Yale v. The Gap, Inc.
- Laurel Beeler
- 3:20-cv-07575
- U.S. District Court · Northern District of California
- 6
Yale v. Clicktale: Judge Beeler dismissed Yale’s California privacy claims with leave to amend because she did not plausibly allege Clicktale wiretapped her communications.
Amber Yale and the proposed class of California residents described in the complaint; Clicktale, Inc. remained the defendant. Gap had previously been voluntarily dismissed from the case.
What happened
In Amber Yale v. Clicktale, Inc., Amber Yale sued Clicktale on behalf of a proposed California class. She alleged that Clicktale’s software recorded visitors’ interactions with Gap’s website, including keystrokes, mouse clicks, and other information.
Yale brought claims under California’s wiretapping law, a law concerning the sale of eavesdropping software, and the California Constitution’s privacy protections. Clicktale asked the court to dismiss, arguing in part that it was Gap’s software vendor rather than an outside eavesdropper.
Judge Laurel Beeler dismissed the complaint with leave to amend within 21 days. The court held that Yale had not plausibly alleged wiretapping, and therefore also had not adequately pleaded the other claims.
The detailed version
- Yale v. The Gap, Inc. · No. 3:20-cv-07575
- Laurel Beeler
- Apr. 15, 2021
Background
Gap uses Clicktale’s Event-Triggered Recorder software on its websites, including oldnavy.com. The software records website activity such as keystrokes, mouse clicks, scrolling, and other interactions, and allows Clicktale’s clients to view a playback of a visitor’s session. The complaint alleged that the software also captured information including the visitor’s Internet Protocol address, location, browser type, operating system, email and shipping addresses, and payment-card information.
Yale visited Gap’s website and bought a product in October 2020. She sued Clicktale on behalf of a proposed class of California residents whose electronic communications were intercepted or recorded by Clicktale. Yale’s earlier complaint also named Gap, but she voluntarily dismissed Gap from the case.
Claims and Motion
The amended complaint asserted three claims against Clicktale: wiretapping under California Penal Code section 631(a), selling eavesdropping software under section 635(a), and invasion of privacy under the California Constitution. Clicktale moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns the court’s subject-matter jurisdiction, including standing; Rule 12(b)(6) tests whether a complaint adequately states a legal claim.
Court’s Analysis
The court followed its analysis in two earlier cases involving similar claims against another software-services provider. For the section 631(a) claim, the court held that Yale did not plausibly allege that Clicktale was a third-party eavesdropper because the complaint described Clicktale as a vendor providing software services that allowed its clients to monitor website traffic. The court also said that some information supporting the claim—such as Internet Protocol addresses, locations, browser types, and operating systems—was not communication content. It dismissed the claim to the extent it relied on that non-content information and stated that an amended complaint could distinguish content from non-content records.
For the section 635(a) claim, the court held that Yale lacked a private right to sue under that provision and lacked standing because she had not plausibly pleaded wiretapping. For the California constitutional privacy claim, the court held that Yale had not plausibly alleged a violation because she had not plausibly alleged wiretapping.
Disposition
The court dismissed the complaint with leave to amend within 21 days. Any amended complaint had to include a blackline comparison between the current and amended complaints. The order was entered on April 15, 2021, by Laurel Beeler, United States Magistrate Judge.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.