In re: BPS Direct, LLC; Cabela’s, LLC Wiretapping Litigation

Summary

The U.S. Court of Appeals for the Third Circuit held that two plaintiffs who entered complete payment and billing information on Bass Pro Shops and Cabela’s websites adequately alleged a concrete injury analogous to intrusion upon seclusion, giving them Article III standing. The court held that six plaintiffs who only browsed the websites did not allege a concrete injury. It reversed as to the two purchasing plaintiffs, modified the dismissals of the remaining plaintiffs to be without prejudice, and remanded.

Holdings

1. The six plaintiffs lacked Article III standing because the alleged capture of their nonpersonal, nonsensitive browsing activity was not closely related to an injury traditionally recognized at common law, including public disclosure of private facts or intrusion upon seclusion.
2. Cornell and Montecalvo sufficiently alleged concrete injuries because the nonconsensual interception and examination of their complete credit or debit card numbers was closely analogous to the common-law tort of intrusion upon seclusion.
3. Cornell and Montecalvo did not establish an injury analogous to public disclosure of private facts because they alleged that BPS shared their information only with its Session Replay Code Providers, leaving the information functionally internal rather than public.
4. Dismissals for lack of Article III standing should generally be without prejudice because the absence of standing deprives the court of subject matter jurisdiction to reach the merits.

Questions Presented

1. Whether plaintiffs who alleged that Session Replay Code captured their website interactions suffered a concrete injury sufficient to establish Article III standing.
2. Whether capturing and transmitting complete credit or debit card numbers without consent caused an injury closely related to the common-law tort of intrusion upon seclusion.
3. Whether the District Court could dismiss claims with prejudice for lack of Article III standing.

Disposition

reversed_and_remanded