Judge Elaine Lu, in the Los Angeles County Superior Court denied class certification in a privacy lawsuit alleging unlawful recording and eavesdropping on website chat communications. The Court found that individual issues—particularly regarding user consent—predominate over common questions.
The plaintiff alleged that a publisher’s website, through its embedded third-party chat provider, intercepted and stored user chat communications without proper notice or consent, in violation of the California Invasion of Privacy Act (CIPA) Section 631(a). The proposed class included all California users who communicated via the website’s chat feature and whose communications were allegedly recorded without consent.
Ascertainability and Numerosity: No Dispute
The court found that the proposed class was ascertainable and sufficiently numerous, with over 2,000 unique California users identified through email and IP address records. These threshold requirements were not contested.
Commonality and Predominance: Consent as a Central Individual Issue
The court focused on whether common questions predominated over individual ones. Under CIPA, liability hinges on whether communications were recorded “without the consent of all parties.” The court found that:
- The website’s chat disclosures and privacy notices changed multiple times during the class period, affecting what information users received and when.
- Some users encountered explicit disclosures or consent banners, while others did not, depending on the date, time, and frequency of their website visits.
- Consent under CIPA can be implied, requiring a fact-specific inquiry into each user’s knowledge and experience, including prior interactions with similar chat features and the user’s relationship with the business.
The court concluded that determining whether each user consented to the recording would require individualized analysis, making class-wide adjudication unmanageable.
Based on when a putative class member visited the website (date and time of day), the putative class member’s interaction with Defendant’s website, and the number of times the class member previously visited the website or used the chat function, the putative class member would have varying levels of inquiry notice of Tawk.to recording the chats between the respective putative class member and Defendant. For example, a putative class member who visited Defendant’s website on November 20, 2024 during non-business hours would first be confronted with the opt in cookie banner informing the putative class member of the various tracking cookies used by Defendant and the types of information obtained. Assuming the putative class member proceeded straight to the chat box, the chat box itself would state “Please fill out the form below and we will get back to you as soon as possible. We are available Monday – Friday, 8 am – 5 pm Central [¶] This chat may be monitored or retained by HarperCollins and its business partners in accordance with our Privacy Notice.” (Gallini Decl. ¶ 30.) The opt-in cookie banner, the clear disclaimer that the chat may be recorded by Defendant and business partners, and the reference to the Privacy Policy which itself links to the California Privacy Policy and Cookie Notice – which all in some form identify that a third party may record the chat – could support a jury finding that the putative class member impliedly consented to Tawk.to recording the chat. Accordingly, an individual determination of each putative class member’s individual experience with Defendant’s website would be necessary to determine whether the class member impliedly consented to Tawk.to’s recording of the putative class member’s chat conversations with Defendant.
In addition, an individual inquiry into each of the putative class member’s unique experience – such as the length of the putative class member’s relationship with Defendant and the putative class member’s experience with chat boxes with other business – would be relevant.
Typicality and Adequacy: Unique Plaintiff Circumstances
The court found that the named plaintiff’s circumstances were atypical. The plaintiff was a “litigation tester” with extensive experience using and evaluating website chat features for potential privacy violations, which could affect her expectations of privacy and consent differently than ordinary users. This undermined her suitability as a class representative.
Superiority and Manageability: Individual Issues Outweigh Class Benefits
Given the need for individualized determinations of consent and user experience, the court held that a class action was not a superior method for resolving the claims. The court noted that cross-examining over 2,000 users on their unique experiences would be unmanageable and inefficient compared to individual lawsuits.
ses and sells books, author information, and events. Plaintiff alleges users of Defendant’s website can communicate with a customer service representative using an “o
Heiting v. Harpercollins Publishers LLC, No. 23STCV09965, 2025 WL 1780936 (Cal.Super. May 15, 2025).
