Class Action Claims Athleta Intercepted Florida Website Visitors’ Electronic Communications

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A proposed class action claims Athleta LLC has surreptitiously intercepted Florida residents’ interactions with its website, www.athleta.gap.com.

The 10-page case, which was recently removed from Miami-Dade County Circuit Court to Florida’s Southern District Court, alleges the retailer has used tracking, recording or “session replay” software to capture website visitors’ electronic communications, including mouse movements and clicks; information inputted into the site; and pages and content viewed.

The lawsuit claims Athleta’s conduct has violated the Florida Security of Communications Act (FSCA), a law that prohibits entities from collecting consumers’ electronic communications in the state without their consent to do so.

“Defendant intercepted the electronic communications at issue without the knowledge or prior consent of Plaintiff and the Class members,” the complaint claims. “Defendant did so for its own financial gain and in violation of Plaintiff’s and the Class members’ privacy rights under the FSCA. Such clandestine monitoring and recording of an individual’s electronic communications has long been held a violation of the FSCA.”

The plaintiff, a Miami-Dade County resident, says she visited Athleta’s website twice over the past year, most recently in November 2020. The lawsuit alleges the defendant, during the plaintiff’s visits, used “tracking, recording and/or ‘session replay’ software” to intercept the plaintiff’s interactions with the site while also recording her location and the dates and times of each visit.

According to the suit, the plaintiff never consented to the interception of her electronic communications and “did not have a reasonable opportunity” to discover such because Athleta never disclosed its practices or sought her consent.

The case claims the defendant has similarly intercepted the electronic communications of other Florida residents, who suffered invasion of their privacy and exposure of their private information.

The lawsuit, which echoes recent putative class action litigation filed against the likes of Neiman Marcus, Frontier Airlines, Home Depot, Old Navy, Norton and Banana Republic, looks to represent Florida residents who visited Athleta’s website and whose electronic communications were intercepted by the defendant or on its behalf without first providing consent to do so.

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