If you’ve received a CIPA demand letter from Vivek Shah, welcome to a club that seems to be getting larger by the hour.
Over the past several months, our office has seen a steady stream of these demands and proposed complaints across the country. They all look remarkably similar. A one-page letter titled “Informal Dispute Resolution.” An unfiled complaint captioned for Los Angeles Superior Court. Screenshots from browser developer tools. Citations to California’s Invasion of Privacy Act. And, of course, the threat that if you don’t pay now, the complaint is ready to be filed.
The newest iteration of these demands relies on California’s pen register provisions under Penal Code sections 638.50 and 638.51. The theory is that ordinary website technologies—analytics platforms, advertising pixels, etc. are unlawful “pen registers” because they collect IP addresses or browser identifiers when a visitor loads a webpage. Earlier versions of Vivek Shah’s demands focused on website search bars and alleged “wiretapping” under section 631(a), claiming that typing a search term into a website illegally caused communications to be “intercepted” by companies like Google, Facebook, HubSpot, Meta etc..
As CIPAWorld dwellers know, CIPA cases involving the use of website technologies have become increasingly common over the past few years (hence why we started this blog). But what is particularly striking about these Vivek Shah demands, however, is the sheer breadth of his demands. Based on publicly available filings, reports from businesses, and the volume of demand letters circulating among defense counsel, Vivek Shah appears to be sending these demands on an industrial scale. Troutman Amin, LLP has heard from businesses from virtually every industry—and many with only minimal contacts with California—who have reported receiving identical demand letters. We have even seen companies that do not operate in California become targets simply because they maintain a public-facing website.
That alone should tell businesses that these Vivek Shah demand letters are not necessarily the product of individualized investigations into uniquely unlawful conduct. Likely they are just part of a broader scheme by Vivek Shah directed at any entity that operates a commercial website.
The sloppy demand letters include draft complaints with barebone allegations and exhibits of screenshots of the alleged website at issue. But in many instances, no lawsuit has actually been filed. The “Informal Dispute Resolution” label is hardly accidental. It creates urgency while encouraging businesses to resolve the matter quietly before experienced defense counsel has an opportunity to evaluate the claims.
If you’re facing a Vivek Shah demand, you may want to avoid the temptation to immediately negotiate any settlement. There are various defenses available in many of these cases. For example, CA courts have ruled that consent to obtain IP address information may exist when a user voluntary visits a website as appears to be the case in all of these demands.
I’ll be candid—I have zero tolerance for this guy. It doesn’t help his credibility that public records reflect that he previously pleaded guilty in federal court to a multimillion-dollar extortion scheme and served a lengthy 7 year federal prison sentence:
https://www.wsj.com/articles/SB10001424127887323864604579069443269178818
In our view, these cases should be defended aggressively. Challenge standing. Challenge jurisdiction. Challenge the statutory theory. Challenge the barebone allegations. If the facts support it, explore a motion under California’s vexatious litigant statutes.
If your company is facing Vivek Shah CIPA demand letter or complaint don’t assume Vivek Shah’s allegations and claims have any weight or that you are liable simply because they cite California statutes and include screenshots from silly Chrome DevTools.
Troutman Amin, LLP was the first to warn you about these CIPA issues long before they became the latest cottage industry—we’ve seen virtually every variation of these CIPA claims. If you’re facing a Vivek Shah complaint or demand letter, or any CIPA lawsuit, feel free to reach out.
xoxo
Queenie