Lawsuit Claims Home Depot Tracks Consumers’ Interactions with Website [DISMISSED]
by Erin Shaak
Last Updated on February 23, 2023
Smart v. The Home Depot, Inc.
Filed: March 12, 2021 ◆§ 5:21-cv-00153
A proposed class action claims The Home Depot, Inc. has violated a Florida privacy law by secretly intercepting customers’ interactions with its website.
February 23, 2023 – Home Depot “Session Replay” Software Lawsuit Dismissed
The lawsuit detailed on this page was voluntarily dismissed without prejudice by the plaintiff on June 9, 2021.
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The plaintiff’s two-page notice of voluntary dismissal can be found here, and United States District Judge James S. Moody’s one-page order of dismissal can be found here.
The plaintiff did not file an amended suit after Home Depot asserted in a 41-page motion to dismiss in April 2021 that the retailer’s use of session replay software does not violate the Florida Security of Communications Act (FSCA) given that the law does not cover general internet browsing on commercial websites.
“By choosing to interact with the public website of a commercial enterprise, Plaintiff impliedly consented to the widespread and well-known collection of user website experiences,” Home Depot argued, contending that it “clearly” disclosed to the plaintiff that it was collecting information from website visitors.
Home Depot also contended that mouse clicks and page views are not considered “contents” of a communication under the FSCA, and that the interception of such interactions is therefore permitted. Although the FSCA prohibits the interception of electronic communications “through the use of any electronic, mechanical, or other device,” Home Depot argued that session replay software is “merely one piece of software that runs on Home Depot’s website,” and not a separate “device.”
In June 2021, pending an answer on Home Depot’s motion to dismiss, the retailer’s request to halt the collection of evidence in the litigation was granted by the court. Case documents state that the court “preliminarily reviewed” Home Depot’s motion to dismiss and concluded that the retailer “established good cause” to stay the proceedings and “rais[ed] serious questions about the viability of Plaintiff’s FSCA claim.”
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A proposed class action claims The Home Depot, Inc. has violated a Florida privacy law by secretly intercepting customers’ interactions with its website.
Want to stay in the loop on class actions that matter to you? Sign up for ClassAction.org’s free weekly newsletter here.
According to the lawsuit, Home Depot uses tracking, recording or “session replay” software to collect information about how consumers interact with homedepot.com, including their mouse movements and clicks, information inputted into the site and pages and content viewed.
The case claims the retailer has overstepped the Florida Security of Communications Act by secretly recording consumers’ online communications “for its own financial gain.”
The plaintiff, a Marion County, Florida resident, says he has visited the defendant’s website approximately 15 times over the past year, most recently in January 2021. During each visit, Home Depot used tracking, recording and/or session replay software to “contemporaneously intercept” the plaintiff’s interactions with the site, the case alleges. Per the suit, the defendant also recorded the plaintiff’s location during each visit and the date and time that each occurred.
The plaintiff says he never consented to the interception of his electronic communications, which, according to the suit, invaded his privacy and exposed his private information.
Per the lawsuit, Home Depot has similarly intercepted the electronic communications of other individuals who visited its website in Florida.
The case looks to cover all Florida residents who visited HomeDepot.com and whose electronic communications were intercepted by the company, or on the company's behalf, without consent.
Initially filed in Marion County Circuit Court, the lawsuit has since been removed to Florida’s Middle District Court.
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