{"id":2106,"date":"2025-03-27T12:14:31","date_gmt":"2025-03-27T16:14:31","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=2106"},"modified":"2025-03-27T12:14:31","modified_gmt":"2025-03-27T16:14:31","slug":"pennsylvania-federal-court-disposes-of-adtech-class-action-due-to-consent-by-browsewrap","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2025\/03\/27\/pennsylvania-federal-court-disposes-of-adtech-class-action-due-to-consent-by-browsewrap\/","title":{"rendered":"Pennsylvania Federal Court Disposes Of Adtech Class Action Due To Consent By Browsewrap"},"content":{"rendered":"
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By Justin Donoho<\/strong> and Gerald L. Maatman, Jr.<\/strong><\/p>\n\n\n\n

Duane Morris Takeaways:<\/strong>\u00a0 On March 24, 2025, in \u00a0Popa v. Harriet Carter Gifts, Inc., 2025 WL 896938 (W.D. Pa. Mar. 24, 2025), Judge William S. Stickman IV of the U.S. District Court for the Western District of Pennsylvania\u00a0granted summary judgment<\/u> <\/a>f<\/span>or a retailer on\u00a0a claim that the retailer\u2019s use of website advertising technology violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act (\u201cWESCA\u201d).\u00a0 The ruling is significant as it shows that in the hundreds of adtech class actions across the nation seeking millions or billions of dollars in statutory damages under various federal and state wiretap acts, implied consent may be found as a matter of law, thus disposing of the wiretap claim, where the defendant has posted a clearly labeled privacy statement at the bottom of the relevant webpage that discloses the use of adtech.<\/em><\/p>\n\n\n\n

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

This case is one of a legion 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. <\/p>\n\n\n\n

This software, often called website advertising technologies or \u201cadtech,\u201d is a common feature on millions of corporate, governmental, and other websites in operation today.  In adtech class actions, the key issue is often a claim brought under a federal or state wiretap act, a consumer fraud act, or the Video Privacy Protection Act, because plaintiffs often seek millions (and sometimes even billions) of dollars, even from midsize companies, on the theory that hundreds of thousands of website visitors, times $10,000 per claimant in statutory damages under the Federal Wiretap Act, for example, equals a huge amount of damages.  Plaintiffs have filed the bulk of these types of lawsuits to date against healthcare providers, but they have filed suits against companies that span nearly every industry including retailers, consumer products, and universities.  Several of these cases have resulted in multimillion-dollar settlements, several have been dismissed, and the vast majority remain undecided. <\/p>\n\n\n\n

In Popa,<\/em> the plaintiff brought suit against a retailer.  According to the plaintiff, the retailer installed adtech called NaviStone OneTag on its public-facing website, thereby transmitting to Navistone, allegedly without the plaintiff\u2019s consent, data about her visit to the retailer\u2019s website where she added a set of pet stairs to her shopping cart.   See id.<\/em>, 52 F.4th 121, 124-25 (3d Cir. 2022) (referenced in id.<\/em>, 2025 WL 896938).  Based on these allegations, the plaintiff claimed that the retailer aided Navistone to intercept her communications in violation of the WESCA.  Id.<\/em>, 2025 WL 896938, at *1. <\/p>\n\n\n\n

The retailer moved for summary judgment, arguing that the plaintiff consented because of the nature of the internet or, alternatively, due to the retailer\u2019s \u201cPrivacy Statement\u201d linked at the bottom of the retailer\u2019s webpage in a color contrasting with the website\u2019s background, as is common on many websites, and which disclosed the retailer\u2019s use of adtech.  Id. <\/em>at *2.<\/p>\n\n\n\n

The Court\u2019s Decision<\/strong><\/p>\n\n\n\n

The Court agreed with the retailer and held that the plaintiff impliedly consented to the retailer\u2019s privacy policy, thereby defeating the plaintiffs\u2019 WESCA claim.<\/p>\n\n\n\n

Central to the Court\u2019s holding was the WESCA\u2019s statutory exception rendering it inapplicable \u201cwhere all parties to the communication have given prior consent to such interception.\u201d  Id. <\/em>at *5 (quoting 18 Pa. C.S. \u00a7 5704(4)).   As the Court explained, \u201cactual knowledge is not required under the mutual consent provisions of WESCA\u201d and \u201c\u2018prior consent\u2019 can be demonstrated when the person being recorded knew or should have known, that the conversation was being recorded. This standard is one of a reasonable person, and not proof of the subjective knowledge of the person being recorded.\u201d  Id. <\/em>at **5-6.  In short, the Court reasoned that \u201cthe WESCA mutual consent exception focuses on a reasonable person standard.\u201d  Id. <\/em>at *6.<\/p>\n\n\n\n

To determine the reasonable person standard under the WESCA, the Court rejected the retailer\u2019s first argument that any reasonable person using the internet impliedly consents to the use of adtech because of the nature of the internet.  As the Court found, \u201cthe nature of the internet does not confer blanket implied consent to interception under WESCA.\u201d  Id. <\/em>at *7.  However, as the Court further found that \u201ca reasonably prudent person has a lower expectation of privacy on the internet than on, for example, a telephone, which lacks the entire system of trackers, cookies, and algorithms commonly, if not ubiquitously, implicated in the use of a website.\u201d  Id. <\/em>at *7.<\/p>\n\n\n\n

Having found that WESCA\u2019s reasonable person standard involves a lower expectation of privacy on the internet than on the telephone, the Court applied this standard to the relevant facts of the case.  In doing so, the Court found that although the plaintiff did not actually read the Privacy Statement and therefore did not actually consent, if she were a reasonable person using the internet as the Court deemed her to be, then she had constructive knowledge as a matter of law due to a \u201cbrowsewrap\u201d agreement and therefore impliedly consented.  As the Court explained, \u201cContracts formed on the Internet [include] \u2018browsewrap\u2019 agreements, where a website’s terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen.  Unlike a clickwrap agreement, a browsewrap agreement does not require the user to manifest assent to the terms and conditions expressly a party instead gives his assent simply by using the website.\u201d  Id. <\/em>at *9.<\/p>\n\n\n\n

In conclusion, the Court found a browsewrap agreement as a matter of law and ordered entry of a judgment in the retailer\u2019s favor based on the following facts: (1) the privacy statement \u201cwas specifically labeled \u2018Privacy Statement.\u2019 [The plaintiff], or any other user could have easily seen the link and understood exactly what it contained\u201d; and (2) the retailer\u2019s placement of a link to the privacy statement on the bottom of the relevant webpage was \u201cin line with common usage\u201d; and (3) \u201cThe hyperlink to the Privacy Statement was reasonably conspicuous. It was displayed in a white contrasting font against a blue background on the bottom of every page of the website.\u201d  Id. <\/em>at *11. <\/p>\n\n\n\n

In sum, the Court found that \u201cthese factors compel a finding that a reasonable person in [the plaintiff]’s position had constructive notice of the terms of the Privacy Statement as a matter of law.\u201d  Id.<\/em><\/p>\n\n\n\n

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

Popa <\/em>provides powerful precedent for any company opposing adtech class action claims brought not only under the WESCA but also under any state or federal wiretap act, provided the company has a privacy policy sufficiently disclosing the use of adtech via a clearly labeled link on the bottom of the applicable webpage.  Consider, for example, the numerous adtech class actions featuring a claim under the Federal Wiretap Act and seeking millions or billions of dollars in statutory damages.  Although some courts have dismissed these claims on other grounds such as the lack of an interception or lack of criminal or tortious purpose (as discussed in our previous blog entry about a recent win for adtech defendants, here<\/a>), other courts have refused to dismiss adtech claims brought under the Federal Wiretap Act, allowing them to proceed to costly merits, class certification, and expert discovery. <\/p>\n\n\n\n

Popa <\/em>provides an alternative path to victory in these cases, where applicable, which is to show that the plaintiff implied consented to the adtech via browsewrap.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Justin Donoho and Gerald L. Maatman, Jr. Duane Morris Takeaways:\u00a0 On March 24, 2025, in \u00a0Popa v. Harriet Carter Gifts, Inc., 2025 WL 896938 (W.D. Pa. Mar. 24, 2025), Judge William S. Stickman IV of the U.S. District Court for the Western District of Pennsylvania\u00a0granted summary judgment for a retailer on\u00a0a claim that the … <\/p>\n

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