{"id":1878,"date":"2024-12-18T15:47:04","date_gmt":"2024-12-18T19:47:04","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=1878"},"modified":"2024-12-18T17:24:18","modified_gmt":"2024-12-18T21:24:18","slug":"ninth-circuit-dismisses-adtech-class-action-for-lack-of-standing","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2024\/12\/18\/ninth-circuit-dismisses-adtech-class-action-for-lack-of-standing\/","title":{"rendered":"Ninth Circuit Dismisses Adtech Class Action For Lack Of Standing"},"content":{"rendered":"
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By Gerald L. Maatman, Jr. and Justin Donoho<\/strong><\/p>\n\n\n\n

Duane Morris Takeaways:<\/strong>  On December 17, 2024, in Daghaly, et al. v. Bloomingdales.com, LLC, No. 23-4122, 2024 WL 5134350 (9th Cir. Dec. 17, 2024), the Ninth Circuit ruled<\/u> <\/a>that a plaintiff lacked Article III standing to bring her class action complaint alleging that an online retailer\u2019s use of website advertising technology disclosed website visitors\u2019 browsing activities in violation of the California Invasion of Privacy Act and other statutes.  The ruling is significant because it shows that adtech claims cannot be brought in federal court without specifying the plaintiffs\u2019 web browsing activities allegedly disclosed.  <\/em><\/p>\n\n\n\n

Background<\/strong><\/p>\n\n\n\n

This case is one of the hundreds of class actions that plaintiffs have filed nationwide alleging that Meta Pixel, Google Analytics, and other similar software embedded in defendants\u2019 websites secretly captured plaintiffs\u2019 web browsing data and sent it to Meta, Google, and other online advertising agencies.  This software, often called website advertising technologies or \u201cadtech\u201d is a common feature on many websites in operation today.<\/p>\n\n\n\n

In Daghaly<\/em>, Plaintiff brought suit against an online retailer.  According to Plaintiff, the retailer installed the Meta Pixel and other adtech on its public-facing website and thereby transmitted web-browsing information entered by visitors such as which products the visitor clicked on and whether the visitor added the product to his or her shopping cart or wish list.  Id.<\/em>, No. 23-CV-129, ECF No. 1 \u00b6\u00b6 44-45.  As for Plaintiff herself, she did not allege what she clicked on or what her web browsing activities entailed upon visiting the website, only that she accessed the website via the web browser on her phone and computer.  Id. <\/em>\u00b6 40.<\/p>\n\n\n\n

Based on these allegations, Plaintiff alleged claims for violation of the California Invasion of Privacy Act (CIPA) and other statutes.  The district court dismissed the complaint for lack of personal jurisdiction.  Id.<\/em>, 697 F. Supp. 3d 996 (S.D. Cal. 2023).  Plaintiff appealed and, in its appellate response brief, the retailer argued for the first time that Plaintiff lacked Article III standing.<\/p>\n\n\n\n

The <\/strong>Ninth Circuit<\/strong>\u2019s Opinion<\/strong><\/p>\n\n\n\n

The Ninth Circuit agreed with the retailer, found that Plaintiff lacked standing, and remanded for further proceedings.<\/p>\n\n\n\n

To allege Article III standing, as is required to bring suit in federal court, the Ninth Circuit opined that a plaintiff must \u201cclearly allege facts demonstrating\u201d that she \u201csuffered an injury in fact that is concrete, particularized, and actual or imminent.\u201d  Id.<\/em>, 2024 WL 5134350, at *2 (citing, e.g., TransUnion LLC v. Ramirez<\/em>, 594 U.S. 413, 423 (2021)). <\/p>\n\n\n\n

Plaintiff argued that she sufficiently alleged standing via her allegations that she \u201cvisited\u201d and \u201caccessed\u201d the website and was \u201csubjected to the interception of her Website Communications.\u201d  Id.<\/em> at *1.  Moreover, Plaintiff argued, the retailer\u2019s alleged disclosure to adtech companies of the fact of her visiting the retailer\u2019s website sufficiently alleged an invasion of her privacy and thereby invoked Article III standing because the adtech companies could use this fact to stitch together a broader, composite picture of Plaintiffs\u2019 online activities.  See <\/em>oral argument, here<\/a>.<\/p>\n\n\n\n

The Ninth Circuit rejected these arguments. It found that Plaintiff \u201cdoes not allege that she herself actually made any communications that could have been intercepted once she had accessed the website. She does not assert, for example, that she made a purchase, entered text, or took any actions other than simply opening the webpage and then closing it.\u201d  Id.<\/em>, 2024 WL 5134350, at *1.As the Ninth Circuit explained during oral argument by way of example, it is not like the Plaintiff had alleged that she was shopping for underwear and that the retailer transmitted information about her underwear purchases.  Moreover, the Ninth Circuit found \u201cno authority suggesting that the fact that she visited [the retailer\u2019s website] (as opposed to information she might have entered while using the website) constitutes \u2018contents\u2019 of a communication within the meaning of CIPA Section 631.\u201d  Id.<\/em><\/p>\n\n\n\n

In short, the Ninth Circuit concluded that Plaintiff lacked Article III standing, and that this conclusion followed from Plaintiff\u2019s failure to sufficiently allege the nature her web browsing activities giving rise to all of her statutory claims.  Id. <\/em>at *2.  The Ninth Circuit remanded with instructions that the district court grant leave to amend if properly requested. <\/p>\n\n\n\n

Implications For Companies<\/strong><\/p>\n\n\n\n

The holding of Daghaly<\/em> is a win for adtech class action defendants and should be instructive for courts around the country.  Other courts already have found that an adtech plaintiff\u2019s failure to identify what allegedly private information allegedly was disclosed via the adtech warrants dismissal under Rule 12(b)(6) for failure to plausibly plead various statutory and common-law claims.  See, e.g, <\/em>our blog post about such a decision here<\/a>.   Daghaly <\/em>shows that adtech plaintiffs also need to identify what allegedly private information beyond the fact of a visit to an online retailer\u2019s website was allegedly disclosed via the adtech, in order to have Article III standing to bring their federal lawsuit in the first place.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr. and Justin Donoho Duane Morris Takeaways:  On December 17, 2024, in Daghaly, et al. v. Bloomingdales.com, LLC, No. 23-4122, 2024 WL 5134350 (9th Cir. Dec. 17, 2024), the Ninth Circuit ruled that a plaintiff lacked Article III standing to bring her class action complaint alleging that an online retailer\u2019s use of … <\/p>\n

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