HDR obtains complete dismissal of nationwide class action in case of first impression under Electronic Communications Privacy Act

Client(s) HDR, Inc.

On behalf of HDR, Inc., Jones Day obtained a complete dismissal of a nationwide putative class action alleging claims under the Electronic Communications Privacy Act (ECPA). The suit alleged that HDR unlawfully monitored and collected communications within nominally-designate "private" Facebook groups by deploying various "social listening" tools.

In a case of first impression, two different district court judges adopted Jones Day's argument that the plaintiff's communications within the private Facebook groups were not protected under the ECPA because there was no agreement to maintain confidentiality or privacy among the members in the groups and because the plaintiff did not control or oversee access to the groups. Thus, because the Facebook groups lacked any indicia of intended privacy, both courts concluded that the communications within the groups were "readily accessible to the public" and thus beyond the reach of the statute.

Davis v. HDR Inc., No. CV-21-01903-PHX-ROS, 2023 WL 399796 (D. Ariz. Jan. 25, 2023)