Yoon v. Lululemon United States

Yoon v. Lululemon United States

Opinion

 [*1076]  ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS' MOTION TO DISMISS [ECF No. 23]

Before the Court is the motion of Defendants Lululemon USA, Inc. and Quantum  [*1077]  Metric, Inc. to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.¹ The Court finds this matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers filed in support and in opposition,² the Court orders that the Motion is GRANTED IN PART and DENIED IN PART, as set forth herein.

I. BACKGROUND

Yoon alleges the following facts in her Amended [**2]  Complaint, which the Court assumes to be true for the purposes of the instant Motion. See, e.g., Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996) (on motion to dismiss for failure to state a claim, "[a] allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party").

Yoon is a resident of Corona, California.³ Lululemon is a Nevada corporation that does business in California, including through a website; Quantum Metric is a Delaware corporation.⁴ Yoon visited and made a purchase from Lululemon's website in April 2020.⁵

Lululemon uses Quantum Metric software called "Session Replay" to captures a customer's interactions with Lululemon's webpage, including mouse movements, clicks, keystrokes, scrolls, and pageviews.⁶ Quantum Metric markets this software as allowing a company "'to pull up any user who had visited [a] website and watch their journey as if [the company] was standing over their shoulder'" and "'[s]ee actual customer interactions.'" Quantum Metric has obtained patent protection for its Session Replay technology, which Quantum Metric touts as giving companies "'real-time visibility into all behavioral, technical, and segment data.'"⁷ The monitoring that Quantum Metric's technology [**3]  provides extends beyond the computer "cookies" with which ordinary consumers are familiar.⁸ One 2017 study found that products similar to Session Replay collected users' passwords and credit card numbers.⁹ Lululemon is aware of this monitoring.¹⁰

When Yoon visited Lululemon's website, Session Replay captured her keystrokes and clicks; pages viewed; shipping and billing information; date, time, and duration of visit; IP address and physical location; and browser type and operating system.¹¹ Quantum Metric then supplies that information back to Lululemon.¹² The home page and checkout page of Lululemon's website contain links to a Privacy Policy in size 7.5 non-contrasting font.¹³ Lululemon did not ask Yoon to agree to the Privacy Policy; rather, Lululemon instructed Yoon that she could "learn more" about the Privacy Policy when she placed her order.¹⁴

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.