PITTSBURGH (CN) — In a consolidated case that will determine whether “session replay” tracking software on Papa John’s and Mattress Firm’s websites took express aim at Pennsylvanians’ privacy rights, a panel of Third Circuit judges pried into questions of jurisdiction Thursday.
“I am admittedly a dedicated Luddite,” quipped Senior U.S. Circuit Judge Brooks Smith, a George W. Bush appointee, asking for clarification on how the software worked.
Representing both classes of consumers, attorney Jamisen Etzel provided clarification before the panel.
“It then instructs your browser that anytime you start moving your mouse clicking anything you type any letter, a copy that gets sent to a third party,” Etzel explained.
His clients were told they lacked standing by separate Pittsburgh federal judges last year.
Etzel pushed the panel toward another conclusion Thursday.
“When a company comes into Pennsylvania intentionally and violates the rights of Pennsylvanians here, Pennsylvania courts have jurisdiction to hear the claims about those violations occurring within the borders of the Commonwealth,” the Lynch Carpenter attorney said.
As lead plaintiff in the Papa John’s suit, Pennsylvania resident Jordan Schnur in 2022 accused the pizza company of using the tracking software to record video of website users’ mouse movements, keystrokes and clicks while on the site. Schnur had used Papa John’s website to order food and schedule delivery, and enter payment information. The website also directed him to a nearby store.
U.S. District Judge Nicholas Ranjan found that the court lacked jurisdiction in August 2023, however, since the website did not expressly target Pennsylvanians’ website movements. The website being accessible in Pennsylvania wasn't enough to create personal jurisdiction.
For the same reason, Pittsburgh federal court Judge Marilyn Horan in July 2023 dismissed a class action led by plaintiff Kenneth Hasson against Fullstory, a software service provider for Mattress Firm, alleging it recorded movements of visitors on the Mattress Firm website without their consent.
Covington & Burling attorney Mark Mosier, speaking for Papa John’s and Fullstory, maintained that the plaintiffs’ use of the websites doesn’t support Pennsylvania jurisdiction.
U.S. Circuit Judge Peter Phipps, a Trump appointee, questioned if, after the session tracking code is put into the website, the companies at least “have some notion of aiming.”
Mosier demurred.
“It’s still not express aiming even if they learn where the person’s located,” the attorney said.
Etzel, the class’ attorney, countered that both companies know they’re recording users and “could voluntarily extract themselves from the situation if they wanted to.”
U.S. Circuit Judge Thomas Hardiman seemed to agree.
“Maybe your friend on the other side will disagree with me, but I think it's clear that they're actively gathering data,” the George W. Bush appointee told Etzel, but 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.”
Smith, too, indicated Thursday this was an important factor in the case's decision.
“The whole case seems to come down to whether someone is active or passive,” Smith added.
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