On February 3, 2023, Judge Sykes of the Central District of California denied Goodyear’s motion to transfer venue and its motion to dismiss Plaintiff’s CIPA claim.  Byars v. Goodyear Tire & Rubber Co., No. 522CV01358SSSKKX, 2023 WL 1788553 (C.D. Cal. Feb. 3, 2023).

On the motion to transfer venue, the Court held:

Where the internet contract falls into the browsewrap agreement category, it can only be valid if the website owner can show that the website user had actual or constructive notice of the terms and conditions. Regan, No. 20-CV-02221-LHK, 2021 WL 706465, at *4.

Here, Goodyear’s “Terms of Use” plainly falls into the browsewrap agreement category. While the “Terms of Use” were available if Byars clicked the “Privacy Policy” hyperlink in the pop-up banner, that cannot be considered indicative of a clickwrap. [Dkt. 14-2 at 2]. The “Privacy Policy” hyperlink is included within a pop-up banner asking website visitors to “Accept Cookies,” and does not include an “I Agree” box or any other means for website users to accept the “Terms of Use.” [Dkt. 14-2 at 2]; compare with Wilson, 944 F.3d at 1220 (“Clickwrap agreements require users to affirmatively assent to the terms of use before they can access the website and its services.”). Moreover, that the “Terms of Use” hyperlink can be found at the bottom of the website [Dkt. 14 at 14], where the website user may or may not look, is consistent with the Ninth Circuit’s description of browsewrap agreements. See, e.g., Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, (9th Cir. 2014) (“Thus, ‘by visiting the website—something that the user has already done—the user agrees to the Terms of Use not listed on the site itself but available only by clicking a hyperlink.’ ”) (quoting Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 837 (S.D.N.Y. 2012)). Accordingly, the Court finds that Goodyear’s “Terms of Use” is a browsewrap agreement.

As Goodyear’s “Terms of Use” is a browsewrap agreement, it can only be enforceable against Byars if she had actual or constructive knowledge of the “Terms of Use.” Regan, No. 20-CV-02221-LHK, 2021 WL 706465, at *4 (“Thus, whether there is a valid agreement turns on whether the website puts a reasonably prudent user on inquiry notice of the terms of the contract, which in turn depends on the design and content of the website.” (internal quotations omitted)). Although, the “Terms of Use” can be found at the bottom of the webpage, Goodyear provides no argument suggesting Byars had any reason to scroll to the bottom of the webpage or otherwise saw the “Terms of Use.” See, e.g., Wilson, 944 F.3d at 1220–21 (“[C]ourts will not enforce agreements where the terms are buried at the bottom of the page or tucked away in obscure corners of the website, especially when such scrolling is not required to use the site.”) (internal quotations omitted)). Moreover, Byars affirmatively alleges in the FAC that she did not see the “Terms of Use.” [Dkt. 13 at 4, ¶18]. As such, Byars was not on constructive notice of the “Terms of Use,” and it cannot be enforced against Byars. Therefore, Goodyear’s forum selection clause does not apply.

Addressing Goodyear’s motion to dismiss the CIPA claim for failure to state a claim in regards to Goodyear’s chat-feature, the Court held:

Here, the Court finds that Byars has pled sufficient facts to state a § 631(a) claim. Byars contends that Goodyear, using a third-party service, “intercepts in real time” a website visitors’ chat conversation. [Dkt. 13 at 3, ¶11]. “[T]he [FAC’s] allegation that user’s messages were intercepted in transit is to be taken as true at this stage of the case.” Campbell, 77 F. Supp. 3d at 848. Moreover, there is no requirement that Byars specifically allege the exact contents of her communications with Goodyear. Rather, Byars merely needs to show that the contents were not record information, such as her name and address. Saleh, 562 F. Supp. 3d at 517–518]. Byars alleges that, using the chat conversation, website visitors share sensitive personal information. [Dkt. 13 at 4]. As such, the chat conversations plausibly contain more than mere record information. Because Byars has pled sufficient facts to show the contents of the communications and that the communications were intercepted, Byars has sufficiently stated a claim under § 631(a).

Byars accessed Goodyear’s website using her smartphone. [Dkt. 13 at 4, ¶16]. As smartphones are cellular phones with web capabilities, Byars’ smartphone falls within the cellular phone category. Moreover, courts have applied § 632.7 to internet-based communications and written communications. See, e.g., People v. Nakai, 183 Cal. App. 4th 499, 517 (Cal. Ct. App. 2010) (“[T]his court previously concluded that communication, for purposes of section 632, includes conduct, i.e., the definition is not limited to oral or written dialogues.” (internal quotations omitted)); see also Adler v. Community.com, Inc., No. 2:21-cv-02416-SB-JPR, 2021 WL 4805435, at * (C.D. Cal. Aug. 2, 2021) (applying § 632.7 to communications carried out via text message); Brown v. Google, 525 F. Supp. 3d 1049, 1073–74 (N.D. Cal. 2021) (concluding that internet-based communications can be included within the scope of § 632.7 where the plaintiff had a reasonable expectation of privacy to the communications). Because Byars’ contends that users of Goodyear’s website “share highly sensitive personal data” via Goodyear’s chat feature, Byars has sufficiently alleged that website users had a reasonable expectation of privacy and therefore the communications fall within the scope of § 632.7.

Byars accessed Goodyear’s website using her smartphone. [Dkt. 13 at 4, ¶16]. As smartphones are cellular phones with web capabilities, Byars’ smartphone falls within the cellular phone category. Moreover, courts have applied § 632.7 to internet-based communications and written communications. See, e.g., People v. Nakai, 183 Cal. App. 4th 499, 517 (Cal. Ct. App. 2010) (“[T]his court previously concluded that communication, for purposes of section 632, includes conduct, i.e., the definition is not limited to oral or written dialogues.” (internal quotations omitted)); see also Adler v. Community.com, Inc., No. 2:21-cv-02416-SB-JPR, 2021 WL 4805435, at * (C.D. Cal. Aug. 2, 2021) (applying § 632.7 to communications carried out via text message); Brown v. Google, 525 F. Supp. 3d 1049, 1073–74 (N.D. Cal. 2021) (concluding that internet-based communications can be included within the scope of § 632.7 where the plaintiff had a reasonable expectation of privacy to the communications). Because Byars’ contends that users of Goodyear’s website “share highly sensitive personal data” via Goodyear’s chat feature, Byars has sufficiently alleged that website users had a reasonable expectation of privacy and therefore the communications fall within the scope of § 632.7.