Sites Illegally Tracked Consumers New Suits Allege

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

New suits accuse mattress company Casper Sleep and lender Quicken Loans of illegally tracking consumers online.

Brady Cohen visited the website of Casper Sleep on multiple occasions to shop for a new mattress. While he didn’t make a purchase, his New York federal court complaint against Casper and NaviStone alleged that Casper used NaviStone software that functions as a wiretap to collect his keystrokes, mouse clicks and other electronic communications—all without his permission.

The defendants also intercepted communications that included information typed on forms on the website, “regardless of whether the user completes the form or clicks ‘Submit,’” Cohen added.

The defendants then combined the gathered information with other off-line data to create a profile filled with personally identifiable information, including his name and mailing address, the plaintiff said. He also noted that NaviStone itself boasts on its own website that it “invented progressive website visitor tracking technology” that allows it to “reach [] previously unidentifiable website visitors,” with a matching rate of 60 to 70 percent of anonymous site traffic.

Cohen, who said he was unaware of the interception of his electronic activity, claimed the defendants’ efforts violated the Electronic Communications Privacy Act.

“None of these actions was undertaken in the ordinary course of business,” the complaint stated, since defendants used screen shots of the Developer Tools Window to observe the incoming and outgoing transmissions when a consumer visits the Casper website. “On the contrary, these actions are contrary to the legitimate expectations of website visitors, and are contrary to established industry norms.”

Seeking to represent a class estimated “in the millions,” Cohen asked the court for actual damages, statutory damages (the greater of $100 per day for the duration of the violations or $10,000), punitive damages, and equitable and declaratory relief.

Just days later, Michael Allen filed a virtually identical lawsuit in New Jersey federal court against Quicken Loans and NaviStone. Allen similarly visited the Quicken Loans website on several occasions but never procured financial services from the company. Despite this, he alleged, the defendants illegally intercepted and disclosed his electronic communications to create a detailed profile.

To read the complaint in Cohen v. Casper Sleep Inc., click here.

To read the complaint in Allen v. Quicken Loans Inc., click here.

Why it matters: The mattress company denied the claims, calling the putative class action a “blatant attempt to cash in on and extort a successful, high-growth start-up,” adding that its online advertising practices are standard in the industry. In a statement from NaviStone, the company said it hopes to speak to the plaintiff or his attorneys about their “concerns” and expressed hope that “once that conversation takes place, we can clear up any misunderstandings they may have regarding what NaviStone does—and does not.”


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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