Melanie Conroy Quoted in Massachusetts Lawyers Weekly: Privacy-tracking Class Action vs. Tripadvisor Dismissed
Excerpted from Massachusetts Lawyers Weekly
A recent Massachusetts Superior Court decision reinforced the potential value of Massachusetts choice-of-law provisions in defending against privacy claims brought under California’s more expansive wiretapping law.
In D’Antonio v. Tripadvisor, LLC, Suffolk Superior Court Judge Christopher K. Barry-Smith ruled that a Massachusetts choice-of-law provision in Tripadvisor’s online terms of use barred a California resident’s claim under the California Invasion of Privacy Act (CIPA). The court also found that Tripadvisor’s clickwrap agreement provided reasonable notice of its terms and that the plaintiff provided his assent by proceeding with the registration process.
The plaintiff alleged that Tripadvisor violated CIPA by placing a tracking tool on his browser without his consent and collecting information that was transferred to third parties. After a California court enforced the agreement’s forum-selection clause and dismissed the case, the plaintiff refiled in Massachusetts. Tripadvisor moved to dismiss, arguing that Massachusetts law governed the dispute and that the plaintiff had consented to the collection and use of his information through the company’s terms of use and privacy and cookie statement.
The Massachusetts court agreed. Because the California court had already determined that the forum-selection provision was enforceable, Judge Barry-Smith concluded that the plaintiff was collaterally estopped from challenging the related choice-of-law provision. The court further determined that the registration process provided sufficient notice of the terms and that the plaintiff reasonably manifested assent under the standard established by the Massachusetts Supreme Judicial Court in Good v. Uber Technologies, Inc.
While acknowledging that Tripadvisor could have made its terms more conspicuous, the court concluded that the relevant question was whether a reasonably prudent user received reasonable notice of the terms and manifested assent—not whether the website reflected the “gold standard” of contract formation.
Pierce Atwood partner Melanie A. Conroy, who defends companies in privacy litigation, called D’Antonio, “a significant, well-reasoned decision reinforcing that Massachusetts courts will continue to scrutinize dubious website ‘wiretap’ claims.
“The decision demonstrates that a Massachusetts choice-of-law clause can be a powerful defensive weapon. Massachusetts companies without these protections will continue to face a heightened CIPA litigation risk from out-of-state litigants.”
Melanie also noted that the decision protects Massachusetts parties that have selected Massachusetts law from attempts to circumvent their contractual agreements through the strategic use of California’s privacy statute.
“The decision protects parties here that have selected Massachusetts law from attempted ‘end runs’ around their contractual agreements via the tactical deployment of a California statute that does not govern the transaction at hand.”
Click here for the compete article by Eric T. Berkman