Justin Bradshaw and Gustavo Lopez, individually and on behalf of all others similarly situated v. Lowe’s Companies, Inc., a North Carolina corporation, and Lowes Home Centers, LLC, a North Carolina limited liability company

Summary

The United States District Court for the Southern District of California partially grants and partially denies Lowe’s Companies, Inc. and Lowe’s Home Centers, LLC’s motion to dismiss claims arising from the use of TikTok Pixel and Microsoft Bing trackers on the Lowe’s website. The court dismisses Lowe’s Companies, Inc. for lack of personal jurisdiction and dismisses the claims for lack of Article III standing, but rejects arguments that the trackers cannot qualify as pen registers under the California Invasion of Privacy Act and declines to dismiss on several other pleading grounds.

Holdings

1. Plaintiffs failed to make a prima facie showing that their claim arose out of or related to Lowe’s Companies, Inc.’s forum-related activities because they alleged that Lowe’s Home Centers, LLC owned and operated the website. The court therefore dismissed Lowe’s Companies, Inc. for lack of personal jurisdiction.
2. Plaintiffs failed to allege a concrete injury sufficient to establish Article III standing for their CIPA section 638.51 claim. The court therefore dismissed the case for lack of standing.
3. At the pleading stage, plaintiffs adequately alleged that the TikTok Pixel and Microsoft Bing tracker constituted a pen register or trap-and-trace device under California Penal Code section 638.50, and the court rejected defendants’ argument that section 638.51 applies only to telephone surveillance.
4. Defendants’ argument that they consented to installation of the trackers under California Penal Code section 638.51(b)(5) did not warrant dismissal.
5. The complaint adequately pleaded scienter, statutory standing, and defendants’ involvement through collective allegations, so those grounds did not warrant dismissal.

Questions Presented

1. Whether the court had specific personal jurisdiction over Lowe’s Companies, Inc. when plaintiffs alleged that the Lowe’s website was owned and operated by Lowe’s Home Centers, LLC.
2. Whether plaintiffs adequately alleged a concrete injury sufficient to establish Article III standing for their California Invasion of Privacy Act claim.
3. Whether the tracking tools alleged in the First Amended Complaint constituted pen registers or trap-and-trace devices under California Penal Code section 638.50.
4. Whether defendants’ alleged consent to the installation of the trackers required dismissal under California Penal Code section 638.51(b)(5).
5. Whether plaintiffs adequately pleaded scienter, statutory standing, and defendants’ involvement despite pleading against defendants collectively.

Disposition

other