At the end of last month, courts handed down two decisions in favor of website operators and their service providers in session replay litigation, granting motions to dismiss on personal jurisdiction grounds.

Alves v. Goodyear Tire and Rubber Company, No. 22-11820-WGY (D. Mass. July 24, 2023).

The plaintiff claimed that Goodyear violated a Massachusetts wiretapping law by deploying session replay code on its website that allegedly records and intercepts website visitors’ electronic communications with the site.  To establish personal jurisdiction over Goodyear, an Ohio corporation, in Massachusetts, the plaintiff alleged that the session replay technology collected data about users in Massachusetts and that Goodyear purportedly knew that based on location data.

The court held that personal jurisdiction did not attach because Goodyear had contracted for and deployed the code outside the forum.  In line with other cases addressing the issue, the court also held that the mere fact Goodyear’s website was accessible in Massachusetts was insufficient grounds for finding that Goodyear had purposefully directed the alleged session replay activities at Massachusetts.  The court granted Goodyear’s motion to dismiss, with leave to amend.

Hasson v. FullStory, Inc., No. 2:22-CV-1246, 2023 WL 4745961, at *4 (W.D. Pa. July 25, 2023).

The plaintiff claimed that FullStory, a session replay provider, violated Pennsylvania’s Wiretapping and Electronic Surveillance Control Act by providing services to Mattress Firm, which deployed its session replay software on its website.  FullStory moved to dismiss for lack of personal jurisdiction.

The court held that FullStory was not subject to personal jurisdiction in Pennsylvania because the plaintiff failed to allege facts showing that FullStory had expressly aimed its session replay service at the state.  Mattress Firm is a Texas-based company, and the plaintiff’s allegations that FullStory had other Pennsylvania clients were irrelevant to the analysis.  For that reason, the district court denied the plaintiff’s request to conduct jurisdictional discovery.  The court also found that litigating in the Western District of Pennsylvania would place an undue burden on FullStory given that the company is headquartered in Georgia.  Concluding that any amendment would be “futile,” the Court granted FullStory’s motion to dismiss the complaint with prejudice.

Photo of Jenna Zhang Jenna Zhang

Jenna Zhang is an associate in the firm’s San Francisco office. She is a member of the Data Privacy and Cybersecurity practice group. Jenna advises clients on a broad range of privacy and cybersecurity issues, including compliance obligations, product development, and responses to…

Jenna Zhang is an associate in the firm’s San Francisco office. She is a member of the Data Privacy and Cybersecurity practice group. Jenna advises clients on a broad range of privacy and cybersecurity issues, including compliance obligations, product development, and responses to regulatory inquiries. She also maintains an active pro bono practice with a focus on immigration.

Read more about Jenna Zhang
Show more Show less
Photo of Hannah Nelson Hannah Nelson

Hannah Nelson is an associate in the firm’s Palo Alto office and a member of the Litigation and Investigations Practice Group. Her practice focuses on defending class actions in the technology industry, including privacy class actions and consumer class actions.

Read more about Hannah Nelson
Photo of Eric Bosset Eric Bosset

Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions…

Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions, MDL proceedings, and other multi-party lawsuits. His trial victories include a jury verdict in an employment class action lawsuit that The National Law Journal ranked among the 25 most notable defense verdicts of the year.

Privacy and Consumer Protection

Eric was named “Most Valuable Player” in Privacy & Consumer Protection by Law360. He has an extensive practice representing Internet service providers, publishers and advertisers in class action litigation involving claims of unauthorized collection and disclosure of personally identifiable information (“PII”). He has successfully represented Microsoft, AOL, CBS, McDonald’s, Mazda, the Indianapolis Colts, and other companies in obtaining the dismissals of putative class action lawsuits that asserted federal law claims under the Electronic Communications Privacy Act (“ECPA”), Computer Fraud and Abuse Act (“CFAA”), and Video Privacy Protection Act (“VPPA”), as well as state law claims under the Illinois Biometric Information Privacy Act (“BIPA”) and for unfair practices, trespass, and invasion of privacy.

Eric also represents companies in connection with matters arising under the Fair Credit Reporting Act (“FCRA”), Fair and Accurate Credit Transaction Act (“FACTA”), Telephone Consumer Protection Act (“TCPA”), and other consumer protection statutes.

Employment and ERISA

Eric has extensive experience defending companies in individual and class action litigation brought under federal and state laws concerning discrimination, retaliation, whistleblowing, wage and hour disputes, and wrongful termination, as well as in class action litigation involving the Employee Retirement Income Security Act (“ERISA”). Eric has the rare distinction of having tried and won a jury verdict in a class action lawsuit alleging “pattern or practice” discrimination on the basis of age in connection with a corporate reduction in force. Bush, et al. v. Deere & Company (C.D. Ill.). He also secured the reversal on appeal of a class certification order in a “stock drop” lawsuit that claimed breaches of fiduciary duty in the administration of a company retirement savings plan. In re Schering Plough Corporation ERISA Litig., 589 F.3d 585 (3d Cir. 2009). Eric also represents clients in EEOC investigations.

Financial and Fintech

Eric’s practice includes the representation of financial and fintech companies on a broad array of civil litigation, arbitration, and regulatory enforcement matters relating to financial products and services, including matters for Wells Fargo Bank, JPMorgan Chase, Synchrony Bank, Envestnet, Yodlee, and MidFirst Bank.

Read more about Eric Bosset
Show more Show less