PITTSBURGH – After a federal court dismissed a man’s class action lawsuit against pizza chain Papa John’s alleging violations of the Wiretap Act and invasion of privacy, the plaintiff has appealed to the U.S. Court of Appeals for the Third Circuit.
Jordan Schnur (individually and on behalf of all others similarly situated) of Butler County first filed suit in the U.S. District Court for the Western District of Pennsylvania on Nov. 15, 2022 versus Papa John’s International, Inc. (doing business as “Papa Johns”) of Atlanta, Ga.
“As alleged in the First Amended Complaint, and taken as true, Papa Johns procures software (called Session Replay Code) from third-party vendors to embed on its website, www.papajohns.com. When a user goes to Papa Johns’s website, the Session Replay Code records a video ‘of the user’s behavior on the website,’ including the mouse movements, clicks, keystrokes and text information that the user enters in forms or text boxes. One of the code’s purposes is to provide Papa Johns with ‘insights into the user experience’ and, in turn, ‘improve customer experiences,” U.S. District Court for the Western District of Pennsylvania J. Nicholas Ranjan said.
“Mr. Schnur is a Pennsylvania resident who visited the Papa Johns website. During his visits, he browsed for deals and purchased food from Papa Johns, which entailed clicking on the food he wanted to purchase and entering his contact, delivery and payment information. The website also directed Mr. Schnur to a local Papa Johns brick-and-mortar store so that he could order his food for pick-up or delivery to his home. Mr. Schnur alleges that the Session Replay Code captured all this information during his visits to the website, in violation of the Pennsylvania Wiretap Act and his common law privacy rights.”
Papa Johns moved to dismiss the complaint on two grounds: (1) That Papa Johns was not subject to general or specific personal jurisdiction, and (2) That the complaint failed to state a claim under the Pennsylvania Wiretap Act and for intrusion upon seclusion.
“Recently, courts across the country have been presented with the question of whether a defendant that employs Session Replay Code on its website is subject to the personal jurisdiction of the forum. The courts in those cases answered that question in the negative. This Court concurs with the conclusions in those cases and finds that the first amended complaint fails to establish that Papa Johns is subject to personal jurisdiction in Pennsylvania,” Ranjan stated.
“Mr. Schnur does not argue that Papa Johns is subject to general personal jurisdiction in Pennsylvania; nor could he, because Papa Johns is neither incorporated nor has its principal place of business in Pennsylvania. So for Mr. Schnur to prevail, there must be a basis to confer specific jurisdiction over Papa Johns. The Court concludes that none exists.”
Utilizing the test created in Calder v. Jones (known as the Calder Test), Ranjan found that there was no specific personal jurisdiction as to Papa Johns. Under that test, the defendant must have shown “(1) an intentional tort, (2) the forum bore the brunt of the harm and was the focal point of the harm suffered, and (3) the tortious conduct was expressly aimed at the forum state.”
As to the third criterion, Ranjan found that Pennsylvania and its citizens were not specifically targeted, and thus, there was no jurisdiction to confer on Papa Johns.
“The thrust of Mr. Schnur’s allegations relates to his interactions with the Papa Johns website that was ‘armed’ with Session Replay Code. But there are no allegations in the complaint asserting that the act of ‘arming’ the website with Session Replay Code was expressly aimed at Pennsylvania, or that would permit the Court to infer that fact. In fact, quite the opposite – as discussed, Papa Johns’s website had a ‘national’ reach. It would be directly contrary to that strategy and Mr. Schnur’s own allegations, for the Court to conclude that Papa Johns’s website specifically targets Pennsylvanians,” Ranjan said.
“Additionally, the ‘website itself’ cannot create personal jurisdiction simply by ‘reaching into Pennsylvania.’ That’s because ‘mere operation of a globally accessible website does not cause a website provider…to expressly aim its conduct at the forum state.’ Nothing in the complaint suggests Papa Johns specifically targeted people in Pennsylvania with its Session Replay Code – as explained, the complaint alleges that the website is generally available to everyone, no matter where they are located. Thus, it cannot be said Papa Johns expressly aimed its tortious conduct at Mr. Schnur or the forum of Pennsylvania.”
The very same day, on Aug. 28, Schnur appealed the case to the Third Circuit.
U.S. Court of Appeals for the Third Circuit case 23-2573
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-01620
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com