” the electronic communications of visitors to its website, in violation of the California Invasion of Privacy Act (CIPA). Spirit hires third-party vendors, such as FullStory, to embed snippets of JavaScript computer code, called “session replay code,” in the visitor’s internet browser, alleged the complaint Tuesday (docket 3:23-cv-00233) in U.S. District Court for Southern California. The code then intercepts and records the visitor’s activity, right down to their mouse movements, clicks, keystrokes and URLs of web pages they visit, it said. The vendors use the captured website communications to create a video replay of the user’s behavior on the website and provide it to Spirit for analysis, said the complaint. Secretly deploying the session replay code results in the electronic equivalent of “looking over the shoulder” of each visitor to the Spirit website “for the entire duration of their website interaction,” it said. Session replay code works by inserting computer code into the various “event handling routines that web browsers use to receive input from users,” said the complaint. When a website delivers the code to a user’s browser, that browser will follow the code’s instructions by sending responses in the form of event data to a designated third-party server, it said. The server receiving the event data typically is controlled by the third-party vendor that wrote the code, rather than the owner of the website where the code is installed, it said. Spirit’s procurement and use of FullStory’s session replay code is a wiretap in violation of California statutory and common law, alleged the complaint. Plaintiff Kayla Mandeng visited spirit.com on her computer and smartphone to book flights, only to fall victim to Spirit’s unlawful monitoring and recording of her website activity, it said. Mandeng seeks statutory, compensatory and punitive damages and restitution of profits “unlawfully obtained,” plus injunctive relief enjoining Spirit from the illegal practices described in her complaint. Spirit and FullStory didn’t respond Wednesday to requests for comment.

The U.S. Appeals Court for the Federal Circuit denied Nimitz Technologies’ motion to stay issuing the mandate in its denial of Nimitz's petition for a rehearing of its mandamus appeal, pending the filing of a mandamus or cert petition at the Supreme Court to have the case heard on attorny-client privilege grounds (see 2302030030), said a clerk’s order signed Tuesday (docket 23-103). Barring SCOTUS involvement, the denial would send the case back to Chief U.S. District Judge Colm Connolly in Delaware.

Telephone Consumer Protection Act defendant State Farm, in arguing discovery should be stayed pending a ruling on its motion to dismiss (see 2302010001), “points to nothing about this case that makes it different than any other case in which a motion to dismiss is pending,” said plaintiff Thomas Gebka’s opposition Tuesday (docket 1:22-cv-05546) in U.S. District Court for Northern Illinois in Chicago. The class action against State Farm “is even less of a candidate” than normal for a stay, said the opposition. “This district has already denied a nearly-identical motion to dismiss in a separate case where the claims and vicarious liability allegations were virtually identical to those allegations here,” it said. State Farm offers no specifics to support its “boilerplate arguments” that a stay won't prejudice or tactically disadvantage Gebka’s case, said the opposition. Nor could State Farm offer those specifics amid its arguments that involve Gebka’s strategy “that State Farm knows nothing about,” it said: “The request for a stay should therefore be denied.” State Farm’s alternative request for phased discovery to focus on whether a class can be certified “should likewise be denied,” said the opposition. The specific discovery State Farm objects to, and merits discovery generally, “are needed to determine whether common factual and legal issues predominate” in the TCPA case, it said. A stay will “possibly foreclose the putative class members’ claims by needlessly delaying their resolution,” said the opposition. The case involves telemarketing calls made by State Farm’s “subagents,” including third-party vendors hired by State Farm’s agencies or the third-party call centers those vendors used to make the calls, it said. State Farm’s initial discovery disclosures “did not identify the vendors or anyone further downstream,” and State Farm’s agencies objected to providing that information under subpoena, it said. The third parties in question “are most likely to possess or control the indispensable call records,” but they currently have “no duty to preserve evidence,” said the opposition. It compounds the risk of lost evidence that many vendors and call centers “do not keep call records for very long,” it said. That’s especially true after litigation involving the calls begins, “which means the records identifying the class members are likely already being destroyed in the ordinary course,” it said.

Marriott International is entitled to $500,000 in statutory damages against defendant Dynasty Marketing Group (DMG) for willfully infringing Marriott’s trademark by impersonating Marriott telemarketers in its robocalling phone solicitations (see 2212300004), said a report and recommendation signed Monday by U.S. Magistrate Judge John Anderson for Eastern Virginia in Alexandria.

Contrary to how Amazon’s Dec. 6 demurrer “mischaraterizes” California attorney general’s antitrust complaint against the company (see 2212160020), the state has stated “viable claims for violation” of the Cartwright Act and the California Unfair Competition Law (UCL), said California’s opposition to the demurrer, dated Jan. 27 and accessed Tuesday (docket CGC-22-601826) in San Francisco County Superior Court.

Contrary to T-Mobile and SoftBank's assertions in their Dec. 5 motion to dismiss that the class action to overturn T-Mobile’s Sprint buy “would turn the antitrust laws on their head” (see 2212060052), the case “involves no gymnastics,” said the seven plaintiffs in their memorandum of opposition Friday in U.S. District Court for Northern Illinois in Chicago. The litigation “advances claims that go to the heart of the Clayton and Sherman Acts,” they said.

AT&T’s motion for summary judgment should be granted, ordering the town of Corinth, New York, and its planning board and building department to approve AT&T’s proposed 150-foot-tall monopole wireless telecommunications tower, said AT&T’s response Friday (docket 1:21-cv-00149) in U.S. District Court for Northern New York in Syracuse to Corinth's Dec. 23 cross-motion for summary judgment (see 2212280003).

Denying the FTC’s preliminary injunction to block Meta’s Within Unlimited buy (see 2302010003), U.S. District Judge Edward Davila for Northern California in San Jose said the agency failed “to establish a likelihood that it would ultimately succeed on the merits” of its Clayton Act Section 7 antitrust claims, said his heavily redacted order (docket 5:22-cv-04325) unsealed and released Friday. He rejected for lack of evidence the FTC’s core actual and perceived potential competition arguments that Meta’s Within acquisition would lessen competition in the “relevant market” for dedicated virtual-reality fitness apps.

Kochava violates consumer protection laws by acquiring consumers' precise geolocation data and selling it “in a format that allows entities to track the consumers' movements to and from sensitive locations,” alleged King County, Washington, plaintiff Cindy Murphy in a class action Wednesday (docket 2:23-cv-00058) in U.S. District Court for Idaho. Her complaint bears strong similarities to the FTC’s Aug. 29 lawsuit in which the agency seeks a permanent injunction enjoining Kochava from acquiring the data (see 2212050061).

The plaintiffs in the breach of contract complaint against American Tower International (ATI) want their lawsuit remanded to the 11th Judicial Circuit Court in Miami-Dade County where it originated before ATI removed it Jan. 3 (see 2301030035), said their motion Thursday (docket 1:23-cv-20009) in U.S. District Court for Southern Florida in Miami.