Customer Sues J.Crew for CIPA Violations via Bluecore Tracking Software

J.Crew enables wiretapping of electronic communications between the clothing company and its customers without the recipients' knowledge, said a Tuesday privacy class action (docket 1:23-cv-07429) in U.S. District Court for Southern New York in Manhattan.

The wiretaps, powered by Bluecore software, are embedded in emails through URL links that route customers through servers used by Bluecore to “secretly observe and record” interactions of J.Crew customers when they open and/or click on the emails’ content and the landing pages of the J.Crew website, it said. J.Crew’s licensing agreement with Bluecore stipulates that it “'aids, agrees with, employs, or conspires’ to permit Bluecore to read, attempt to read, and/or use the communications” of J.Crew’s website users “without their consent,” in violation of the California Invasion of Privacy Act (CIPA), it said.

Plaintiff Marcelo Muto of Riverside County, California, received and interacted with J.Crew’s emails from his computer on multiple occasions, including in January, said the complaint. When Muto opened the emails, Bluecore intercepted in real time the time, date, device type, geolocation and Muto’s engagement with the email’s content, including his clicks on links, it said. Bluecore also captured Muto’s email open rates and content click rates, it said.

When Muto clicked on a link in the email, Bluecore “continued to intercept Mr. Muto’s communications throughout the web pages that he was directed to” on the J.Crew website, the complaint said. Muto was unaware then that his engagement with the website was being intercepted, and he didn’t consent to the interception of his communications, it said.

The complaint cited Bluecore marketing materials saying its tracking software “provides [clients] with a detailed view of how customers are engaging with [their] email templates…[to] improve email performance going forward,” said the complaint. The software company embeds an invisible URL link within clickable images and words in the body of the email. The links are unique to each email recipient, “allowing Bluecore to correlate email behavior with its intended recipients,” it said.

After an email subscriber arrives at the J.Crew landing page -- the product catalog displayed in an email -- Bluecore uses JavaScript and other “persistent cookies” in the hosting website to “monitor customers throughout their purchase journey,” the complaint said. Bluecore “unifies all of the previous anonymous visits of those customers to the hosting website in order to create a comprehensive user profile -- including their interests, purchase intent, and other personal information,” it said. It then deploys its algorithm to send personalized emails, such as when a customer abandons a virtual shopping cart, it said.

In addition to CIPA counts, Muto claims statutory larceny and violation of California’s Unfair Competition Law. He seeks compensatory, statutory and punitive damages; prejudgment interest; an order of restitution; and reasonable attorneys’ fees and legal costs.