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ARTICLE · 30 JANUARY 2024

Court Issues Clearer Guidance For Standing In "Session Replay" Litigation

Winston Taylor
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On December 5, 2023, the U.S. District Court for the Eastern District of Pennsylvania in In Re: BPS Direct, LLC, and Cabela's, LLC, Wiretapping (No. 2:22-cv-04709)...

United StatesLitigation, Mediation & Arbitration
Sean G. Wieber
Sean G. Wieber
Nathan R. Gilbert
Nathan R. Gilbert
Uriel Lee
Uriel Lee

On December 5, 2023, the U.S. District Court for the Eastern District of Pennsylvania in In Re: BPS Direct, LLC, and Cabela's, LLC, Wiretapping (No. 2:22-cv-04709) dismissed several proposed class action claims on "session replay" software, limiting the viability of these suits in federal court.

"Session replay" software tracks and records a website visitor's browsing behavior and activities, providing insight on what content the visitor is viewing, clicking, requesting, and inputting. Online marketers, advertisers, and website designers use this information to create personalized marketing and advertising content for the visitor. Some class action plaintiffs allege this is an unlawful invasion of their privacy and violates anti-wiretapping laws. See, e.g., Farst v. AutoZone, Inc., No. 22-1435 (M.D. Pa.); In re Zillow Grp., Inc. Session Replay Software Litig., No. 22-1282 (W.D. Wash.); Adams v. PSP Grp., LLC, No. 22-1210 (E.D. Mo.); Massie v. Gen. Motors LLC, No.

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