On May 4, the U.S. District Court for the Central District of California partially dismissed the majority of a putative class action accusing several large retailers and a data analytics company (collectively, “defendants”) of illegally sharing their consumer transaction data, allowing only an invasion of privacy claim to proceed. In 2020, plaintiffs’ claimed the retail defendants shared consumer data without authorization or consent, including “all unique identification information contained on or within a consumer’s driver’s license, government-issued ID card, or passport, e.g., the consumer’s name, date of birth, race, sex, photograph, complete street address, and zip code,” with the data analytics company who used the information to create “risk scores” that purportedly calculated a consumer’s likelihood of retail fraud or other criminal activity. The court permanently dismissed the plaintiffs’ California Consumer Privacy Act claims, finding that the state law was not in effect when some of the plaintiffs allegedly attempted returns or exchanges and that the law does not contain an express retroactivity provision. Additionally, while plaintiffs argued that the retail defendants engaged in “a pattern or practice of data sharing,” the court concluded that plaintiffs failed “to allege that they are continuing to return or exchange merchandise at these retailers such that their data is disclosed” to the data analytics company. The court also dismissed the FCRA claims, ruling that the data analytics company’s risk report is not a “consumer report” subject to the FCRA because it does not “bear on Plaintiff’s eligibility for credit.” Plaintiffs’ claims for unjust enrichment and violations of California's Unfair Competition Law were also dismissed. However, the court concluded that the plaintiffs had plausibly alleged a reasonable expectation of privacy against the defendants, pointing to “the wide discrepancy between Plaintiffs’ alleged expectations for Retail Defendants’ use of their data and its actual alleged use.”

“The court finds dismissing this claim at the pleading stage particularly inappropriate where, as is the case here, defendants are the only party privy to the true extent of the intrusion on Plaintiffs’ privacy,” the court stated. “Reading the Complaint in a light most favorable to Plaintiffs, Plaintiffs sufficiently allege that [] defendants’ intrusion into Plaintiffs’ privacy was highly offensive.”