Hi CIPAWorld! The Baroness here 🙂
Now, I know we usually dive deep into all things CIPA, but today, we’re taking a bit of a detour.
Yesterday, I briefly talked about the Massachusetts wiretap act and privacy law. But today, we are going to discuss… Pennsylvania’s Wiretap Act!
The Pennsylvania Wiretap Act prohibits intentional interception of any wire, oral, or electronic communication without the consent of all parties involved as well as any knowing disclosure of the contents of communications obtained in violation of the statute. 18 Pa. Cons. Stat. §§ 5703, 5704(4).
Just like California, Pennsylvania is a two-party consent state.
There is a private right of action under the statute and any harmed party can obtain:
(1) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation, or $1,000, whichever is higher.
(2) Punitive damages.
(3) A reasonable attorney’s fee and other litigation costs reasonably incurred.
Now, lets get to the facts.
This case is one involving FullStory. (If you attended our first ever marketing conference in July, then you will remember that web session analytics is driving a lot of privacy claims.)
The plaintiff in this case, Kenneth Hasson (a resident of Pennsylvania), visited Mattress Firm’s website from his home computer in PA.
Mattress Firm is a Texas company and FullStory is a Georgia company.
Mr. Hasson alleged that FullStory intercepted his communications while on the Mattress Firm website including his mouse clicks, keystrokes, and personal data that he entered on the site.
FullStory moved to dismiss Hasson’s Complaint arguing that the PA Court lacked personal jurisdiction over it.
The law.
In order to demonstrate personal jurisdiction, the plaintiff must show that: (1) the defendant has constitutionally sufficient “minimum contacts” with the forum, and (2) the exercise of jurisdiction would comport with “traditional notions of fair play and substantial justice.”
Because both of the parties agreed that general jurisdiction does not apply in this case (i.e., FullStory is not “at home” in PA), the only basis to confer jurisdiction over FullStory is specific jurisdiction.
In the context of specific jurisdiction, the “minimum contacts” determination is analyzed differently depending on the type of claim asserted. The three-part “effects” test, as set forth in Calder v. Jones, 465 U.S. 783 (1984), applies to intentional tort claims. Because Hasson’s wiretapping and intrusion upon seclusion claims constitute intentional torts, the Court applied the Calder test.
To satisfy the Calder test, the plaintiff must plead that (1) the defendant committed an intentional tort, (2) the plaintiff felt the brunt of the harm in Pennsylvania, and (3) the defendant “expressly aimed” its allegedly tortious conduct at Pennsylvania.
As to the third element, the plaintiff must (1) “point to specific activity indicating” that the defendant “expressly aimed” its conduct at Pennsylvania and (2) show that the defendant “knew” that plaintiff would suffer the brunt of the harm in Pennsylvania.
Here, the Court found that Hasson was unable to show that FullStory expressly aimed its conduct at PA. The Court compared the instant case to Saleh v. Nike and Mikulsky v. Noom, Inc. where the Court did not find that FullStory expressly aimed its software services at the forum state.
Similar to what we saw in the Goodyear case, “a website that is accessible worldwide does not expressly aim a defendant’s conduct at the form state.” Hasson v. FullStory, Inc., No. 2:22-CV-1246, 2023 WL 4745961, at *2 (W.D. Pa. July 25, 2023).
Moreover, Hasson argued that he should at least be permitted to conduct limited personal jurisdictional discovery to “bring forth facts showing that FullStory ha[d] clients in Pennsylvania.” But the Court did not find that such discovery would change the facts. The Court highlighted “such additional alleged websites involving Pennsylvania contacts are irrelevant for the purposes of finding specific jurisdiction in this case as specific jurisdiction requires that the alleged contacts relate to Mr. Hasson’s claims against FullStory. Hasson has not proposed that any relevant jurisdictional facts can be developed to change the ultimate conclusion that personal jurisdiction over FullStory fails in this case.”
Accordingly, the Court granted FullStory’s motion to dismiss based on lack of personal jurisdiction, denied Mr. Hasson’s request for jurisdictional discovery and denied his request for leave to amend.
FullStory takes the win!
Hasson v. FullStory, Inc., No. 2:22-CV-1246, 2023 WL 4745961, at *3 (W.D. Pa. July 25, 2023)
CIPAWorld 