Plaintiff Returns to Court to Challenge X-Mode Social's Data Collection Practices

Less than a month after U.S. District Judge Denise Casper for Massachusetts in Boston dismissed Norma Egan's privacy lawsuit vs. X-Mode Social over geolocation tracking, the plaintiff returned to the courtroom, this time in U.S. District Court for Virginia. Egan is still claiming unjust enrichment and violation of the Massachusetts Unfair and Deceptive Business Practices Act.

The Somerville, Massachusetts, resident alleges X-Mode violates state law when it acquires and tracks consumers’ precise geolocation data through XDK software and then profits from selling the location and other related data. A second plaintiff, Joseph Egan, was added to the Saturday complaint (docket 1:24-cv-01052). The Egans allege they downloaded a third-party app to their phones in January 2021 to track the geolocation of their children and family members.

The app sold the plaintiffs’ data to X-Mode, which resold it “for profit,” without obtaining their consent, the complaint alleged. Data can include consumers’ movements to and from “sensitive locations,” including those associated with medical care, reproductive and mental health and religious worship, it alleged. In addition, the data could show consumers moving to temporary shelters, such as those for the homeless, domestic violence survivors, addiction recovery, “or other at-risk populations,” it added.

By plotting latitude and longitude coordinates that X-Mode provided and using publicly available map programs, it’s possible to identify which consumers’ mobile devices visited reproductive health clinics, alleged the complaint. Because each set of coordinates is time-stamped, it’s also possible “to identify when a mobile device visited the location”; similar methods can be used to trace consumers’ visits to other sensitive locations, it added.

The location X-Mode provides is not anonymized “or easily de-anonymized,” the complaint said. That makes it possible to use the geolocation data, combined with a mobile device’s Mobile Advertising ID (MAID), to identify the device’s user or owner, it said. Some data brokers “advertise services to match MAIDS with 'offline’ information, such as consumers’ names and physical addresses," it said.

Casper dismissed Egan’s case May 24 without prejudice, saying that in sum, the Gestalt factors in her class action -- the defendant’s burden, forum state’s interest, plaintiff’s interest, judicial system’s interest in effective resolution and relevant policy interests -- “may weigh slightly in Egan’s favor” but overall offered “little counterbalance” to her failure to satisfy other factors for the exercise of personal jurisdiction.

In her ruling, Casper cited Ticketmaster-N.Y., Inc. v. Alioto, in which the court determined that “the weaker the plaintiff’s showing” on the first two prongs of personal jurisdiction -- relatedness and purposeful availment -- “the less a defendant need show in terms of unreasonableness to defeat jurisdiction.” Egan didn't show relatedness and purposeful availment in the first action, Casper ruled in her dismissal, saying the plaintiff’s “personal jurisdiction over X-Mode does not comport with due process.”

Virginia-based X-Mode Social had sought to have the lawsuit transferred to the Eastern District of Virginia in January, which Egan opposed (see 2401220026). She argued the transfer was inappropriate because the Massachusetts court had jurisdiction over X-Mode and was proper.

In the Friday complaint, Egan asserts jurisdiction is proper because pursuant to the Class Action Fairness Act, at least one member of the class is a citizen of a state different from the defendant, the amount in controversy exceeds $5 million, and the proposed class contains more than 100 members. The venue is proper in the Eastern District of Virginia because X-Mode’s principal place of business is located in the district and a substantial part of the events or omission giving rise to Egan’s claims occurred in the district, the complaint said.