A recent decision from the Northern District of California on a motion to dismiss examined consent and other key privacy issues.  The putative class action claimed that payment processing company Stripe Inc. collected and used personal information from visitors to merchant partners’ websites in violation of various privacy laws, including the California Invasion of Privacy Act, Florida Security of Communications Act, and Washington’s wiretap law.

Stripe moved to dismiss based on plaintiffs’ consent to the challenged collection and uses, among other grounds.  On July 28, 2021, Judge Yvonne Gonzalez Rogers partially granted and partially denied Stripe’s motion.

The court first found that the privacy policy at issue constituted an enforceable “sign-in wrap” agreement because the merchant’s page displayed a “conspicuous and obvious” hyperlink and required users to agree to the policy when placing orders.  That policy disclosed that “partners” like Stripe “may” collect and use plaintiffs’ personal information, so the court concluded that plaintiffs had consented to Stripe’s data collection and dismissed their wiretap claims.  The decision is important in acknowledging that a third-party vendor (here, Stripe) can rely upon a commercial customer’s disclosure to its users to establish consent to the third party’s activities.

The court declined, however, to find at the pleading stage that plaintiffs also consented to Stripe’s alleged dissemination of their personal information to other third parties, such as Stripe’s own merchants and other customers.  On that basis, the court allowed plaintiffs’ privacy claims to proceed under the California constitution, common law, and the “unfair” prong of California’s Unfair Competition Law.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved…

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved significant victories for clients in the technology, entertainment, consumer product, and financial services industries. In addition, Kate has substantial experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), and common law and constitutional rights of privacy, among others.

Photo of Kanu Song Kanu Song

Kanu Song is a litigator specializing in complex commercial disputes, including intellectual property litigation, class actions, and claims brought under consumer protection and competition laws, such as California’s Unfair Competition Law (B. & P.C. § 17200).

She works with clients in the technology…

Kanu Song is a litigator specializing in complex commercial disputes, including intellectual property litigation, class actions, and claims brought under consumer protection and competition laws, such as California’s Unfair Competition Law (B. & P.C. § 17200).

She works with clients in the technology, entertainment, consumer brands, food, drug, and cosmetic industries through all stages of litigation, with a strong track record of success on early resolution and dispositive motions.