PHILADELPHIA – A Minnesota sporting goods retailer is attempting to dismiss class action litigation brought by a Pennsylvania man, arguing that his claims of the retailer’s website engaging in wiretapping and violating gun privacy laws through its use of the Meta Pixel and Listrak online activity devices, lack sufficient standing.
Flint DeLong (on behalf of himself and all others similarly-situated) of Upper Chichester filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Nov. 7 versus Sportsman’s Guide, Inc. of St. Paul, Minn.
DeLong contended that Sportsman’s Guide’s use of data tracking tools installed on its website to develop individualized advertising – Meta Pixel and Listrak – violated both the Pennsylvania Wiretapping and Electronic Surveillance Act (WESCA) and the Uniform Firearms Act (UFA), when the site noted his purchase of a firearm and those tracking tools provided that information to a third-party.
Delong further alleged that the Pixel tool collects “form fields containing a user’s email address, first name, last name, phone number, gender, zip code, city and state” and that the tool also gathered information about his gun purchase – when he argued that he did not consent to the collecting of that information.
After an amended complaint was brought on Jan. 25, the defendant filed a motion to dismiss on Feb. 8.
“This class action is about plaintiff Flint DeLong’s gun purchase on the website operated by defendant Sportsman’s Guide, Inc. and a data tracking tool installed on the site to develop individualized advertising – specifically, electronic coding known as a Meta Pixel and Listrak. DeLong does not – at least in this lawsuit – take issue with Sportsman’s collecting data about his browsing activity on its site, or even with the fact that Sportsman’s recorded his purchase of a gun from its site. DeLong asserts that Sportsman’s violated wiretapping and gun privacy law because the Meta Pixel and Listrak are third-party devices that gather and transmit his activity and personal information to a third-party. There are a number of factual and legal problems with this contention,” the dismissal motion stated, in part.
“But the Court need not reach those issues because DeLong cannot meet the threshold requirement of Article III standing. Whether DeLong has alleged an injury-in-fact is not a new question for this Court. On Dec. 5, 2023, U.S. District Court Judge Mark A. Kearney ruled in the BPS multi-district litigation that a plaintiff asserting identical claims as DeLong lacked Article III standing. Applying the U.S. Supreme Court opinion in TransUnion LLC v. Ramirez, Judge Kearney held that disclosure of a website user’s ‘name, address, Facebook ID, and gun purchase’ – the same information Delong alleges was disclosed here – was not sufficient to confer standing. The Court should follow Judge Kearney’s ruling in BPS and grant Sportsman’s motion to dismiss. Alternatively, were the Court to find Article III standing, it nevertheless should dismiss the suit because DeLong has failed to state a plausible claim under WESCA and UFA.”
Counsel made a further connection to the earlier decision in BPS and why it should similarly apply in this case.
“Here and like the plaintiff in BPS, DeLong doesn’t allege disclosure of any personal information like a medical diagnosis, a Social Security number or financial data; In fact, DeLong alleges essentially the same information as Irvin alleged was disclosed in BPS be it through Pixel or Listrak. The facts between BPS and this case track; the outcome should as well,” according to the dismissal motion.
For counts of allegedly violating WESCA and UFA, the plaintiff is seeking the following relief:
• Determining that this action is a proper class action;
• For an order certifying the class, naming plaintiff as representative of the class, and naming plaintiff’s attorneys as class counsel to represent the class;
• For an order declaring that defendant’s conduct violates the statute referenced herein;
• For an order finding in favor of plaintiff and the class on the counts asserted herein;
• Awarding compensatory damages, including statutory damages where available, to plaintiff and the class members against defendant for all damages sustained as a result of defendant’s wrongdoing, in an amount to be proven at trial;
• For punitive damages, as warranted, in an amount to be determined at trial;
• Ordering defendant to disgorge revenues and profits wrongfully obtained;
• For pre-judgment interest on all amounts awarded;
• For injunctive relief as pleaded or as the Court may deem proper;
• For an order awarding plaintiff and the class their reasonable attorneys’ fees and expenses and costs of suit; and
• Granting plaintiff and the class members such further relief as the Court deems appropriate.
The plaintiff is represented by Alex M. Kashurba and Steven A. Schwartz of Chimicles Schwartz Kriner & Donaldson-Smith, in Haverford.
The defendant is represented by Justin J. Boron and James Mathew of Freeman Mathis & Gary, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-04356
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com