Mills v. Saks.com LLC

Background

Fan Mills alleged that she opened Saks.com LLC’s promotional emails from 2017 through October 2023. She alleged that the emails contained “spy pixels,” or tracking tools, that collected information including when and where an email was opened, whether it was forwarded, the recipient’s Internet Protocol address, and other details. Mills alleged that this collection occurred without her consent and violated Arizona’s Telephone, Utility and Communication Service Records Act, which provides a private right of action. She sought declaratory relief, damages, and an injunction on behalf of herself and others similarly situated.

Saks moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a legally sufficient claim.

Standing

The court first addressed standing, which is the requirement that a plaintiff show a personal, concrete stake in the dispute. For injunctive relief, the plaintiff must show a sufficiently likely future injury. The court found that Mills did not allege that Saks’s conduct created a future risk of harm, that she feared disclosure of her information, or that Saks intended to use her information to harm her. The court therefore found that she lacked standing to seek injunctive relief.

For damages, the court explained that alleging a statutory violation alone does not establish a concrete injury. Mills argued that Saks’s conduct was similar to the privacy tort of intrusion upon seclusion. The court rejected that comparison because the information collected concerned Mills’s interaction with Saks’s emails and did not involve substantial access to deeply private, personal, or confidential matters. The court also noted that Mills did not allege that Saks disclosed her information to a third party, distinguishing cases involving disclosure of private information.

The court further rejected Mills’s comparisons to the Video Privacy Protection Act and the Telephone Consumer Protection Act. It found that those laws addressed different harms, including disclosure of private information, unwanted communications, nuisance, or the inability to prevent automatic communications. Mills had acknowledged that she may have signed up for Saks’s emails, regularly opened them, and did not unsubscribe. The court concluded that her alleged injuries lacked a sufficient historical or traditional analogue to establish a concrete injury under Article III of the Constitution.

Failure to State a Claim

The court stated that even if Mills had standing, her claim would fail on the merits. It held that using tracking pixels in promotional emails to collect information such as when and how an email was opened did not fall within the Arizona statute’s definition of a “communication service record.”

The court relied on recent decisions, including a decision from the District of Arizona and an Arizona state-court decision, which concluded that the statute protects records collected by telephone companies, public utilities, and communication-service providers, rather than information collected by retailers communicating with customers by email. The court also cited those decisions’ conclusions that information about when and how an email was opened, the device used, the recipient’s Internet Protocol address, and whether the email was forwarded was not a protected communication-service record or access log under the statute.

Leave to Amend and Disposition

Mills requested permission to amend her complaint if the court granted any part of Saks’s motion. The court explained that permission to amend may be denied when amendment would be futile. It concluded that the defects in Mills’s complaint could not be cured by amendment and declined to grant leave to amend.

Judge Edgardo Ramos granted Saks’s motion to dismiss. The order directed the Clerk of Court to terminate the motions and close the case. The opinion does not state that the dismissal was with or without prejudice.