In a recently published award, an arbitrator rejected claims that Dick’s Sporting Goods, Inc. (“Dick’s”) violated the Federal Wiretap Act and the California Invasion of Privacy Act (“CIPA”) by purportedly installing website analytics and marketing technologies on its website after an evidentiary hearing. Asad v. Dick’s Sporting Goods, Inc., JAMS Ref. No. 5220005532 (Dec. 8, 2025).
In 2022, the Claimant, Sandy Asad, filed a putative class action in federal court against Dick’s asserting claims under the Federal Wiretap Act and CIPA. Asad v. Dick’s Sporting Goods, Inc., No. 22-cv-09366 (C.D. Cal.). After Dick’s moved to compel arbitration, the Claimant agreed to stay the lawsuit and submit her claims to arbitration under the JAMS rules.
In the arbitration, the Claimant asserted that Dick’s installed multiple technologies on its website, including “session replay” software and pixels, which allegedly captured and transmitted to third parties her browsing activity while on the website. After an evidentiary hearing, the arbitrator concluded that the Claimant’s claims failed on two independent grounds.
First, the arbitrator concluded that “Claimant failed to prove that any of her communications were ‘intercepted’ while the communications were in transit between Claimant and Respondent,” as required under the Federal Wiretap Act and CIPA. Although Claimant’s expert testified that the alleged communications were intercepted at a “terminus or ‘gateway,’” this testimony was “effectively rebutted” by Respondent’s expert witness, who established that “each communication [from the technologies] was in electronic storage before the next occurred.”
Second, the arbitrator concluded that both Dick’s and the Claimant consented to any interception of their communications. The arbitrator found that Claimant consented “based on her testimony regarding her use of the site, the prominence of the Privacy Policies, and her constructive notice.”
The award highlights the important role witnesses and experts can play in defending against wiretap claims. The arbitrator commented on the persuasiveness of Respondent’s witnesses and expert and ultimately adopted their account as to “how the Technologies operate on the Website.” In comparison, the arbitrator noted that the expert testimony offered by Claimant was “generic” and “did not enable Claimant to meet her burden of proof.”