Plaintiff Can’t State CIPA Claim, Because J.Crew Doesn’t Wiretap: Motion to Dismiss

Plaintiff Marcelo Muto “willingly and proactively” signed up for J.Crew’s email list when he enrolled in its Passport rewards program, said the apparel company’s memorandum Thursday (docket 1:23-cv-07429) in U.S. District Court for Southern New York in Manhattan in support of its motion to dismiss Muto’s Aug. 22 California Invasion of Privacy Act (CIPA) class action (see 2308230005). Muto alleges J.Crew uses the services of Bluecore, its third-party email vendor, to enable wiretapping of the electronic communications of visitors to its website.

By enrolling in the rewards program, Muto “affirmatively agreed” to the program’s terms and conditions, which include an “arbitration clause” and “class waiver,” said the memorandum. He also agreed to J.Crew’s privacy policy, “which set forth precisely how J.Crew would use his information in connection with the program,” it said. He soon after agreed to yet another arbitration clause and class action waiver, this time, in J.Crew’s website terms of use, plus the same privacy policy when he opted to make a purchase from J.Crew’s website, it said.

Muto “reaped the benefits” of his purchase and of the Passport program, entitling him to get free shipping, promotional offers and the ability to return his purchases without a receipt, said the memorandum. He nonetheless is now attempting to “flout” his binding agreements with J.Crew by filing a class action lawsuit in federal court, in “contravention” of both arbitration clauses and class waivers, it said. He’s also now claiming J.Crew and Bluecore, its email vendor, used his information without his consent, notwithstanding his “repeated agreement” to J.Crew’s privacy policy, it said.

Even if Muto had standing to bring his claims in the Southern District of New York, which he doesn’t have, he can’t state a CIPA claim, said the memorandum. That’s for “the simple reason” that using an email vendor to send and analyze “engagement” with marketing emails is “an innocuous practice that has been used by practically every e-commerce company for decades,” it said. It’s also not wiretapping, it said.

Nor can Muto state a claim for “statutory larceny” or under California’s Unfair Competition Law, because he doesn’t allege J.Crew “actually took anything from him,” so he can’t allege a loss of property, said the memorandum. The court should stop Muto’s “strained, no-injury lawsuit in its tracks and dismiss this case with prejudice,” it said.

Muto is a California resident who claims to have received and opened emails from J.Crew on multiple occasions, said the memorandum. He doesn’t claim he ever responded to J.Crew’s emails, only that he opened the email and clicked on URL links within it, it said. He “theorizes” that every time he opened an email, J.Crew used Bluecore software to intercept information attributed to his online activity, it said.

Muto further alleges that when he clicked on links within the email that led to the J.Crew website, Bluecore intercepted his subsequent interactions with J.Crew’s website, said the memorandum. Muto claims Bluecore aggregates the data from its clients’ customers, but “he alleges no facts to suggest that Bluecore takes such action with respect to J.Crew customers,” it said.

Bluecore “provides standard emailing services to J.Crew to enhance consumers’ e-commerce experience,” said the memorandum. J.Crew uses Bluecore to send marketing emails to J.Crew’s mailing list, “and then to provide analytics to J.Crew about the marketing campaign,” it said. Those analytics include when customers opened or clicked on an email, or where in the email the customer clicked, it said.

Bluecore’s services “are crucial to ensuring that emails are actually being received,” not sent to spam, and that the emails “are delivering content that J.Crew’s subscribers like receiving,” said the memorandum. Bluecore doesn’t use J.Crew’s customer data “for its own purposes,” it said. Bluecore is “contractually prohibited from disclosing or using J.Crew’s information for any purpose, however insignificant,” it said.