2 Western Mo. Wiretapping Cases Are Transferred to MDL in Eastern Pa.

Litigation Karen Caldwell. The two actions brought by plaintiff Arlie Tucker of St. Clair, Missouri, have common parties, identical claims and will present the same factual and legal issues, with Tucker alleging both companies’ use of session replay software constitutes “wiretapping” and violates state and federal law (see 2301180036). The JPML said that the actions involve common questions of fact and centralization in the Eastern District of Pennsylvania “will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.” Plaintiffs in the putative class actions allege defendants’ use of session replay code that tracks and records the activities and data of all visitors to their websites violates state wiretap statutes, the Federal Wiretap Act, or both, plus claims under state consumer protection or data privacy statutes and common-law claims for invasion of privacy, intrusion upon seclusion or unjust enrichment. Defendants oppose centralization, arguing the actions will involve individualized factual inquiries on how each plaintiff interacted with defendants’ websites. The transfer doesn’t require a complete identity “or even majority of common factual issues as a prerequisite to transfer,” said JPML. Defendants BPS Direct and Cabela’s oppose centralization, requesting the Western District of Missouri as the transferee district, said the order. Defendants argued for deferral until after defendants’ pending motions to dismiss have been ruled on “and the viability of plaintiffs’ claims has been determined,” the order said. “These arguments are not persuasive,” said JPML, which has “routinely” centralized actions asserting similar claims under different state statutes where they involve common questions of fact. Three of the cases are pending in Pennsylvania. Cases are Moore v. BPS Direct in the Southern District of California, Montecalvo v. Cabela’s in Massachusetts, Tucker v. BPS Direct in Western District of Missouri, VonBergen v. BPS Direct in the Eastern District of Pennsylvania, and Cornell v. BPS Direct and Calvert v. Cabela’s in Western District of Pennsylvania. The case was assigned to U.S. District Judge Mark Kearney.