Third Circuit Weighs Jurisdiction Over Class Action Suits Involving Website Tracking and Privacy Violations

Alexandra Jones, writing in Courthouse News, reports that website tracking and privacy rights were at issue when a panel of three Third Circuit judges considered whether Pennsylvania courts had jurisdiction over potential class actions involving websites belonging to Papa John’s and Mattress Firm.

Senior US Circuit Judge Brooks Smith called himself a “dedicated Luddite” and asked how the “session replay” function that both companies employ works.

Jamisen Etzel, an attorney for classes of consumers who want to sue, explained that they program the three-judge panel’s browsers to send a copy of users’ activity to a third party. Etzel’s task was to convince a three-judge panel that his clients had standing. The lead plaintiff in the Papa John’s suit is a Pennsylvania resident who used the company’s website to order food and pay for it. He accused Papa John’s of using session replay to record video of his and other website users’ mouse movements, keystrokes, and clicks.

US District Judge Nicholas Ranjan found that the court lacked jurisdiction, noting that the website did not expressly target Pennsylvanians. He ruled that the fact that the website was accessible in Pennsylvania didn’t create personal jurisdiction. Pittsburgh federal court Judge Marilyn Horan dismissed a class action against a software service provider for Mattress Firm for the same reason. 

Attorney Mark Mosier, who represents both Papa John’s and the Mattress Firm provider at the Third Circuit, voiced his agreement with those rulings. Etzel countered that if a company comes into Pennsylvania “intentionally” and violates the rights of Pennsylvanians, then “Pennsylvania courts have jurisdiction to hear claims about those violations.”

The panel didn’t entirely discount Etzel’s argument, but Judge Thomas Hardiman questioned whether the companies were really aiming at the plaintiffs, given that “the only way they begin to gather the data is if people like your clients go to them.”

“The whole case seems to come down to whether someone is active or passive,” Judge Smith said.